Citizens Against Rent Control/Coalition for Fair Housing v. City of Berkeley, California – Oral Argument – October 14, 1981

Media for Citizens Against Rent Control/Coalition for Fair Housing v. City of Berkeley, California

Audio Transcription for Opinion Announcement – December 14, 1981 in Citizens Against Rent Control/Coalition for Fair Housing v. City of Berkeley, California

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Warren E. Burger:

We will hear oral arguments first this morning in Citizens Against Rent Control/Coalition against the City of Berkeley.

Mr. Parrinello, you may proceed whenever you’re ready.

James R. Parrinello:

Mr. Chief Justice and may it please the Court, the question presented by this case is whether limits on contributions to ballot measure campaign committees violate the First Amendment guarantees of speech and association.

Berkeley law limits to $250 the amount that a citizen may contribute to support or oppose a ballot measure.

This case arose out of a 1977 Berkeley election where voters were asked to accept or reject a proposal which would have enacted rent control in the city of Berkeley.

Groups of citizens associated together to oppose the rent control ballot measure.

Under Berkeley law, that citizen association was deemed to be a campaign committee.

The committee solicited and received contributions in excess of $250.00.

Shortly before the election, the city decided that those contributions violated the campaign contribution limit, and it ordered the committee to immediately forfeit the excess funds to the city treasury.

Believing that the forfeiture would impair its ability to communicate its message to the electorate prior to election day, the committee and its supporters filed suit and sought and obtained preliminary injunctive relief in the superior court, and used the additional funds to communicate its message to the voters prior to the election.

Thereafter, the committee moved for and obtained summary judgment in the superior court, which held that the campaign contribution limit violated the First Amendment.

The California Court of Appeals, by a vote of three judges to none, affirmed the summary judgment.

The California Supreme Court, by a vote of four judges to three, reversed, splitting on the constitutional issue.

The majority opinion of the California Supreme Court failed to reconcile itself with, or even to recognize, a prior decision of the United States Court of Appeals for the Fifth Circuit, which struck down virtually identical ballot measure contribution limits in the state of Florida.

That unanimous opinion of the Fifth Circuit, entitled Let’s Help Florida v. McCrary, is now pending before this Court.

It is important to emphasize that this case involves ballot measure campaigns and ballot measure campaign committees.

It does not involve candidate campaigns for public office.

A limitation on the amount that citizens may contribute to a ballot measure campaign committee simultaneously affects the exercise of fundamental First Amendment rights in a number of ways.

The effects can best be viewed as two sides of the same coin.

On the one hand, ballot measure contribution limits impair the ability of citizens to associate together, to communicate their message to the voters as effectively as possible on an issue of public importance.

On the other hand, these limits under attack here deprive the public of vitally needed information and restrict their access to the marketplace of ideas at the time when they need it most, when they are being asked to decide issues for themselves.

The sole and only purpose of a ballot measure contribution is to purchase or enhance communication of the message to the voters.

The sole and only purpose of a limitation on ballot measure contributions to limit or to restrict that vital communication.

How do you distinguish your case from the First National Bank v. Bellotti?

James R. Parrinello:

Your Honor, I believe that in our case, it’s very similar to First National Bank of Boston v. Bellotti because there the court held that in the context of a ballot measure campaign, there is no legitimate governmental interest to support restrictions on First Amendment rights in the form of campaign spending.

If anything, the restrictions here are more onerous than the restrictions in Bellotti because they affect the rights of citizens or national persons as well as the rights of corporations.

Counsel, would your argument be the same if the limits were much higher; for instance, $5000 instead of $250?

James R. Parrinello:

Yes, it would, Your Honor.

Justice O’Connor, the principal reason that the argument would be the same is that in the context of a ballot measure campaign, there’s no legitimate compelling governmental interest to support any restriction on the citizen’s ability to communicate.

In the context of a ballot measure campaign, a proposal embodied in such a measure, in such a ballot measure, may target any number of citizens’ rights.

James R. Parrinello:

And the ability of citizens to communicate their ideas with respect to a ballot measure is important to the public’s right to know.

It seems to us that there is no legitimate governmental interest to be supported.

Well, is it so much the public’s right to know as it is their right to express what they think?

James R. Parrinello:

I believe it’s both of those rights, Mr. Chief Justice.

Even if it doesn’t communicate very much, your position would be it’s still a right, even if they present such a muddled message that no one gets it.

James R. Parrinello:

That’s absolutely correct, we agree with that.

Does the state grant any quid quo pro like limited liability as they did in the case of First National Bank of Boston v. Bellotti here?

Is the liability of members of the CARC limited in the way that the members of a corporation are?

James R. Parrinello:

Not that I am aware of, Mr. Justice Rehnquist.

They would be liable for acts of their agents and for the same, just as an individual, and they would not have corporate immunity.

James R. Parrinello:

A corporation in California?

No, CARC, or your Citizens Against Rent Control.

They would be responsible for the acts of the association, that’s correct.

Although it would frankly be unlikely that they would be held responsible for such acts.

But that’s as a matter of likelihood of the acts taking place, rather than any principle of law that insulates them from acts of individuals.

James R. Parrinello:

I believe that’s correct.

The purpose of a ballot measure campaign committee is to express the community of interest or the joint political beliefs of the contributors or association members.

