New Jersey State Chamber of Commerce v. New Jersey Election Law Enforcement Commission

SCHREIBER, J.,

dissenting.

The trial court, the Appellate Division, and the majority opinion all agree that the regulation of “political information organizations” which distribute and circúlate “political information” contravenes the First Amendment. That language is not salvageable by judicial construction without violating the integrity of the statute as a whole.

Courts should exercise the utmost restraint in rewriting legislation to accord with their concepts of what is fair and equitable. If there is any area in which this principle should be applied, it is rewriting legislation intruding upon free speech which occurs as a part of the political process. “[Sjpeech concerning public affairs is more than self-expression; it is the essence of self-government.” Garrison v. Louisiana, 379 U.S. 64, 74-75 , 85 S.Ct. 209, 216 , 13 L.Ed.2d 125, 133 (1964). When political speech is involved, a court’s primary function should be to ensure that the Legislature adheres to constitutional limitations. This policy should be followed particularly when the judicial reconstruction itself would restrict political speech. Further, this policy is consistent with the principle that the presumption of validity is not accorded statutes allegedly violative of the First Amendment. See Thomas v. Collins, 323 U.S. 516, 529-530 , 65 S.Ct. 315, 322 , 89 L.Ed. 430, 440 (1945).

The polestar of the judicial function in construing a statute is to ascertain the legislative intent. The language of the Act as illuminated by legislative history is the best source of that *101 intent. 1 When the judiciary transcends traditional interpretative criteria, it becomes a superlegislature.

The language in the absence of any pertinent legislative history supports only one legitimate construction of “a political information organization” in the New Jersey Campaign Contributions and Expenditures Act. It is intended to apply to all expenditures “[i]n any election at which a public question is to be voted upon,” N.J.S.A. 19:44A-4(c), and to all attempts “to influence the content, introduction, passage or defeat of legislation.” N.J.S.A. 19:44A-4(a).

The Act defines a political information organization as “any two or more persons acting jointly . . . which provides political information . . . with respect to any public question, or which seeks to influence the content, introduction, passage or defeat of legislation.” N.J.S.A. 19:44A-3(g). Political information includes “any statement[s] . . . which reflect the opinion of the members of the organization . on any public question, or on any legislation, or which contains facts on any such . . . public question or legislation whether or not such facts are within the personal knowledge of members of the organization.” N.J.S.A. 19:44A-3(h).

The basic requirements imposed on a political information organization may be briefly summarized.

1. It must designate a treasurer and depository. N.J.S.A. 19:44A-13.

2. All expenditures must be made through the treasurer. N.J.S.A. 19:44A-14.

3. Reports of all contributions and all expenditures are to be prepared and filed with the Election Law Enforcement Commission. N.J.S.A. 19:44A-16.

*102 4. Contributions and expenditures are defined as “all loans and transfers of money or other thing[s] of value to [a] political information organization” and “all pledges or other commitments or assumptions of liability to make any such transfer.” N.J.S.A. 19:44A-3(d) (emphasis added).

5. The term “other thing of value” means “any item of real or personal property.” N.J.S.A. 19:44A-3(1) (emphasis added).

6. All funds received must be placed in the depository. NJ.S.A. 19:44A-15.

7. No public solicitations may be undertaken without written authorization. N.J.S.A. 19:44A-19(a). Public solicitation is defined in part to mean any activity whereby the public is personally solicited for cash contributions not exceeding $10. NJ.S.A. 19:44A-3(j). An itemization of the solicitation must be filed with the report if the net proceeds received exceed $100. N.J.S.A. 19:44A-19(b).

