Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290 (1981)

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Author: Justice White

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Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290 (1981)

JUSTICE WHITE, dissenting.

In Buckley v. Valeo, 424 U.S. 1 (1976), the Court upheld restrictions on contributions, but struck down limits on expenditures in campaigns for federal office that Congress, the body most expert in the matter, thought equally essential to protect the integrity of the election process. Two years later, a bare majority of the Court, substituting its judgment for that of the Massachusetts Legislature, invalidated that State’s prohibition on corporate spending in referendum elections. First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978). Disagreeing with the Court’s assumption that those regulations inhibited the free interplay of political advocacy, I would have upheld the expenditure limitations at issue in Buckley and the restrictions contested in Bellotti.

This case poses a less encompassing regulation on campaign activity, one tailored to the odd measurements ofBuckley and Bellotti. Precisely because it reflects these decisions, the ordinance regulates contributions, but not expenditures, and does not prohibit corporate spending.{1} It is for that very reason, perhaps, that the effectiveness of the ordinance in preserving the integrity of the referendum process is debatable. Even so, the result here illustrates that the Buckley framework is most problematical, and strengthens my belief that there is a proper role for carefully drafted limitations on expenditures.

Even under Buckley, however, the Berkeley ordinance represents such a negligible intrusion on expression and association that the measure should be upheld. The ordinance certainly does not go beyond what I understand the First Amendment to permit. For both these reasons, I dissent.

I

The Berkeley ordinance does not control the quantity or content of speech. Unlike the statute in Bellotti, it does not completely prohibit contributions and expenditures. Any person or company may contribute up to $250. If greater spending is desired, it must be made as an expenditure, and expenditures are not limited or otherwise controlled. Individuals also remain completely unfettered in their ability to join interested groups or otherwise directly participate in the campaign.

The Court reaches the conclusion that the ordinance is unconstitutional only by giving Buckley the most extreme reading and by essentially giving the Berkeley ordinance no reading at all. It holds that the contributions involved here are, "beyond question, a very significant form of political expression." Ante at 298. Yet, in Buckley, the Court found that contribution limitations "entai[l] only a marginal restriction upon the contributor’s ability to engage in free communication." 424 U.S. at 20-21. As with contributions to candidates, ballot measure contributions "involv[e] speech by someone other than the contributor," and a limitation on such donations "does not in any way infringe the contributor’s freedom to discuss candidates and issues." Id. at 21. Indeed what today has become "a very significant form of political expression" was held just last Term to involve only "some limited element of protected speech." California Medical Assn. v. FEC, 453 U.S. 182, 196, n. 16 (1981) (MARSHALL, J., joined by BRENNAN, WHITE, and STEVENS, JJ.). "`Speech by proxy,’" we said, "is not the sort of advocacy that this Court in Buckley found entitled to full First Amendment protection." Id. at 196.

The Court also finds that the freedom of association is impermissibly compromised by not allowing persons to contribute unlimited funds to committees organized to support or oppose a ballot measure. However, in Buckley, the Court observed that contribution ceilings

leav[e] persons free to engage in independent political expression, to associate actively through volunteering their services, and to assist to a limited, but nonetheless substantial, extent in supporting candidates and committees with financial resources.

424 U.S. at 28. Associational rights, it was thought, were seriously impinged only by expenditure ceilings -- there by virtue of precluding associations from effectively amplifying the voice of their adherents, "the original basis for the recognition of First Amendment protection of the freedom of association." Id. at 22. See NAACP v. Alabama, 357 U.S. 449,460 (1958). The Court’s concern that this ordinance will "hobble the collective expressions of a group" ante at 296, is belied by the fact that appellants, having already met their campaign budget, ended all fundraising almost a month before the election.

It is bad enough that the Court overstates the extent to which First Amendment interests are implicated. But the Court goes on to assert that the ordinance furthers no legitimate public interest, and cannot survive "any degree of scrutiny." Apparently the Court assumes this to be so because the ordinance is not directed at quid pro quos between large contributors and candidate for office, "the single narrow exception" for regulation that it viewed Buckley as endorsing. The Buckley Court, however, found it "unnecessary to look beyond the Act’s primary purpose," the prevention of corruption, to uphold the contribution limits, and thus did not consider other possible interests for upholding the restriction. Indeed, at least since United States v. Automobile Workers, 352 U.S. 567, 575 (1957), the Court has recognized that "sustaining the active alert responsibility of the individual citizen in a democracy for the wise conduct of government" is a valid state interest. The Bellotti Court took care to note that this objective, along with "[p]reserving the integrity of the electoral process [and] the individual citizen’s confidence in government" "are interests of the highest importance." 435 U.S. at 788-789.

In Bellotti, the Court found inadequate evidence in the record to support these interests, but it suggested that some regulation of corporate spending might be justified if

corporate advocacy threatened imminently to undermine democratic processes, thereby denigrating, rather than serving, First Amendment interests.

