SR-6-N (50)
~
RMM:bt ..
~lty 2ounC11 Me~g 3-23-82
sAIla Monlca, Ca11fornla
19~N
/0 tf ---OCt' ~u3
STAFF REPORT
MAR 2 3 1982
TO:
Mayor and Clty Counell
FRO~:
City Attorney
SUBJECT:
Amendment of rlunlClt)al Code Relatlng to Call1Dalgn
Contrlbutlons
On December 14, 1981, the United States Suoreme Court
flIed ltS oplnlon In Cltlzens Agalns,t ~ent Control v. Clty
of Berkeley.
(A copy of the decislon is attached.)
ThlS
op1nlon has a dlrect bearlng on the legallty of Munlclpal
Code Sectlon 11209 relatlng to restrictions on campalgn
contrlbutlons for ballot measure electlons.
There lS currently pendlng 1n Los Angeles Suoerlor Court
the case of Keist v. Clty of Santa Monlca. ThlS case challenges
MunlClpal Code Sectlon 11209 1nsofar as It restr1cts contrlbu-
tlons 1n connectlon wlth ballot measures.
In llght of the Unlted States SUDreme Court oplnlon, 1t
wl11 be necessary to amend the Munlc1ual Code to el1m1nate the
unconstltut1ona1 provlslon.
REcmmENDATI')N
It is respectfully recommended that the Clty Attorney be
dlrected to amend Mun1clpa1 Code Sectlon 11209 to eliminate the
unconstitutlona1 prov1slon.
PREPARED BY: Robert M. Myers, Clty Attorney
lo-N
r ' "'82
,,(\ :d u 1::.:1
"
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~OTE Wbl1re It IS 'easlci. a .~UabL.1!i 'Po,iC:'ot.' .....,'1 be N!'ea.<ed "" ,.
beIng done m (:-;;.n......ec=.i..::-n '..r~~j., ~~~ c~e ~~ -:''''e !"~L-e tre oP'mon IS lS3Ued
The s-)"llao:.l5 Cl]"".st~r:l~.e-S no Cart oj-o--e- G:J"ruon 01 ~,e- Court ~~t....ii..:i "::>een ::::-re--
pared b,,'" de F e~r:.Er" :::.? De-{:'Slors 1l:.r ~... e cQTo\"e......pr-ce OI the reader 5e-e
t tut2a Stal.e& 'l,- DetTOlf Lumon Co ~(J L.; S 321. J3i
SlJPRE:\TE COl1tT OF THE l:HTED STATES
Syllabus
CITIZE~S AGAINST RE~T COKTROL;COALITIO~
FOR FAIR HOCSIXG, ET AL. v CITY OF BERKELEY,
CA.LIFOR~IA. ET AI..
APPEAL FR011 THE SUPRE~IE COl:RT OF CALIFORXIA.
No 80-737. Argued October 14, 1981-Dec~ded December 14, 1981
A Berkeley, Cal, orolrance ;Jiaces a lmmatwn of $250 on contnoutlons to
comnuttees formed to support 'Jr oppo:;e ballot measures i;UDIIlltted to a
popular vote \Vnen appellant as.<::oeatlOn. whICh .,vas fonred to opDose
a ballot measure 'mpOSlI'f!" rent cO'ltrol m the CIty. accepted 50me con-
tnbutjons exceedmg the 5250 hnu:. aupeUee Berkeley Fall" Campalg!1
PractIces Corrumss:on ordered :he assoCiatiOn :0 pay the excess mto the
city treasury. The assoc:atlOn t'le~ brought WIt :n Cahfon;;a. Super:or
Court seelGng InJunctIve reuef ag:urst emorceme'1t of the ordlJ'a.nce, a.'1d
that coun subseaue'ltly granted smr.mary Jucisment :'01" :"'Je asSOCIation,
holdlIlg that the ordmance was :m al:.d 0'1 Its face as a \'1oianon oi the
Fmt Amendment. The Callfon'.1a Court of Appeal amr"'lled. bue the
CaUforma Supreme Cour:: reversed, !widmg that the orana.'1ce fur-
thered compelling governmental mtereSts III ensilr.!'g that specm!l.'1ter-
est groups could not 'COTr..lpt" the :mtJam-e process by soendl1lg lArge
amounts to suppor.. or oppose a ballot measure, wruch mterests out-
weighed dIe Frrst A.lnendrnent mterests l1lfn."lged upon
Held The restramt 'mposed by the ordl'1ance on the nght of assoclatlOn
and m turn on :ndl\,dual allQ coi:ect!ve ngnts of expressIOn plalT'.JY
controvenes both the r.ght of assOCIatIon and the speech g'.larantees of
the FlISt Amendment. Pn ~9.
(a) To place a l:1rnt on mdlYiduals \nshmg to band together to advance
thell" \'1ews on a ballot measure. whue plac'!1g r.o lmm on md1\'1duals act-
mg alone, 1S deariy a resu-am~ on the r:ght Df asSOCIatiOn Buckle! v
\laleo, 424 U S 1 (1976), he;d that contr:but:ons to candidates or the~
cOlIUruttees could be restnc~ed m order ~o pre..'ent COrr'.lp:lOn or lts aD-
pearance Here, there 15 no r::sk of COlT'.lptW'l because thiS case rela~es
to contnbuuons to comll1lctees favonng or opposmg ballot measures
I
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II CITIZE)I"S AGAINST RE~T CONTROL v BERKELEY
Syllabus
Alc;o, there IS no r:sk that the voters ....,n be m doubt as to thE' Ide>J.tlty of
thase whose money sunpons or opposes a gwe!l ballot measure, smce the
cantnbutors must make the11' Ident:tles icJ.O\\'TI under the diSclosure pro.
VlSlons of the ordmance Under the euctlng JUdIcIal rev.ew aporopn.
ate far mfnngemen~s of F:rst Amendment nghts. the $250 lurut lS uncon-
stltutlOnal. Pp 4--8
(b) The contnbu~:on lurut automatlcally affects e'qlendltllres. and hm-
Its on expembtures ooerate as a arrect restralnt on freedom of expres-
sIOn of groups and "nd1vlduals '.\'1shl.,g to express themseh'es through
grDUPS The~e IS no SIg:ll1:cant state or publlc :nterest m c:rr::allmg de-
bate and dIscussIOn of a ballot measure. and :ne l:J.tegr.ty of the pol1t~cai
system \'0111 be adequate!:.> protected ;f contr:.butors are ldenthied in a
pubL.c f.lmg reveaJ.J.ng tbe amounts contnbuted. Pp ~g
2:l Cal. 3d 819. 614 P 2d 742, reversed a...>J.d remal'ded
Bl,,"RGER. C J . de-uvered the Opl!llOn of the Court. m winch BRE~'XAN.
