State Regulation of the Initiative Process: Background and Analysis of Issues in Buckley v. American Constitutional Law Foundation, Inc., et al.

Congressional research reportFeb 16, 1999

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State Regulation of the Initiative Process:

Background and Analysis of Issues in

Buckley v. American Constitutional Law

Foundation, Inc., et al.

February 16, 1999

(name redacted)

Legislative Attorney

American Law Division

Congressional Research Service ˜ The Library of Congress

ABSTRACT

This report discusses Buckley v. American Constitutional Law Foundation, Inc., et al.,

where the Supreme Court considered the constitutionality of various restrictions imposed

by Colorado on the petition process for ballot initiatives. The Court struck down regulations

requiring that circulators be registered voters and that all circulators wear identification

badges, as well as provisions requiring the disclosure of paid circulators and amounts

disbursed to each. In reaching this decision, the Court noted that other permissible

regulations served Colorado’s interest in protecting the integrity of the initiative process. As

such, the Court determined that the aforementioned provisions could not be justified in light

of their violation of the right to anonymous political expression and subsequent chilling

effect on free speech.

State Regulation of the Initiative Process: Background and

Analysis of Issues in Buckley v. American Constitutional

Law Foundation, Inc., et al.

Summary

From its inception, the United States has fostered and encouraged unfettered

discussion and debate regarding political issues facing the nation. Indeed, the First

Amendment affords the greatest protection to political expression, to assure the free

interchange of ideas. Coupled with this respect for free speech and political

expression, though, is the sometimes contrary notion that states possess authority to

regulate the electoral process in order to avoid campaign related disorder.

Due to the increased popularity of the use of ballot initiatives and referendums

as a tool for political change, and resulting state efforts to regulate these activities,

these two lines of legal thought have been the source of significant conflict. While

the Supreme Court has always served as a stalwart protector of First Amendment

rights relating to political expression, its prior decisions dealing with the topic related

mainly to areas of pure speech, leaving significant questions regarding how these

rights would be interpreted in light of a state’s interest in preserving the integrity of

its electoral processes.

The Supreme Court addressed this conflict in Buckley v. American

Constitutional Law Foundation, Inc., et al., a case arising from the Court of Appeals

for the Tenth Circuit. Specifically, the Court analyzed the constitutionality of

provisions enacted by the State of Colorado requiring that petition circulators be

registered voters, to wear identification badges, and mandating the disclosure of

amounts disbursed to paid circulators. While the Court had handed down previous

rulings pertaining to state regulation of the electoral process and associated First

Amendment free speech considerations, it had not spoken directly on the applicability

of such rulings to the initiative process. Justice Ginsburg delivered the opinion of the

Court that such provisions constituted an unconstitutional restriction on First

Amendment freedoms regarding political expression, and was joined by Justices

Stevens, Scalia, Kennedy, and Souter, with a concurring opinion by Justice Thomas.

Justice O'Connor dissented from the Court's holding regarding the registration and

disclosure requirements, and was joined by Justice Souter. Chief Justice Rehnquist

also submitted a dissenting opinion in opposition to the Court's disposition of the

disclosure and registration issues. The Court’s decision extends First Amendment

rights acknowledged in prior cases, and elaborates upon permissible state regulation

in the initiative and referendum process, while leaving several questions regarding

the scope of such state control unanswered.

Contents

Case History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Voter Registration Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Financial Disclosure Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Identification Badge Requirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

State Regulation of the Initiative Process:

Background and Analysis of Issues in

Buckley v. American Constitutional Law

Foundation, Inc., et al.

Case History

Respondents, collectively referred to as ACLF in the Court’s opinion, originally

brought suit against the Secretary of State of Colorado in 1993 in the United States

District Court for the District of Colorado pursuant to 42 U.S.C. §1983, challenging

portions of the state’s statutory scheme regulating the initiative-petition process.1 In

alleging that various initiative regulations violated the right to freedom of speech

under the First Amendment, ACLF contested specifically: (1) Colo. Rev. Stat. §1-40112(1) (1998), requiring that all petition circulators be registered voters and at least

18 years of age; (2) §1-40-108, limiting circulation of a particular petition to six

months; (3) §1-40-112(2), requiring that petition circulators wear identification

badges giving their names and disclosing their status as a paid or volunteer circulator;

(4) §1-40-111(2), requiring that circulators attach to each petition an affidavit

containing the circulator’s name and address and a statement averring familiarity

with state laws regarding petitioning; (5) §1-40-121, requiring that initiative

proponents disclose (a) at the time of filing the petition, the name, address, and

county of voter registration of all paid circulators, the amount of money paid per

signature, and the total amount paid to each circulator, and (b) to disclose the names

of the proponents, names and addresses of paid circulators, the name of the proposed

ballot measure, and the amount of money paid to each circulator on a monthly basis.2

As noted by the Supreme Court, the district court struck down the badge

requirement and portions of the disclosure regulations, and upheld the age and

affidavit requirements, as well as the six-month limit on petition circulation.3

However, the district court, upon determining that the registration provision posed

significant constitutional problems, nonetheless held that the law could not be

invalidated, as it had been adopted by the voters of Colorado as a constitutional

amendment. According to the district court, this fact immunized the registration

See Buckley v. American Constitutional Law Foundation, Inc., et al., N0. 97-930, 1999 WL

7723, at *1-*2 (S.Ct. Jan. 12, 1999). Plaintiffs at the district court level consisted of

American Constitutional Law Foundation, Inc., which operates as a nonprofit public interest

group that advocates direct democracy, and several private citizens participating in

Colorado’s petition process. Id.

Id. at *1.

Id. at *4.

