Amicus Brief — Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley

FILED

No. 80-737 DEC 5 1980

IN THE MICHAEL RODAK, JR., CLERK

Supreme Court of the United ee:

OcToBerR TERM, 1980

CITIZENS AGAINST RENT CONTROL/COALITION For FAIR

HOUSING, an unincorporated association;

Mason-McDurrie, a California corporation;

BERKELEY BoarpD OF REALTORS, a California nonprofit

association; BeTry GrerRiITZ; MURIEL ROSENKRANZ; and

Eva FLoystrup,

Appellants,

Vv.

City Or BerKELEY, CALIFORNIA, a municipal corporation;

THE BerRKELEY City COUNCIL; THE BERKELEY FAIR CAMPAIGN

PRACTICES COMMISSION; PATRICIA Devito, BETTY BENNETT,

MERLIN EDwarps, JOHN CHASEN, THOMAS DONOVAN,

FaitH Otis, SANDY MILLER, Davin B. ROSENTHAL,

as members of the Berkeley Fair Campaign

Practices Commission,

Appellees.

On Appeal from the Supreme Court of California

BRIEF OF AMICUS CURIAE PACIFIC LEGAL

FOUNDATION IN SUPPORT OF APPELLANTS

RONALD A. ZUMBRUN

Pacific Legal Foundation

455 Capitol Mall, Suite 600

Sacramento, California 95814

Telephone: (916) 444-0154

RAYMOND M. MOMBOISSE

COUNSEL OF RECORD

CHRISTOPHER H. COLLINS

Pacific Legal Foundation

1990 M Street, N.W., Suite 550

Washington, D.C. 20036

Telephone: (202) 466-2686

Attorneys for Amicus Curiae

Pacific Legal Foundation

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES CITED....................00000+ il

INTEREST OF AMICUS CURIAE ..................:0000000 l

SUMMARY OF ARGUMENT ...0000.....ccccccceccceeeseeeeees 3

a scnccnnbonsnsensnonooocs 4

I. THE ACT INFRINGES ON THE FIRST

AMENDMENT RIGHTS OF THE CITI-

ZENS OF BERKELEY .............0cccccccsscoccsscoeeees 4

Il. THE ACT SERVES NO COMPELLING

GOVERNMENTAL INTEREST.................... 8

Ill. THE ACT REPRESENTS AN UNDESIR-

ABLE GOVERNMENTAL INTRUSION

INTO THE LIVES OF THE CITIZENS OF

EEEEEEINEIED © scrcssconceseseveccscessnsevecsoncoseccesesessoceeeee 11

STEIN deedenosseseonsseseosenesovovceovssesoseveoseceseonececeesees 12

TABLE OF AUTHORITIES CITED

CASES

Bates v. City of Little Rock, 361 U.S. 516 ( 1960).......

Buckley v. Valeo, 424 U.S. 1 (1976) ....cccccecseseeeeeeees

C & C Plywood Corp. v. Hanson, 583 F.2d 421 (9th

COE, Feet Piccccsnssnnstisponncsianesesinneietinstestinestaiitedsetimiblieteiieitins

Central Hudson Gas & Electric Corp. v. Public

Service Commission, 100 S. Ct. 2343 (1980)...........

Citizens Against Rent Control v. City of Berkeley, 27

Ce, Be See 0 Oe cctrccmucinetiitennsemeninennnn

Cohen v. California, 403 U.S. 15 (1971) 00.0.

Consolidated Edison Co. v. Public Service Commis-

eB eee

Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967)...

Erznoznick v. City of Jacksonville, 422 U.S. 205

€ FPOE B cassistnvseissotssensdsbincnicsnebeisoninelitdendandanmabacnasets

First National Bank of Boston v. Bellotti, 435 U.S.

Fe 0 TaD caciis andessecinccisadieasiciaiannesadimaciesditsridlacigtneahins

Griswold v. Connecticut, 381 U.S. 479 (1965)............

Healy v. James, 408 U.S. 169 (1972)........cssesseseeseeees

Kusper v. Pontikes, 414 U.S. 51 (1973) ...ccccceeeeeeeees

Let’s Help Florida v. McCrary, 621 F.2d 195 (Sth

CR. OD Posininssenesensesneneniinisiusbenniviatsiniseeinsueniineiimiiniane

Mills v. Alabama, 384 U.S. 214 (1966) 00... ccc

Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971) .......