POWEll, REHXQUIS1'. and STEVE:-;S JJ . Jomed. REH~Qt:1.sT, J . tiled a
concurr'..ng opmlOn ;,L\RSHALL. J , filed an Opl!llOn conc::...rr:ng ill :he
Judgment BL-KK)Q"}I and O'CON'~OR. JJ . rued an oplmon concun-..ng L'1
the Judgment. WHITE. J , fUed a dlsse:J.tmg opl1llon
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NOTICE 'f'..;s o!)lmen I:l 3U-.e<:t '0 fOr"'""al rl""",on ~fon! ?ubllcatlon 'n the
pn!llnururv pnnt of ~he L 1l:e<i 3l..te~ R"po~'l Reade:; are ""eql:e9ted to
noufy tne ReOQrtt"r ai D~. ~..OT}!: 5u~re~.e LOi..lTt oi. nl~ i.J rote-:] States ~~. a..sh.
mgto'l D C ~0543 of <<''1 V l\~"'V":IDr]c31 or Q[t~r 'OM'lal eT""OM ~ order ~b.at
eolTectJor.! may be -naG!! :;.elUre :"e pn!ul"'u.'\ar'l' pl"'nt goes to Dress
SUPRE1!E COURT OF THE L1\1TED STATES
No. SG-i37
CITIZE~S AGAIKST RE~T CONTROL/COALITION
FOR FAIR HOCSING. ET AL.. APPELLAJ.'iTS t'
CITY OF BERKELEY, CALIFORXIA, ET AL.
ON APPEAL FRo:\l THE S'C"PREi\IE COeRT OF CALIFOR~L\
[December 14. 1981]
CHIEF JeSTICE Bl;RGER delivered the oplIllon of the
Court.
The issue on appeal is whether a limitatlon of $250 on con-
tnbutlOns to COITIImttees formed to support or oppose ballot
measures VIolates the FITst Amendment.
I
The voters of Berkeley, Caillorrua adopted the ElectIOn
Reform Act of 197-1. Ord. ~o 4iOO-~.S, by irutlanve. The
campaign ordmance so enacted placed lmuts on expenditures
and contnbutlons m campmgTls mvolvmg both candidates ar.d
ballot measures. : SectlDn 602 of the ordmance provldes;
"No person shall make, and no campaign treasurer shall
solicit or accept, any contributlOn whIch ',1,'111 cause the
total amount eontnbuted by such person w1th respect to
a smgle electIOn in support of or In Opposltlon to a mea-
sure to exceed two hundred and fifty dollars ($250).":
I SectIOn 217 of the ordmance de'lnes "measure" as "any CIty Charter
ame'ldment, ordInance or other proposlt!ons subrrutted to a popular vOte at
an electlOn. whether by :mnatl've, :efere'1dum or recall procedure or other-
'vIse. or cn-culated for the purposes of subrrusslOn to a popular vote at any
electIOn, whether or not the orooosman auai1f,es for :he Dallar .,
f It was not clear III 1977 whed"er 9 602 would be eniorced The Drolu.
bltlOn on contr-butlOns to ballot measure campaIgn comrruttees by corpora-
e
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8O-737-OPI~ION
2 CITIZE:-1S AGAl~ST RE:-IT COXTROL 1]. BERKELEY
Appellant CItizens Agamst Rent Control IS an unincorpo-
rated aSsocIatlOn formed to oppose a ballot measure at Issue
in the Apnl 19, 1977 electlon. The ballot measure would
have imposed rent control on many of the Berkele:y-'s rental
units. To make its Vlews on the ballot measure mo\vn. CItI-
zens Against Rent Control ralsed more than S108.000 from
approximately 1,300 contnbutors. It accepted rune con-
tributIOns over the $250 lmut. Those rune contnbutIOns to-
taled 520,850. or 518,600 more than Ii none of the contnbu-
tions exceeded $250. Pursuant to S 604 or the ordmance.3
appellee Berkeley F3Jr Campaign PractIces ComrrusslOn. 20
days before the electlon. ordered appellant Cltlzens Agamst
Rent Control to pay $18,600 mto the City treasury.
Two weeks berore the electlon. CitIzens AgaL'1St Rent Con-
trol sought and obtamed a temporary restrammg orde!'
prolubmng enforcement or ss 602 and 604. The ballot meas-
ure relatm.g to rent control \vas defeated. The Supe!1.or
Court subsequently granted CItIzens Agamst Rent Control's
motIOn for summary Judgment. dedanng that ~ 502 was
invalid on Its fa.ce becam::e It VIolated the FJTSt A,iJ1endment of
the Umted 8~ates Cunstltutlon and Art. 1. S 2, ofthe Cal1for-
tlOns and labor umons, ~ 605. was ffival1dated m PaC'1..ric Gas & Electnc v
Ctty oj Berkeley, 60 CaL App 3d 123, 131 Cal Rptr J50 (1976) Follow-
ing Buckley v Valeo..t24 L S 1 (1976), the CIty repealed a nwnber of
sections of the ordmance. such as g 513. wruch illruted exnencttures ill sup-
port of or ill Opposltlon to a baliot measure to the lesser of $7.500 or 10
cents tImes the number of regJstered voters WheT) reV1S11"g the anh-
nance to comply "'lIth these changes. the Clty nusta.i{e.uy labeled 9 602. ~he
sectlOn challenged In thIS case, ....'1th the notat~on 'cio r.ot enforce," out :t
corrected tms error approXilllately three months before the election in-
volved in thIS case
) Sectlon 604 states. "If any person :s found guilty of vlOiatmg the terms
of thlS chapter, each campalgn treasurer who received pan or all of ~he
contributlOn or cont1'1b'ltlOns wnich consntute the "iolation shaIl Day
promptly. from a..allaole cammugn funds. If an;;. the a.rrount received from
such persons m excess of ~he ar.1oum pernutted by thiS chapter to the CIty
Auditor for depOSit In the Ge'leral fund of the City"
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80- i37-OPINIO)l
CITIZENS AGAI~ST REXT CONTROL v. BERKELEY 3
nia Constitution. A panel of the Califorma Court of Appeal
unanimously aff.nned that conclusIOn.
The Cal1forrua Supreme Court. divlding 4--3, reversed.
Cttizens Agamst Rent Control v. Ctty of Berkeley, 27 Cal. 3d
819, 614 P. 2d 742. 167 Cal. Rptr. 84 (1980). Citmg Bu.ckley
v. Valeo, 424 U. S. 1 (1976), the maJonty announced that It
would strictly scrunruze ~ 602 It concluded that the sectlOn
furthered compelling governmental mterests because it en-
sured that specIal mterest groups could not "corrupt" the Ull-
tIative process by spendIng large amounts to support or op-
pose a ballot measure. Such corruptlOn, the court found.
could produce apathetic voters: these governmental mterests
were held to outlvelgh the First Amendment mterests m-
frmged upon. Finally, It concluded that 9602 accomplished
its goal by the least restnctrve means avaIlable The CalI-
fornia Supreme Court dId not consIder the cUsclosure reqUIre-
ments of the ordinance a sufficIent prophyla.Xls to dISpel per-
ceptIOns of corruptIon. ~
We noted probable ju..."isdictlon. H_ - U. S. (1981), and
we reverse.
II
The appellee concedes that the challenged ordinance has an
impact on First Amendment lights: the partIes disagree only
as to the extent of the impact. Long ago this Court admon-
ished that ,vlth respect to the FITst Amendment:
"[T]he power to regulate must be so exercised as not. in
attammg a penmssIble end, unduly to mrnnge the pro-
tected freedom."
Cantwell v. Connectzcut, 310 U. S. 296, 304 (1940).