In today’s society, as this Court has noted, speech or communication costs money, and it is the pooling of individual resources in the form of campaign contributions to a ballot measure committee that enhances the effectiveness of that communication.

Ballot measures are often complex and post complex issues, which if enacted will have effects that are unknown to the average voter, or are difficult for the average voter to perceive.

These effects are best ascertained by research, which is best purchased by committees which have the ability to conduct that research through the resources gained by the pooling of their contributors’ contributions.

The committee then communicates to the voters the results of that research, together with data, facts, opinions and reasoning of its contributors for a single purpose; to advocate the passage or the rejection of a ballot measure.

These communications in today’s society cost money; they take the form of mailings, newspaper advertisements, television or other media advertising.

This ballot measure contribution limit, by restraining that form of communication, imposes substantial restraints upon the exercise of First Amendment rights.

Ballot measures often deal with issues and ask the voter to decide issues which affect the property, private property rights, which affect the community in which we live.

Indeed, these types of ballot measures often touch people’s lives directly.

The ballot measure process is a form of direct democracy.

It is where the citizens decide for themselves issues of public importance.

Citizens in this form of democracy act as legislators, but they do not have the resources available to them that legislators have to determine whether or not to approve or reject certain proposed laws, because they do not have legislative staff and staff expertise.

It is particularly in the context of a ballot measure campaign where the citizens have to decide important issues for themselves that it is important for them to have free access to all competing points of views.

Any restriction on that access to information cannot be justified, particularly in the context of a ballot measure campaign where First Amendment rights deserve perhaps the greatest protection.

James R. Parrinello:

Ballot measures are inanimate.

Unlike a candidate, they have no voice and they have no personality.

As a result, ballot measures often suffer from low visibility.

In this context a ballot measure campaign committee is the agent and voice of its contributors and members for a single purpose; to communicate a message to the voters to vote for or against the proposal contained in the ballot measure.

The City of Berkeley argues that even though citizens may be limited by this contribution limit… that’s $250.00… that those same citizens may spend money as much as they desire to communicate their views, so long as the citizens spend that money independently of all others.

But it is not what First Amendment rights Berkeley has allowed the citizens to continue to exercise; it is what they have taken away.

And the right that away is perhaps the only effective mean most have to participate in the ballot measure campaign process.

That is the right to contribute.

A simple example will illustrate this point.

The largest single contributor to the committee here contributed $5000.

That $5000, if spent independently, would have been able to purchase less than a third, approximately a third, of a single mailing to all the voters in the City of Berkeley at the time of this 1977 election.

Because as the record indicates, a single mailing to all Berkeley registered voters at the time of this election cost almost $13,000.

So what we are saying is that the exercise of this right to independently campaign or to have unlimited expenditures is a right that only the very wealthy citizens can enjoy.

And indeed, there are very few other citizens who even though they possess that right can exercise it.

I would like to, by way of example, show two other effects of this ballot measure contribution limit.

Such a limit would prohibit two Berkeley citizens who share a common view for or against a ballot measure from spending $300 each to purchase a newspaper ad, where each of those two citizens advocates the passage or defeat of a ballot measure.

The limit would prohibit 20 citizens from spending $600 each to purchase the postage and writing materials and printing materials necessary for those 20 citizens to send the informational pamphlet to Berkeley voters, communicating their joint interest in opposing or supporting a ballot measure.

The net effect and purpose, the net effect of a contribution limit such as this will ultimately frustrate people from participating in the political process because it takes away from them the only effective means that they have to participate, particularly in the context of a ballot measure.

Of course, a lot of your arguments, counsel, are equally applicable to candidate campaigns.

But you’re stressing really the ballot measures.

James R. Parrinello:

That’s correct, Your Honor, our arguments are applicable to candidate campaigns.

The distinction between the ballot measure campaign and the candidate campaign is that there is no governmental interest of vital importance that is served by a ballot measure contribution limit; no logical connection between a ballot measure contribution and its target… the restriction of the flow of communication to the voters… and any compelling governmental interest.

As this Court has indicated in Buckley, there is such a nexus or a compelling governmental interest with respect to candidate contribution limits.

Well, the California Supreme Court purported to find a compelling interest, or several of them.

What do you have to say to their views?

James R. Parrinello:

Justice White, the California Supreme Court’s findings of compelling interests were, in sum, I believe two, which is that the government, the contribution limit sustains the integrity or promotes the integrity of the ballot measure process and promotes an alert citizenry.

And avoids the appearance of money dominating the campaign.

That’s the same… the other side of the coin.

James R. Parrinello:

Correct.

The other side of that coin.

James R. Parrinello:

With respect to the appearance of money dominating the campaign, all the California Supreme Court and the Appellees are saying is that… to recognize what this Court has recognized, which is that money purchases communication or enhances communication in the context of an election campaign.

And that communication may be persuasive upon the voters.

Indeed, that’s its purpose.

But as this Court has pointed out, the fact that speech or communication may be persuasive is not a reason to suppress it.

And that is something that the California–

You’re just saying that the First Amendment and our cases just foreclose using those interests as a compelling interest.

James R. Parrinello:

–I believe that’s correct.

Is that what you think our cases?

James R. Parrinello:

I believe that’s what the cases say.

That’s our reading of the cases.

But more importantly, there is no logical connection between a ballot measure contribution limit here whose only target is to restrict speech, and any governmental interest including the promotion of the integrity of the electoral process.