A fair reading of the statute evinces a legislative intent of complete public disclosure of financing by two or more persons who distribute or make statements “not limited to, press releases, pamphlets, newsletters, advertisements, flyers, form letters, or radio or television programs or advertisements” which contain facts or opinion on any public question or legislation. N.J.S.A. 19:44A-3(h). The statute declares its policy to be “to require the reporting of all contributions received and expenditures made.” N.J.S.A. 19:44A-2 (emphasis added). The provisions of the Act carry out that policy. All contributions and all expenditures are defined to include all transfers of money, all pledges, all assumptions of liabilities and any item of real or personal property. When the Legislature did not intend this broad sweep to apply, it specified threshold limits, such as the $10 provision with respect to solicitation of funds, NJ.S.A. 19:44A-3(j), or the $100 limit on reporting the identity of contributors. NJ.S.A. 19:44A-8. See also other sections of the Act which do not refer to political information organizations, *103 N.J.S.A. 19:44A-7 (amount spent in aid of a candidate shall not exceed $0.50 for each voter in district in last general election in presidential year); N.J.S.A. 19:44A-11 (person must report expenditure in excess of $100 on a political candidate or a public question); N.J.S.A. 19:44A-12 (statement identifying persons contributing over $100 must accompany all deposits); N.J.S.A. 19:44A-14 (individuals need not report their expenditures if not in excess of $100); N.J.S.A. 19:44A-16(d) (candidate must file reports if total amount expended exceeds $1,000, and must report identity of sources over $100); N.J.S.A. 19:44A-16(f) (campaign treasurers need not report identity of contributors who expended $100 or less);. N.J.S.A. 19:44A-18 (any person making a contribution or receiving an expenditure in excess of $100 after post election final report shall so advise the Commission).

The intent and purpose of the Legislature reflected in the Act’s language are unambiguous. Furthermore, the defendant points to no legislative history which casts a different light on that language. There were no legislative hearings concerning the political information organization provisions. No discussions on the floors of the Senate or Assembly have been produced. Under these circumstances this Court should not, in the guise of interpretation, substantially rewrite this Act.

The United States Supreme Court has refused to rewrite legislation that is unambiguous and violates the First Amendment. Justice Harlan cautioned in Scales v. United States, 367 U.S. 203, 211 , 81 S.Ct. 1469, 1477 , 6 L.Ed.2d 782, 791 (1961), that “[although [the Court] will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute.”

In United States v. Robel, 389 U.S. 258 , 88 S.Ct. 419 , 19 L.Ed.2d 508 (1967), the Court struck down a statute which made it unlawful for any member of a Communist organization which *104 was under a final order to register with the Subversive Activities Control Board to engage in employment in any defense facility. The Court held the statute an unconstitutional abridgment of the right of association, and refused to save it by limiting its application to active members who had a specific intent to further the organization’s unlawful goals. As Chief Justice Warren explained, quoting from Aptheker v. Secretary of State, 378 U.S. 500, 515 , 84 S.Ct. 1659, 1668 , 12 L.Ed.2d 992, 1003 (1964), “ ‘[t]he clarity and preciseness of the provision in question make it impossible to narrow its indiscriminately cast and overly broad scope without substantial rewriting.’ ” 389 U.S. at 262 , 88 S.Ct. at 423 , 19 L.Ed.2d at 513 . Such rewriting would not be undertaken because “[t]he task of writing legislation which will stay within [constitutional] bounds has been committed to Congress.” 389 U.S. at 267 , 88 S.Ct. at 425 , 19 L.Ed.2d at 516 . To the same effect see Elfbrandt v. Russell, 384 U.S. 11, 16 , 86 S.Ct. 1238, 1240 , 16 L.Ed.2d 321, 324-325 (1966).

The arguments against rewriting are especially compelling where the Court has no single peremptory standard to read into and save the statute. Where a number of choices are available, judicial restructuring implicates, in the words of Justice Jacobs, “troublesome policy considerations which should in the first instance be dealt with by our Legislature rather than this Court.” State v. Rosenfeld, 62 N.J. 594, 602 (1973). See also Property Owners Ass’n of N. Bergen v. N. Bergen Tp., 74 N.J. 327, 337-338 (1977).