This was but another ,,,-ay of saying that regulatIOn of Frrst
'To assure pubhc awareness of the sources of support for comnnttees.
~ 112 of the ordmance reqwres the pubilcat~on of a l1St of ail comnoutors of
more than $50 m local neW'sDapers t\\1Ce durmg the last se\ en days of a
campaIgn
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8O-737-OPI~ION
4 CITIZE~S AGAl~ST RE~T CO~TROL v BERKELEY
Amendment rights IS always subject to exactmg judicIal
reVlew.
We beg'.n by recalling that the practIce of persons sharing
common views bandIr..g together to acbeve a common end IS
deeply embedded in the .J.J1lencan polmcal process. The
18th Century Conumttees of Correspondence and the pam-
phleteers \vere early examples of tills phenomena and the
Federalist Papers were perhaps tbe most slgp..1ilcant and last-
ing example. The tradItIOn of volunteer conuruttees for col-
lectIve actlOn has mamfested 1tself m mynad commumty and
public actl\'1tIes; III the politIcal process It can foc~s on a can-
didate or on a bailot measure. Its yalue 15 that by collectlVe
effort indl\'1duals can mali.e theIr Vlews known, when, mci1nd-
ually, their- VOIces would be famt or lost.
The Court has long vle,ved the First Amendment as pro-
tectmg a market place for the clash or dL.'1erent news and
conflIcting Ideas. That concept has been stated and restated
almost SInce the Consntutlon was dralted The voters of the
City of Berkeley adopted the challenged ordlr.ance wmch
places restnctlons on that market place. It 15 lITelevant that
t""e voters rather than a leg1.s1anve body enacted ~ 602, be-
cause the voters may no more 'l,'loIate the COnStIt'ltlOn bj en-
acting a ballot measure than a legIslative body may do so by
enacting legJ.slanon.
III
A
The Court has acknowledged the Importance of freedom or
associatIOn In guaranteemg the nght of people to make their
VOIces heard on pubbc Issues:
uEffechve advocacy of both public and private pornts of
view I partIcularly controversIal or.ea. is undemably en-
hanced by group aSSOCiatIon. as tr.1S Court has more than
once recognized by remarkmg upon the close nexus be-
tween the freedoms of speech and assembly."
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8O-737-OPI:-:I0N
CITIZE~S AGAIXST RENT CONTROL v BERKELEY 5
NAACP v. Alabama, 357 U S. 449, 460 (1958).
More recently the Court stated, "The First Amendment pro.
tects pohtical assoClation as well as politIcal expresslOn."
Buckley v Valeo, 424 t; S. 1, 15 (1976).
Buckley also made clear that contnbutors cannot be pro-
tected from the pOSSIbllIty that others wlil make larger
contnbutlOns:
U[T]he concept that government may restnct the speech
of some elements of our SOCIety m order to enhance the
relatlve VOIce of others IS wholly foreIgn to the FIrst
Amendment, which \vas desIgned 'to secure athe ''{Idest
possIble msserrunanon of lnformatlOn from diverse and
antagorustic sources." and ''to assure unfen:ered 111ter-
change of ideas for the bnng'.ng about of potinc'll and 50-
cial changes desIred by the people.''' Nelt' York Tunes
Co. v. Sullwan. supra. at 266. 269, quonng ASSoC1ated
Press v. Umted States, 326 U S. 1. 20 (1945). and Roth
v. Untied States, 354 l: S. at 484. The First Amend-
ment's protectIOn agalnst governmental abndgmem of
free expressIOn canr.ot prop€r~y be made to depend on a
person's financIal abJl1ty to engage in public dlSCDSSlOTI.
9f. Easter R Con!. v. Noerr Jlotors. 365 U S. 127, 139
(1961). ,.
424 U. S., at 48-49.
The Court went on to note that the freedom of associatIOn .lis
diluted if it does not mclude the nght to pool money through
contributions 1 for funds are often essennal IT 'advocacy' lS to
be truly or opnmally 'effectIve "1 Id., at 65-66.; Under
$The value of the r..ght to aSSOCiate ]s l]us~rared by the cost of readllng
the publIc. Appellants represent that the cost of a smg:e malllng to each
of the 71.088 persons regtstered to ,ate ::1 Berkeley .n 19ii was $12.500
Jomt AppendLx, at.32. The cost of a bll page adYert~serr.ent In a Berkeley
area newspaper, the {pdependent Gazette, \\as $1,620 :\ote. 79 )'i:ch L
Rev. 1421, 1433, n 54 (1981)
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80-737-0PINION
6 CITIZE~S AGAIXST RE~l CONTROL '!J BERKELEY
the Berkeley ordmance an affluent perwn can. acting alone,
spend WIthout limIt to advocate mdi\'ldual "'1ews on a ballot
measure. It is only when contnbutlOns are made ill concert
with one or more others In the exerCIse of the nght of assocIa-
tion that they are restnc:ed by ~ 602
There are, of course, some aC':IVlnes, legal 1f engaged in by
one, yet illegal if performed 1ll concert WIth others, but polm-
cal expreSSIOn 13 not one of them. To place a spartan linut--
or indeed any limIt-on md1\''1duals \vishmg to band togetl:er
to advance theIr views on a ballot measure, while placmg
none on mdIV1duals actmg alone. IS clearly a restramt on the
nght of aSSOCIatIon. Sectlon 602 does not seek to mute the
voice of one mdinGual and It cannot be allowed to hobble the
collectIve expreSSIons of a group.
Buckley identlr..ed a smgle narrow exceptlOn to the rule
that lmuts on pOlltlcal aCtIvity were contrar:,; to the First
Amendment. The exceptIon relates to the perception of
undue mfluence of large contnbutors to a candtdate'
"To the extem that large comnbutlons are gwen to se-
cure a polmcal qU?,d pro quo from C'JITent and potential
office holders, the mtegnty or' our system or representa-
tive democracy IS undenmned.
". .. Congress could legmmately conclude that the
avoidance of the appearance of Improper lTh'1uence 'IS also
critlcal . . . if con.fidence ill the system of representatlve
Government is not to be eroded to a dlsasterous extent.'
[CSC v. Letter Carrters], 413 U. S., at 565."
424 U. 8'1 at 26-27.
Buckley thus sustaIned lumts on contnbutions to candidates
and theu- conumttees.
Federal courts of appeals have recognized that Buckley
does not support linutatlOns on contnbutlons to comnuttees
formed to favor or oppose ballot measures. In C & C Ply-
wood Corp v. Hanson, 583 F. 2d 421 (CA9 1978), the Ninth
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8O-737-OPli'l'ION
CITIZENS AGAI~ST RE}..'T CONTROL v BERKELEY 7
Clrcwt struck dov,m a ~Iontana statute prolu.b1ting corporate
contrIbutIOns supportmg or opposmg ballottmeasures. In so
doing the court noted: .
"The state interest in preventing corruptIOn of officials.
wluch provIded the basIs for the Supreme Court's finding
in Buckley that restrIctlons could perrrussIbly be placed
on contnoutlons. 15 not at issue here. t!
Id., at 425.
Sunilarly, the Fifth CrrcUlt mterpreted Buckley to hold that
"The sole govern.."Ilental mterest that the Supreme Court
recogrnzed as a JusnncatlOn for restnctmg contnbutIons
was the pre~;entlOn of qllld pro quo corruptIon between a
contnbutor and a candIdate."
