Buckley v. American Constitutional Law Foundation Inc.

PETITIONER:Buckley
RESPONDENT:American Constitutional Law Foundation Inc.
LOCATION:North Carolina General Assembly

DOCKET NO.: 97-930
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: United States Court of Appeals for the Tenth Circuit

CITATION: 525 US 182 (1999)
ARGUED: Oct 14, 1998
DECIDED: Jan 12, 1999

ADVOCATES:
Gale Norton – Argued the cause for the petitioner, on behalf of the Petitioner
Neil D. O’Toole – Argued the cause for the respondents

Facts of the case

Colorado practices an initiative-petition process in which citizens can make laws directly through balloting initiatives. Acting on behalf of ballot petitioners, the American Constitutional Law Foundation (Foundation) challenged the constitutionality of six limitations imposed by Colorado on the petitioning process. After mixed rulings in both trial and appellate courts, the Supreme Court granted certiorari to review three of the six original restrictions. The first required petition circulators to be registered voters. The second required them to wear identification badges with their names, status as “volunteer” or “paid,” and if the latter then their employer’s phone number. The third required initiative proponents to report names, addresses, and registration voting counties for all paid circulators, as well as salary per petition signature, and each circulator’s total salary. Proponents also had to report, on a monthly basis, all proponent names, names and addresses of circulators, circulators’ monthly salary and debt totals, and the name of each proposed ballot measure.

Question

Did the State of Colorado’s imposition of name, badge, and financial disclosure requirements, on initiative-petition proponents and their circulators, violate the First Amendment’s freedom of speech protections?

William H. Rehnquist:

We’ll hear argument first this morning in Number 97-930, Victoria Buckley v. The American Constitutional Law Foundation.

General Norton.

Gale Norton:

Mr. Chief Justice, and may it please the Court:

Colorado views the initiative process as an essential part of our law making function.

The right of initiative is the first section under the Colorado constitution under the heading, Legislative Department.

Because this is an important process to State government we have established a limited structure of regulation intended to safeguard the people’s right to democratic self government while ensuring the fairness of our election process.

Beyond the two viewpoints represented in the courtroom today, there are two other important interests that are protected through our regulatory process.

The first is the interest of those who may oppose an initiative, and the second is the interest of the signers of the petition.

Anthony M. Kennedy:

May I ask just one factual question?

Gale Norton:

Yes, sir.

Anthony M. Kennedy:

I understand there’s a final reporting requirement, a disclosure requirement, and that is not challenged here.

Gale Norton:

That is correct.

It is the reports that deal with the monthly reporting requirement as to the individual petition circulators.

Anthony M. Kennedy:

Well, does the financial disclosure that’s made at the end, and it’s not challenged, separate out the amount that’s paid for solicitors, so if I read the report I know that they spent X dollars for TV advertising and Y dollars for… to pay circulators?

Do I… can I find that out from the final report?

Gale Norton:

The final report would list all of the expenditures included among the expenditures of the sponsoring campaign committee–

Anthony M. Kennedy:

What I’m asking, is it a lump sum, or is it separated out?

Gale Norton:

–It is separated out in detail.

Anthony M. Kennedy:

And when is that final report due?

Is that before the election or after?

Gale Norton:

I’m not sure, Your Honor.

Antonin Scalia:

It would also show the amounts that went to the individual petition circulators?

Gale Norton:

That is correct.

Ruth Bader Ginsburg:

–that may be filed with the petition when the petition is completed?

Isn’t that when that report gets filed?

I thought the monthly reports were while the petition was in circulation.

Gale Norton:

The monthly reports are while it is in circulation.

Ruth Bader Ginsburg:

But when the completed petition is there, and the sponsor says, we have enough votes, at that time the so called final report would go in?

Gale Norton:

Your Honor, I’m not sure what the due date is for the final report.

Anthony M. Kennedy:

Is there anything in the monthly disclosure statements that break it down expenditure by expenditure, so if I looked at the monthly disclosure statement, could I see how much was paid just for circulating?

Gale Norton:

The monthly disclosure statement lists the amounts that are paid to each individual circulator on a person by person basis.

Anthony M. Kennedy:

That was struck down.

Has anything in the monthly disclosure statement been allowed to stand–

Gale Norton:

The–

Anthony M. Kennedy:

–by the district court’s opinion?

Gale Norton:

–What has been struck down is simply the amount that applies to individual circulators.

Anthony M. Kennedy:

All right.

In that monthly disclosure statement, so far as the statute has been allowed to stand–

Gale Norton:

Yes.

Anthony M. Kennedy:

–can I see how much is paid, lump sum, for circulation?

Gale Norton:

You would have to add up the amount that is paid to each individual circulator.

Anthony M. Kennedy:

Well, except that’s been struck down.

Okay.

Gale Norton:

Signature gathering serves the same function as a primary election in a candidate selection process.

By obtaining the requisite 54,242 signatures, an initiative’s backers establish that it has a significant modicum of support.

Antonin Scalia:

Well, there’s this difference between signature gathering and a primary election.

In a primary election it is not somebody trying to persuade somebody else.

Signature gathering may perform that function, but it is, in addition, and perhaps primarily, one citizen trying to persuade another citizen about the merits of a particular legislature proposal.

Gale Norton:

Here, there are three functions that all occur simultaneously.

That is the aspect of persuasiveness, as you have described.

There is also a role that the circulator plays of an administrative function akin to an election judge, and there is also the function of acting as an agent or fiduciary for the signer in fulfilling responsibilities as to the signer.

William H. Rehnquist:

Well, do… is there any way of telling from this record whether the typical petitioner circulator goes door to door, or sits in a shopping mall?

I suppose they do both.

Gale Norton:

They may do both.

The practice is ordinarily to go to a shopping mall or some place where there are many people gathered.

The–

William H. Rehnquist:

And so–

Gale Norton:

–record does not specifically describe that in the trial court.

Sandra Day O’Connor:

–What is the interest of the State that you say supports the requirement that the circulators have to be registered voters?

Gale Norton:

That is two part.

Gale Norton:

First of all, is because they are fulfilling a law making function, we as a State should be able to say that those who are fulfilling that function should be people who are committed to–

Sandra Day O’Connor:

In light of Meyer, I would have thought the State would have a hard time asserting that its interest in having them be registered voters can prevail.

No doubt there are people in the State who are not registered voters, but who nonetheless would like to serve as petition circulators and debate the merits of given issues.

Gale Norton:

–We are happy to have people debate the merits and to enter into a persuasive function.

It is only when they perform the administrative election judge type functions of ensuring that those who are signing the petition are who they say they are, that a husband is not signing for a wife–

Antonin Scalia:

Well–

Sandra Day O’Connor:

–Well, why can’t somebody who is a resident of Colorado, who’s an adult resident, perform that function just as well as somebody who’s a registered voter?

I just don’t understand.

Gale Norton:

–The registration requirement is different from a residency requirement in that it requires a person to swear an oath that they are a resident of the State before they begin the circulating process.

There is a requirement that they do so at the end of the circulating process as part of the affidavit if registration and residency are separated.