Because as this Court pointed out in its decision in Bellotti, particularly the context of the citizens making their own decision in a referendum or a ballot measure campaign, that is where the citizens need the access, the greatest possible access, to conflicting points of view.

And rather than promoting the integrity of the electoral process, what a ballot measure contribution limit does by restricting speech is to denigrate or diminish the integrity of that process ultimately.

The same can be said with respect to the Supreme Court’s determination, the California Supreme Court’s determination, of a compelling interest in maintaining an alert citizenry.

It’s illogical to say that by restricting information and communication on a vital issue of public importance that that promotes an alert citizenry.

How can the deprivation of information to the citizens promote and inform the alert citizenry?

We believe that there is no logical connection between a ballot measure contribution limit, whose only effect is to reduce speech, and any governmental interest.

Of course, Bellotti wasn’t a contribution case, was it?

James R. Parrinello:

Bellotti, the issue posed in Bellotti was whether or not contributions or expenditures could be prohibited completely.

Well, what was involved was expenditures, wasn’t it?

James R. Parrinello:

I believe the issue was contributions or expenditures.

But whether I’m right or wrong in my recollection–

The big argument in the case was whether business entities could spend money on matters in which their property interests or corporate interests weren’t directly involved.

And certainly, the Berkeley ordinance doesn’t prevent expenditures by corporations or individuals in any amount, does it?

James R. Parrinello:

–No, it doesn’t prevent expenditures, but what it does is to limit the ability of citizens to associate together by the pooling of their resources.

I understand that, but it just isn’t covered by Bellotti.

James R. Parrinello:

Our view is that the principles in Bellotti, while perhaps not on all fours, do cover this case in that in Bellotti, the court dealt with a restriction on spending in the context of a ballot measure campaign, and this case involves a ballot measure campaign as well.

I agree that it’s not all fours with Bellotti, but we believe the principles of Bellotti.

It is important to distinguish this case between… to distinguish ballot measure contributions and contributions to candidate campaigns.

A limitation on a contribution to a candidate prevents corruption, prevents the contributor from gaining or appearing to gain undue influence over the candidate.

James R. Parrinello:

In effect, money buys allegiance, and large contributions have the threat to purchase the allegiance or to purchase undue influence over a particular candidate, and to cause that candidate, once he or she assumes public office, to elevate the interests of the large contributor above the interests of the candidate’s constituency, and thereby subvert the will of the people.

Well, could you tell me whether this committee, when it received money, could independently determine how to spend it?

James R. Parrinello:

Your Honor, under California law, the committee is in a fiduciary or trustee position with its contributors so that it can only spend the money for the purpose of advocating the passage or defeat of the ballot measure.

It could not spend the money for the purpose of giving it to a candidate, for example.

I understand that, but what it said and the particular content is decided by the committee.

James R. Parrinello:

That’s correct.

You don’t run it by any contributor to see if he agrees with it.

James R. Parrinello:

It depends upon how the particular committee is formed, but–

Well, I’m asking about this one.

James R. Parrinello:

–This particular committee had approximately 125 people on a steering committee, which basically decided the manner in which the campaign was going to be run.

That may be, but it was the committee’s decision, not the contributors’.

James R. Parrinello:

That’s correct, except that under the law in California the committee had to spend the money for the purpose of advocating the defeat of this proposed ballot measure in Berkeley.

Or support it.

James R. Parrinello:

Well, in this particular case it was–

It was organized to defeat it.

That’s correct.

I know, but the particular content of the communications were decided by the committee.

James R. Parrinello:

–That’s correct.

So with the proviso that the committee had to spend the money for the purposes of advocating the defeat of the measure.

Was it Proposition 13 that related to the tax limitation in your state–

James R. Parrinello:

That’s correct, Mr. Chief Justice.

–And these limits would apply on that kind of a referendum, too, would it not?

James R. Parrinello:

They would apply if the state of California enacted them.

At the present time, there are no such limits on the state level but there are bills pending in the legislature.

But I’m speaking of the principle underlying this particular measure would have barred individual citizens from contributing over $250.

James R. Parrinello:

That is absolutely correct.

The City of Berkeley also advocates that the governmental interest in disclosure is served by a ballot measure contribution limit.

But at the present time and in 1977, the City of Berkeley had in effect perhaps the most stringent disclosure laws in the nation.

If the City of Berkeley decides or deems that if existing disclosure laws are not sufficient to meet its purposes it can draft narrowly-restrictive disclosure laws which directly serve the purpose of disclosure, but the government interest in promoting disclosure cannot be served by suppressing speech, which is what this ballot measure contribution limit ultimately does.

The only purpose of a ballot measure contribution limit is to equalize the relative voices of different segments of our society.

James R. Parrinello:

But the concept that government may restrict the voices of some to equalize the voice of others is formed in the First Amendment.

The decision of the California Supreme Court is contrary to precedents of the United States Courts of Appeals for the Second, the Fifth and the Ninth Circuits of the Michigan Supreme Court and of appellate courts in Texas and California.

These courts, in scrutinizing ballot measure spending and contribution restrictions, stated that in the context of a ballot measure campaign where the only purpose of a contribution was to enhance communication, that there is no compelling governmental interest, no justifiable interest, to warrant the suppression of vital First Amendment rights.

The decision below is erroneous and it should be reversed.