Let's Help Flonda v. .11cCmr:..j, 621 F. 2d 195, 199 (CA.5
1980)
In Ftrst NatIOnal Ba.nk v. Bellottt, 435 L S. i65 (1978).
- we held that a state could r.Ot proh:olt corporatIOns any more
than it could preclude mdinduals from makmg comnbutIons
or expenditures <J.uvocanng ne\V5 01 ballot measures. The
Bellott7. Court relied on Buckley ~o stn.1o.e 00\\"11 state leg1~la-
tive linuts on ad,'ocacy relatmg to ballot measures:
'.Referenda are held on lssues. not candldates for publIc
office. The nsk of corruptlOn perceIved m cases mvolv-
mg candIdate electlons [CItatIOnS onutted] slmply IS not
present m a popular vote on a publIc Issue. To be sure.
corporate advertIsmg may mnuence the outcome or the
vote; this '....ould be Its purpose. But the fact that advo-
cacy may persuade the electOrate IS hardly a reason to
suppress it: The ConstItution ;protects expreSSIOn wlnch
is eloquent no less than that whIch IS unconvmcing.'
Kingsley Inf[ PIctures Corp v. Regents, 360 U. S., at
689."
435 U. S., at 790 (footnote oII'..ltted).
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80- 737-OPI~ 10 N
8 CITIZENS AGAIXST REXT COXTROL v. BERKELEY
N ot'Withstandmg Buckley and Bellottl. the City of Berke-
ley argues that ~ 602 13 necessary as a prophylactIc measure
to make kIlO'Wll the identlty of supporters and opponents of
ballot measures. It is true that when mdIVlduals or corpora-
tions speak through comnuttees, they often adopt seductive
names that may tend to conceal the true IdentIty of the
source. Here there lS no nsk that the Berkeley voters 'NIll
be in doubt as to the identlty of th05e \vhose money supports
or opposes a gwen ballot measure S1.r..ce contnbmors must
make theIr IdentItIes known under S 112 of the ordma..lJ.ce.
whIch reqUITes publIcatIon of lists or contnbutors ill advance
of the votIng. See n. 4, supra.
ContnbutlOns by mdn'lduals to support concerted action by
a comnuttee advocatmg a pasmon on a ballot measure IS be-
yond questIon a very slgI1h'1Cant form or pOlltIcal expreSSlOn.
As we have noted. regulanon or FIrst ~.\.mendment nghts IS
always subject to exactmg JudICIal scrmmy. A.nte. p. 3.
The pubhc mterest allegedly ad\-anced oy 9 60~-ldentL.;Yl11g
the sources or support for and Opposltlon to ballot mea-
sures IS msubsta.'1tlal because voters may ldenn.fy those
...ources under the prO\iSlOnS of S 112. In additlOr. the
record m this case does not support the Callior!lla Supreme
Court's conclUSIOn that ~ 602 IS needed to preserve voters'
conl1dence in the the ballot measure process. Cj. Bellottl.
supra, 435 U. S.. at 789-i90. It IS clear, therefore, that
S 602 does not advance a leglnmare govern...-rnental mterest
sigmficant enough to JustIfy Its infnngement on First
Amendment nghts.5
B
Apart from the IDlpennisslble restramt on freedom of asso-
ciation, but Vlrtually Inseparable from It ill tills context, 3602
'The dISsent argues a case not beiore the Court Its references to
Bellotti relate to corporate comr.bunons. ~ 602 lun:ts contnoutlOns by "ver-
301l3" The dl,Ssent's references to Buckley relate to contrbui:lons to can-
d~dates and their comnuttees. ~!Ie case before us relates to contnbutlons to
colIUlllttees fa"'onng or opposmg ballo~ measures
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8O-737-OPIXIO~
cITIZE~S AGAI~ST RENT CONTROL v. BERKELEY 9
imposes a sIgmficant restramt on the freedom of e:...-preSSlOn
of groups and those mdl\'1duals who wish to express theIr
views through comnuttees. As \\'e have noted, an mdindual
may make expendItures \vithout lUnIt under S 602 on a ballot
measure but may not contnbute beyond the $250 limIt when
Joining ,nth others to advocate common 'views The con-
tributlOn linnt thus automatIcally affects expenciItures and
linuts on expenditures operate as a direct restramt on free-
dom of expreSSIOn of a group or comrmttee desmng to engage
in political dIalogue concerning a ballot measure.
\Vhatever may be the state mterest or degree of that inter-
est in regulatmg and l1mmng cor...tnbutlOns to or expenru-
tures of a candzdare or a candIdate's comnuttees there IS no
sigruiicant state or PUbllC mterest ill curtaIllng debate and
discuSSIOn of a ballot measure. Placmg llnuts on contnbu-
tions wrnch ill turn lumt expendItures plaInly llTIparrs free-
dom of expreSSlOn The mtegnty of the polmcal system \Vl11
be adequately protected If contnbutors are Identified ill a
public filing revealmg the amounts contnbuted. 1f it is
thought 'Wise, leglslatlon can outlaw anonymous con tn-
butlons.
IV
A fumt on contnbutions In this settmg need not be ana-
lyzed excluslVely ill terws of the nght of aSSOCIatlon or the
nght of expreSSIOn. The t\VO nghts overlap and biend: to
limit the nght of aSSOCIatlon places an Imperrmsslole restramt
on the nght of expressIOn. The restramt Imposed by the
Berkeley Ordinance on TIghts of aSSocIatIOn and m t'Jl'Il on in-
dividual and collective nghts of expreSSIOn plamiy contra-
venes both the nght of associatIon and the speech guarantees
of the First Amendment Accordmgly, the Judgment of the
California Supreme Court IS reversed and the case is re-
manded for proceedrr.gs not mconsIstent vath tills opmIOn.
Reversed and remanded.
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SIJPRE:\>IE COl1{T OF THE l""NITED STATES
No 80-737
CITIZENS AGAIXST RENT CONTROL/COALITIO!V
FOR FAIR HOUSING, ET AL., APPELLA....".JTS 11.
CITY OF BERKELEY, CALIFORNIA, ET AI..
ON APPEAL FROr.{ THE SLPRE~1E COl."RT OF CALIFOR~IA
[December 14. 1981]
JUSTICE REHNQL1ST, concurring
I agree that the Judgment of the Supreme Court of Cahfor-
nia must be reversed ill tills case. Unlike the factual SItua-
tion in FtTst Natwnal Bank v. Bellottt. 435 U. S. 765 (1978),
the Berkeley ordmance was not aJ1l1ed only at corporatlonS1
but sought to impose an across-the-board hrr.ltation on the
SIZe of contnbut!ons to comnuttees formed to support or op-
pose ballot measure referenda. \VIuIe one of the petItIOners
here, Mason-McDuffie, _
indication that the Berkeley ordmance \vas 2.lP.led at corpora-
tions as opposed to mdIvlciuals Therefore, my dissentmg -
opinion in F'Tst .Vaiwnal Ban.:C v. BeliottI. supra. whIch r-e-
hed on the corporate slueld wruch the state had granted to
corporations as a fonn of qUid pro quo for the lmutanon does
not corne into play. Buckley v. Va/eo, 424 U S 1 (1976),
holds that in thIS sItuatlOn there IS no state mterest wluch
could justIfy a lmutatIon on the exerCIse of nghts guaranteed
under the FlI'St and Fourteenth Amendments to the L"Illted
States ConstItutIOn.