But here, we have an assurance all the way through the process that they’re going to be here.

It ties in with the second justification for that, and that is in preventing fraud.

We have had the problem of people who come to the State simply to circulate petitions.

If those people are not going to be around several months later when we actually go through the process of having an administrative hearing to–

Sandra Day O’Connor:

Yes, but you require an affidavit at the end of the day, when the petition is filed, that the circulator is, in fact, a resident.

Gale Norton:

–That is ordinarily our process–

Sandra Day O’Connor:

And you have the normal criminal laws that could enforce that, so it’s very difficult for me to understand, in the face of Meyer, what State justification you can offer for also requiring that the circulator be a registered voter.

Gale Norton:

–This would ensure that they are a resident throughout the entire time that they are circulating the petition, rather than just at the moment they submit–

David H. Souter:

Why isn’t that–

William H. Rehnquist:

–Isn’t there something in the record that suggests that it’s easier to determine whether someone is a registered voter than it is to determine whether they’re a resident?

Gale Norton:

–We have specific lists of registered voters.

We do not have lists of people who are otherwise residents.

It gives us a concrete place to answer that question.

Ruth Bader Ginsburg:

Is it any part of your rationale on the registered voters that if you don’t want to count yourself in the political community by not voting, you shouldn’t take part in this, or is it simply a kind of way of verifying that the person is, indeed, a resident?

Gale Norton:

It is a way of verifying that a person is, indeed, a resident, and that is correct, but it is also… there’s also two parts.

To the extent that someone is playing a formal role in the process, which they are doing, we would require that they be registered voters in a way as part of being committed to the Colorado law making process, just as we require our legislators to be committed, just as we require election judges and those who participate in nominating conventions to be registered voters.

If they want to participate in the purely advocacy function, to stand next to someone who is a registered voter, they are perfectly free to do that and to act as advocates.

David H. Souter:

How do you get around the fact that, despite the complexity of function, and I will concede to you that they are performing functions in the electoral process, how do you get around the fact that Meyer says they’re also engaging in core speech, and if they’re engaging in core speech, they’re going to be… your restrictions are going to be judged on a very restrictive standard.

How do you get around Meyer in that respect?

Gale Norton:

We believe that, even under a strict scrutiny analysis, that our laws would satisfy that strict scrutiny.

Antonin Scalia:

Why is that?

Let’s talk about… why is it easier to prevent fraud somehow when you’re dealing with a resident than with a nonresident?

You think Coloradans are more honest than non Coloradans?

[Laughter]

Is that the rationale?

Gale Norton:

Well, we would like to think so.

Our rationale is being able to find people.

If someone is a registered voter, they have taken an oath saying that they are a resident.

That gives us some assurance that they may be around when questions arise.

Someone may seek a signature.

It may be 6 months later, at the time an administrative hearing is held to inquire into questions abut the validity of that signature, and if those people have left the State, we cannot subpoena–

John Paul Stevens:

Well, do you think registered voters are more apt to leave the State than people who haven’t registered?

I mean, are less apt to leave the State than people who haven’t registered?

Is there any statistic to show which ones, which segment of the population is more mobile than the other?

Gale Norton:

–To the extent that we are dealing with the problem of… that is described in the amicus briefs of the State and Local Legal Center and of the States, we are seeing the development of bands of people who go from State to State simply to circulate petitions, and–

John Paul Stevens:

And don’t they have to provide you with their… you could require them to provide you with their name and address so that even though they’re itinerant you can still… you know, you can find who they were.

Gale Norton:

–We may know that they live in California, but we cannot subpoena them in California and we cannot prosecute them for having engaged in fraud.

John Paul Stevens:

Have you ever prosecuted any petition gatherer?

Gale Norton:

Yes, we have.

In the record it shows the 1992 cycle, in which we successfully prosecuted three people for forgery.

We attempted to prosecute three others, but were not able to serve the warrant because they had left the State.

Antonin Scalia:

Were these gatherers or signers?

Gale Norton:

These were gatherers.

David H. Souter:

I’ll grant you it would be easier if you didn’t have to go to California, but I mean, if the fraud is serious you can start an extradition proceeding, can’t you?

Gale Norton:

We were not able to, as a practical matter, do that in this situation.

David H. Souter:

Well, why, because it cost too much money?

Gale Norton:

It would have… we had a problem with our… because it is a misdemeanor in some situations, we would not be able to do that.

In other situations it was trying to serve warrants.

We were not able to do that.

Antonin Scalia:

But the only justification for the registration requirement you’ve given us is that it’s easier to find their address if they’re registered.

Antonin Scalia:

Right?

Gale Norton:

No.

It’s twofold.

It’s also our interest as a State in having people who participate in our law making process be citizens and registered voters.

Antonin Scalia:

Well, you can require that they be residents without requiring that they be registered voters.

Gale Norton:

We could have a process that would require them to swear an oath saying that they–

Antonin Scalia:

I’m a resident, and this is my address.

Gale Norton:

–residence when they begin the–

Antonin Scalia:

Right.

Gale Norton:

–initiative process–

Antonin Scalia:

Right.

Gale Norton:

–and then when they end.

William H. Rehnquist:

But you also–

Gale Norton:

It’s a question of timing.

William H. Rehnquist:

–You also said, I think, it was much easier for the State to determine whether someone was actually a registered voter or not than to determine whether they’re actually a resident.

Gale Norton:

That is correct.

Antonin Scalia:

How many of these people are we talking about?

How much of a burden is that on the State that you save by simply going to the registration book?

Does the State do that, go to the registration rolls and check that all these people are actually registered?

Gale Norton:

Yes, we do, Your Honor.

Antonin Scalia:

And how many people are you talking… how many of these election gypsies are there who wander around from State to State?

Gale Norton:

There can be several hundreds in any–

Antonin Scalia:

Several hundreds?

Gale Norton:

–In any given petition there may be several hundred circulators.

Antonin Scalia:

It’s not a whole lot of people.

Sandra Day O’Connor:

May I ask on candidate petitions, petitions circulated in order to enable someone to run as a candidate in an election, they also use petition circulators.

Gale Norton:

That is correct.

Sandra Day O’Connor:

Does Colorado law require that those circulators be registered voters?

Gale Norton:

Yes, it does.

Sandra Day O’Connor:

So presumably the same argument made here today with regard to the petition circulation would apply to candidate petitions as well–

Gale Norton:

That is correct.

Sandra Day O’Connor:

–if the respondents are correct.

Gale Norton:

That is correct.

Anthony M. Kennedy:

Suppose that it were shown that in most cases in Colorado initiatives were circulated by paid solicitors who didn’t really care which side they were on, they were just doing it to get the pay, they’d circulate a petition on either side of any issue.

Suppose that were the fact most of the time.

Would that undermine the rationale of our recent opinion in Meyers?

It was unanimous opinion.

It was recent.

I doubt that we would want to revisit it.

I noticed in your brief that you seem to be questioning the rationale that core speech does take place at the in it… at the signature gathering stage.