NAACP v. Alabama, 357 U.S. 449 (1958) wo...

NAACP v. Button, 371 U.S. 415 (1963)...........cceeee

Pell v. Procunier, 417 U.S. 817 (1974) vo...cecceeeeeeeees

Red Lion Broadcasting Co. v. FCC, 395 U.S. 367

EGP P sceschcsisnuesissnieidiccladsinssdiaitnisssiiedbidasimeiianeniaciniadatinits

Roth v. United States, 354 U.S. 476 (1957) ...........00.

Schwartz v. Romnes, 495 F.2d 844 (2d Cir. 1974).....

7-10

Stanley v. Georgia, 394 U.S. 557 (1969) .....ccceeeeeeee

Street v. New York, 394 U.S. 576 (1969).........ccceeesees

Thomas v. Collins, 323 U.S. 516 (1945) .......cccceeeeeeee

Tinker v. Des Moines Independent Community

School District, 393 U.S. 503 (1969) .....ccccceeeeees

United States v. O’Brien, 391 U.S. 367 (1968 )............

Village of Schaumberg v. Citizens for a Better

ravironment, 100 S. Ct. 826 (1980) ......cccccceceeeeeee

Virginia State Board of Pharmacy v. Virginia Citizens

onsumer Council, Inc., 425 U.S. 748 (1976).........

Whitney v. California, 274 U.S. 357 (1927)...

CONSTITUTIONAL PROVISIONS

United States Constitution, First Amendment.............

United States Constitution, Fourteenth Amendment ..

STATUTES

Berkeley Election Reform Act of 1974 (Ord. No.

IP csiccaninssntvennistteipsnieninincaiauasecssanenaiitstatneaiaiaiens

TREATISES

T. EMERSON, TOWARD A GENERAL THEORY OF THE

FIRST AMENDMENT ( 1966) ...........:ssccccccsseseessscseseeeees

A. MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO

SELF GOVERNMENT ( 1948 )........ccccccccessseceessreseeeeeeeees

L. Tripe, AMERICAN CONSTITUTIONAL LAw (1978)...

Law REVIEWS

BeVier, The First Amendment and Political Speech:

An Inquiry Into the Substance and Limits of Prin-

ciple, 30 Stan. L. Rev. 299 (1978) ......cscsessesseeeeeees

Bogen, Balancing Freedom of Speech, 38 Md. L. Rev.

I Cee inisaisrniepineinebnsensinainnenenastaianienenneess

10

5

5,12

passim

4

passim

No. 80-737

IN THE

Supreme Court of the United States

OcToBER TERM, 1980

CITIZENS AGAINST RENT CONTROL/COALITION For Fair

HOUSING, an unincorporated association;

Mason-McDurrfie, a California corporation;

BERKELEY BOARD OF REALTORS, a California nonprofit

association; BeTTy GERITZ; MURIEL ROSENKRANZ; and

Eva FLOYSTRUP,

Appellants,

v.

City Or BERKELEY, CALIFORNIA, a municipal corporation;

THE BERKELEY City COUNCIL; THE BERKELEY Fain CAMPAIGN

PRACTICES COMMISSION; PATRICIA DEviTO, BETTY BENNETT,

MERLIN EpDwarbs, JOHN CHASEN, THOMAS DONOVAN,

FaitH Otis, SANDY MILLER, DaviD B. ROSENTHAL,

as members of the Berkeley Fair Campaign

Practices Commission,

Appellees.

On Appeal from the Supreme Court of California

BRIEF OF AMICUS CURIAE PACIFIC LEGAL

FOUNDATION IN SUPPORT OF APPELLANTS

INTEREST OF AMICUS CURIAE

Pursuant to Supreme Court Rule No. 36, Pacific Legal

Foundation (PLF) respectfully submits this brief amicus curiae

in support of appellants. Consent to the filing of this brief has

been granted by counsel for both parties. Copies of these letters

of consent have been lodged with the Clerk of this Court.

2

PLF is a nonprofit, tax-exempt organization existing under

the laws of California for the purpose of engaging in litigation

in matters affecting the broad public interest. Policy for PLF is

established by an independent Board of Trustees composed of

concerned citizens, the majority of whom are attorneys. The

Board evaluates the merits of any contemplated legal action

and authorizes such legal action only where the Foundation’s

position has broad support within the general community. The

PLF Board has authorized the filing of this brief.