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provision from any level of scrutiny. The Court of Appeals for the Tenth Circuit

affirmed the determinations of the district court, except for its decision on the

registration requirement. Specifically, the Court of Appeals held that the regulation

was not exempt from review merely because it was based upon a constitutional

provision enacted by petition, explaining that the voters of a state may not violate the

strictures of the United States Constitution by petition any more than a governing

body may via legislation.4

In order to appreciate fully the Supreme Court's review of the reasoning of the

lower courts, one must gain an understanding of the two divergent lines of

jurisprudence at play in its analysis. Specifically, it is well established that “the First

Amendment affords the broadest protection to political expression, in order ‘to assure

[the] unfettered interchange of ideas for the bringing about of political and social

changes desired by the people.’”5 Indeed, the Court has always vehemently protected

this view of the First Amendment, stating that First Amendment protection is "at its

zenith" in regard to communication pertaining to political change.6 At the same time,

however, the Court has been quick to recognize that a "state has a strong, often

compelling, interest in preserving the integrity of its electoral system."7 Accordingly,

the Court has "recognized...that 'there must be a substantial regulation of elections

if they are to be fair and honest and if some sort of order, rather than chaos, is to

accompany the democratic processes.'"8 As noted above, these two lines of legal

thought have largely existed independent of one another, rarely coming into direct

conflict. In the present case, though, the Supreme Court was forced to determine the

scope of these two doctrines as they relate to the petition-initiative process.

At the outset of its analysis, the Supreme Court explained its summary

affirmance of the Tenth Circuit’s determination that the age restriction, six-month

circulation limit, and affidavit requirement were valid, noting that "states allowing

ballot initiatives have considerable leeway to protect the integrity and reliability of

the initiative process, as they have with respect to election processes generally."9 The

Court pointed to these rulings as an acknowledgment of the strong regulatory

interests a state possesses in preserving the integrity of its electoral system.10 This

proposition was discussed at length by the appellate court which noted that, in light

of the need for active governmental structuring of the electoral process, the

American Constitutional Law Foundation, Inc., et al., v. Meyer, 120 F.3d 1092, 1100 (10th

Cir. 1997). The Supreme Court affirmed this determination by the Tenth Circuit as part of

its review of the issue. 1999 WL 7723 at *6.

Buckley v. Valeo, 424 U.S. 1, 14 (1976) (quoting Roth v. United States, 354 U.S. 476, 484

(1957)).

1999 WL 7723 at *4.

120 F.3d at 1099 (citing Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997)).

1999 WL 7723 at *4 (quoting Storer v. Brown, 415 U.S. 724, 730 (1974)).

1999 WL 7723 at *5.

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aforementioned regulations did not significantly burden political expression.11 The

Court cautioned, however, that such decisions are not made lightly as the First

Amendment requires a court "to be vigilant in making those judgments, to guard

against undue hindrances to political conversations and the exchange of ideas."12

Having explained this caveat, the Court went on to analyze in depth the provisions

at issue.

Voter Registration Regulations

The first major issue addressed by the court centered on the constitutionality of

Col. Rev. Stat. §1-40-112(1), which required that all petition circulators be registered

voters. The Tenth Circuit ruled that this requirement was unconstitutional in that it

prohibited unregistered voters from circulating petitions, excluding them from

participating in an activity constituting core political speech.13 The main basis for

this analysis rested on the Supreme Court’s earlier decision in Meyer v. Grant.14

In Meyer, the Court addressed a Colorado law which prohibited the payment of

any consideration for the circulation of referendum or initiative petitions.

Specifically, the Court established that “circulation of a petition involves the type of

interactive communication concerning political speech that is appropriately described

as ‘core political speech.’”15 Accordingly, the Court applied exacting scrutiny in its

review and held that the law constituted an impermissible restriction of political

expression. As the Court explained, by reducing the number of individuals

advocating a particular message, the law impaired the ability of advocates to obtain

the number of signatures needed to place an issue on the election ballot.16

In its analysis of the registration issue, the Supreme Court noted that it was

clearly evident that the registration requirement severely reduced the number of

individuals, both volunteer and paid, available to circulate petitions.17 Accordingly,

the Court turned its attention to whether the asserted state interests justified the

reduction. Upon determining from statistical and testimonial evidence establishing

such a reduction, the Court confirmed the Tenth Circuit’s holding that §1-40-112(1)

restricted core political speech. Specifically, the Court noted that the regulation at

issue proscribed speech in the same fashion as the ban on paid circulators invalidated

in Meyer. Quoting Meyer, the Court stated that the reduction in speech was

irrefutable, and the “provisions ‘limi[t] the number of voices who will convey [the

initiative proponents’] message’ and, consequently, cut down ‘the size of the

120 F.3d at 1099-1100 (1997) (discussing Burdick v. Takushi, 504 U.S. 428, 433 (1992)).

1999 WL 7723 at *5 (citing Meyer v. Grant, 486 U.S. 414, 421 (1988)).

120 F.3d at 1100.

Meyer v. Grant, 486 U.S. 414 (1988).

Id. at 421-422.

Id. at 422-423

Buckley v. American Constitutional Law Foundation, Inc., et al., No. 97-930, 1999 WL

7723, at *6 (S.Ct. Jan. 12, 1999).

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audience [proponents] can reach.” In light of these findings, the Court held that the

regulation restricted political expression in a manner which could not be justified.18

In arguing for the validity of the provisions, Colorado maintained that, despite

the speech limitations, the regulation was permissible due to the ease of registering

to vote.19 The Supreme Court gave this argument little weight, however, explaining

that the ease of registration does not lessen the burden on speech at the time of

circulation. The Court further noted that the choice not to register itself can be a form

of political expression. In particular, the Court pointed to the statements of one

circulator who maintained that his refusal to register was a form of private and public

protest, as well as evidence establishing that various circulators refuse to register

because they believe that the political process is irresponsive to their needs.20 Given

the political views of these individuals, the Court held that the ease of registration

was irrelevant to its consideration of the issue.21

The main interest asserted by Colorado was its need to regulate illegal conduct

by petition circulators. Colorado argued the regulation was necessary to ensure that

all circulators would be subject to the subpoena power of the Secretary of State

which does not extend beyond the State’s borders.22 However, the Court determined

that this interest was met by less intrusive means, such as the requirement that all

circulators submit affidavits disclosing their full addresses.23 According to the Court

this affidavit requirement would act to serve Colorado’s interests more readily than

the registration requirement, in that it is submitted at the time a petition section is

submitted, whereas a registration record may lack such currency. Furthermore, the

Court emphasized the Tenth Circuit’s determination that the asserted interests could

be “more precisely achieved” by a requirement that all petition circulators be

residents. In response to Colorado’s argument that registration is easier to track than

residency, the Court noted that the submitted affidavits would assuage any such

difficulty.24

In light of the aforementioned factors, the Court concluded that, assuming a

residence requirement would be upheld as a valid regulation of the initiativereferendum process, the registration provision constituted an impermissible

restriction by reducing the number of circulators eligible to participate in petitioning

activity.25 Dissenting opinions by Justice O’Connor and Chief Justice Rehnquist

found great fault with this holding, however. According to their view, the

registration requirement constituted a necessary and valid exercise of state power.