Gale Norton:

The Burdick approach that we would urge the Court to adopt recognizes that there is both core speech aspect, where there would be a severe burden on that speech, potentially, and the ability of the States to have a regulatory process.

Anthony M. Kennedy:

Burdick was in the context of a primary election, with rules about parties and so forth, and the assumption of Meyers was that a core speech function, a very viable speech function in the initiative process takes place at the signature gathering stage, so that it’s not analogous to the candidate qualifying thing, and I’m asking if you think that distinction holds.

Gale Norton:

Meyer, I believe, did not adequately recognize the other aspects of the process.

It focused on the core speech part, which was truly at issue in Meyer, and did not look at the other issues of the State in–

Anthony M. Kennedy:

Are you saying that core speech does not take place routinely in the signature gathering process, and you’re denying that as an empirical matter that the Court is factually wrong?

Gale Norton:

–No.

Core speech–

Anthony M. Kennedy:

Well, you can say we’re wrong if you think we’re wrong.

Gale Norton:

–In terms of advocacy, that is one part of it, but there are several transactions taking place simultaneously.

William H. Rehnquist:

How much do we actually know about this, or how much did we know about it in Meyer?

You know, if, in fact, someone sits at a shopping center and waits for people to come up to them, and they’re anxious to get as many signatures as they can, one would suspect that there’s not much debate.

If someone is going to say, I don’t like that proposition, the petition circulator just says, okay, go on.

I want someone who will sign.

Gale Norton:

We believe the State and Local Government Center in its brief has presented a fairly accurate view of what the transaction ordinarily looks like.

It is an attempt to get as many people through to just sign, rather than going through an extensive process of explaining the petition.

Sandra Day O’Connor:

Why does the State insist that the circulator have to have the circulator’s name on a badge, as opposed to just saying, volunteer, or paid circulator?

Gale Norton:

That is to address the problem that we have of trying to maintain the integrity of the process as it is going along.

If the Secretary of State’s office receives a phone call that says, I saw a petition circulator paying people to sign petitions, which is clearly a violation of State law, we get a call that says, it was a man with brown hair standing at the corner of Sixth and Broadway, at that point in time, we don’t have any petitions.

We can’t look at the signature on that.

Antonin Scalia:

Has this been a problem?

Antonin Scalia:

Has this–

Gale Norton:

Yes, it has, and that is reflected in the record.

Antonin Scalia:

–How often, of paying people to sign petitions?

Gale Norton:

That is… that has been a problem that has been prosecuted.

That is an example–

Antonin Scalia:

How often?

How many prosecutions have there been of this sort?

Gale Norton:

–There have not been recent prosecutions on that.

Antonin Scalia:

Have there been any prosecutions, recent or otherwise?

Gale Norton:

I believe that there are some earlier cases on that.

I’ve not seen any in the last–

Ruth Bader Ginsburg:

General Norton, if you have the petition with the person’s name on it, and you have a badge that says, paid solicitor, and the sponsor’s name, just not that person’s name, then the burden that you have been informing us of is substantially reduced, is it not?

I mean, you know from the petition who were the signers of that particular petition.

The person is required to identify the sponsor, and that that person is paid or volunteer.

Why isn’t that adequate?

Why do you need the name in addition?

Gale Norton:

–We’ve had an example that is reflected in the record where the opponent saw a petition circulator misrepresenting the contents of the petition.

They took pictures of the circulator, but even with those pictures at a subsequent hearing we were not able to identify who those individuals–

Ruth Bader Ginsburg:

But if you knew the sponsor, if the sponsor had to be identified, if you had everything that you now require on the badge, why… and you have the picture, well, the sponsor knows who’s been hired, don’t they?

Gale Norton:

–Even under those circumstances it is an individual violation for the circulator to engage in misconduct, and the sponsor may or may not be able to identify who is standing on a particular street corner, or who is in a picture.

Antonin Scalia:

Are you this careful in registering voters, as opposed to collecting petitions that would undo the work of the legislature?

You see, I come into this with the attitude that legislatures don’t like these things, because they’re usually collected in order to do something that the legislature doesn’t want it to, or to undo something that the legislature has done.

Now, has your legislature been this concerned about the slightest chance of fraud with respect to, let us say, registering to vote?

Gale Norton:

That is something that has been largely dictated by Federal legislation in recent years that has caused us to make our laws less strict.

Antonin Scalia:

I see.

But you used to be this careful before the drive through registration laws.

Gale Norton:

We used to be more careful than we currently are.

You are correct that we are not able to be as careful in the voter registration process.

Stephen G. Breyer:

If… I just have one question I’d like to ask, which is that if… I assume… I’ll assume for argument’s sake that you’re right, that there’s an aspect in which this petition gatherer is like a voting official who sits in a booth, so the State can regulate, but that petition gatherer is also a person who’s likely to try to persuade someone to sign the petition, and to that extent there’s speech involved, persuasive political speech, so if I think there’s both, what standard do I apply, and which case do you look to to give me the right standard?

In other words, I think there’s a lot of speech involved, but I also think it’s pretty important that the State can regulate its process for making laws.

Stephen G. Breyer:

Now… so I think both, and so since I think both, what case do I look to?

Gale Norton:

I would urge you to look at the Burdick standard.

Stephen G. Breyer:

Well, Burdick was just a question of write ins, wasn’t it?

That was pure process, or pretty pure process, so I’m still looking.

I’ve looked in the labor area, like picketing, I’ve looked in… there’s… but I want your opinion.

Gale Norton:

I believe that the Burdick standard would allow you to take into account both the pure speech aspects of it, when you look–

Stephen G. Breyer:

The Burdick standard being–

Gale Norton:

–Having a flexible standard such that a severe burden on speech would cause a strict scrutiny standard to be applied.

Stephen G. Breyer:

–What about Buckley, too?

Gale Norton:

Pardon?

Stephen G. Breyer:

Buckley.

Have you looked at Buckley?

Gale Norton:

Yes.

Buckley–

Stephen G. Breyer:

All right.

So what… now, thinking of both those cases, what standard would you articulate that we should use?

Gale Norton:

–Buckley is a strict scrutiny case, as is Meyer v. Grant.

Antonin Scalia:

I thought you would say Meyer v. Grant immediately, because that also involves exactly the same two things that are involved here.

It involved the persuasive function and the–

Stephen G. Breyer:

–If I thought–

Antonin Scalia:

–what we call the administrative function.

Stephen G. Breyer:

If I thought that Meyer was not dealing with the aspect in which the petition gatherer is an arm of the State’s electoral process, which the State could regulate from that point of view, just as it could somebody in an election booth… you know, the person who sits there… but both are involved, what standard should I use?

Gale Norton:

I would urge the Burdick standard as allowing the examination of both of those aspects.

Ruth Bader Ginsburg:

Why not the Timmons, which is the more recent precedent?

Gale Norton:

Timmons, in my mind, applies the same standard.

Sandra Day O’Connor:

For you to win do you have… do we have to somehow modify Meyer?

Gale Norton:

Meyer–

Sandra Day O’Connor:

Or clarify it, or restrict it, for you to win on all these points?