This action involves the validity of that portion of Ber-

keley’s Election Reform Act of 1974 (Ord. No. 4700-N:S. )

(hereinafter Act) which prescribes a $250 maximum on contri-

butions to committees in support of or in opposition to ballot

measures. In doing so, the Act deprives the citizens of Berkeley

of the ability to effectively join together to convey vital informa-

tion, as well as to receive such information, so that informed

choices can be made on ballot measure issues. The Act

represents an unacceptable attempt by the government to

control the flow of information necessary for shaping the future

of the city. In essence, the Act restricts access by the public to

the marketplace of ideas.

PLF is especially concerned as a public interest organiza-

tion because the Act is representative of attempts by other cities

throughout California to control the flow of information neces-

sary for making informed choices on ballot measure issues. See

Jurisdictional Statement at 21-22. PLF’s members, contrib-

utors, and supporters who reside in California are directly

affected by such limitations. This Court, while recognizing a

need for contribution limitations with respect to candidate

elections, has rejected the need for contribution limitations with

respect to ballot measure elections. First National Bank of

Boston v. Bellotti, 435 U.S. 765, 790 (1978). Moreover, three

federal circuit courts have seen fit to reject contribution restric-

tions to committees in ballot measure elections. Let’s Help

Florida v. McCrary, 621 F.2d 195 (Sth Cir. 1980); C & C

Plywood Corp. v. Hanson, 583 F.2d 421 (9th Cir. 1978);

Schwartz v. Romnes, 495 F.2d 844, 852-53 (2d Cir. 1974).

The courts have historically allowed the widest latitude for

discussion and the narrowest range for its restriction. Thomas v.

3

Collins, 323 U.S. 516, 530 (1945). The Act infringes on the

First Amendment rights of freedom of speech and association

without serving any compelling governmental interest, and

represents an undesirable intrusion into the lives of the citizens

of Berkeley. Therefore, it is imperative that this Court note

probable jurisdiction in this case and reverse the decision of the

California Supreme Court.

SUMMARY OF ARGUMENT

The Act infringes on the First Amendment rights of

freedom of speech and association. The First Amendment is

accorded special protection in the political arena and includes

both the right to acquire and disseminate information and the

right to join together and make political contributions to

advance political, legal, and economic arguments. The Act

infringes on the First Amendment rights of the citizens of

Berkeley by inhibiting their ability to disseminate and to receive

all available information on ballot measure issues.

The stated goal of the Act, in seeking to restrict the speech

of some elements of society in order to enhance the relative

voice of others, has been rejected by this Court. In addition, the

actual effect of the Act is contrary to its stated goal and is

likewise violative of the First Amendment. Affluent contrib-

utors may conduct independent campaigns on ballot measure

issues, free from any governmental limitations, while those who

cannot afford to do so are limited in the amount they may

contribute to ballot measure committees.

The Act serves no compelling governmental interest, and

bears no reasonable relation to the achievement of its stated

purpose. The reasons given by the California Supreme Court as

justification for upholding the Act have been rejected by this

Court. As such, the Act unconstitutionally infringes on the First

Amendment rights of the citizens of Berkeley.

The Act represents an undesirable intrusion into the lives

of the citizens of Berkeley by preventing complete access to the

4

marketplace of ideas. The California Supreme Court impermis-

sibly endorses the guardianship of the public mind imposed by

the Act, and rejects the notion that the public must be permitted

to decide for itself matters of important public interest.

ARGUMENT

I

THE ACT INFRINGES ON THE FIRST AMENDMENT

RIGHTS OF THE CITIZENS OF BERKELEY

The First Amendment to the United States Constitution

guarantees in part that “Congress shall make no law ...

abridging the freedom of speech... .” This is the most majestic

guarantee contained in the Constitution. L. TRIBE, AMERICAN

CONSTITUTIONAL Law, § 12-1 (1978). The dissemination of

opinions on matters of public interest is an “unalienable right”

and is the “matrix, the indispensible condition, of nearly every

other form of freedom.” Curtis Publishing Co. v. Butts, 388 U.S.