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SUPRE:\IE COURT OF THE r~aTED STATES
No 80-737
CITIZENS AGAI~ST RE~T CO~TROL'COALITION
FOR FAIR HOCSI~G. ET AL.. A.PPELLA~TS t'
CITY OF BERKELEY, CALIFORi'{IA, ET AI..
ON APPEAL FROM THE S1.;PRE~lE COl.:RT OF CAUFOR~L-\
[December 14, 1981]
JUSTICE :\L\RSHALL. concumng ill the judgment.
The Court today holds that a local ordinance restnc.tmg the
amount of money that an individual can contnbute to a com-
mittee organized to support or oppose a ballot measure VlO-
lates the ngnt to freedom of speech and assocIanon guaran-
teed by the First .-unendment. In reachmg tIns conclusIOn.
however, the Court 1aJ,;s to mdica:e whether or not It atta-
ches any constItutional slgruiicance to the fact that the
Berkeley ordmance see~ to lirmt contnblltwns as opposed to
direct expendItures A.s J1.:'STICE 'VI-UTE correctly notes ill
dissent, beg'l..T'.Ilmg 'W'1tn our declSlon l!} Buckley v. Valeo. 42-1
U. S. 1 (1976), tills Cour:; has aln'ays dra,vn a dis:mctlOn be-
t",,'een restrIctIOns on contributlOns, and direct lnrutatlOns on
the amount an mdIVIdual can expend for Ius own speech. As
we noted last term in Califonua Jledtcal Assn v. Federal
Electwn CommlsslOn. - U S. -, - (1980) (}L-\R-
SHALL. J., joined by BRE~NA~. \VHITE. and STE\'"EXS. JJ.),
the "speech by proxy" that is aclueved through contl1.butions
to a pol1tical campaIgn comnuttee "is not the sort of pol1tIcal
advocacy that tills Court In Buckley found entItled to full
First Amendment protection."
Because the Court's oplffion is SIlent on the standard of re-
view it is applymg to this contnbutions llInitatlOn, I must as-
sume that the Court IS followmg our consistent posltlOn that
this type of govemmental actlOn is subjected to less ngorous
scrutmv than a direct restrIction on expendItures. The Cztv
~ ~ ~
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80- i37-CONCl"R
2 CITIZE~S AGAl;\,ST RE::-',. CONTROL v. BERKELEY
of Berkeley seeks to Justli.7 Its ordInance on the ground that
it is necessary to maimam voter cOrL~dence in government.
If I found that the record before the CaillofTl.1a Supreme
Court disclosed su...<1lclent eV10ence to Jusnfy the condu51On
that large contrIbutIons to bailot measure comrrl1ttees under-
mined the "confidence oi the cltlzenry in government,"
F!rst NatIOna.1 Bank v. Bellott!. 435 U. S. 765, 790 (1978). I
would Jom JUSTICS WHITE ill dIssent on the ground that the
State had demonstrated a suffiCIent governmental mterest to
sU&tam the mdITect mfrmgmem on First Amendment
interets resultmg from the operatlon of the Berkeley ordi-
nance. Like JCST!CES BL.\.C1UIL'N and O'COKXOR, however,
I find no such e\identlary support ill tbs record. I there~
fore concur in the judgment.
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SVPRE)IE COL1tT OF THE Ui\lTED ST~-ITES
No. 8O-i3i
CITIZE~S AGAI:\ST RENT CONTROL/COALITION
FOR FAIR HOLSI~G. ET AL., APPELLA~TS v.
CITY OF BERKELEY, CALIFORNIA, ET AL.
ON APPE.-\.L FROM THE Sl:PRE;.-!E COURT OF CAUFORSL-\
[December 14, 1981]
JeSTICE BU.cIC,n;i\ and J1:STICE O'CO~};OR, concurnng
m the judgment.
The contnbutlOn lmutatlOns at lssue here encroach directly
on politIcal expressIOn ami aSSOcIatIOn. Thus, Berkeley's or-
dinance cannot surVIve constItutlonal challenge unless It
v.-ithstands "exactmg scrutmy." Ftrst Natwnal Bank of
Boston v. Bellott1, 435 C S. 765, 786 (1978). To meet tills
rigorous standard of renew. Be!"keley must demonstrate
that Its ordinance advances a suffiCIently important govern-
mental mterest and employs means "closely dra\vn to a\'OId
unnecessal"Y abndgment" of FITst Amendment freedoms.
IbId. (quotmg Bl1.ckle!J v. Faleo, 424 U. S. 1. 25 (1976)).
We \l;ould hold that Berkeley has neither demonstrated a
genume threoat to hS Important goyern..TI1emal mterests nor
employed means closely Cra\\ll to aVOId unIlecessary abndg-
rnent of protected actlnty In Buckley, tills Court upheld
linutations on contnbutlOns to C2...'1dIdates as necessar; to pre-
vent contnbutors from corrupting the representatIves to
whom the people have delegated polItIcal decIsIOns But
curtailment of speech and aSSOCIanon ill a ballot measure
campaign, where the people themselves render the ulnmate
political decIsIOn, cannot be Justlried on trus baSIS.
N or has Berkeley proved a genume threat to Its mterest ill
mamtaining voter conf,dence ill government. \Ve would not
deny the legItImacy of that mter-est Indeed. m Bellottt, thIS
Court explIcItly recogIUZed that H[p]reservmg the mtegnty of
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8O-737-CO~Cr.;R
2 CITIZENS AG.AI~ST RE~T CONTROL v BERKELEY
the electoral process, prE'ventmg corruption, . . . 'sustam-
[ing] the active, aiert responslbIllty of the individual citIZen in
a democracy for the W1se conduct of government,'" and
"[p]reservatlOn of the mdl\idual cItlZen's cOIL'1dence m gov-
ernment" are "mterests of the hIghest Importance" ill ballot
measure electlons 435 U S., at 788-789, Cltmg Umted
States v. Automolnle lVorkers, 352 U. S. 567. 575 (1957).
\Ve did not find those interests threatened m Bellottz, how-
ever, in part because the State fa1led to show "by record or
legislative findmgs that corporate advocacy threatened imlTIl-
nently to undernune democratIc processes" or "the con...,-
dence of the citlZenry m government. ,. I d, at 789-790.
The citys eV1dentIarf support ill tlus case is equally sparse.
Finally, Berkeley does not JustIfy Its contI1butlon lim.n as
necessary to encourage d1sclosure. We cannot accept the
Court's conc1uslOn that that Interest. IS "msubstantlal." glVen
the Corn.es conceSSIOn that "",~'hen mcilv1duals or corporatiOns
speak through comnuttees. they oden adopt seductlve na....'!1es
that may tend to conceal the true identIty of the source."
Ante, at 7-8 Yet Berkeley need not unpose a S250 celling
on contributlOns to encourage discloSUl'e so long as It vlgor-
ously enforces Its already str......'1ger..t dIsclosure laws. Ante,
n 3, n. 4.