The sole purpose and effect of a ballot measure contribution limit is to restrict political communication because it may he too persuasive.

Would this argument apply to restrict a newspaper from having an editorial, the space of which would cost more than $250 for advertising purposes?

Or would it restrict a local broadcaster from editorializing one way or the other?

James R. Parrinello:

I do not believe so, because I believe that a newspaper’s editorial, as long as it was not made in concert with any other newspaper or any other campaign committee or individual, would be considered an expenditure–

Usually, editorials of the newspaper, depending on the size of it, represent the collective views of anywhere from two or three to a half a dozen or more people.

James R. Parrinello:

–I honestly don’t know the answer to that question.

It’s one I hadn’t thought of.

But it could well under those circumstances.

Because the ballot measure contribution limit is targeted at communication, because its purpose is to limit communication, because it perceives that too much communication is evil, we believe there is no compelling governmental interest; indeed, no legitimate governmental purpose, to support a ballot measure contribution limit.

And we respectfully request that the decision below be reversed.

Counsel, I always ask the attorneys what they mean by the word compelling.

James R. Parrinello:

Mr. Justice Blackmun, in the context of the exercise of these core First Amendment rights, and governmental infringements on those rights, we believe that government has the burden to demonstrate a compelling interest to justify overriding those rights.

And by compelling–

You used the word again, and I merely raised the question as to whether it isn’t awfully easy to fall into the habit of using a word that dictates the result.

And I feel a little more comfortable if we didn’t use the word compelling, whatever that means.

James R. Parrinello:

–I understand.

I’ll try to give you my definition of it, which I believe is that in the context of the exercise of these rights.

It is a vital governmental interest of overriding importance which directly serves… not randomly serves but directly serves to promote an imminently threatened governmental interest.

And we believe that this ballot measure contribution–

You just say it’s a strong enough interest, it’s just an interest that’s strong enough to overcome the interest on the other side.

James R. Parrinello:

–We don’t believe it’s a balancing test.

We believe that it’s more than that.

Well, isn’t that all it really is?

If it overrides it, it’s compelling.

James R. Parrinello:

We don’t believe it is a balancing test.

We believe the burden is on the government to demonstrate not merely that they have an interest and that it’s an important interest, but also that this law directly serves that interest.

Do you know of any case in which this Court has defined the term compelling and the phrase “compelling interest”?

I think the answer is probably no.

It made its first venture into the law books in the case of Kramer v. Union Free School District, did it not, without any explanation?

James R. Parrinello:

I believe that’s correct.

But you know of many cases where this Court has used the term?

James R. Parrinello:

Certainly the Court has used the term in many, many First Amendment cases and–

Does it mean the same thing as fixed scrutiny?

James R. Parrinello:

–I believe it does, with the addition that the law is required to be narrowly drafted in order to not burden unnecessarily First Amendment rights.

And we also believe this law is not narrowly drafted.

Thank you.

Warren E. Burger:

Ms. West?

Natalie E. West:

Mr Chief Justice, may it please the Court, this case is not Bellotti.

As Justice White recognized, in Bellotti, the court’s analysis was directed at the prohibition of expenditures.

This is a contribution limitation.

Expenditures are not restricted in any way.

Well, they’re restricted by the contributions, aren’t they?

Natalie E. West:

No, Your Honor, every–

How can you spend more than you receive?

Natalie E. West:

–You’re speaking then of the campaign committee which–

The voice can only be as loud and as pervasive as the contributions permit.

Is that not so?

Natalie E. West:

–You’re speaking of the campaign committee which, under a contribution limitation, must raise more funds from a greater number of people.

That does not limit the speech which the campaign committee can engage in.

In fact, it furthers an important democratic interest because it broadens the base of the campaign committee by requiring them to seek contributions from more–

Doesn’t that fly in the face of one of the rationales of our Buckley v. Valeo opinion, that in order to have more different voices heard, we would suppress… at least according to the court of appeals here… we would suppress some voices in order that more could be heard?

Natalie E. West:

–No, Justice Rehnquist, I think that what the Berkeley ordinance does in this case is exactly what the Court was espousing in Buckley.

The contribution limitation applies evenhandedly to all.

Others who want to participate, participate through the means of direct expenditures.

I’d like to pick up for a moment on some of the points made by appellant in his opening remarks.

In appellants’ reply brief and in their statements today, they demonstrate a fundamental misunderstanding of the difference between expenditures and contributions.

Natalie E. West:

The distinction between a campaign contribution and a campaign expenditure turns on who controls the speech.

If I take $200 and get together with a friend who’s got $200 and we buy an ad in the newspaper, that is an expenditure.

That is not limited or restricted in any way by the Berkeley ordinance.

The Berkeley ordinance restricts contributions, and as this Court has recognized in Buckley and in your recent decision of California Medical Association, quote,

“contribution limitations impose a far less of an impact on protected rights. “

Except in your first example, you would have to agree with your friend as to the form of the advertisement, would you not?

Natalie E. West:

That’s correct, that together we would develop a joint communication, a joint message, and that is, again, enhancing a very basic principle of democracy; to try to increase and expand participation by individuals in the process.

That’s one of the things that the Berkeley ordinance seeks to do.

Ms. West, under that argument, would it comply with the ordinance for a $5000 contributor to say, I want to approve all the advertising that you disseminate, and then they let him do it.

In exchange for $5000 he gets a veto on the advertisement.