130, 145, 149 (1967). This fundamental right has been made

applicable to the states by the Fourteenth Amendment. Central

Hudson Gas & Electric Corp. v. Public Service Commission, 100

S. Ct. 2343, 2349 (1980).

The purposes of the First Amendment are stimulation of

free discussion and interchange of ideas, Buckley v. Valeo, 424

U.S. 1, 14 (1976); protection of the “marketplace of ideas”

from governmental infringement, Red Lion Broadcasting Co. v.

FCC, 395 U.S. 367, 390 (1964); and promotion of intelligent

self-government in a democratic system, A. MEIKLEJOHN, FREE

SPEECH AND ITS RELATION TO SELF GOVERNMENT 88 (1948), in

order that “such freedom will ultimately produce a more

capable citizenry and more perfect polity.” Cohen v. California,

403 U.S. 15, 24 (1971). See Consolidated Edison Co. v. Public

Service Commission, 100 S. Ct. 2326, 2331 (1980).

The First Amendment applies with special force to the

political arena. Monitor Patriot Co. v. Roy, 401 U.S. 265, 272

(1971). Political expression is afforded the broadest con-

stitutional protection in order to insure the “unfettered inter-

5

change of ideas for the bringing about of political and social

changes desired by the people.” Roth v. United States, 354 U.S.

476, 484 (1957). Indeed, it is generally recognized that one of

the original purposes of the First Amendment “was to protect

the free discussion of governmental affairs.’ Mills v. Alabama,

384 U.S. 214, 218 (1966); BeVier, The First Amendment and

Political Speech: An Inquiry Into the Substance and Limits of

‘Principle, 30 Stan. L. Rev. 299, 308 (1978). See generally A.

MEIKLEJOHN, supra. The “freedom to think as you will and to

speak as you think” is “indispensable to the discovery and

spread of political truth.” Whitney v. California, 274 U.S. 357,

375 (1927) ( Brandeis, J., concurring).

The protections of the First Amendment include the right

of the recipient to acquire information as well as the right of the

speaker to disseminate information. Virginia State Board of

Pharmayy v. Virginia Citizens Consumer Council, Inc., 425 U.S.

748, 756-57 (1976); Pell v. Procunier, 417 U.S. 817, 832

(1974). “It is the right of the public to receive suitable access

to social, political, esthetic, moral and other ideas ....” Red

Lion Broadcasting, 395 U.S. at 390.

The First Amendment protects not only freedom of speech,

but also freedom of association. Freedom of association has

been recognized as a basic constitutional freedom which is

closely allied to the freedom of speech and which lies at the

foundation of a free society. Buckley, 424 U.S. at 25; Kusper v.

Pontikes, 414 U.S. 51, 56-57 (1973). There can be no doubt

that group association enhances the ability to advocate a

position or view. NAACP v. Alabama, 357 U.S. 449, 460

(1958). Freedom of association encompasses the right to join

together in a group to advocate political and governmental

beliefs, Healy v. James, 408 U.S. 169 (1972), and legal and

economic interests, NAACP v. Button, 371 U.S. 415 (1963).

The right to make a political contribution is protected under the

First Amendment as a freedom of association. Buckley, 424

U.S. at 22.

The general presumption in favor of the constitutional

validity of legislation is not applicable in those instances where

the legislation is challenged on the ground that it restricts the

6

preeminent freedoms secured by the First Amendment.

Erznoznick v. City of Jacksonville, 422 U.S. 205, 215 (1976).

Pure speech is entitled to comprehensive protection under the

First Amendment. Tinker v. Des Moines Independent Commu-

nity School District, 393 U.S. 503, 505-06 (1969). This Court

has held that contributions to the political process are a form of

pure speech, the limitation of which is deserving of strict

scrutiny. Bellotti, 435 U.S. at 786 n.23; Buckley, 424 U.S. at 16-

17. In light of the high purposes served by the First Amend-

ment, the Act must be examined to determine its effects on this

preeminent freedom.