We need say no more in order to reverse. Accordmgly,
we concur in the Judgment.
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...
SCPREJIE COl'RT OF THE ~lTED STATES
No 80-737
CITIZE~S AGAI~ST RE~T CO:.ITROL/COALITIOr-;
FOR FAIR HOUSING, ET AL., APPELLAi\-TS v. CITY
OF BERKELEY, CALIFORKIA. ET AI..
APPEAL FROM THE SUPRDIE COt'RT OF CALIFORNIA
[December 14, 1981]
JUSTICE WHITE, dissentir.g
In Buckley v. Valeo, 434 C. S. 1 (1976). the Court upheld
restrictIOns on contnbutlons but struck down ll.'T'uts on ex-
penditures in campaIgns for federal office that Congress, the
body most expert m the matter, thought equally essentlal to
protect the mtegnty of the eleC:lOn process, Tl,\-o years
later, a bare maJonty of the Court. substItutmg Its Judgment
for that of the }Iassachusetts legIslature. mval1dated i.rtat
state's prorubItlOn on corpora.te spendmg 1J! referendum elec-
hons. Ftrst Xalwrwl Bank v. BeUo'ti, 4J5 G S. 765 (1978).
Dlsagreemg ',vlth the Court's assumptlOn that those regula-
tions mlubited the free mterplay of polmcal advocacy, I
would have upheld the expendIture lnrutatlOns at Issue in
Buckley and the restnctlons contested ill Bellotti.
This case poses a less encompassmg regulatlOn on cam-
paign acnnty, one t3.l1ored to the odd measurements of
Buckley and Bellott2. PrecJsely because It reflects these de-
cisions, the ordmance regulates contnbutlOns but not ex-
penditUl'"es and does not proh1bIt corporate spendmg.: It is
l.<\s ongmally passed by the voters. the Berkeley ordmance re5tr:cted
expendItures as weil as com:r:.bunons to ballot measure CaInDalgTIS Fol-
IO\\-'lng Buckley v v'aleo, 4:;4 L" S 1 i19i6l. a'10 :l-te Cai:.iorua SUDreme
Coun';; lnvaildat1o'1 of state\l,~de expencmrre hrnlta::0'15 In baUat '11easure
campalgns. Cltl::ens for JODS J: Energy \. Falr Poiltzcal Practw:s C07ll-
mtSS1on, 16 Cal 3d 671. 547 P 2d 1356 (1976). the C:ty of Berkeley reo
pealed the e'q)enci:ture llffiltatlOns In add1tlOTI. the measure's ongJ.'1al
e
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8O-737-DISSEXT
2 CITIZE~S AGAINST REXT CO~;TROL v BERKELEY
for that very reason perhaps that the effectiveness of the or-
dinance ill preservmg the mtegnty of the referendum process
is debatable. Even so, the result here lllustrates that the
Buckley frame\vork IS most problematlcal and strengthens
my belief that there IS a proper role for carefully drafted liIru-
tations on expendItures
Even under Buckley. however, the Berkeley ordmance
represents such a negligIble mtrusIOn on expreSSIOn and asso-
ciation that the measure should be upheld Tne ordmance
certamly aoes not go beyond what I understand the FIrst
Amendment to perrmt. For both these reasons, I dissent.
I
The Berkeley orchnance does not control the quantIty or
content of speech. Unl1ke the stante ill BeUottl. lt does not
completely prohibIt comnoutlons and expendItures. Any
person or company may contnbute up to S250. If greater
spending IS deSIred. It must be made as an expenditure, and
expenditures are not lirmted or othermse controlled. IndI-
Viduals also remai.'1 completely umettered m their a.b1l1ty to
join interested groups or other.v"1se drredly partlcIpate 1..1 the
campmgn.
The Court l"eaches the conclUSIOn that the ordmance is un-
constItutIOnal only by gIVll1g Buckley the most extreme read-
ing and by essentIally glvmg the Berkeley ordinance no read-
ing at all It holds that the contnbutIons Involved here are
Ubeyond questIOn a very sIgniiicant form oi' polmcal expres-
sion." Ante, at . Yet in Buckley, the Court found that
contributIOn hnutatIons "entaIl orJy a margmal restnctlOn
upon the contnbutor's abIlity to engage m free communica-
tion." 424 U. S., at 2~21. As WIth comnbutlOns to candI-
dates, ballot measure contnbutlOns "involve speech by some-
prohlbltlOn on corporate and labor umon contr..butlOns to baUot measure
carnpa1gns 't\-as !nvabd..ted Paqnc Gas &- Electnc Co y Cliy of Berke-
ley, 60 Cal. App 3d 123, 131 Cal Rptr 350 (1976).
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8O-i37-DISSE~T
CITIZEXS AGAIXST REXT CONTROL 1} BERKELEY 3
one other than the comnbutor" and a lurutatIon on such
donatlOns "does not III any way mfnnge the contrIbutor's
freedom to discuss candidates and Issues." I d , at 21. In-
deed what today has become "a very sIgnificant form of polItI-
cal expressIOn" was held Just last Term to involve only "some
lunited element of protected speech." Cahfonrw Jledzcal
Assocwtwn v. Federal Electwn CommlsslOn, - U S
. (1981) CI'LU\SlL\LL. J., jomed by BREXNAN. l,VmTE. and
STEVENS, JJ). "'Speech by proxy,'" we said. "15 not the
sort of advocacy that trus Court ill Buckley found entItled to
full Frrst Amendment protectIOn." [d., at
The Court also finds that the freedom or assocIation 13 lm-
perrmsslbly compronused by not aUo,"wg persons to contnb-
ute unlirruted funds to COITlln:ittees orgaruzeo to support or
oppose a ballot measure. Ho\vever. In Buckley. the Court
observed that comnbutlon ceilings "leav[e] persons free to
engage ill mdependent politlcal expressIOn. to aSSOcIate ac-
tively through volumeenng theIr ser.'1ces. and to aSsIst to a
limited but r..onetheless substantial extent III supportmg can-
d1dates and COmmIttees \nth finanCIal resources." 424
U. S., at 28. A..ssoclatIonal nghts. It \vas thought, were sen-
ously impmged only by expendIture cellmgs--there by Vl.rtue
of precluding aSSOcIatIOns from effectlvely ampl1~'1ng the
VOIce of their adherents, "the ongInal baSIS for the rE'cogm-
tion of FIrst Amendment protectlon of the freedom of associ-
ation!' ld, at 22. See NA....4.CP v A.labama, 357 U. S. 449.
460 (1958). The Cou..rt's concern that dus ordmance \"..i11
"hobble the collectIve expreSSIOns of a group" ante, at , IS
belied by the fact that appellants. hav'Ulg already met theil'
campaign budget, ended all fundraIsing almost a month be-
fore the electIOn.
It IS bad enough that the Court overstates the extent to
WhICh FIrst ~-\.mendme!lt interests are ImplIcated. But the
Court goes on to asser: that the ordmance furthers no leg:ttl-
mate public interest and cannot SUr>iY€ "any degree of scru-
tiny" Apparently the Court assumes this to be so because
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.. ......~
8O-j37-DISSE~T
4 CITIZE~S AGAI:-iST RE:>.--r CONTROL v BERKELEY
the ordinance is not directed at quid pro quos between large
contnbutors and candIdates for DEice, "the smgle narrow ex-
ception" for regulatIOn that It newed Buckley as endorsmg
The Buckley Court, however, found It "UIlIlecessary to look
beyond the Act's pnmary purpose," the prevention of corrup-
tion, to uphold the contnbutlon hoots. and thus dId not con-
sider other possIble lllterests for 'Jphoidmg the restnctIOn.