Id. at *6-*7.

Id. at *7.

Id. at *8.

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Specifically, Justice O’Connor analogized the registration requirement to earlier

Supreme Court decisions validating such qualifications placed on individuals wishing

to vote in primary elections and candidates for public office. According to Justice

O’Connor, the registration requirement was akin to these cases, and served merely

as “a neutral qualification for participating in the petitioning process.”26 As a neutral

requirement, Justice O’Connor maintained that the registration provision was an

incidental and indirect burden on the communicative aspects of petition circulation

which did not prohibit “otherwise qualified initiative petition circulators from

circulating petitions.” Furthermore, the dissent argued that the registration provision

was readily distinguishable from Meyer, in that the requirement did not effect a ban

on an identifiable body of circulators or stifle the political activity of individuals

capable of circulating petitions.27

In Justice O’Connor’s view, the indirect burdens of the registration provisions

required Colorado to show only that the regulation advanced a legitimate state

interest.28 In support of the proposition that the registration requirement was

necessary to advance the state interest in controlling fraudulent petitioning activity,

Justice O’Connor pointed to evidence that Colorado had experienced difficulty in the

past controlling such behavior due to the fact that the offending circulators often fled

the state. Given the utility of the registration requirement in aiding the asserted state

interests and the ease of registering, she maintained that the provision was a

reasonable regulation of the initiative process.29

Chief Justice Rehnquist raised many of the same points in his dissent, focusing

heavily on the comparative ease of voter registration.30 He also dismissed the

associated First Amendment concerns addressed by the majority, declaring that only

a very few individuals employ non-registration as a tool to convey political thought

and expression.31 Apart from these statements, Chief Justice Rehnquist argued that

enforcement methods short of a registration requirement would be ineffective and

unduly burdensome on the state. In the Chief Justice's view, state ballot initiatives

exist as a matter of state concern and, as such, states should be permitted to limit the

ability to circulate to those individuals who will ultimately vote on the initiatives.32

He went on to declare that “[i]f eligible voters make the conscious decision not to

have no right to complain that they cannot circulate initiative petitions to people who

are registered voters.”33

Id. at *19.

Id. at *20.

Id. at *21.

Id. at *26.

Id. at *27.

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While the dissenting opinions point to factors which support the right of a state

to regulate its initiative process via a registration requirement, neither Justice

O’Connor or Chief Justice Rehnquist effectively address the majority’s determination

that the registration requirement effects an unconstitutional restriction of political

expression. Whereas the majority points to testimony indicating that certain

individuals choose non-registration as a form of political protest, the dissenting

opinions argue that this is characteristic of a small minority of circulators and is an

insufficient basis for a finding of invalidity. Justice O’Connor, for instance,

maintained that the registration provision was an indirect, and therefore permissible,

restriction. In support of this proposition, she stated that, unlike paid circulators, nonregistered voters were not vital to the success of a petition drive.34 The Chief Justice

echoed this unfavorable view of unregistered voters, referring to them as “political

dropouts.”35

Neither of these viewpoints, however, provides a complete refutation of the

majority’s determination. As the Court held, the registration requirement does stifle

the political activity of a class of persons, akin to the prohibition at issue in Meyer.36

While the dissent does make a valid point regarding the indirect nature of the

registration requirement as opposed to the outright ban in Meyer, it was evident to

the Court that the effect of both laws was to restrict political expression. While the

dissenting opinions essentially declare that unregistered voters do not constitute a

class deserving protection, they offer no substantive reasons why this chosen form

of expression is invalid in the First Amendment context. For instance, Chief Justice

Rehnquist maintains that there is no utility in this form of expression, but provides

no constitutional analysis as to why this is so.37 Testimony adduced at the district

court level established that certain individuals clearly view non-registration as an

avenue by which they may make a political statement.38 While Chief Justice

Rehnquist and Justice O’Connor obviously disagree with the validity of such

expression, the majority recognized this form of expression as constitutionally valid

and deserving of protection.

From the majority’s determination, it is evident that the Court is concerned with

reaching an adequate balance between state regulatory interests and the protection of

political expression. For instance, the Court, without explicitly ruling on the issue,

discussed the scope of appropriate regulation. The Court noted that either a provision

requiring that circulators be residents or eligible to register would be a more narrowly

tailored regulation of the initiative process.39 While the dissenters assert that the

invalidation of the registration provision would result in the inability of states to

constitutionally require that circulators be residents or eligible voters, the Court

Id. at *20.

Id. at *27.

Id. at *6.

Id. at *26.

Id. at *7. For instance, Respondent Bill Orr argued before the district court that nonregistration was a “form of...private and public protest.” Id.

Id. at *7.

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intimated that such regulations would survive scrutiny.40 Furthermore, the arguments

of the dissenting opinions regarding the inadequacy of a residency requirement were

mitigated, in the Court's view, by the affidavit requirements, which should enable an

effective method by which to enforce any such regulation. Given these factors, it is

clear that the Court's decision places a somewhat higher burden on a state wishing

to exercise regulatory control over the initiative process. However, there are other

avenues which may be employed to accomplish such a goal, thereby preserving the

balance between regulation of the process and the right to political expression.