The Act unduly infringes on the First Amendment right of

the citizens of Berkeley to combine their financial resources in

order to disseminate information on ballot measure issues, as

well as to receive such information. The Act imposes a “direct

quantity restriction[ ] on political communication and associ-

ation by persons, groups, .. . and political parties.” Buckley, 424

U.S. at 18. The effect of the Act is to prevent the citizens of

Berkeley from receiving all “vailable information on a given

ballot issue in order that they may cast informed votes. This

Court has recognized that government “may not, consistently

with the spirit of the First Amendment, contract the spectrum of

available knowledge.” Griswold v. Connecticut, 381 U.S. 479,

482 (1965). The Act also directly affects those who wish to

effectively communicate information by restricting the financial

ability of individuals to contribute to a committee in support or

opposition to a ballot measure issue. “{ V Jirtually every means

of communicating ideas in today’s mass society requires the

expenditure of money.” Buckley, 424 US at 19.

This Court has on several occasions recognized that the

purported goal of acts such as this, which restrict the speech of

some elements of society in order to enhance the relative voice

of others, “is wholly foreign to the First Amendment.” Buckley,

424 US. at 48-49. See Bellotti, 435 U.S. at 785-86. As such,

the Act in this case is constitutionally infirm.

However, the actual effect of the Act is contrary to its

stated goal, and in itself is also unconstitutional. Affluent

contributors may defeat the purpose of the Act with impunity

7

by conducting independent campaigns with their own financial

resources. The California Supreme Court articulated the

problem created by the Act in this case, without recognizing it

as such, when it stated that, under the Act, large campaign

contributors are free to spend unlimited amounts to conduct

their own independent campaigns on ballot measures, but no

one may contribute more than $250 to committees formed to

support or oppose such measures. Citizens Against Rent

Control v. City of Berkeley, 27 Cal. 3d 819, 829 (1980). The

only remaining alternative for those who cannot afford to

underwrite their own independent campaigns on ballot issues is

to join together with others of like mind in order to maximize

their financial resources. However, the Act precludes these

people from contributing more than $250 each to advocate their

position. One person alone may spend as much as his personal

wealth will allow; two together, however, are limited to $250

apiece.

Citizens who ban together to promote issues which do not

concern a large segment of the community, and which therefore

cannot generate broad based financial support, are permitted to

contribute only a limited amount of their own money in order

to further their common interest. It is no answer to say that

issues of limited public concern are any less deserving of

constitutional protection than more popular issues. In fact, this

Court has stated that First Amendment protection is accorded

to dissemination of a// information and ideas regardless of their

social worth. Stanley v. Georgia, 394 U.S. 557, 564 (1969).

“The Constitution ‘protects expression which is eloquent no less

than that which is unconvincing.’ ” Bellotti, 435 U.S. at 790.

In essence, then, while wealthy contributors are not bound

by the Act, the actual effect of the Act is to restrict the speech of

small campaign contributors who must pool their financial

resources to further their common goal. The Act thereby

enhances the relative voice of those large independent contrib-

utors who can afford to conduct their own campaigns free of the

Act's prohibition. This is likewise constitutionally impermis-

sible. First Amendment protection against governmental

abridgment of free expression cannot properly be made to

depend on a person’s financial ability to engage in public

discussion. Buckley, 424 U.S. at 49. See Citizens Against Rent

Control, 27 Cal. 3d at 834 (Richardson, J., dissenting).

The Act infringes on the First Amendment rights of the

citizens of Berkeley. In order for such infringement to be

constitutionally permissible, the Act must serve a compelling

governmental interest. As discussed more fully below, the Act

does not serve any such compelling interest, and therefore

violates the First Amendment.

THE ACT SERVES NO COMPELLING

GOVERNMENTAL INTEREST

Limitations on contributions to the political process are

subject to strict scrutiny under the First Amendment. In order

for the City of Berkeley to properly infringe on the con-

stitutionally protected freedom of speech of its citizens, the city

must demonstrate the existence of a compelling governmental

interest. “Even then, the [city] must employ means ‘closely

drawn to avoid unnecessary abridgment.’ ” Bellotti, 435 U.S. at

786. Further, when, as here, “it is shown that governmental

action threatens significantly to impinge upon constitutionally

protected freedom it becomes the duty of this court to deter-

mine whether the action bears a reasonable relationship to the

achievement of the governmental purpose asserted as its justifi-

cation.” Bates v. City of Little Rock, 361 U.S. 516, 525 (1960).

This is a burden which the City of Berkeley cannot meet.

Moreover, the actual effect of the Act is the opposite of what the

city is seeking to accomplish.