Indeed, at least smce Umted States v A.utomob~le Workers.
352 U. S. 567. 575 (1957). the Court has recogruzed that "sus-
taimng the actJve alert responsIbility of the mdlV1dual cmzen
in a democracy for the '\Vlse conduct of governmem" IS a valid
state interest. The Bellott1. Cour: took care to note that thIS
objective, along ~nth "preser~"ng the mregnty of the elec-
toral process [and] the mdIndual cltd:en'S confidence in gov-
ernment .. are mterests of the rughest Importance." 435
U. S., at 788-789.
In Bellottl, the Court found illadequate e\'1dence ill the
record to support these mterests. but It suggested that some
regulation of corporate spendmg rrught be JustIfied IT "corpo-
rate advocacy threatened ImIT'Jr..emly to underrn.me demo-
cratIc processes. thereby derugratmg rather than senll1g
FlrSt Amendment mterests." 435 U. S., at 789. The Court
suggested that such a 51tuanon would anse If It could be
shown that "the relatIve voice of CorpOTatlOns ha[d] been
overwhelrmng [and] .. slgnmcant In ml1.Uencmg referenda."
Id . at 789-90. It is qUlte pOSSIble that such a test IS fall'ly
met in tills case. Large contnbutIons, mamly from corpo-
rate sources, have skyrocketed as the role of mdn'1duals has
declmed.z Staggenng dispantIes have developed bet\veen
!The Cahforma Fall" Pohtlcal Practices COmmlSSIOn has renorted that
campaIgn contr.butlons from pr:vate mon,duals :n the :;-';ovember 1980
general eLectlon totaLed only one hif of the L'1dn-:duaI contr.but~ons g1....en
dunng the 1978 generai eiect10n and represented only 5q of ail the con-
tnbutlons made Cabforr'~a F3ll" PoimcaI PractIces CuIl'ffilSSiOn. Cam-
paign Contnbu!1on and Sperdmg Report (1981) The chal.11'r.an oi the
Conumsslon concluded that the figures demonstrate an "alarmmg yet
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8O-73i-D1SSE~T
CITIZENS AGAI~ST RE~T CONTROL v BERKELEY 5
spending for and agamst vanous ballot measures. J \V1ule It
is not possIble to prove that heavy spendmg "bought" a VIC-
tory on any partIcular ballot proposlt1on. there IS mcreasmg
evidence that large contnbutors are at least able to block the
adoption of measures through the l1llt13tIve process.. Rec-
steady erOSlOTI of the pr:.vate mdn;.dual as a force In the politlcal process"
Cahforrua Fa.tI' Polmcal PTacnce.s ComrrllsslOn's Press Release 81-14 ~lay
28, 1981 See also n 3
I In a 19i8 lrutlamre over :he construC~lOn of an ou storal!e terminal m
Long Beach, Cauf . Stanaara OU of OhIO 'contr:buteo" a~l 5364.568 snent
by the Long Beach Cn-ll Act:on ComIT'-1ttee In support. of the measure, op~
panents spent $17,":21. S. L:.denbers-. BankroJmg Ballot,;; The Role of
Busmess In FUlarlcL,;g State BaEot QuestlOn Campa:gns 37 (1979)
In 198U, three bar.ot measures were re:ec:ed by C;;.lior.ua ';oters st;;.te-
""de One was an :mtanv'=! ,....lnch sOl.:gnt to C:rCUIDSCl"lOe smolung III pub-
11e places The commm;ee S.lpponl':g :he '11ec.slU"e co]ected 5692.561.
$525.356 In contr.bucoYJ.S under 51 000 An OppOSiTe; group Cal1for:uans
Agamst Regulator:r Excess.' coUec!ed $2.725.208 Of ~h15 amount.
$2,693,424 was contl"'buted m a...JlOU:l'S of oyer ~lO.OOO. and ~'oU!' tobacco
Cf'npar-..res contnbuted between 5.300,C-00 a..'1d $1 nullion c3Ct. fd, at
~
A second examnle is 2.Il :rutlat~ve whIch ..vould have taxed large ene!"g:..
comparues to provlde revern.:.e :0 :l.'1ance puhl1c tl-a....lsportauon a.'l.d :0 de-
velop altemanYe eIlergy sources "CalJ'omlans for Fall" TaxatIOn." an
asSOCIatIon opposed to the tl"easure. rece:ved nearly $6 mlieon in contnbu-
tIOns, of wiuch apprOXImate;y S5 Ill!Don was gIven by large corporatIons
Proponents mustered bm ~63.859 Id, at ~o
The thu-d measure, U.;~e the mman'.'€ m tfus utlganon. concerned reN
control. Proponents gathered S6.750.217 mostly L'l contnbutlOns over
$1,000, opponents collected $194.296, most!)'ln contnb;lt.ons undf'r $1.000
ld., at 98-101
· Several studles have sho,,"""1 that :arge amounts of money skew the Out-
come of local ballot measure campaigns Profe~sor Lowens(em's mvest.-
gabon found that of fJteen prOpOSll.lCnS SUDDorted by s:gmf.ca!lr one-SIded
spendlng, deiined as spendmg of at least $~50.000 and c',nce as much as tre
OpposIte SIde. seven were successful ;;''10 elght were defeated On the
other hand. of ten proOosltlons opposed by s,gru5cant one-SIded spendmg.
rune were defeated and oniy one was successful D La.... enstem. Cam-
paIgn Spendmg and Ballot h'oposltlons (deuvered at arnual meetmg of
Amencan P011ticai SCIence Assoc.at1on. New York Clt) , Septe.nber 5,
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L... -~
8()...737-DISSEXT
6 CITIZEXS AGAl~ST RENT COi'."TROL 1J BERKELEY
ognition that enormous contnbutions from a few instItutional
sources can overshadow the efforts of mdIvIduals may have
discouraged partlCIpatIOn m ballot measure campalgns 5 and
undermined public confidence In the referendum process.
By restnctmg the SIZe of contnbutIOns, the Berkeley ordi-
nance reqUll'es major contnbutors to d1rectly
\vith the voters. If the ordma..'1ce has an ultimate Impact on
speech, it WIll be to assure that a d1\'erslty of'l;1e\vs w1ll be
presented to the voters. As such, It \"ill "facIlltate and en-
large public dIcusslon and partlcIpatlOn in the electoral proc-
ess, goals ntal to a self-govennng peopie." Buckley. 42-1
U. S., at 92-93. Of course, entltles remam free to make
major direct expendItures. But because polmcal commum-
cations must state the source of funds, voters \\111 be able to
Ident1fy the source or such messages and recogrnze that the
communIcation reflects. for example. the opmion of a smgie
powerful corporate Interest rather than the VIews of a lal'ge
number ofmmVldual.s As the eXIstence of dlSclosure lmvs ill
many states suggests.6 infonr..anon Loncerrung who supports
or opposes a ballot measure sIgmftcamly affects voter evalua-
1981) A 5tudy of three Coiorado rrutra tl':es found that m each of the r-aces
the pro-Ulltl:lUye slde held a COInmanamg lead which :t lost as the campalgn
progressed. Corporate-backed onposltlon forces hea\11y outspent tnell"
counte:rpar..s On eiectlOn day, each Imtlatl\ e was defeated R ~lastro,
D Costlow, and H Sancnez. TakIng the Irutlatl\'e Co:rporate Control of
the Referendum Process Tnrough ::Y!ecila Spendmg and \\1:at to Do Aoout
It, 32 Fed. Corrun L. J 315 U9EO) (heremafter ~1a.stro. et a.l) See also J.