Financial Disclosure Provisions

Another key issue before the Supreme Court in Buckley v. American

Constitutional Law Foundation, Inc., et al., pertained to whether a state could

compel disclosure of the names and addresses of individuals paid to circulate

petitions, and the amounts disbursed. Specifically, Col. Rev. Stat. §1-40-121

required the filing of monthly and final reports including the names of paid

circulators, their business and residential addresses, and the amount of money

disbursed to these individuals monthly and in total. In its determination of the issue,

the Tenth Circuit invalidated the regulation to the extent it required the disclosure of

information regarding paid circulators.41 In its subsequent analysis, the Supreme

Court affirmed the reasoning of the Tenth Circuit, deciding the issue based upon its

prior holding in Buckley v. Valeo.42

In Buckley v. Valeo, the Supreme Court analyzed the constitutionality of various

provisions of the Federal Election Campaign Act of 1971 (the Act), which limited

individual contributions to political campaigns and required that contributions above

a threshold amount be reported and publicly disclosed.43 Specifically, the Act

prohibited individuals from making annual contributions in excess $1,000 to a

particular candidate, and imposed an overall annual contribution limit of $25,000.44

Furthermore, the reporting and disclosure provisions required that records of

contributions be made public. Opponents of the Act argued that these limitations

violated First Amendment rights regarding speech and political expression.

In reviewing the act, the Supreme Court acknowledged that such compelled

disclosure intruded upon First Amendment freedoms, and “significant encroachments

on First Amendment rights...cannot be justified by a mere showing of some

legitimate governmental interest.”45 Accordingly, the Court applied exacting scrutiny

in its review. In conducting its analysis, however, the Court “identified three

interests ‘sufficiently important to outweigh’ the infringement on the ‘privacy and

Id. at *7-*8.

American Constitutional Law Foundation, Inc., et al., v. Meyer, 120 F.3d at 1105.

Buckley, 1999 WL 7723 at *12.

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

Id. at 7.

Id. at 64.

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association and belief guaranteed by the First Amendment.’”46 First, the Court

emphasized that campaign finance disclosure informs the electorate of the

candidate’s political associations, illuminating the interests to which the candidate

is most likely to address. Furthermore, the Court determined that the disclosure

requirements served to deter corruption and to dispel the appearance of corruption

stemming from financial contributions. Finally, the Court explained that the

disclosures were necessary for the collection of data needed to detect violations of

contribution limitations.47 In light of these factors, the Court held that the

governmental interest in public disclosure outweighed the potential harm to First

Amendment Freedoms.

In comparing the disclosure requirements enacted by Colorado with those

upheld in Buckley, the Supreme Court agreed with the Tenth Circuit’s determination

that certain provisions of §1-40-121 were unconstitutional. The Supreme Court

invalidated the requirement that the names and addresses of, as well as the amounts

disbursed to, each paid circulator be disclosed.48 A key factor in this decision was the

Court’s determination that the factors warranting mandated disclosure in Buckley

were not present in the petitioning environment. Specifically, the Court adopted the

Tenth Circuit’s reasoning that unlike the situation in Buckley, §1-40-121 imposed no

monetary threshold, requiring the identification of paid circulators irrespective of the

amount of money they received for their efforts.49 Also, Buckley targeted candidate

elections whereas §1-40-121 was geared only toward the regulation of the initiative

process.50 Due to this fundamental difference, concerns which the Court found

dispositive in Buckley, such as the need to alert the public to a candidate’s financial

ties and to provide a mechanism for the detection of contribution violations were

deemed inapplicable.51

Furthermore, the Court determined that the deterrence of actual or apparent

corruption was not a justifiable governmental interest, given the nature of the

initiative process. Specifically, the Court explained that “ballot initiatives do not

involve the risk of ‘quid pro quo’ corruption present when money is paid to, or for,

candidates.”52 In explaining this point the Supreme Court referred to its prior

decisions in McIntyre v. Ohio Elections Comm’n and Meyer v. Grant.53 In McIntyre,

the Court struck down Ohio’s ban on anonymous leafleting due in large part to its

determination that the risk of corruption which is so prevalent in candidate elections

120 F.3d at 1104 (quoting Buckley v. Valeo, 424 U.S. at 64).

Buckley v. Valeo, 424 U.S. at 68.

1999 WL 7723 at *11-*12.

Id. at *11; 120 F.3d at 1104.

120 F.3d at 1104.

1999 WL 7723 at *11.

Id. at *11 (quoting Meyer v. Grant, 486 U.S. at 427-428).

1999 WL 7723 at *11.

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is not present in a public vote on an issue.54 The Court also touched upon this issue

in Meyer, noting that “the risk of fraud or corruption, or the appearance thereof, is

more remote at the petition stage of an initiative than at the time of balloting.”55 Due

the tangential relation of the Buckley decision and the lower likelihood of improper

influence in the petition process, the Supreme Court agreed with the Tenth Circuit’s

reasoning that the disclosure provisions were invalid.56

In light of these factors, the Court determined that the asserted governmental

interests were insufficient to justify such broad disclosure requirements. Specifically,

Colorado argued that the disclosure provisions were necessary to inform the

electorate as to whether a particular measure possessed grass roots support and to

discourage fraud.57 The Tenth Circuit addressed these arguments specifically, finding

them to be of little merit. Regarding the grass roots argument, the circuit court

explained that this interest was protected by the requirement that each initiative or

referendum contain signatures signed by registered electors in an amount equal to at

least five percent of the votes cast for the office of secretary of state at the previous

election. The Tenth Circuit also found that a body of more narrowly tailored

regulations met the state’s interest in preventing fraud. In particular, other provisions

of the regulatory scheme allowed for the prosecution of certain misconduct during

circulation, the invalidation of tainted petitions, and written protest.58 The Supreme

Court agreed with the Tenth Circuit’s determination that there was no evidence that

these measures were inadequate in protecting the state’s regulatory interests.59

In making these determinations, the Court explained that compelled disclosure

under §1-20-141 would chill the constitutionally protected activity of paid

circulators. Furthermore, the Court found it significant that listing paid circulators

and their resulting income would deprive them of the anonymity afforded to

volunteer circulators.60 Based upon the aforementioned analysis, the Supreme Court

ultimately concluded that the disclosure requirements were only tangentially related

to Colorado’s asserted interests, and held that the regulations could not survive the

exacting scrutiny test.61

While the Court’s determination of this issue clarifies the scope of permissible

regulation in the financial disclosure context, significant questions remain regarding

the scope of permissible state regulation. The Supreme Court’s acknowledgment of

fraud in petition circulation, coupled with the longstanding proposition that states

possess significant authority to protect the integrity of the electoral process raise

McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 352 (1995).