Natalie E. West:

I think that that still would remain a contribution, Justice Stevens, if the–

Why wouldn’t it be a joint expenditure?

Natalie E. West:

–A joint expenditure is if you have some control in the content and the time, place and manner of the communication.

Let’s say he gets all those controls in exchange for $5000–

Natalie E. West:

Then you go over the limit, the line, and it probably becomes an expenditure.

I’d like to point out that under federal law, this exact same kind of line-drawing has taken place as the FEC has adopted regulations to distinguish independent expenditures which are exempt from the $1000 campaign contribution limitation from the contributions.

And–

–Do you think it’s clear under the ordinance that my suggestion would be acceptable to the city fathers?

Natalie E. West:

–If you–

If the $5000 contributors all get together and say we have the right not only to just put the money in the pool, but also, we want to pass on the time, place and the forum of all publications.

Then they would say it’s all right?

Natalie E. West:

–If you put in $5000 and you have some control over the content of the message, over the time, place and manner of the communication so that the communication acknowledges your involvement in it, then you… it becomes an expenditure; it’s no longer a contribution.

You think it’s clear that the city fathers would so interpret their ordinance?

Natalie E. West:

The definition of contribution turns on control, and it’s the same kind of distinction that this Court made in the California Medical Association case.

The protected element of an expenditure is a disbursement that’s made independently in order to engage directly in political speech.

Now are you talking about the definition in Buckley or the definition in the Berkeley ordinance?

Natalie E. West:

The two definitions are actually very comparable.

I’m talking about the analysis that this Court has followed in order to distinguish–

No, I’m asking about what the ordinance means.

I had not understood that the city would permit a $5,000 contributor to make a contribution in that amount provided he insisted on control over the… over, you know… approval of the message that was–

Natalie E. West:

–I want to stress again, it’s more than just approval over the message.

It’s some kind of involvement in the time, place and manner.

–Well, all of these things.

But is it clear–

Natalie E. West:

If… yes, it is.

If the individual is engaging in political speech by spending money and helping to determine what the message is and determining where it’s going to be dispersed, how it’s going to be communicated to the electorate, then it becomes an expenditure and it is not subject to the ordinance.

–Well, you’re telling me what Buckley holds.

Natalie E. West:

I’m telling you what the situation is under our local ordinance.

Now, there’s nothing in the record of this case that would lead to a different result.

There’s nothing in the–

Is there anything in the record that shows that you’re right?

Natalie E. West:

–Justice Stevens, I would submit that I’m right in order to be–

Well, is there anything in the record that shows that they so construe the ordinance?

Natalie E. West:

–But there’s nothing in the record to show that they construe it any other way.

No, that’s not my question.

Is there anything in the record to show that they would approve of $5000 contributions as you just described them?

Natalie E. West:

No, the situation has never arisen.

Returning again to the situation that faces us in this case, we are dealing with a contribution limitation which applies in an evenhanded way to all participants in a political campaign.

Ms. West, do you agree that the test to be applied for its validity is a strict scrutiny test?

Natalie E. West:

That’s a very significant question in this case, Justice O’Connor, because a balancing test is the appropriate test.

The governmental regulation affects the communicative impact of the speech to some extent; a minor extent but nevertheless to some extent.

But the interests being advanced by the City of Berkeley are themselves First Amendment interests of the highest importance.

We are concerned with the integrity of the electoral process, with improving the accuracy of speech, the diversity of political speech.

Would you say the ordinance would fail the so-called strict scrutiny test?

Natalie E. West:

I would submit that it wouldn’t, Justice Rehnquist.

But to follow with Justice O’Connor’s question, then the appropriate test is to balance the impact on protected rights, which is very minor, against the importance of the governmental interests being advanced, which are very significant.

You say you want as much diversity as possible.

How many newspapers do you have in Berkeley?

Natalie E. West:

We have two daily newspapers.

Well, suppose they both combine on one issue on one side.

Don’t you need a whole lot to counteract that?

But don’t you need more than $250 to counteract that?

Natalie E. West:

But, Justice Marshall, the effect of the contribution limitation is to require the campaign committee to receive funds from diverse sources.

In this case, Citizens Against Rent Control received contributions from over 1300 contributors.

A handful of those made contributions in excess of $250.

What we’re saying is that the vast majority of contributors contribute less than $250.

Those individuals can participate through means of campaign contributions to the campaign committee.

Other persons must make direct expenditures.

They can do so jointly with other people so long as they take a role in–

Ms. West, my problem is that in 1981 $250 would buy one bumper sticker, wouldn’t it, about?

I don’t think it would even buy the glue for the bumper stickers, would it?

Natalie E. West:

–Justice Marshall, the–

$250 is just about… it isn’t even walking around money.

Natalie E. West:

–The facts of this case show, however, that the campaign committee raised almost $100,000 in contributions of less than $250.

That is the local scene in Berkeley, California.

Now there’s another very important state interest that’s advanced by this regulation, and that is the state’s interest in disclosure.

Pacific Gas & Electric Company can spend all the money it wants to in a Berkeley ballot measure campaign, but it cannot do so under the name of Southwest Berkeley No, No, No on W.

By requiring entities to spend money, who wish to spend money in excess of $250.00 to spend money directly, the city requires the disclosure, and thus better informs the voters, of who is participating in election campaigns.