Gale Norton:

–I believe that if strict scrutiny is applied we win on all of our points nevertheless.

However, I think for… from the State perspective, for our ability to regulate our process and understand what the rules are going to be, it would be better for us, it would make more sense to apply the Burdick and to–

William H. Rehnquist:

Well, General Norton, Justice O’Connor asked you a question.

She said, if you are to prevail here, do we have to modify or clarify Meyer, and you refer to Burdick.

What’s your answer to her question?

Gale Norton:

–No, because I believe that under strict scrutiny we can prevail under the Meyer standard as well.

Sandra Day O’Connor:

Despite the fact that the voter registration requirement and the disclosure of the name seem to fly squarely in the face of what the Court said in Meyer.

Gale Norton:

Strict scrutiny was the standard applied in Buckley v. Valeo, as well as in other cases that have upheld regulation of the electoral–

William H. Rehnquist:

Well, I don’t think strict scrutiny was applied across the board in Buckley, General Norton.

I mean, there were several different kinds of requirements there, and I would… perhaps you’ve read it more recently than we have.

I would not have said that strict scrutiny was applied across the board.

Gale Norton:

–I believe that that was the standard that was applied to the disclosure requirements and the other aspects that are parallel to this particular case.

Anthony M. Kennedy:

Let me put the… Justice O’Connor’s question slightly differently.

If you cannot prevail under strict scrutiny, then you cannot prevail unless we modify Meyer.

Isn’t that correct?

Gale Norton:

That is correct.

Anthony M. Kennedy:

If I thought that this case turned on whether or not there really was meaningful speech at the signature gathering process, if I thought that was determinative, where would I go to find that out?

Have there been things written about it, or–

Gale Norton:

There are… there are some–

Anthony M. Kennedy:

–this record is very sparse on all of these points.

Gale Norton:

–The briefs have been filed by the amici, including the National Voter Outreach Organization, which employs petition circulators.

Antonin Scalia:

Excuse me.

What do you mean by meaningful speech?

Could you define this term?

If I come up to you and say, vote for Smith, or I have a sign that says, vote for Smith, is that meaningful speech, or do I have to tell you why?

Gale Norton:

I would say, vote for Smith is meaningful speech–

Antonin Scalia:

Core political speech, isn’t it?

Gale Norton:

–Sign this petition is–

Antonin Scalia:

Would you sign this petition?

Gale Norton:

–Sign this petition is–

Antonin Scalia:

Is not–

Gale Norton:

–asking people to fulfill an elective function.

David H. Souter:

–Sign this petition to lower taxes, meaningful speech again?

Gale Norton:

Meaningful speech with a combination of the electoral function.

Ruth Bader Ginsburg:

But isn’t that passed in Meyer?

I mean, the question there was, could you have paid solicitors for initiatives, and the Court said that the job that’s being done, asking people to sign the thing, involves core speech, so I think in light of Justice Kennedy’s question that the answer’s got to be yes.

If you’re going to say that no, this really isn’t core speech, then you have to qualify Meyer, that said it is.

Gale Norton:

Then the State is left with no way to ensure that those 54,000 signatures are collected–

Ruth Bader Ginsburg:

But wasn’t there first a good part of this that the Tenth Circuit upheld?

I mean, they didn’t just strike down this thing wholesale, and at least as I read it, it comes… it permits the identification of the sponsor, the statement whether a person is paid or volunteer.

What it doesn’t permit is the name, insistence that the name go on the badge, and that the amount spent not only in gross for all petition solicitors but person by person, but that’s… but that’s really what’s at stake, the name, and do you have to not only tell how much you spent on solicitors altogether, but how much you paid each individual?

As I understand it, that’s all that’s at stake.

Gale Norton:

–That’s… that is–

Antonin Scalia:

And identification as a paid solicitor?

Wasn’t that stricken out?

Do they have to identify themselves as paid solicitors?

Gale Norton:

–The requirement that by badge they identify themselves as paid solicitors was stricken by the Tenth Circuit.

Antonin Scalia:

It was also–

Ruth Bader Ginsburg:

–Yes, but as far as I understand, they were doing that in connection with a name as well.

Do we know from this case whether, if all that the law required was, paid by X sponsor, that that… that the Tenth Circuit would have found anything wrong with that?

Gale Norton:

But the Tenth Circuit did not differentiate.

Thank you.

William H. Rehnquist:

Very well, General Norton.

Mr. O’Toole.

Neil D. O’Toole:

Mr. Chief Justice, and may it please the Court:

What the respondents ask this Court to do is to fortify and reinforce the message that was given in Meyer to assure that the activity of citizens peaceably gathering together to change Government under a constitutional system such as we have in the State of Colorado is furthered by the First Amendment.

Antonin Scalia:

You think it takes fortification?

We couldn’t just apply Meyer.

Neil D. O’Toole:

I–

Antonin Scalia:

You think if we just applied Meyer, you lose?

Neil D. O’Toole:

–The reason we ask you… Your Honor, I would say to you that unfortunately reviewing decisions from other circuits it appears that there’s some question about what this Court meant in Meyer.

I think it’s clear.

Neil D. O’Toole:

I don’t think there’s any doubt.

I think the test that’s laid out in Meyer, that talks about the burden being well nigh insurmountable, couldn’t be clearer.

William H. Rehnquist:

Well, Meyer was different factually in a way.

I think you can look at Meyer as an offspring, kind of, of the Buckley case, that just as you can’t tell someone they can’t spend their own money to finance their campaign, you can’t tell someone that they can’t hire petitioners to… hire circulators to go around and circulate something.

But this goes beyond whether or not you can hire petitioners or not, or circulators.

Neil D. O’Toole:

Mr. Chief Justice, I beg to differ with you on that issue.

I think–

William H. Rehnquist:

You think the facts of this case are the same as Meyer?

That’s… I’m telling you the facts are different.

Now, you disagree?

Neil D. O’Toole:

–I–

William H. Rehnquist:

I’m talking about the facts.

Neil D. O’Toole:

–I’d say that the facts because of facts differ, that evidence that was presented in this case was not necessarily the same evidence presented in Meyer.

The facts described in response to Justice Kennedy are very close.

William H. Rehnquist:

But Meyer was… as I recall was paid circulators, and here we’re talking about different requirements.

We’re not talking about–

Neil D. O’Toole:

I understand.

William H. Rehnquist:

–really a prohibition against paid circulators.

Neil D. O’Toole:

Excuse me, Mr. Chief Justice.

We’re not dealing with prohibition against paid circulators.

We are dealing with prohibition against the circulation of petitions by residents or nonresidents who do not deign, for one reason or another, to become a registered voter.

We’re dealing with their ability to be engaged in the same–

Sandra Day O’Connor:

I didn’t think we were dealing with residents versus nonresidents.

I thought we were dealing with a requirement that the circulator be a registered voter in Colorado.

Is that what we’re dealing with?

Neil D. O’Toole:

–Yes–

Sandra Day O’Connor:

Thank you.

Neil D. O’Toole:

–Yes, Justice O’Connor.