In this case, the Court must examine, on the one hand, “the

extent to which communicative activity is in fact inhibited” by

the Act, “and on the other hand, the values, interests or rights

served by enforcing the inhibition.” L. Tripe, supra at § 12-20.

The restriction must be no greater than necessary to achieve the

stated governmental interest. United States v. O’Brien, 391

U.S. 367, 377 (1968). See Bogen, Balancing Freedom of

Speech, 38 Md. L. Rev. 387 (1979).

9

The reasoning of the California Supreme Court in uphold-

ing the constitutionality of the Act is a study in self-

contradiction. The values allegedly served by the Act, as found

by that court, are the prevention of perversion of the political

process by large contributors and a reversal of the trend in voter

apathy caused by such large contributions. The court cited

Buckley for the proposition that the contribution limitation

imposed by the Act “focuses precisely on the problem” the Act

is purported to solve. Citizens Against Rent Control, 27 Cal. 3d

at 831. However, the justification for upholding the contribu-

tion limitation in Buckley was the prevention of political

corruption of candidates for elective office and the avoidance of

a quid pro quo relationship. This Court recognized in Bellotti

that the potential for corruption which exists in candidate

elections simply does not exist with regard to ballot mea-

sures—while a candidate may be corrupted by the payment of

money, there is plainly no one capable of being so corrupted

with regard to ballot measures. Bellotti, 435 U.S. at 790-91.

See Let's Help Florida, 62\ F.2d at 199-200; C & C Plywood

Corp., 583 F.2d at 423, 425; Schwartz, 495 F.2d at 852-53.

The California Supreme Court then reasoned that the Act

is necessary because “domination of the political process by

large contributors leaves other citizens with a stilled voice in the

very domain of our electoral system set aside for accomplishing

the popular will,” and leads to voter apathy. Citizens Against

Rent Control, 27 Cal. 3d at 826-28. This is precisely the scheme

permitted under the Act. Wealthy contributors may conduct

their own independent campaigns free from any governmental

limitation and subject only to the depth of their pockets. Those

who cannot afford to conduct their own independent cam-

paigns, and who must join together with others to maximize

their financial clout, are limited in the amount of money they

are permitted to contribute to committee efforts. The appli-

cation of the Act will obviously still the voices of all but the

wealthy and will lead to achieving that which ic was designed to

prevent.

In a further twist of logic, the California Supreme Court

cited Bellotti with regard to the importance of the compelling

state interests of “preserving the electoral process, preventing

10

corruption, and sustain[ing] the alert responsibility of the

individual citizen in a democracy . . .” Bellotti, 435 U.S. at 788-

89, yet recognized that in Bellotti this Court declined to find that

the statute furthered the above goals absent a showing by

record evidence that corporations corrupt the political process.

Similarly, in this case there was no evidence before the Califor-

nia Supreme Court that the corruption which the Act was

designed to counter in fact existed. Citizens Against Rent

Control, 27 Cal. 3d at 835 (Richardson, J., dissenting). The

court relied upon the speculation of political scientists, com-

mentators, and students. Jd. at 828-29.

While attempting to slay the imaginary dragons of political

corruption and voter apathy, the Act instead serves to trample

underfoot the constitutional rights of the citizens of Berkeley, by

allowing the wealthy an unlimited right to express themselves

on ballot measures, while permitting those who cannot afford to

do so to instead contribute only a limited amount to political

committees to express their views. The Act clearly serves no

compelling governmental interest, and in fact runs contrary to

the goals which it purportedly seeks to achieve.

In the pursuit of its legitimate interests, the city must

employ “narrowly drawn regulations designed to serve those

interests without unnecessarily interfering with First Amend-

ment freedoms.” Village of Schaumberg v. Citizens for a Better

Environment, 100 S. Ct. 826, 836 (1980). If there is no nexus

between the means used to regulate the activity and the

legitimate ends of the regulation, the court may disregard the

ends as justification for the challenged law. E.g., Street v. New

York, 394 U.S. 576 (1969). The Act in this case is overly broad

in scope and unnecessarily interferes with the First Amendment

rights of the citizens of Berkeley. Further, there is no reason-

able relation between the stated goals of the Act and the means

employed to reach those stated goals. Because the Act serves

no compelling governmental interest, it represents an uncon-

stitutional infringement on First Amendment rights.