In Rosenfeld , this Court declared unconstitutional that part of N.J.S.A. 2A:170-29(1) which provided that a disorderly person was one who loudly uttered indecent words which were likely to affect the sensibilities of a hearer in a public place. Reversing a conviction under that statute, the Court rejected the State’s attempt to save the act by a restrictive construction prohibiting only that “language which would be so grossly offensive to members of the public so as to amount to a nuisance.” State v. Rosenfeld, 62 N.J. at 602 . The Court observed that such re *105 structuring should be avoided because it implicated a number of policy choices. As Justice Jacobs observed, “No purpose would be served by our pursuing the choices available to the Legislature for the policy judgments must rest entirely with it . . .” Id. at 603 .

In this respect, the proposed rewriting in Rosenfeld was unlike that undertaken by this Court in State v. De Santis, 65 N.J. 462 (1974), and Schmoll v. Creecy, 54 N.J. 194 (1969), cases upon which the majority places substantial reliance. In each of those cases the Court had a single compelling standard upon which to rely. 2 In De Santis , moreover, the rewriting was merely a stopgap measure undertaken in the Court’s words “Mending further legislative action.” 65 N.J. at 473 .

The majority relies heavily upon United States v. Harriss, 347 U.S. 612 , 74 S.Ct. 808 , 98 L.Ed. 989 (1954). But that case is clearly inapposite. Contrary to the implication in the majority opinion, there the Supreme Court severed one word from an act which was otherwise void for vagueness. The key sentence in the Federal Regulation of Lobbying Act, 60 Stat. 839 , 2 U.S.C.A. § 261 et seq., the statute involved in Harriss , was in § 307 of that Act. It provided coverage for any person who received money “[t]o influence, directly or indirectly, the passage or defeat of any legislation by the Congress of the United States.” 60 Stat. 841 , 2 U.S.C.A. § 266 (emphasis supplied). The two words deleted were “or indirectly.” The Court did not attempt to rewrite the statute with explanatory language.

*106 The majority’s unusual construction which applies the Act only to a political information organization which attempts to influence legislation by direct, intentional communications to legislators on a substantial basis invites several observations.

First, the statute recites that the restriction against political information organizations applies “a. [wjhenever an attempt is made to influence the content, introduction, passage or defeat of legislation; b. [i]n any primary election for delegates and alternates to the national conventions of a political party; c. [i]n any election at which a public question is to be voted upon by the voters of the State or any political subdivision thereof; d. [i]n any primary, general, special, school or municipal election for any public office of the State or any political subdivision thereof ..” N.J.S.A. 19-44A-4. Thus, if two or more persons seek to enlighten the public by disseminating facts on “a public question” in an educational endeavor, without attempting to influence the voter, the group would be a “political information organization.” The attempt “to influence” language found in subdivision (a) is absent from subdivisions (b), (c) and (d). The majority’s analysis does not refer to these subdivisions, despite their relevance to its interpretation. Presumably these sections have not survived the attack of unconstitutionality. (I note in passing that the plaintiffs’ attack as reflected in the pretrial order related “to activities directed at votes on public questions.” Such activities would fall within categories (a) and (c)). 3

The majority opines that the phrase “to influence” is so open-ended that it “engenders the mischief of over breadth.” Yet it does not proceed to eliminate that “mischief,” but simply circumscribes the area within which those many meanings con *107 tinue to operate. At 75-76. Thus so long as the influencing is done directly and substantial moneys are expended in the effort, it passes constitutional muster — despite the majority’s premise that influence may still have a variety of meanings.

I do not subscribe to the majority’s premise, for the only common sense meaning of “influence” in the statutory context is an attempt to cause or bring about a desired result by convincing others, be they legislators or the public, to vote for or against a proposition. No party in this litigation, the trial court and the Appellate Division have had any difficulty with what is intended by the words “to influence.”