We’re dealing with that issue.

Sandra Day O’Connor:

Now, at the same time, I guess Colorado, like other States, requires a certain number of signatures from registered voters.

Neil D. O’Toole:

That is correct.

Sandra Day O’Connor:

A certain percentage, in order to gain access to the ballot for a petition.

Neil D. O’Toole:

That is correct.

It’s 5 per–

Sandra Day O’Connor:

Now, under your theory, I guess, that also inhibits speech, because it deters the filing of these initiative petitions.

Neil D. O’Toole:

–Your Honor–

Sandra Day O’Connor:

What if Colorado tried to increase the number of signatures required?

Neil D. O’Toole:

–Your Honor, in terms of how I’m addressing this issue with regard to registered circulators who are aggrieved in the speech process, I do believe there might be a different analysis that would attend whether or not or how the State assures that it has a modicum of public support for the measure so it’s on the ballot.

Sandra Day O’Connor:

Well, does strict scrutiny apply to that requirement, in your view?

Neil D. O’Toole:

In my opinion, yes.

Sandra Day O’Connor:

Mm hmm.

Neil D. O’Toole:

Because I believe that–

Sandra Day O’Connor:

So that’s the next step we’ll face.

Neil D. O’Toole:

–It’s possible.

Antonin Scalia:

Why do you say–

Neil D. O’Toole:

–haven’t even paid for that yet or volunteered yet, Your Honor.

Antonin Scalia:

–Why do you insist on making your case harder?

[Laughter]

Neil D. O’Toole:

Because I’m asked the questions.

Antonin Scalia:

It seems to me it’s quite a different issue how many votes you need to get.

That doesn’t involve core political speech.

We’re talking about persuading people to sign, as opposed to how many people need to sign, and you think the two questions have to be equated.

Neil D. O’Toole:

Oh, I… no, Your Honor, I don’t.

I was asked a question by the… by Justice O’Connor, and I felt, in light of the Court’s–

Antonin Scalia:

That is very different.

I would think one goes to the procedure involved in making this change, and the other goes to the question of one citizen trying to get another one to sign up or to support a particular proposition.

You don’t see a fundamental difference between those two?

Neil D. O’Toole:

–I was asked that question.

I’m giving you an answer.

My answer is no, but for purposes of this case, that other issue is not before us.

Neil D. O’Toole:

We are dealing with core political speech, Justice Scalia, and I believe that the process is adequately delineated in footnote 4 of the Meyer decision.

Ruth Bader Ginsburg:

But let me ask you–

William H. Rehnquist:

–What about the requirement in most States that there’s certain qualifications for circulating nominating petitions.

There’s the person who goes door to door, and you have to have so many signatures to get on the ballot.

Now, is that circulator engaging in core political speech, in your view?

Neil D. O’Toole:

Not to the same extent, because he’s proceeding with… I think this Court has consistently drawn a distinction between ballot initiative, where there’s a discussion of issues and a discussion of candidates.

William H. Rehnquist:

Well–

Neil D. O’Toole:

But of course they are engaging–

William H. Rehnquist:

–You know… so the person in the shopping center collecting signatures says, vote for this anti tax referendum.

The person coming to the door with a signature sheet for nominations says, will you sign this nominating petition for Joe Blow?

Those are pretty much the same, aren’t they?

Neil D. O’Toole:

–Well, the State’s interest differs, because under the State… in the State of Colorado, Chief Justice, we have a situation where the people reserve to themselves the right to petition or circulate a citizen’s initiative and, in fact, the State’s involvement does not occur until that petition itself is submitted to the Secretary of State for approval of the measure in terms of being placed on the ballot.

Sandra Day O’Connor:

But I thought people reserved to themselves the right to decide what candidates will get enough signatures to have their names go on the ballot.

They reserve that to themselves.

Why isn’t that core political speech?

Neil D. O’Toole:

The cases on candidacy in my review of them, and it may not have been as scholarly a review as might be required under the circumstances, but I will say to you that this discussion is not over a crowded ballot.

This is not over a question of who can be on the ballot… this candidacy is not a right… but is over the actions of people who gather–

William H. Rehnquist:

Well, let’s analyze the thing without necess… without any–

Neil D. O’Toole:

–Certainly.

William H. Rehnquist:

–more on a factual basis.

What is the difference factually in terms of core political speech between a person who comes to the door with a nominating petition and says, will you please sign this nominating commission for Joe Blow… petition, and the person who sits in the shopping center and says, will you please sign this referendum for antitax?

Neil D. O’Toole:

Because the State… Chief Justice, the State’s interest in curtailing debate and consideration and discussion is significantly less in the former than in the latter.

In the citizen’s petition we have a system which guarantees discussion and debate.

We have a core discussion of a political issue.

The State has no power to determine what issues–

John Paul Stevens:

Mr. O’Toole, may I ask you a factual question about a–

Neil D. O’Toole:

–Yes, Justice.

John Paul Stevens:

–Colorado law?

Neil D. O’Toole:

Yes, Justice.

John Paul Stevens:

The provision being challenged here, such as a requirement to wear a badge–

Neil D. O’Toole:

Yes.

John Paul Stevens:

–do they apply to candidate solicitation?

I mean, solicitation of signatures for a candidate, and to get a candidate’s name on the ballot?

Neil D. O’Toole:

As a factual question it may, but it doesn’t.

The–

John Paul Stevens:

What do you mean, it may but it doesn’t?

Either it does or it doesn’t.

Neil D. O’Toole:

–No, I’m sorry, you said it may.

John Paul Stevens:

No, no, no.

I said, as a matter–

I’m asking you what the Colorado law is.

Neil D. O’Toole:

In fact, it does not apply to recall or candidate petition, the badge requirement, or the paid circulator badge requirement, or the paid circulator reporting requirements do not apply to either the–

John Paul Stevens:

So the issue–

Neil D. O’Toole:

–candidate’s petition or the recall petition.

John Paul Stevens:

–So if we uphold this… the judgment that we’re reviewing, that will have no impact one way or another on any existing Colorado law applying to the solicitation of names to put a candidate’s name on the ballot.

Neil D. O’Toole:

That’s correct.

Stephen G. Breyer:

Could I ask–

Antonin Scalia:

–It’s hard to see that there’s a compelling State interest in having this information if the State doesn’t require it for these other matters, isn’t it?

Neil D. O’Toole:

I… we fail to see a compelling State interest in–

Stephen G. Breyer:

But is it possible–

Neil D. O’Toole:

–in… sorry.

Stephen G. Breyer:

–that… the compelling State interest–

Neil D. O’Toole:

Excuse me.

Stephen G. Breyer:

–I take it that’s being advanced is that they’re afraid that petition gatherers who are paid will say to people in shopping centers, I’ll give you a dollar if you sign the petition.

I’ll give you 50 cents if you sign the petition.

That’s at least what they’re saying, and it’s not implausible.

Now, if that’s a legitimate interest, and it sounds like one, but I agree with you that this is unconstitutional, would I also have to hold unconstitutional an effort by a State to say, we want disclosed how much money you give to a candidate?