THE ACT REPRESENTS AN UNDESIRABLE

GOVERNMENTAL INTRUSION INTO THE LIVES

OF THE CITIZENS OF BERKELEY

The Act represents an unnecessary and undesirable intru-

sion into the lives of the citizens of Berkeley. As such, it

constitutes an unwarranted infringement of their First Amend-

ment rights and is therefore unconstitutional.

This Court has recognized that “contribution restrictions

could have a severe impact on political dialogue if the limita-

tion prevented candidates and political committees from amas-

sing the resources necessary for effective advocacy.” Buckley,

424 US. at 21. The same holds true for contribution restric-

tions to committees for ballot measure issues. The Act prevents

complete access by the citizens of Berkeley to the marketplace

of ideas in order that they can make informed decisions on

ballot measure issues, after having heard as much information

on the issues as the competing sides have to offer. What is

essential under the First Amendment “is not that everyone shall

speak, but that everything worth saying shall be said.” A.

MEIKLEJOHN, supra at 25. This insures that sound and rational

judgments can be achieved “by considering all arguments

which can be made to support or oppose any propositions.” T.

EMERSON, TOWARD A GENERAL THEORY OF THE FIRST AMEND-

MENT 7 (1966).

The decision of the California Supreme Court impermis-

sibly allows the city to assume a guardianship of the public

mind. Thomas, 323 U.S. at 545. The Court speaks of the

sanctity of the ballot initiative process, which gives the public

the opportunity for direct political decision making, yet it

condones a scheme which limits the ability of the citizenry to

effectively exercise that opportunity. In essense, the court feels

that it is important to open up the political process to the public,

but that the process should not be opened too far. This Court

recently recognized that the First Amendment prohibits the

“government from limiting the stock of information from which

members of the public may draw.” Bellotti, 435 U.S. at 784.

12

“The direct participation of the people in a referendum, if

anything, increases the need for ‘the widest possible dis-

semination of information from diverse and antagonistic

sources.’ Bellotti, 435 U.S. at 790 n.29.

The citizens of Berkeley must be entrusted to decide for

themselves the merits of the arguments put before them on

issues of public interest. “Those who won our independence

believed that the final end of the State was to make men free to

develop their faculties.... They valued liberty both as an end

and as a means... .” Whitney, 274 U.S. at 335 (Brandeis, J.,

concurring). The enactment of the Act presupposes that the

messages of large contributors must be kept from the citizens of

the city, for fear that they may be influenced. The fact that

advocacy may persuade the electorate is hardly a reason to

suppress it. Bellotti, 435 U.S. at 790. Further, the “right to

receive information and ideas regardless of their social worth,

[citations omitted }, is fundamental to our free society.” Stanley,

394 U.S. at 564. In rejecting on First Amendment grounds the

highly paternalistic nature of the state statute in question in

Bellotti, this Court recognized that

“The people in our democracy are entrusted with the

responsibility for judging and evaluating the relau.ve merits

of conflicting arguments. They may consider, in making

their judgment, the source and credibility of the advocate.

But if there be any danger that the people cannot evaluate

the information and arguments advanced . .. it is a danger

contemplated by the Framers of the First Amendment.”

Bellotti, 435 U.S. at 791-92.

CONCLUSION

“[E]very person must be his own watchman for truth,

because the forefathers did not trust any government to sepa-

rate the truth from the false for us.”” Thomas, 323 U.S. at 545.

The decision of the California Supreme Court in this case

conflicts with the views of this Court and of three federal Courts

of Appeals. The Act violates the First Amendment rights of the

citizens of Berkeley and constitutes an unreasonable govern-

mental intrusion into their lives.

Foundation urges that the Court note probable jurisdiction in

this case and reverse the decision of the California Supreme

Court.

December, 1980

13

Respectfully submitted,

RONALD A. ZUMBRUN

Pacific Legal Foundation

455 Capitol Mali, Suite 600

Sacramento, California 95814

Telephone: (916) 444-0154

RAYMOND M. MOMBOISSE

COUNSEL OF RECORD

CHRISTOPHER H. COLLINS

Pacific Legal Foundation

1990 M Street, N.W., Suite 550

Washington, D.C. 20036

Telephone: (202) 466-2686

Attorneys for Amicus Curiae

Pacific Legal Foundation

Therefore, Pacific Legal