The only thrust of this law insofar as political information organizations are concerned is disclosure of the amounts expended and the identity of the donors. It is not an attempt to regulate or monitor the donors or recipients except to the extent necessary for disclosure purposes. This may be compared with the regulation and monitoring of lobbyists under the Legislative Activities Disclosure Act of 1971, N.J.S.A. 52:13C-1 et seq.

Next, the construction which limits the Act’s applicability to “direct” communications with legislators is not understandable. The trial court, the Appellate Division and this Court have agreed that the invalidity is attributable to the failure to fix an adequate threshold figure to distinguish the special interest groups which expend significant moneys from those that do not. Whether the communication to a legislator is direct or indirect by way of advertisements, radio or television, as the Act expressly contemplates, N.J.S.A. 19:44A-3(h), is irrelevant. The construction adopted by the majority would exclude from the Act’s disclosure provisions an expenditure of $100,000 for television advertising to sway public opinion, and thereby indirectly legislators, to support or defeat proposed legislation.

Lastly, the majority’s interpretation that the activity be “on a substantial basis” is in itself a vague standard which cannot withstand the constitutional requirement of definiteness needed *108 when proscribing a type of conduct which hitherto had been lawful. This is particularly so where the chilling effect on First Amendment rights is so apparent. 4 The majority leaves it to the Election Law Enforcement Commission to fix the monetary threshold within 90 days. During the interim the Act presumably is effective and, if the Commission does not act within the 90 days, the Act will continue in force with its basic infirmity.

I would reverse and reinstate the trial court’s judgment of invalidation with respect to those sections governing political information organizations. 5

For modification and affirmance — Chief Justice HUGHES and Justices MOUNTAIN, SULLIVAN, CLIFFORD and HANDLER — 5.

For reversal —Justices PASHMAN and SCHREIBER — 2.

ORDER

This matter having been duly presented to the Court, it is ordered that the motion for an extension to August 7, 1980, to promulgate regulations in accordance with the judgment of this Court is granted.

Other extrinsic aids may be of value in confirming a literally apparent meaning or resolving an ambiguity. Data Access Systems, Inc. v. State, 63 N.J. 158, 166-167 (1973). These aids would include administrative agency construction. Service Armament Co. v. Hyland, 70 N.J. 550, 561 (1976).

The majority also relies upon State v. Profaci, 56 N.J. 346 (1970), in which the Court construed N.J.S.A 2A: 170-29(1), to have a dual meaning. In establishing the first prong of the definition, the Court followed the single compelling standard set forth by the United States Supreme Court in Chaplinsky v. New Hampshire, 315 U.S. 568 , 62 S.Ct. 766 , 86 L.Ed. 1031 (1942). To the extent that the Court strayed beyond that standard, Profaci was overruled in State v. Rosenfeld, 62 N.J. 594 (1973).

The Appellate Division reversed the trial court’s invalidation of statutory provisions as to “political committees” but not as to “political information organizations.” 155 N.J.Super. 218 , 221 n.1 (App.Div.1977).

General standards in a statute may withstand vagueness attacks in areas outside the First Amendment. See Buckley v. Valeo, 424 U.S. 1, 40-41 , 96 S.Ct. 612 , 645 n.48, 46 L.Ed.2d 659, 700 (1976) (“[b]ecause First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.”) Id. at n.48 (quotation omitted). Compare Joseph E. Seagram & Sons, Inc. v. Hostetter, 384 U.S. 35 , 86 S.Ct. 1254 , 16 L.Ed.2d 336 (1966) (statute regulating liquor prices was not unconstitutionally vague in defining “related person” to include one whose “substantial business” is the sale of a brand of liquors from the brand owner), with Gooding v. Wilson, 405 U.S. 518 , 92 S.Ct. 1103 , 31 L.Ed.2d 408 (1972) (statute punishing those who use “opprobrious words or abusive language tending to cause a breach of the peace” was unconstitutionally vague and overbroad).

See N.J.S.A. 19:44A-25 providing that if “any section, subsection, paragraph, sentence or other part of this act is adjudged invalid, the judgment shall not invalidate the remainder.”