In other words, I’m quite concerned about deciding for you in this case and then finding the campaign finance issue before me in another case and suddenly, lo and behold, I’ve decided that issue here.

Neil D. O’Toole:

The answer is no, Justice.

Stephen G. Breyer:

Why not?

Neil D. O’Toole:

And the reason is that the State interest in avoiding the possibility or view of corruption simply isn’t present in a balloting issue.

Ruth Bader Ginsburg:

Mr. O’Toole–

Stephen G. Breyer:

–No, I said what their issue… what their justification is, is that we’re afraid that Arco or some big company, and maybe it’s not true in Colorado, but it’s certainly true in California, that very often large companies want measures on the ballot, and they’ll pay people to gather signatures.

And what they’re worried about, I take it, in Colorado is a paid petition gatherer will say, I’ll pay you 50 cents if you write your name down, which I take it is illegal, and they want a ready method to see if that’s happened, and this is their ready method, and that justification’s–

Ruth Bader Ginsburg:

–Mr. O’Toole, may I just intervene at that point, because they’re… we’re talking as though there were no measures in California, and I think it ought to be taken out of this case that how much the sponsor paid must indeed be disclosed, and the Tenth Circuit upheld that final report without any ifs, ands, or buts, so the sponsor must tell how much it is paying to get this measure on the ballot.

Neil D. O’Toole:

That is correct, how much has been expended, Justice Ginsburg.

Ruth Bader Ginsburg:

In addition, there must be the name of the collector of signatures on each one of these petition collection sheets that he hands the–

Neil D. O’Toole:

On every individual petition section, the name of the circulator appears.

Ruth Bader Ginsburg:

–And that would be plus the sponsor, so we’re not talking about a void of information.

We’re talking about Colorado has some information requirement which the Tenth Circuit has upheld.

The question is, isn’t Colorado entitled, despite First Amendment concerns, to more than that?

Neil D. O’Toole:

Our answer is no.

We believe that the process that is employed by the State of Colorado is intended to do one thing, and that is to hinder the process of collecting signatures and for individuals to engage in political speech.

William H. Rehnquist:

Well, in a sense any regulations may hinder the process.

Probably the least hindering would be no regulation at all, but you don’t contend that the State can’t regulate it at all.

Neil D. O’Toole:

Chief… Chief Justice, of course they can regulate it, and they do.

They have criminal sanctions for the violation of the act.

They have extensive criminal–

Stephen G. Breyer:

But I’m trying to get this… this is what I’m thinking.

Suppose I think in this case that their justification is trying to catch petition gatherers who will pay for signatures.

Now… and I agree with you, suppose I agree with you that despite that justification this is unconstitutional.

Then, in the next case, someone says, remember that case you just decided?

Now, the State here is requiring various kinds of disclosure of contributions to candidates or other forms of finance disclosure.

At that point you want to say, that’s totally different, and I all I want you is to explain why.

Neil D. O’Toole:

–What is sought in Colorado, Justice, is a prophylactic measure to assist the efficiency of the State at the cost of the First Amendment.

Now, efficiency never does take a back seat, and in this particular case the efficiency of identifying these individuals with a badge… and, by the way, this goes to volunteer as well as non, or paid circulators, and certain reporting requirements only go to paid circulators but not to voluntary circulators.

Those requirements essentially chill the process involved in core political speech which is described–

Antonin Scalia:

I thought you had no objection to applying to your situation what Justice Breyer is worried about applying to contributors.

You have no objection–

Neil D. O’Toole:

–I have no objection to that–

Antonin Scalia:

–to disclosing–

Neil D. O’Toole:

–None.

Antonin Scalia:

–who the circulators are and that they’re paid and how much money is paid, and all of that is, indeed, disclosed, isn’t it?

Neil D. O’Toole:

Your Honor, it is disclosed on the petition.

Antonin Scalia:

So what Justice Breyer should be asking you is, what if we required contributors to candidates to go around wearing a button that says, contributor to candidate?

That’s the parallel, isn’t it?

Stephen G. Breyer:

I know you’re going to say yes, and I know what–

[Laughter]

Perhaps what I should be asking.

Neil D. O’Toole:

I’m glad you know that.

Stephen G. Breyer:

Now… maybe what I should be asking, but what I actually am asking, is–

Neil D. O’Toole:

Thank you, Justice Scalia.

Stephen G. Breyer:

–Is why you made that concession?

I’m trying to get in my mind what the reason is that distinguishes between those two things.

I’m looking for the rationale.

Neil D. O’Toole:

Your Honor, in fact, as we tried this case, and as we presented in our complaint, we did not make that concession, and in fact we challenged the affidavit requirement because we believed there were more or less restrictive means in which to gather the ensuring of a modicum of State support was there.

However–

Ruth Bader Ginsburg:

Well, that I don’t understand based on Buckley, because if… let’s just make it with a volunteer contributor.

If I am required to disclose how much money I give, why isn’t it equally constitutional for me to say I didn’t have the money but I gave personal services instead?

Why shouldn’t the public know who is contributing to this candidate, and some may contribute money, and some may contribute personal services?

Neil D. O’Toole:

–The public does know, in Colorado, who has contributed to a citizens’ initiative.

That is reported.

Contributions are not at stake here.

What we’re talking about are reporting requirements for individuals who are engaged in this very specific area of protected speech with their names, their addresses, their business addresses, and they are reported while–

Ruth Bader Ginsburg:

But I thought you just said you objected to the whole thing, including the report–

Neil D. O’Toole:

–No.

Ruth Bader Ginsburg:

–that the sponsor has to file, which as I understand it says, I am the sponsor of the initiative, here it is ready to go on the ballot, I spent X amount for paid solicitation.

Neil D. O’Toole:

In fact, Justice Ginsburg, I apologize if I gave you that impression.

We did oppose the affidavit requirement because we thought it identified individuals too closely with contentious issues.

We did not challenge the expenditure reporting requirements as found under the Campaign Act.

Neil D. O’Toole:

We never challenged that, but we did challenge those parts of the statute which singled out paid circulators, identified them with issues, allowed them to be subjected to potential–

Antonin Scalia:

But you’re not appealing that here.

Neil D. O’Toole:

–That’s correct, Your Honor.

Antonin Scalia:

So for present purposes–

Neil D. O’Toole:

That’s correct.

Antonin Scalia:

–why don’t you be magnanimous and say, we accept all of that?

You don’t even mind having the individual circulators identified in the affidavit that’s filed at the end, right?

Neil D. O’Toole:

At this juncture, it is certainly more than adequate information to allow the State to proceed with any interest they have.

The mention of fraud is a talismanic incantation in these cases, and the long and the short of it is, we don’t see it.

Anthony M. Kennedy:

Would you–

Neil D. O’Toole:

Yes, Justice–

Anthony M. Kennedy:

–think it constitutional to require in bold face type on the front, as a cover sheet for any initiative that a voter signs, the statement, this init… this petition is being circulated by a paid circulator, or an unpaid circulator, as the case may be?

Would you object to that?