Shockley, The lrutlatlve Process m Colorado POlltICS' An Assessment
(1980) ~atlOmvlde. a study of 19 reee'lt ....amp:ugIls found that the SIde
Wlth corporate backmg out3pent opponents by better .ban 2:'0 1 in 15 cam-
p3.1gns and won m 12 of them. Lydenburg, Bankrolling Ballots 1950 up-
date (1981), at 1
.I Voter turnout m Berkeley mumc.:pa] electlOns bas decreased from
65.99" m Apnl1973 to 45.6CC In Apnl 19B1. Br:ef for Aopel1ees. at 7
I See Federai Election Comrr.1SSlOn, CampoogTI Fmance Law 81 (1981)
See also Mastro, et al., at 353-354.
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8O-737-DISSE~T
CITIZE~S AGA!:\ST RE~T CO:\TROL~' BERKELEY i
tion of the proposal.7 The Court asserts, ''vithout elabora-
tion, that eXIStmg dIsclosure reqUIrements suffice to mform
voters of the IdentIty of contnbutors. Yet, the Inadequacy
of disclosure 1av."'5 \vas a major reason for the adoptIOn of the
Berkeley ordmance. Section 101 of the ordinance constl-
tutes a findmg by the people of Berkeley that "the mfluence
of large eampaJ.gI1 contnbutors is mereased because eXlstmg
laws for disclosure of campaIgn receipts and expenwtures
have proved to be madequate."
Adrmttedly, Berkeley ca1L"'1ot present conclUSIve eVldence
of a causal relanonsf>.Jp benveen major undIsclosed expendI-
tures and the deP."..1:3e of the referendum as a tool or drrect de-
mocracy. But the mformatlon aVallable Slli'11CeS to demon-
strate that the voters had valid reasons for adoptmg
contnbutlon ceIungs. It \vas on a smular foundatIon that the
Court upheld contnbutlOn lumts m Buckley and Cahfornw
Med1cal A.ssoC'2atwn. supra In my VIew, the ordinance sur-
,dyes scrutmy under the Buckley and Bellottz cases.
II
There are other grounds for 5llstammg the ordinance. I
continue to believe that because the lrnutatlOns are content-
neutral, and because many regulatory actlOns \nll mdirectly
affect speech In the same manner as reguiatlOns In the sphere
of campalgn fmance. "the argument that money IS speech and
that lmutmg the no\v of money to the speaker nolates the
First Amendment proves entirely too much." Buckley.
supra, 424 C. S., at 262 (\YHITE. J., concurrmg ill part and
dissenting in part). E very form of regulation-from ta.\:es to
compulsory bargammg-has some effect on the ability of mdI-
1 See Brown \ Supenor Caurt. 5 Cal 3d 509. 522. 487 P 2d 1224. 1232
(1971) ("A ballot measure !s deVOId of personality and voters who seek to
Judge the ments of :ssues by re!Jance on the personallty of those support-
mg dUferent pOints of \i.ew can do so only II they are made a....are, pnor to
electlon. of those who are the reai advocates for or agarnst the meawre ")
.
.
.........
8O-737-DrSSEXT
8 CITIZENS AGAI~ST REXT CONTROL L' BERKELEY
viduals and corporatiuns to engage ill expreSSIve actrlllty.
'We must therefore focus on the extent to wbch expreSSIve
and assoclatIOnal actInty IS restncted by the Berkeley orru-
nance. That first amendment mterests are imphcated
should begIn, not end our mqmry. '\\Then the mfringement IS
as slight and ephemeral as It IS here, the reqUlsite stat.e mter-
est to justify the regulatlOn need not be so lugh.
The mterests wruch Just1fy the Berkeley ordmance can
properly be understood only In the context or the f..J.Stonc role
of the minatlye ill Ca1..forma. "Callfornia's entIre hIstory
demonstrates the repeated use of referendums to grve CItI-
zens a VOIce on quest~ons of publ1c polley." James v.
Valtterra. 402 L S. 137. 141 (1971). From Its earhest days,
It was deSIgned to crrcum....em the undue mil.uence of large
corporate interests on government decIslOnmakmg; It
served, as PresIdent 'WIlson put It, as a "gun behmd the door"
to keep politlcal bos.ses and leglslators honest. In more re.
cent years, concerned that the heavy fu1anclal partlc~patlon
by corporatIOns in contests has undermmed thIs
tool of dll'ect democ"'~cy, the voters of CalIforma enacted by
iIlitiatIve ill 1374 the PolitICal Reform Act. wh1ch hrmted ex-
penc1J.tures In statewIde ballot measure campmgTIs,9 and
Berkeley voters adopted the ordinance at Issue ill tills case.
The role of the uutlatIve ill Cahforma cannot be separated
from Its purpose or prevemmg the dominance of speCIal inter-
ests. That IS the very h1story and purpose of the lIUtlatlve in
Califonua and s11n1larly it IS the purpose of a.ncIllary regula-
i See V. Key and \V Crouch. The lrut:at,ve and Referendtillll!1 Calliar-
ma 425-432 (1939), E Lee, Referendums A comparame Swdy of Prac.
tIce and Theori. at 8i-88 (D Butler and.-\. Ra.'lr.ey, eds J. Note. The Cab.-
forma In:t:at:vc Process. 48 So Cal L Rev 9~. 923 (975) C'Tf.e pr.mary
motlVatWn fer the l."litl8.tlVe process m CabiorT'..18. was ~he Dunce's cesll"e to
counter tre 10bb)1st. the cond'.llt of leglslame mnuence exercIsed by and
for econorruc and other speeal mterests ")
IPolmcal Reform Act. Cal Gov Code ~H1000 ec seq (West 1976)
See note I, ante
.
.
8O-i37 -DlSSE~T
CITIZE~S AGAl)iST RE)iT COSTROL l' BERKELEY 9
tions deslgned to protect It Both serve to ma.xunize the ex-
change of polItical rn3cDurse. As in Bellott1.. "Tne Court's
fundamental error IS Its faIlure to reahze that the state regu-
latory mterests .. are themselves denved from the First
Amendment. " 435 US, at 803-804 (1VHITE, J., dis-
senting)
Perhaps, as I have saId. neIther the Cny of Berkeley nor
the State of Cal.1fol111a can "prove" that electlOns have been
or can be unfarrly won by speclal mterest groups spending
large sums of money, but there IS a \vldespread conV1CtlOn ill
legIslatIve halls. as well as among CItlzens, that the danger IS
real. I regret that the Court contmues to disregard that
hazard.
4