1999 WL 7723 at *11 (quoting Meyer v. Grant, 486 U.S. at 427).

1999 WL 7723 at *12.

120 F.3d at 1105.

1999 WL 7723 at *11.

Id. at *11-*12.

Id. at *12.

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concerns regarding the effect of the Court’s holding. This conflict was addressed at

length in Justice O’Connor’s dissent on the issue, where she referred to the majority’s

opinion as “most disturbing.”62

The crux of Justice O’Connor’s dissent centered on the assertion that, contrary

to the determination of the majority, the disclosure provisions at issue did not

impinge upon the direct communicative activities of petition circulators. Rather, she

contended that the disclosure provisions burdened speech in an incidental manner.63

Specifically, the dissent stated that, akin to the mandatory affidavits, the disclosure

reports revealed the names of paid circulators and existed as public record, but were

removed from the moment of speech. Thus, according to Justice O’Connor, the

disclosure requirement should have been upheld so long as it was found to advance

a legitimate state interest.64 Accordingly, she argued that Colorado’s interest in

combating fraud and informing the electorate would be sufficient to justify this level

of review.65 Justice O’Connor explained that in order to combat fraud and inform

signatories in a timely manner, disclosure must be made contemporaneously with the

circulation of a petition. According to the dissent, the need for deterrence is at its

greatest during this phase of the initiative process, and, as such, the monthly

disclosure reports would be able to “uniquely advance” the asserted state interests.66

Justice O’Connor’s dissent also maintained, contrary to the majority’s determination,

that the required disclosures, while targeted only at paid circulators, were permissible

in that there was evidence pointing to a higher likelihood of fraudulent behavior on

the part of such individuals.67

In closing, Justice O’Connor argued that the legitimate state interests asserted

by Colorado would be advanced by the disclosure provision, and, accordingly should

have been upheld in light of the incidental and indirect burdens of the provisions on

free speech. Furthermore, Justice O’Connor declared that even if exacting scrutiny

were the appropriate standard, the provisions should have been affirmed under the

Buckley standard.68

Chief Justice Rehnquist also dissented on the disclosure issue, maintaining that

the disclosure requirements were an acceptable outgrowth of the affidavit

requirement which was deemed valid.69 The Chief Justice explained that, under the

affidavit requirement, all petition circulators are required to reveal their identities as

well as their address. Chief Justice Rehnquist argued that the disclosure provision

Id. at *21.

Id. at *22.

Id. at *24. Justice O’Connor explained that the affidavits, contrary to the majority’s

determination, wouldn’t meet this need since they weren't prepared until all petitioning was

completed.

Id. at *24.

Id. at *28.

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only required one further piece of information, namely the amount paid to a particular

circulator. Given that the identity of all circulators, as well the total amount paid will

be disclosed, the Chief Justice argued that the additional disclosure requirement was

insufficient to invalidate the regulations.70

While the dissenting views of Justice O’Connor and Chief Justice Rehnquist

possess a degree of merit in light of a state’s strong interest in preserving the integrity

of the electoral process, their arguments do not address directly the majority’s

concern regarding the chilling effect of the disclosure provisions. Both dissenting

opinions focus on the need for the reporting provisions without acknowledging that

the primacy of the disclosure would strip a circulator of his or her anonymity at the

time of circulation. Furthermore, the type of fraud targeted is unclear from the

dissenting opinions. Both Justice O’Connor and Chief Justice Rehnquist state

generally that disclosure will prevent fraud in that paid circulators are more likely to

commit such behavior. However, the Court disagreed with this notion, stating that

it was unclear how the disclosures would prevent fraud.71 Specifically, the majority

explained that the reports containing the names of the paid circulators would be filed

with the Secretary of State and would not be available at the moment of speech.72

Finally, while Justice O’Connor argues that Buckley justifies the disclosure

provisions, her dissent does not refute the majority’s analysis concerning Buckley’s

non-applicability to payees.73 Instead, Justice O’Connor focuses on the indirect nature

of the provision as a basis for its constitutionality.74

The opposing viewpoints of the majority and dissent, while illuminating the

extremes of the issue, do not give rise to a clear consensus on the degree of disclosure

which might be permissible short of the conditions deemed invalid in §1-40-121. The

Supreme Court, for instance, affirmed the Tenth Circuit’s acknowledgment that the

burden of the regulation was lessened by the fact that disclosure would be made at

the time of filing. However, in light of the other mechanisms capable of achieving

the asserted state interests, the chilling effect was nonetheless deemed

unconstitutional.75 This concern regarding any chilling effect on speech, coupled with

the Court’s refusal to apply Buckley to payees in addition to payors would seem to

suggest that, irrespective of the dissent’s protestations, any disclosure of paid

circulators would be prohibited. While such a stringent ruling has weighty

implications regarding the scope of a state’s power to regulate its electoral processes,

the Court’s ruling gives clear examples of other less intrusive measures which would

protect regulatory interests.76

Id. at 28.

Id. at *11.

Id. at *22.

Id. at *11-*12.