Id. at 789. The Court suggested that such a situation would arise if it could be shown that "the relative voice of corporations ha[d] been overwhelming [and] . . . significant in influencing referenda."Id. at 789-790. It is quite possible that such a test is fairly met in this case. Large contributions, mainly from corporate sources, have skyrocketed as the role of individuals has declined.{2} Staggering disparities have developed between spending for and against various ballot measures.{3} While it is not possible to prove that heavy spending "bought" a victory on any particular ballot proposition, there is increasing evidence that large contributors are at least able to block the adoption of measures through the initiative process.{4} Recognition that enormous contributions from a few institutional sources can overshadow the efforts of individuals may have discouraged participation in ballot measure campaigns{5} and undermined public confidence in the referendum process.

By restricting the size of contributions, the Berkeley ordinance requires major contributors to communicate directly with the voters. If the ordinance has an ultimate impact on speech, it will be to assure that a diversity of views will be presented to the voters. As such, it will "facilitate and enlarge public discussion and participation in the electoral process, goals vital to a self-governing people." Buckley, 424 U.S. at 92-93. Of course, entities remain free to make major direct expenditures. But because political communications must state the source of funds, voters will be able to identify the source of such messages and recognize that the communication reflects, for example, the opinion of a single powerful corporate interest, rather than the views of a large number of individuals. As the existence of disclosure laws in many States suggests,{6} information concerning who supports or opposes a ballot measure significantly affects voter evaluation of the proposal.{7} The Court asserts, without elaboration, that existing disclosure requirements suffice to inform voters of the identity of contributors. Yet, the inadequacy of disclosure laws was a major reason for the adoption of the Berkeley ordinance. Section 101(d) of the ordinance constitutes a finding by the people of Berkeley that

the influence of large campaign contributors is increased because existing laws for disclosure of campaign receipts and expenditures have proved to be inadequate.

Admittedly, Berkeley cannot present conclusive evidence of a causal relationship between major undisclosed expenditures and the demise of the referendum as a tool of direct democracy. But the information available suffices to demonstrate that the voters had valid reasons for adopting contribution ceilings. It was on a similar foundation that the Court upheld contribution limits in Buckley and California Medical Assn. v. FEC, 453 U.S. 182 (1981). In my view, the ordinance survives scrutiny under the Buckley and Bellotti cases.

II

There are other grounds for sustaining the ordinance. I continue to believe that, because the limitations are content-neutral, and because many regulatory actions will indirectly affect speech in the same manner as regulations in the sphere of campaign finance,

the argument that money is speech, and that limiting the flow of money to the speaker violates the First Amendment, proves entirely too much.

Buckley, supra, at 262 (WHITE, J., concurring in part and dissenting in part). Every form of regulation -- from taxes to compulsory bargaining -- has some effect on the ability of individuals and corporations to engage in expressive activity. We must therefore focus on the extent to which expressive and associational activity is restricted by the Berkeley ordinance. That First Amendment interests are implicated should begin, not end, our inquiry. When the infringement is as slight and ephemeral as it is here, the requisite state interest to justify the regulation need not be so high.

The interests which justify the Berkeley ordinance can properly be understood only in the context of the historic role of the initiative in California. "California’s entire history demonstrates the repeated use of referendums to give citizens a voice on questions of public policy." James v. Valtierra, 402 U.S. 137, 141 (1971). From its earliest days, it was designed to circumvent the undue influence of large corporate interests on government decisionmaking.{8} It served, as President Wilson put it, as a "gun behind the door" to keep political bosses and legislators honest. In more recent years, concerned that the heavy financial participation by corporations in referendum contests has undermined this tool of direct democracy, the voters of California enacted by initiative in 1974 the Political Reform Act, which limited expenditures in statewide ballot measure campaigns,{9} and Berkeley voters adopted the ordinance at issue in this case. The role of the initiative in California cannot be separated from its purpose of preventing the dominance of special interests. That is the very history and purpose of the initiative in California, and, similarly, it is the purpose of ancillary regulations designed to protect it. Both serve to maximize the exchange of political discourse. As in Bellotti, "[t]he Court’s fundamental error is its failure to realize that the state regulatory interests . . . are themselves derived from the First Amendment." 435 U.S. at 803-804 (WHITE, J., dissenting).

Perhaps, as I have said, neither the city of Berkeley nor the State of California can "prove" that elections have been or can be unfairly won by special interest groups spending large sums of money, but there is a widespread conviction in legislative halls, as well as among citizens, that the danger is real. I regret that the Court continues to disregard that hazard.

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Chicago: White, "White, J., Dissenting," Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290 (1981) in 454 U.S. 290 454 U.S. 304–454 U.S. 311. Original Sources, accessed July 20, 2024, http://www.originalsources.com/Document.aspx?DocID=CKF2GBJB3JDUPDL.

MLA: White. "White, J., Dissenting." Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290 (1981), in 454 U.S. 290, pp. 454 U.S. 304–454 U.S. 311. Original Sources. 20 Jul. 2024. http://www.originalsources.com/Document.aspx?DocID=CKF2GBJB3JDUPDL.

Harvard: White, 'White, J., Dissenting' in Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290 (1981). cited in 1981, 454 U.S. 290, pp.454 U.S. 304–454 U.S. 311. Original Sources, retrieved 20 July 2024, from http://www.originalsources.com/Document.aspx?DocID=CKF2GBJB3JDUPDL.