The opinion
MILLER, Chief Justice,
concurring:
While I concur in the result reached by the majority, I wish to emphasize that neither the majority opinion nor First National Bank of Boston v. Bellotti, 435 U.S. *645 765 , 98 S.Ct. 1407 , 55 L.Ed.2d 707 (1978), can be taken to mean that the State has no power to regulate corporate spending on referendum issues.
It should be noted that Bellotti was a 5-4 opinion with three of the dissenting Justices taking the view that the First Amendment rights of speech and association should be extended to a corporation only to the extent that the referendum issue has a material effect on its business activity. 1 Under this limited grant of corporate First Amendment rights, the petitioner in the case at bar would have standing to challenge our corporate election spending statutes, since the successful passage of the proposed road bond would enhance the petitioner’s highway paving business.
The majority in Bellotti appears to recognize that a state may restrict corporate spending in a referendum where it can be shown that corporate participation has been a significant influence in the referendum or that because of prior corporate participation there has been some threat to the confidence of the citizens in their government: 2
“But there has been no showing that the relative voice of corporations has been overwhelming or even significant in influencing referenda in Massachusetts, or that there has been any threat to the confidence of the citizenry in government. Cf. Wood v. Georgia, 370 U.S. 375, 388 , 82 S.Ct. 1364, 1372 , 8 L.Ed.2d 569, 579 (1962). 435 U.S. at 789-90 , 98 S.Ct. at 1423 , 55 L.Ed.2d at 726 .” (Footnote omitted)
Pending the rehearing in this case, the United States Supreme Court decided Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290 , 102 S.Ct. 434 , 70 L.Ed.2d 492 (1981), in which it invalidated a municipal ordinance which imposed a $250 limit on contributions made to committees formed to support or oppose referenda. This opinion was virtually unanimous with only Justice White dissenting. Again the Court recognized that a state’s right to control contributions to referendum issues might be authorized if there was a record that demonstrated that such control “is needed to preserve voters’ confidence in the ballot measure process.” 454 U.S. at 299 , 102 S.Ct. at 439 , 70 L.Ed.2d at 501 . The Court, also, made a distinction between the state’s right to limit contributions or expenditures to political candidates and contributions to ballot or referendum issues:
“Whatever may be the state interest or degree of that interest in regulating and limiting contributions to or expenditures of a candidate or a candidate’s committees there is no significant state or public interest in curtailing debate and discussion of a ballot measure. Placing limits on contributions which in turn limit expenditures plainly impairs freedom of expression. The integrity of the political system will be adequately protected if contributions are identified in a public filing revealing the amounts contributed; if it is thought wise, legislation can outlaw anonymous contributions.” 454 U.S. at 299 , 102 S.Ct. at 439 , 70 L.Ed.2d at 501 .
With the foregoing limitations in mind, I agree with the majority that W.Va.Code, 3-8-8, is overly broad to the extent that it prohibits corporations from making any contributions toward referendum issues. 3
*646 I am authorized to state that Justice McHugh joins me in this concurring opinion.
. Justice Rehnquist dissented on the basis that the First Amendment has only limited applicability to the States under the Due Process Clause of the Fourteenth Amendment, and the Fourteenth Amendment applies to persons and not corporations. Therefore, in his view, a state has a right to enact legislation controlling the First Amendment rights of corporations.
. Because of the absolute prohibition in W.Va. Code, 3-9-14, (see Note 3, infra), against any corporate contribution on referendum issues, it is not necessary to consider the distinction between contributions and expenditures drawn in Buckley v. Valeo, 424 U.S. 1 , 96 S.Ct. 612 , 46 L.Ed.2d 659 (1976). Neither is it necessary to consider contributions to political action committees. See California Medical Association v. Federal Election Commission, 453 U.S. 182 , 101 S.Ct. 2712 , 69 L.Ed.2d 567 (1981).
.While it might be possible to read W.Va.Code, 3-8-8, as applying only to corporate contributions to political campaigns, it seems clear that the prohibition in W.Va.Code, 3-9-14, against corporate contributions “for the purpose of in *646 fluencing any voter or voters ... upon any particular side of any question to be decided at any such election” is clearly a prohibition against contributions in referendum elections.