Ms. West, can’t the city accomplish that just as easily and far less restrictively by just saying that anytime you contribute to a group or a fund, that you have to disclose who the contributors really are?

I mean, that’s far less restrictive, is it not, than the Berkeley ordinance we, in fact, have?

Natalie E. West:

That type of disclosure does not serve the interests that are particularly important in a ballot measure campaign, where unlike a candidate campaign, there’s no person that gives identity.

And what the situation that you have, is that campaign committees adopt names like Let’s Help Florida, which is a group that seeks to legalize casino gambling–

Maybe you misunderstand my question.

It is this: why can’t Berkeley require that every person or entity or corporation that contributes to this entity have to disclose their identities and the amounts of their contributions?

Natalie E. West:

–Well, they do under current disclosure law, but that information is disclosed on campaign disclosure statements that are filed by the committee before the election.

What we submit here is that–

But can’t Berkeley require a different method of disclosure and a different timing, so that you can achieve your goal in a less restrictive fashion?

Natalie E. West:

–We’ve tried to design some approaches that would achieve that goal, Justice O’Connor, and I don’t think that we can appropriately do so.

Let me just discuss some possible examples.

We thought one approach would be to require the disclosure of the big contributors as part of the communication.

Natalie E. West:

But then you get to a point where the disclosure, in fact, overwhelms the communication.

For example, in this case, imagine a 30-second radio spot that ends up by saying it’s financed by Citizens Against Bent Control/Coalition for Fair Housing, California Association of Realtors, Mason-McDuffie Company, Berkeley Board of Realtors, Apartment Political Act and Committee, Mayor Monte Company, B.G. Management Company, Southern Alameda County Board of Realtors.

The disclosure is part of the content in a campaign context, and this Court recognized that in Bellotti.

Striking down the prohibition against corporate expenditures, the Court pointed out that corporate advertising is likely to be highly visible, that the corporate identity will help the voters evaluate the source of the message to make a well-informed decision.

That’s the goal that we’re trying to achieve in this case.

Now another disclosure possibility would be to enact an ordinance that would require the campaign committee to state the title of the message and its position on the measure, and that would avoid the problem with the act of misrepresentation.

But nevertheless, it doesn’t further the disclosure because all you get is something along the lines of Committee for Smoking and Non-Smoking Sections, No on 5, but you don’t know who it is.

So I would submit that in fact the city has considered disclosure alternatives, and and we have not been able to identify an alternative that serves the… furthers the purpose in a content-neutral way in the way that this type of a limitation does.

May I ask about present California law?

Does it require no pre-election disclosure?

Natalie E. West:

There are… no, California law requires two campaign disclosure statements to be filed before the election by the committee.

Does the City of Berkeley have any present pre-election disclosure laws?

Natalie E. West:

It’s the same.

And what does the ordinance at issue here today add to that?

Natalie E. West:

The ordinance required by imposing a $250 limitation, the ordinance serves a disclosure purpose by requiring the contemporaneous disclosure of the source of the communication.

I’d like to pick up on this Southwest Berkeley No, No–

If someone wants to give more than $250 or spend more than $250, he has to spend it himself.

And then when he spends it, at the time he spends it the source will he disclosed.

That’s what you mean, right?

Natalie E. West:

–Yes.

I’m sorry, Justice White.

Thank you.

And then to move on, the point I was going to make is to demonstrate how significant a part disclosure, the contemporaneous disclosure can play in the evaluation of the message, you remember from my brief in 1974 ballot measure, Pacific Gas & Electric company funneled over $7000 into a committee called Southwest Berkeley No, No, No on W.

Southwest Berkeley is in the flatlands adjacent to Emoryville and Oakland.

It’s the poorest section of town with a high minority population.

The connotation of a communication that’s labeled Southwest Berkeley No, No, No on W is entirely different from the connotation of Pacific Gas & Electric.

I would submit… and we certainly acknowledge… that Pacific Gas & Electric can participate to the fullest extent in Berkeley campaigns, but that it helps the voter evaluate the communication when the source of that communication is made immediately available.

Well, couldn’t the city require that the communication put on, this ad paid for by Pacific Gas & Electric?

Natalie E. West:

As I stated to Justice O’Connor, there’s a real problem there.

In that particular instance we could have done that because there’s only one.

Natalie E. West:

That was only one entity; it was, in fact, a front for one entity.

But if there are a number of entities funneling substantial amounts of money into the campaign committee then the disclosure can actually overwhelm the message, as it would in this case.

If you were required to rattle down the names of the over 250 contributors each time you made a 30-second radio spot, for example.

I don’t want to overlook the very important governmental interest in increasing and expanding voter participation in election campaigns.

The contribution limitation seeks to achieve that goal in a number of ways.

First, campaign committees that are going to raise money and participate in local campaigns must raise funds from a greater number of persons.

This has a very direct impact in broadening the base of support and participation in ballot measure campaigns.

Second, individuals who care to participate in a campaign by spending more than $250 must do so by making direct expenditures, not contributions.

This increases the range and diversity of ideas that are expressed in the marketplace of ideas; that in fact furthers the governmental interest to promote involvement with citizens in helping them understand the issues that they’re being called upon to debate.

We’re not seeking to stifle debate in this case.

We’re not seeking to cut off voices.

What the City of Berkeley is trying to do is to make the initiative as representative of a broad base of people as possible, to provide information to the voters so that they can understand the diverse issues that are present in a ballot measure campaign.