Neil D. O’Toole:

–Yes, I would, and it would be the same objection that we have to the badge, Justice Kennedy, and the reason I’d object to it is that the protection that’s accorded to somebody that’s paid in this sacred area of political discussion is the same, and there is no reason… there are three… I think we have… you know, basically this disclosure says that we have the… forces the individual to fear… I mean, or have the risk of fear of Government reprisal–

Anthony M. Kennedy:

Now–

Neil D. O’Toole:

–All right.

I’m sorry.

Anthony M. Kennedy:

–It seems to me that this promotes free speech rather than retards it.

It gives the voter who’s considering signing the petition added information.

Does it–

Neil D. O’Toole:

It does not promote free speech of the individual seeking to speech… to speak.

It… Justice Kennedy, I believe it may promote some interest in giving more information to the recipient of that speech, which it is our opinion is not the purpose of the First Amendment.

Anthony M. Kennedy:

–What’s the evil that follows from my hypothetical, because you know what’s next, because I’m going to say, well, what’s wrong with, say, a badge… forget the badge.

Neil D. O’Toole:

Forget the badge.

Anthony M. Kennedy:

Let’s say that it’s right on the affidavit.

This petition is being circulated by a paid or unpaid volunteer.

Neil D. O’Toole:

It is our position that that prophylactic… whatever… for whatever… first off, is there a reason for that?

Is the reason–

Anthony M. Kennedy:

Oh, the State says this gives information to the voter that the voter would need.

Neil D. O’Toole:

–That’s not a compelling State interest that overcomes the right of the individual to participate in anonymous speech.

Neil D. O’Toole:

That’s my answer to that.

Anthony M. Kennedy:

It’s not anonymous.

You don’t have to give your name.

All you have to say is whether you’re paid or not paid.

You’re still anonymous.

Neil D. O’Toole:

That individual does not have to speak.

It’s compelled speech.

That individual is being compelled to speak.

Anthony M. Kennedy:

Well, but you allow it on the disclosure report.

Neil D. O’Toole:

Ah.

Well, in the disclosure report what is allowed is a generalized reporting that says expenditures were made to National Voter Outreach.

Now… or whatever paid circulation is taking place.

Remember, we still haven’t gotten to the registered circulators in a… by the way, there is no empirical evidence that it turns out that registered voters are less likely to–

Antonin Scalia:

Could you–

Neil D. O’Toole:

–commit fraud than–

Antonin Scalia:

–Could you require a statement on a candidate petition that says at the top, circulated by someone who expects a job–

[Laughter]

–from this candidate if he is elected?

Could you require that statement?

That’s very important information for the voter to know.

Neil D. O’Toole:

–It certainly would be–

Antonin Scalia:

Why not require that?

Neil D. O’Toole:

–Could you require that.

I… Your Honor–

William H. Rehnquist:

That’s a tough one.

Neil D. O’Toole:

–You could require that.

If you require that, that’s what’s going to be done.

But the answer to that I’d say is, to the extent that it creates an impediment to discussion and compels speech, which the speaker has a right to determine and select, it is the nature of his conversation.

Stephen G. Breyer:

Then why do… why can you then… why could you then compel a company to state in the newspaper that it is contributed $1,000 to Joe Jones, who’s a candidate, in the form of promising to give him an employment contract as soon as he’s finished.

I take it you could compel the latter, or can you?

Neil D. O’Toole:

I would say–

Stephen G. Breyer:

Then why couldn’t you?

How do you reconcile those?

Neil D. O’Toole:

–You’re… the part of the speech that you’re compelling is not the contribution.

You’re compelling the reason.

You’re compelling the inherent basis of the conversation–

Anthony M. Kennedy:

I suppose another–

Neil D. O’Toole:

–and the political purpose.

Anthony M. Kennedy:

–I suppose another answer to my question is, if it’s important to the voter, you can ask, are you been paid or not.

If the voter thinks it’s important–

Neil D. O’Toole:

They can ask.

In terms of the process, Justice Kennedy, you asked about that.

I direct your attention to footnote 4 in the Meyer brief.

Also there is adequate… there is discussion in the transcript of the… of how the process works, and it involves going door to door on occasion, but also going to the malls.

John Paul Stevens:

–Mr. O’Toole, may I ask you another question about the state of the record?

The State… one of the important State interests here is to catch the people who are bribing people to sign petitions, and there’s sort of a presumption that paid circulators may do that rather often.

Does the record contain any evidence indicating how… what percentage of paid circulators engage in this kind of conduct and what percentage don’t?

I mean, normally we presume people are innocent until they’re proved guilty, but here there’s kind of a presumption that paid circulators are guilty of this recurring crime.

Neil D. O’Toole:

Justice Stevens–

John Paul Stevens:

Does the evidence support that?

Neil D. O’Toole:

–Justice Stevens, we argued in the brief we think the evidence–

John Paul Stevens:

No, I’m not asking what you argued in the brief.

Neil D. O’Toole:

–I’m sorry.

John Paul Stevens:

I’m asking you what’s in the… what evidence was adduced in the trial court, and what findings, if any, were made?

Neil D. O’Toole:

The evidence is more indirect than direct.

The evidence substantiates that in 1992 there were 12… 1,200,000 signatures submitted.

The State detected approximately 2,000 of those signatures obtained by fraud.

That’s a fifth of a percent, or less than a fifth of a percent.

That is the evidence of fraud, and that is–

John Paul Stevens:

Does that indicate how many people were responsible for those fraudulent signatures?

Neil D. O’Toole:

–Looked like 15… 9 to 15.

I think they got three convictions.

They did have a… and that’s part of the appellee’s supplemental appendix, where they had a hearing before the Secretary of State to determine whether certain acts had violated 1-40-130, which is the criminal execution statutes in the petition, and they were not able to find any evidence of fraudulent dissemination of information, and–

David H. Souter:

But does the evidence show how many of those who did perpetrate fraud were paid and how many were unpaid?

Neil D. O’Toole:

–The only evidence is that 9 to 15 individuals who were paid circulators may have engaged in fraud, 3 of whom got convicted of forgery.

What they actually did, they violated the… they made it a class 4 felony.

They used… they wrote in the identity of individuals.

The Secretary of State, who had the power to check every signature–

William H. Rehnquist:

They forged names, I guess–

Neil D. O’Toole:

–That’s–

William H. Rehnquist:

–rather than writing in the identity of individuals.

Neil D. O’Toole:

–They forged names.

I mean, they forged signatures, names, they went through a telephone book.

David H. Souter:

Well, then you’re saying there was evidence that they had committed fraud.

Neil D. O’Toole:

Absolutely.

David H. Souter:

Okay.

Now, what evidence was there that unpaid solicitors had committed comparable fraud?

Neil D. O’Toole:

None.

David H. Souter:

Okay.

Stephen G. Breyer:

And is there any evidence in any other State… I mean, this occurred in a State which had these requirements which they’re trying to defend.

Is there any evidence from States that don’t have these requirements–

Neil D. O’Toole:

There was evidence that in the State of Washington, and that’s a higher quantum of signatures needed to show a modicum of support, that there was likewise approximately 1,500 signatures.