CRS-12

Identification Badge Requirement

Perhaps the most controversial issue before the Court centered on the

requirement of Col. Rev. Stat. §1-40-112(2) that circulators wear personal

identification badges while engaged in petitioning activities. As written, a violation

of this provision could result in the voiding of signatures collected by a particular

circulator, as well as criminal prosecution of the offender.77 At the district court it

was determined that the provision infringed upon the right to anonymous political

speech, and it was struck down in its entirety.78 The Court of Appeals for the Tenth

Circuit agreed, stating that the law was not necessary to serve the State’s asserted

interest, thereby precluding its validity under the strict scrutiny standard.79 The

Supreme Court, in addressing the issue, largely echoed the sentiments of the lower

courts, focusing on the importance of the right to anonymous political speech.80

The value of anonymous political speech was recognized by the Supreme Court

in Talley v. California.81 In Talley, the Supreme Court ruled that a California law

banning all anonymous leafleting was an unconstitutional restriction of the freedom

of expression.82 In particular, the Court rejected arguments that the ordinance was

a permissible restriction in that it served to identify proponents of fraud, false

advertising, and libel.83 The Court was careful to emphasize, however, that its

decision was based upon a statute which imposed a total ban on all anonymous

leafleting, and did not extend to anonymous leafleting bans which were sufficiently

tailored to the prevention of fraud, false advertising, or libel.

Upon making this determination, the Court discussed substantive and historical

free speech considerations which influenced its decision. The Court gave

considerable weight to the role of anonymous political speech in achieving positive

political change, discussing its utility in illuminating the deficiencies of oppressive

Col. Rev. Stat. §1-40-132; Col. Rev. Stat. §1-40-130(2).

120 F.3d at 1101.

120 F.3d at 1103.

Both Chief Justice Rehnquist and Justice O'Connor agreed with the majority's

determination that the identification requirement was unconstitutional. See 1999 WL 7723

at *19, *28.

362 U.S. 60 (1960).

Talley, 362 U.S. at 64-65. The specific action at issue in Talley centered on the

petitioner’s distribution of essentially anonymous flyers calling for the boycotting of certain

merchants. Id. at 61. The petitioner was subsequently convicted of violating a city

ordinance prohibiting such anonymous circulation. The appeals court affirmed the

petitioner’s conviction, stating that the ordinance was not violative of the freedom of speech

or press. Id. at 61-62.

Id. at 64. Specifically, the Court noted that the City was unable to demonstrate that the

ordinance was sufficiently tailored to meet this narrow goal, and that there was no showing

of such a limited purpose in the legislative history of the ordinance. Id.

CRS-13

governments, offering political alternatives, and in calling for constitutional reform.84

In particular, the Court pointed to the need for anonymity in order to avoid

persecution, noting that colonial patriots disseminated anonymous literature to avoid

retaliation by the British, as well as the fact that the Federalist Papers were originally

published under pseudonyms.85 Related to the concerns regarding majoritarian

persecution, the Court stated that the right to anonymous speech was crucial due to

the fact that disclosure would likely have a chilling effect by making the members

of such groups susceptible to, and fearful of, retaliation.86 In considering this effect,

the Court pointed to its earlier decisions preventing states from compelling

membership lists from groups disseminating constitutionally protected information.87

More specifically, the Supreme Court has also considered the importance of

anonymity in regards to activity directly related to electoral and campaign processes.

In McIntyre v. Ohio Elections Com’n, the Court ruled that a statute prohibiting

anonymous distribution of election related materials was unconstitutional.88 There,

the Court was faced with a scenario where the petitioner had been convicted for

distributing anonymous leaflets to those present at a meeting regarding school tax

levies.89 The Ohio Supreme Court upheld the conviction, determining that the state’s

asserted interests in providing information to voters and preventing instances of fraud

and libel outweighed the resulting proscriptions on free speech.90 The Ohio Supreme

Court distinguished the case before it from Talley, holding that whereas the

ordinance in Talley was a blanket prohibition on any anonymous leafleting, the

Id. at 64-65.

Id. at 65.

Id. at 65. (citing NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958); Bates v. City

of Little Rock, 361 U.S. 516 (1960). In NAACP v. Alabama, the Court ruled that the NAACP

could not be forced to turn over it membership lists, as such compelled disclosure would

violate its members’ right to freedom of association and expose them to “economic reprisal,

loss of employment, threat of physical coercion, and other manifestations of public

hostility.” The Court determined that these potentialities would likely discourage new and

continued membership in the organization, thereby limiting public discourse on important

topics. In reaching this conclusion, the court dismissed Alabama’s argument that the

disclosures were necessary to determine whether the NAACP was violating state law by

conducting business, stating that the access to membership lists would not aid the state’s

enforcement efforts substantially enough to merit such constitutional impingement. NAACP

v. Alabama, 357 U.S. at 462.

Likewise, in Bates v. City of Little Rock, another NAACP case dealing with the

mandatory disclosure of membership rosters, the Court held that a state could only require

lists upon demonstrating a compelling state interest regarding such information as well as

establishing that the information “bears a reasonable relationship to the achievement of the

governmental purpose asserted as its justification.” 361 U.S. at 524-525.

McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995).

Id. at 337.

See McIntyre v. Ohio Elections Com’n, 618 N.E.2d 152, 156 (Ohio 1993), rev’d, 115 S.Ct.

1511 (1995).

CRS-14

purpose of the Ohio statute was to identify individuals distributing fraudulent

campaign material.91

The United States Supreme Court rejected the Ohio Court’s narrow

determination of the issue, holding that the Ohio statute, like the ordinance in Talley,

was unconstitutional because its scope was not limited to the prevention of fraud.92

Specifically, the Court noted that the Ohio statute prohibited anonymous leafleting,

even in instances where no fraudulent material was included.93 The Court, in reaching

this conclusion, elaborated upon its exposition in Talley concerning the value of

anonymous speech in the First Amendment context.94 The Court pointed to the long

tradition of anonymous speech, stressing that the right to remain anonymous was

particularly important in the political context.95 The Court also determined that the

presence of anonymous information in “the marketplace of ideas” was more

important than any potential benefits gained from compelled identification.96 As

such, the Court concluded that behavior such as the anonymous leafleting at issue

was a fundamental right under the First Amendment, requiring the greatest

constitutional protection.97 In light of these constitutional concerns, the Court

concluded that Ohio’s asserted interests in preventing fraud and providing

information to the electorate were insufficient to justify the resulting restrictions on

the freedom of speech.98

In light of the Supreme Court’s rulings in cases such as Talley and Bates, it is

clear that the right to anonymous political expression is well established. However,

it is important to note that the Court has also ruled in favor of disclosure

Id. at 154.

McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 344 (1995).

Id. at 344.

Id. at 346.

Id. at 341-342.

McIntyre 514 U.S. at 347. Specifically, the Court stated that the purpose of this high level

of protection was to support key First Amendment goals of furthering debate on important

political issues and protecting speech regarding issues and candidates in particular. Id. at

346-347.

See McIntyre, 514 U.S. at 357. The Court found the furtherance of information argument

unpersuasive, noting that the identity of a particular author was no different from the

inclusion or exclusion of information which might influence debate; furthermore, the Court

felt that the identity of an author would be of limited informative value to strangers. Id. at

348-349. Turning to the fraud and libel argument, the Court determined that the statute in

question was not the primary or exclusive method by which Ohio prevented the

dissemination of such material. Id. at 349-350. The Court explained that since other

provisions of the Ohio Election Code prohibited the distribution of fraudulent or libelous

material, the identification statute was merely supplementary in nature. Id. As such, the

Court concluded that while the statute might aid in the enforcement of the other election

code regulations and have an over all deterrent effect, it was “an extremely broad

prohibition,” which could not justify such severe restriction on freedom of speech. Id. at

350.

CRS-15

requirements, particularly in the campaign/election context. As noted above, in

Buckley v. Valeo, the Supreme Court analyzed the Federal Election Campaign Act

and determined that, even under strict scrutiny, the governmental interests asserted

in favor of mandatory disclosure outweighed any negative First Amendment

implications.99 In reaching this conclusion, the Court found that the disclosure

provisions of the Act provided information to the public regarding campaign money

and its sources, deterred corruption by revealing large contributions and expenditures,

and provided an “essential means of gathering the data necessary to detect violations

of contribution limitations.”100 In light of these benefits, the Court held that the

public interest in disclosure outweighed any potential negative effect on First

Amendment rights.101

The Court has also recognized that while a significant First Amendment interest

exists regarding the right to anonymous political speech, a state also possesses a

substantial interest in regulating the election process, particularly in an effort to

combat instances of fraud or libel.102 As noted above, the Court in McIntyre extended

the holding in Talley to establish a right to anonymous political speech pertaining to

the election/campaign process.103 However, the Court also distinguished its ruling

from Buckley, indicating that in light of the special weight to be afforded state

regulatory interests in the campaign context, “a State’s enforcement interest might

justify a more limited identification requirement.”104 Based upon this diverse body

of law, the Supreme Court analyzed the arguments forwarded by Colorado in support

of the badge requirement.

Specifically, Colorado's main argument regarding the badge requirement

centered on the assertion that §1-40-112 furthered compelling state interests in

fostering an informed electorate and aiding in the prevention of fraud and libel.105

Whereas the Court has acknowledged the potential validity of identification

requirements as a tool to combat fraud and libel, it has been unwilling to give any

weight to the informed electorate argument. The Supreme Court dealt with an

identical argument in McIntyre, finding it unpersuasive. Explaining that since the

Buckley v. Valeo, 424 U.S. 1, 66 (1976).

100

Id. at 66-68.

101

Id. at 71-72. The Court acknowledged concerns that the disclosure requirements would

impose substantial burdens on individual rights and expose contributors to harassment and

retaliation, but concluded that the likelihood of such harm was minimal and did not

constitute a “serious infringement” on First Amendment rights in light of the benefits of the

Act. Id. at 68-70.

102

McIntyre, 514 U.S. at 349. Specifically, the Court recognized that while a state’s

supposed interest in supplying the electorate with information concerning an author’s

identity was unpersuasive, an asserted interest in the prevention of fraud or libel cannot be

so easily dismissed. The Court noted that such concerns carry “special weight during

election campaigns” where false statements could adversely affect the public. Id. at 348349.

103

McIntyre, 514 U.S. at 347.

104

McIntyre, 514 U.S. at 352.

105

1999 WL 7723 at *8.

CRS-16

concept of an informed electorate entails only the “provision of additional

information that may either buttress or undermine the argument in a document,” the

identity of a speaker is “no different from other components of the document’s

content that the author is free to include or exclude.”106 The Court elaborated that

while the identity of an information source is “helpful in evaluating ideas,” the “best

test of truth is the power of the thought to get itself accepted in the competition of the

market.”107 Furthermore, the Court affirmed its prior holding that the average citizen

has the right to read an anonymous message and reach his or her own conclusion

regarding “what is ‘responsible’, what is valuable, and what is truth.”108 From these

principles, the Court in McIntyre, concluding that a “simple interest in providing

voters with additional relevant information does not justify a state requirement that

a writer make statements or disclosures she would otherwise omit,” ruled that such

an informational interest is “plainly insufficient” to survive constitutional scrutiny.109

Regarding the second prong of Colorado's argument, while stronger

justifications were asserted for the badge requirement on fraud and libel grounds,

McIntyre and earlier cases again raised significant free speech concerns. At the

appellate level the Tenth Circuit ruled that while the badge requirement might enable

the state to combat fraud and libel more effectively, “the First Amendment does not

permit the state to sacrifice speech for efficiency.”110 The Tenth Circuit went on to

explain that, under Meyer, the risk of fraud or corruption is comparatively remote at

the petitioning level, and, as such, a state can only take regulatory action against

circulators through measures which are narrowly tailored.111

Based upon these precedents, the Supreme Court rejected Colorado’s argument,

deeming the state's asserted interest in providing relevant information to the

electorate insufficient to warrant such a broad First Amendment intrusion. In

discussing the particulars of the badge requirement, the Supreme Court largely

adopted the reasoning of the Tenth Circuit, noting that the circulation of a petition

is analogous to the distribution of a handbill, an action which constitutes protected

anonymous political speech.112 The Court observed that in both instances an

individual identifies himself or herself with a specific viewpoint by personally

disseminating it. As such, the Court held that circulators possess the same interest

in anonymity as do handbill distributors. In its brief to the Supreme Court, Colorado

argued that this determination was incorrect, maintaining that petition circulation

differs substantially in character from handbill distribution, thereby precluding the

106

McIntyre, 514 U.S. at 348.