I would submit that this is enough of an interest and enough of a showing to support what the city is trying to do here with its contribution limitation.

The Court’s decision in the case of California Medical Association is particularly instructive because the Court made it clear that… the plurality opinion… that contributions are far less of an infringement on protected rights than expenditures.

Now using the appropriate balancing test, the governmental restriction here can be supported by the interests that I have stated.

In Bellotti, this Court referred to the showing by the state of Massachusetts and indicated that Massachusetts had made no showing that the voice of corporations was overwhelming or even significant in ballot measure campaigns.

That particular sentence has been picked up and repeated by most of the courts that have considered the validity of contribution prohibitions and limitations in the ballot measure context.

And I would submit that that is an over-broad reading of that sentence in Bellotti.

Again, Bellotti was looking at expenditure limitations, and that sentence implies that if you had evidence that the referenda process was being overwhelmed or significantly impacted by corporate expenditure, that you might even be able to support an expenditure limitation.

Here we’re dealing only with a contribution limitation.

But if the Court wants to impose that strong a standard and require a showing that large contributions are overwhelming the political process and are causing some improper functioning of the initiative process, there are data beginning to evolve which shows that that may, in fact, be true, that very large campaign contributions channeled into the political process do not educate the voters, do not inform the voters.

Ms. West, is there any evidence in the record in this case for that proposition, or to support the allegation that voters’ perceptions are being affected?

Or are these just assumptions made on the basis of some social science articles?

Natalie E. West:

At the time of the trial court decision in this case there had not been the appropriate documentation because most of this depends on campaign disclosure laws that became vigorously enforced in the mid-seventies, so that we’ve actually seen an emerging of some documentation in the form of the social science studies, just very recently.

One of the first very complete studies is one which is still in draft and will be published in the spring in the UCLA Law Review, which I have furnished to the appellants and to the Court in draft form.

That’s a comprehensive study by Professor Daniel Lowenstein of California Ballot Measures for 1968 through 1980, in which he concludes that there are a number of instances in which the outcome of ballot measure campaigns has been determined by very large amounts of money funneled into a single campaign committee that conveyed only a very narrow message to the electorate.

Is the city’s motivation in part, then, to, in effect, muzzle the contributors with deep pockets to enhance the relative voting strength of those with less money, would you say?

Natalie E. West:

No, that’s not, Justice O’Connor.

I think at the time this ordinance was passed and similarly, at the time that the state act was passed, which was in the summer of 1974, that was before this Court’s decision in Buckley.

And at that time, I believe there was a thinking that that sort of equalization theory underlies some of the parts of the statute.

Natalie E. West:

But in the aftermath of Buckley, we recognized that equalization is not an appropriate goal, and that’s where the expenditure limitations were invalidated, both the local and the state expenditure limitations.

We’re now left with a situation which is very comparable to the federal situation; a limitation on contributions and no limitation on expenditures.

And we submit that in this situation, there are other state interests, completely unrelated to anything to do with equalizing or muzzling, which more than support the very important impact that this contribution limitation has on the political process.

What authorities do you look to to say that we shouldn’t apply a strict scrutiny here?

Natalie E. West:

The Court had used a balancing standard in Buckley and in Bellotti, and those are the two cases that I think should govern this Court’s interpretation of the standard, of course, and the California Medical Association opinion as well.

May I ask you a question about the Lowenstein study?

Natalie E. West:

Yes.

You point out in your footnote on page 11 of your brief that when the money… one-sided spending in support of a proposition, it comes out about 50/50, that half the time it’s successful and half it isn’t.

Then you have a footnote that says on the other hand, of the ten propositions opposed by significant one-sided spending, none were defeated.

Natalie E. West:

I’m sorry, Justice Stevens, it should read nine.

I communicated that typographical error to the Clerk’s office, but the briefs had already been–

I missed, okay, thank you.

Natalie E. West:

–So please make that change right away.

0 [Generallaughter.]

Shouldn’t that be submitted if it’s going to be advanced as a justification to some sort of a form of cross examination?

Shouldn’t it be offered as testimony and be subjected to the scrutiny of hostile cross examination before it’s just taken as a given?

Particularly if it’s in draft form and is expected to appear six months from now?

Natalie E. West:

Justice Rehnquist, I made it available to the Court in draft form merely because I think it is very instructive and I certainly wish that it were in final form at this time.

Also, the Court’s decision in this case does not… I would submit that the Court’s decision in this case does not have to rest on any of the information contained therein, that the information that you have available concerning the… to support the state interest in promoting more accurate campaign literature, more accurate campaign speech through requiring disclosure and more diverse campaign speech, through encouraging voter participation in the process is sufficient, without any reference at all to what the characteristics of large contributions have been in the ballot measure context.

However, that information is before you and it is available.

May I ask another question about… I’m sorry, I didn’t mean to interrupt.

Natalie E. West:

I was just going to point out that, of course, the Court can refer to things like that because what you’re being asked to do really are notice legislative facts and not make a finding of a judicial fact.

But this was not something before the legislature when it passed the–

It’s important to remember that this was an initiative measure.

It was passed by the people, so to the extent that it reflects the people’s perceptions of what the political process is, I would urge that the Court give that the greatest deference, as is appropriate to the interpretation of initiative measures.

You want us to consider it as a fact?

How can we?