It turned out in that particular case factually, and it’s part of the amicus brief from the States, that the proponents, who are the first to worry about fraud and being tainted with fraud, found that there had been fraud by circulators, that they had been defrauded, and had therefore turned that in.

There’s evidence also in this case that in one such incident the proponent had paid somebody approximately for 6,000 more signatures than they actually got, and they thought they defrauded–

Antonin Scalia:

–Do these circulators get… they get paid by the name, is that–

Neil D. O’Toole:

–They get paid by the–

Antonin Scalia:

–So when they forge a name they are cheating not just the State, they’re cheating the person who hired them.

Neil D. O’Toole:

–Absolutely.

Antonin Scalia:

So I assume he would have an interest in preventing their fraud as well.

Neil D. O’Toole:

And in fact when I… I was involved in the Worker’s Choice of Care Amendment.

Neil D. O’Toole:

We set up very stringent guidelines to check every single signature.

Ruth Bader Ginsburg:

Whatever you did, does the State of Colorado have any laws that are aimed at the sponsor, the one who pays, as distinguished from the person who receives the payment?

Neil D. O’Toole:

Well, to the extent that a sponsor involves himself or herself in fraud, they are likewise going to be… could likewise be penalty… penalized–

Ruth Bader Ginsburg:

But there’s no kind of respondeat superior liability.

Neil D. O’Toole:

–No.

As far as I… no, there is not a respondeat superior liability.

I’m aware of no instances in which the proponent has been charged and convicted where… in the absence of any overt act on the proponent’s part to… or permit the fraud, or encourage the fraud.

Ruth Bader Ginsburg:

The… what the sponsor must disclose, in addition to the total amount spent on paid petitions, do they… they have to break that down into the per signature amount?

Neil D. O’Toole:

No, they… no, they don’t.

They give a… in the reporting requirement which was not struck down, and which is not before this Court, they give a general reporting of expenditures, the amount, and in this particular instance the amount paid to circulate petitions, there’ll be another line item, the amount it cost to buy petitions and have them–

But do you know the number of… I suppose if you knew the number of paid petitioners, and you knew the total amount paid to them, you could figure out the per petition–

Neil D. O’Toole:

–You could if there was a breakdown that the Secretary did, but they don’t.

Antonin Scalia:

–I thought there was a breakdown.

I asked that question earlier.

Neil D. O’Toole:

I’m sorry.

Antonin Scalia:

I thought it did identify how much was paid to each petition circulator, did it not?

Neil D. O’Toole:

Your Honor, if you ask that question of me–

Antonin Scalia:

No–

Neil D. O’Toole:

–I will tell you that the reporting requirement as I understand it is an expenditure, and it’s a global expenditure requirement.

The requirement that was struck down was one which required the distinct reporting of paid circulator’s names, addresses, and identifying information.

Ruth Bader Ginsburg:

–The monthly… the monthly one was–

Neil D. O’Toole:

Monthly, exactly right, whereas at the end, the evidence, or the record of the paid circulators is really no different from the record of non, or voluntary circulators.

What happens is, the petitions get turned in.

Those petitions contain the name of the individual who circulated the petition.

Antonin Scalia:

–Right.

Neil D. O’Toole:

That information is what the Secretary of State uses to first determine–

Antonin Scalia:

What is stated about the expenditures, so much… I expended so much for television–

Neil D. O’Toole:

–So–

Antonin Scalia:

–So much for radio–

Neil D. O’Toole:

–I paid J&J Printing Company $5,000 to print my petition.

Antonin Scalia:

–Okay.

Neil D. O’Toole:

This is–

Antonin Scalia:

You have to show who the money was paid to.

Neil D. O’Toole:

–That’s correct.

Antonin Scalia:

But if it’s paid to circulators, don’t you have to show the circulator and how much money was paid to each circulator?

Neil D. O’Toole:

It has been applied as a general reporting requirement, where in 1992 we indicated we paid… I forget, whatever.

I think it was $40,000 to National Voter Outreach for circulation of petitioners without identifying line by line the identity of the–

Antonin Scalia:

I see.

You pay the national company that hires these circulators, is that it?

Neil D. O’Toole:

–Correct.

Antonin Scalia:

So you only have to show what company you paid it to, and these are employees of that company.

Neil D. O’Toole:

Employees… they… they’re paid on a per signature basis under our law in the State of Colorado.

They’d be independent contractors.

The answer to that question is–

Anthony M. Kennedy:

How soon before the election is that final disclosure statement made?

I’m over here.

Neil D. O’Toole:

–Oh, I’m sorry, Justice–

Anthony M. Kennedy:

Or is it made after the election?

Neil D. O’Toole:

–The disclosure is made when the petitions are filed with the Secretary of State.

Anthony M. Kennedy:

The same day?

Neil D. O’Toole:

The same day.

There are further disclosures that take place just prior to the election.

Anthony M. Kennedy:

But this disclosure, this global disclosure, with the lump sum amount paid for circulation, is filed at the time the petitions are filed?

Neil D. O’Toole:

That is correct.

Stephen G. Breyer:

The further disclosures near to the time of the election are not before us.

Neil D. O’Toole:

It’s near the time of the election, and I–

Stephen G. Breyer:

No, but is it… is any issue about those disclosures–

Neil D. O’Toole:

–No, Your Honor, there is not.

The only issue in that disclosure is the requirement that while the petition is being circulated, while that contentious issue is before the public, these individuals, who by virtue of the sole fact that they are paid, have to be identified.

Thank you, Mr. Chief Justice.

William H. Rehnquist:

–Thank you, Mr. O’Toole.

General Gale, you have 1 minute remaining.

Gale Norton:

May it please the Court, in clarification to Justice Kennedy’s question, the monthly report was stricken by the Tenth Circuit in its entirety.

The final report was stricken to the extent it requires individualized reporting regarding the circulators.

Mr. O’Toole is correct that the final report is submitted at the time that the petition itself is submitted.

There are examples of both of those reports in the joint appendix at pages 41 and 45.

The State has an interest in preventing fraud and misconduct while a petition is being circulated, not simply bribery, but also a husband signing for a wife, something as commonplace as that.

We have the responsibility to the–

Sandra Day O’Connor:

Well, the State doesn’t care about this, these things with candidate petitions?

Gale Norton:

–Certainly the State does care about these things.

Sandra Day O’Connor:

But it doesn’t have these requirements.

Gale Norton:

It has some of these requirements as–

Sandra Day O’Connor:

Not the badge and the paid versus the unpaid and the requirements we’re talking about here.

Gale Norton:

–That is correct.

It does have the registration requirement, but not the others.

The badge requirement fulfills the function of providing information to the signer.

That person is essentially relying on the circulator as a fiduciary.

The person can… the voter can only sign a petition once.

Once they have signed a petition, they cannot sign that same petition again, and so once they have given over their signature to that person, they have given them a trust responsibility.

William H. Rehnquist:

Thank you, General Norton.

Gale Norton:

Thank you.

William H. Rehnquist:

The case is submitted.