107

McIntyre, 514 U.S. at 349, n.11 (quoting Abrams v. United States, 250 U.S. 616, 630

(1919) (Holmes, J., dissenting)).

108

McIntyre, 514 U.S. at 349, n.11 (quoting New York v. Duryea, 76 Misc. 2d 948, 966-967,

351 N.Y.S.2d 978, 996 (1974)).

109

McIntyre, 514 U.S. at 348.

110

120 F.3d at 1102-1103.

111

120 F.3d at 1103.

112

120 F.3d at 1103.

CRS-17

applicability of McIntyre.113 In support of this contention, Colorado argued generally

that the “critical role” of circulators in the initiative process mutes their status as

advocates with an interest in anonymity. Furthermore, Colorado maintained that the

badge requirement “discloses nothing more personal than the name” of a circulator

who “acts as a representative for the electors who sign the petition.” As such,

Colorado argued that a signer of a petition should be “informed of the name of the

person who is acting on his or her behalf.”

In making these arguments, Colorado focused on a state’s right to regulate the

electoral process, without acknowledging the First Amendment considerations

involved. The assertion that petition circulation is fundamentally different from the

handbills involved in McIntyre evidences this analytical omission. Relying on its

arguments concerning the importance of circulators and their representative role to

distinguish the activity in McIntyre, Colorado downplayed the confrontational nature

of the activity involved in both scenarios. Indeed, while petition circulation is

obviously more closely tied with the electoral process than handbill distribution, the

activities are identical in the sense that they require a person to identify him or herself

with a particular viewpoint at the moment of speech. The Supreme Court recognized

the right to anonymity in such situations, noting that "the name badge requirement

'forces circulators to reveal their identities at the same time they deliver their political

message.'" Significantly, the Supreme Court went on to declare that the injury to

petition circulators under the Colorado law was even more severe than that at issue

in McIntyre. Specifically, the Court explained that "[p]etition circulation is the less

fleeting encounter, for the circulator must endeavor to persuade electors to sign the

petition."114 In light of these factors, the Supreme Court held that as the badge

requirement would compel identification "at the precise moment when the

circulator's interest in anonymity is greatest," the regulation could not "qualify for

inclusion among the 'more limited [election process] identification

requirement[s].'"115

One of the key factors giving rise to the decision regarding the badge

requirement was the Court's determination that other, less intrusive, avenues existed

by which Colorado could achieve its asserted interests of informing the electorate and

combating fraud and libel. Specifically, circulators are already apprised of the

importance of their actions through the affidavit requirement of 1-40-111(2), which

allows for a comparatively simple analysis of records in order to identify an

offending circulator. The strength of the Court's decision regarding the badge

requirement on the aforementioned grounds is buttressed by the fact that both Justice

O'Connor and Chief Justice Rehnquist, who argued in opposition to the Court's ruling

on the disclosure and registration requirements, both agreed readily that the badge

requirement was unconstitutional.

113

Brief for Petitioner at 38, Buckley v. American Constitutional Law Foundation, et al., Inc.,

1999 WL 7723 (S.Ct. Jan. 12, 1999) (No. 97-930).

114

1999 WL 7723 at *9.

115

Id. at *9.

CRS-18

While the Court's disposition of the badge issue arguably was definitive, certain

questions remain as to whether a state may implement restrictions falling in the

middle of the spectrum comprised of the permissible affidavit requirement and the

unconstitutional identification provision. In its decision the Court focused on the

immediate nature of petitioning activity, downplaying the importance of a state's right

to regulate the electoral process. However, as noted above, cases such as Timmons

and Storer established that states possess the power to regulate election activity in

order to assure fairness and reduce confusion and disorder surrounding the

process.116 Thus, while any attempt to distinguish petition circulation from the

standard established in Meyer will be unsuccessful to the extent a regulation compels

personal identification, it is apparent that other identification measures might be

upheld, striking a balance between the right to anonymity and the need for efficient

state regulation of the process.117

For instance, it seems clear from the Court's ruling regarding the affidavit

requirement that the main deficiency in the badge provision was the fact that it

compelled the personal identification of a circulator at the time he or she was

engaged in petitioning activity.118 As such, it would seem that given a state's

legitimate concerns regarding the delayed effect of the affidavit requirements in

identifying fraud, a more immediate tracking technique could be employed so long

as personal anonymity were not compromised. Thus, it is possible that the Supreme

Court would deem reasonable an intermediate measure, such as assigning an

identification number to each circulator which, upon complaint, could be crossreferenced with information supplied to the Secretary of State, akin to the affidavit

requirement. Such a compromise seems logical in light of the fact that this crossreferencing method would be "separated from the moment the circulator speaks," and

would not "expose the circulator to the risk of 'heat of the moment' harassment,"

which were major factors in the Court's acceptance of the affidavit provision.119 This

approach would arguably result in more efficient enforcement of the state's fraud and

libel laws, while maintaining the First Amendment right to anonymous political

expression.

Conclusion

From the holdings discussed above, it is apparent that the Supreme Court has

placed a great emphasis on the preservation of First Amendment rights regarding

political expression. Indeed, with this decision regarding Colorado's regulation of the

initiative-referendum process, the Court has established a solid preference for free

and unfettered First Amendment activity, clarifying and limiting the steps which may

be taken to proscribe such political expression. This ruling does not, however,

preclude any effective state regulation of the petition process. As noted, it is clear that

the Court has recognized the importance of state regulation of the electoral process,

116

120 F.3d at 1097.

117

McIntyre, 514 U.S. at 348.

118

1999 WL 7723 at *8.

119

Id. at *8.

CRS-19

and has left open the possibility of less onerous but more extensive identification

provisions than those attempted by Colorado.

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