This is an unpublished document.

How can we consider it as a fact?

Natalie E. West:

Justice Marshall, I would submit you don’t have to consider that at all.

Natalie E. West:

The information, the data contained in there, is all based on reports that are published by the State Fair Political Practices Commission,–

Shouldn’t you or somebody go get the originals?

Isn’t that the way you try lawsuits?

Could you have had this admitted in evidence?

Natalie E. West:

–In 1977 this was not available.

That’s part of the problem, that we’re right on–

Could you have had this admitted when you tried this case?

Natalie E. West:

–No, Your Honor, because this–

Well how can you have it admitted here?

Natalie E. West:

–I meant we couldn’t have because it wasn’t available at that time.

We were talking… I misunderstood your question.

On what basis would you have it admitted if it was an unpublished document?

Natalie E. West:

I think that document is perfectly appropriate for this Court to consider–

Why?

Can we take judicial notice of it?

Natalie E. West:

–Yes.

How?

It’s not even published.

Natalie E. West:

Justice Marshall, I appreciate your comments on that.

I think we have a difference of opinion and I’m going to turn to Justice Stevens now.

I just wanted to ask you, you suggest we take legislative notice of the outcome of all these ballot measures, and this document is an example of some.

Do you happen to know what percentage of ballot measures of this kind are successful?

I imagine it’s a minority, isn’t it?

Natalie E. West:

Well, this kind, you mean initiative measures or all?

Well, whatever you consider the relevant universe of ballot measures.

Natalie E. West:

Interestingly enough, in the Lowenstein study, he indicates that over the last 12 years, approximately half of all the measures before the voters on a statewide level have been passed.

Is that right?

Natalie E. West:

Yes.

You mean just in California or countrywide?

Natalie E. West:

Yes, yes, just in California.

And where would we find that information?

Natalie E. West:

It’s in the Lowenstein article.

I am not prepared to cite the exact page.

It’s not in the record.

Natalie E. West:

No.

Thank you.

Natalie E. West:

On the basis of the information set forth in our brief and the arguments that we’ve made today, I think it’s clear that the Berkeley ordinance imposes a relatively minor infringement on protected rights; in fact, almost no infringement on protected rights.

Individuals’ ability to make contributions may be somewhat limited, their ability to make campaign expenditures is not restricted in any way.

That minor restriction is more than offset by governmental interests of the very highest importance, and I would urge that this Court affirm the decision of the California Supreme Court.

Thank you.

Warren E. Burger:

Very well.

Do you have anything further, Mr. Parrinello?

You have four minutes remaining.

James R. Parrinello:

Thank you, Mr. Chief Justice.

The Berkeley definition of a contribution does not turn upon who controls the contribution.

Section 205 of the Berkeley ordinance, which appears in the Jurisdictional Statement Appendix at A-60 defines committee… and I will paraphrase, but it defines committee as any person or combination of persons that directly or indirectly makes expenditures exceeding more than $250 in a calendar year for the purpose of influencing or attempting to influence the action of voters for or against the passage of a ballot measure.

The Berkeley ordinance in Section 206, again on page 60 of Jurisdictional Statement Appendix, defines contributions to that committee as a gift, subscription, loan, advance or anything of value made directly or indirectly in aid of or in opposition to a ballot measure.

The very example which I stated to the Court about the two people wishing to buy a newspaper ad and spend $600 to do so is directly covered by this ordinance, because those two people are a combination of persons who equal a committee which, by purchasing that newspaper ad, are making an indirect expenditure.

But the city attorney tells us that’s an incorrect reading of the ordinance.

James R. Parrinello:

I appreciate that, but there is nothing in the ordinance that states… and the law is a matter for the Court to decide… there is nothing in the ordinance that states–

But it’s not a matter for this Court to interpret state ordinances, is it?

James R. Parrinello:

–It’s not for the Court to interpret state ordinances, I agree, if there’s any doubt about the meaning of this particular law.

But the Court does have the right and the power to interpret laws and determine whether they meet constitutional requirements, and this particular law does not.

Because it does impose a direct restraint on those very citizens to associate together in any form to communicate their joint ideas.

Did the city declare a forfeiture here?

James R. Parrinello:

The city did declare a forfeiture, but the superior court enjoined the forfeiture, and the funds were used in the campaign.

Does the superior court interpret the ordinance one way or the other?

James R. Parrinello:

As a matter of fact, no, there is nothing in the record to state the manner in which the ordinance was interpreted by the court.

It simply took notice of the limitation and struck it down as being unconstitutional.

The city interest in disclosure can be met in several ways which the City of Berkeley has not recognized.

James R. Parrinello:

At the present time, City of Berkeley law requires the disclosure in pre-election report filings two times before each election of all contributions larger than $250.00, and city law requires that local newspapers publish those contributions in the names of the contributors twice before each election.

So to say that the public–

Could they pay the newspapers for that space?

James R. Parrinello:

–Yes, they could, or they could require the committee, in effect, to pay for more frequent disclosure in local newspapers.

But more importantly, the city doesn’t say that it has done anything about the apparent or perceived evil it sees in the names of campaign committees, because it says those names are misleading.

Rather than suppress speech, the City of Berkeley can regulate the names of the campaign committees if it desires.

The federal government has done that with respect to candidate campaigns.

Thank you.

Warren E. Burger:

Thank you, counsel, the case is submitted.