Grant v. Meyer , 828 F.2d 1446 ( 1987 )

LOGAN, Circuit Judge,

dissenting:

I agree that this appeal should be considered on the merits. And if I could agree with the implicit assumptions of the majority opinion in its discussion of the merits, I would be persuaded by it. But the majority treats this as a pure “speech” case, thereby invoking exacting scrutiny as the standard of review. The majority sees no distinction between restricting use of the initiative and limiting expenditures to support or oppose candidates or measures already on the ballot. The majority rejects applicability of the “speech by proxy” standard of review, and it finds Colorado’s interest in denying use of paid petition circulators insufficient to uphold the legislation. I disagree with all of these assumptions and findings.

I

First, the statute at issue implicates First Amendment rights but proscribes only conduct. The statute does not prohibit citizens from spending their money in any way to express their views on a public issue on the ballot, including an initiative proposition after it has met the statutory requirements to appear on the ballot. The statute does not prohibit citizens from spending any amount of money or from associating to express their views on any public issue, including one they would like to see on an initiative ballot. Although it does prohibit paying someone for circulating an initiative petition or for signing it, the statute in no other way prohibits anyone from paying others to espouse their views to people whom they hope will sign an initiative petition. For example, it was reported that, in the 1982 Colorado initiative to allow grocery stores to sell wine, “substantial sums [were] spent to organize and advertise a petition drive, while avoiding actual payment to circulators.” The Initiative News Report, vol. IY, no. 3, at 2 (Feb. 11, 1983).

The majority treats the obtaining of signatures by paid petition circulators as inseparable from the dissemination of political ideas through such individuals. This is clearly not the case. Under the statute as written, it would be perfectly legal for plaintiff’s paid representatives to “approach[] a stranger, ask[] him if he is a registered voter, and, if the person is willing to listen, advance[ ] arguments why the petition should be placed on the ballot.” At 1452-53. They are simply forbidden to take the final step of obtaining the listener’s signature. It is thus conduct, not speech, that Colorado seeks to regulate. “ ‘[I]t has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.’ ” Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 456, 98 S.Ct. 1912, 1918, 56 L.Ed.2d 444 (1978) (quoting Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502, 69 S.Ct. 684, 691, 93 L.Ed. 834 (1949)).

Only because the majority opinion incorrectly characterizes the statute as directly restricting unalloyed political expression is it able to insist on the standard of strict or exact scrutiny, which the majority concedes is given only to “limitations on core First Amendment rights of political expression.” At 1453.¹ The standard for speech intermingled with activity is a more flexible one. “[W]here speech and conduct are joined in a single course of action, the First Amendment values must be balanced against competing societal interests.” City of Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, -, 106 S.Ct. 2034, 2038, 90 L.Ed.2d 480 (1986).

The First Amendment forbids the government from regulating speech in ways “that favor some viewpoints or ideas at the expense of others.” Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789, 800, 104 S.Ct. 2118, 2126, 80 L.Ed.2d 772 (1984). This statute does not violate that precept. It displays no bias against ideas or censorship. In Members, the Supreme Court upheld a municipal ordinance that prohibited posting signs on public property against a political candidate’s claim it violated his First Amendment rights. There the Court said:

“While the First Amendment does not guarantee the right to employ every conceivable method of communication at all times and in all places, ... a restriction on expressive activity may be invalid if the remaining modes of communication are inadequate____ The Los Angeles ordinance does not affect any individual’s freedom to exercise the right to speak and to distribute literature in the same place where the posting of signs on public property is prohibited. To the extent that the posting of signs on public property has advantages over these forms of expression, ... there is no reason to believe that these same advantages cannot be obtained through other means. To the contrary, the findings of the District Court indicate that there are ample alternative modes of communication in Los Angeles. Notwithstanding appellees’ general assertions in their brief concerning the utility of political posters, nothing in the findings indicates that the posting of political posters on public property is a uniquely valuable or important mode of communication, or that appellees’ ability to communicate effectively is threatened by ever-increasing restrictions on expression.”

Id. at 812, 104 S.Ct. at 2132 (citations and footnotes omitted). The case at bar fits that analysis.

The state has justified its limitation on paid solicitors by asserting its interest in ensuring that any initiative placed on the ballot has broad popular support.² As Justice White noted regarding the role of the initiative in California, it “cannot be separated from its purpose of preventing the dominance of special interests.” Citizens Against Rent Control v. Berkeley, 454 U.S. 290, 811,102 S.Ct. 434, 445, 70 L.Ed.2d 492 (1981) (White, J., dissenting). The state thus has a legitimate interest in using the initiative only as a safety valve against widespread unrest, and thereby ensuring that this alternative to legislative action is used only when it has the earmarks of populist movement.

Colorado has presented empirical data which compared initiatives proposed through workers paid to circulate petitions with those proposed through volunteer solicitors. Initiatives proposed through volunteer petitioners had a much greater chance of adoption. A state exhibit indicated that the voters adopted forty-eight percent of the initiatives circulated by volunteers, whereas they adopted only twenty-four percent of those using paid solicitors. The Initiative News Report, vol. IV, no. 3, at 2 (Feb. 11, 1983). Common sense tells me the same thing: A proposition for which large numbers of volunteers come forward to solicit the necessary signatures is more likely to have widespread popular support, and hence ballot appeal, than a proposition that requires paid workers to obtain the necessary signatures. The majority’s recital of what paid solicitors can do to enhance the possibility of a successful drive to put a proposition on the ballot, see Op. at 1452-1453, only increases my conviction that if enough money is spent the original “safety valve” purposes of the initiative would be thwarted.

In a recent publication, a former General Counsel of the U.S. House of Representatives Committee on the Judiciary wrote,

“Common Cause says if you hire the right people you can qualify anything for the ballot. In California, there are a dozen initiative-circulating consulting firms — the ‘initiative industry’ — that are now branching out into other states. What was originally, [sic] designed to be a volunteer or citizens' effort, which grew out of a progressive era in the West, has become a slick and professional industry.”

Parker, Washington Focus, Trial, Aug. 1987 at 17.

The state has ample justification, in my view, for any minor encroachment on First Amendment rights that might be involved in this state enactment. Cf. Hall v. Simcox, 766 F.2d 1171, 1177 (7th Cir.) (state can limit access to ballot in order to fulfill its electoral purpose), cert. denied, 474 U.S. 1006, 106 S.Ct. 528, 88 L.Ed.2d 459 (1985).

II

There is another flaw in the majority’s analysis. The federal Constitution provides no individual citizen with the right to the initiative — the right to commence a procedure through which a proposed constitutional or other change in the law can be placed upon a state or federal ballot. See Georges v. Carney, 691 F.2d 297, 300 (7th Cir.1982); L. Tribe, American Constitutional Law § 13-17 (1978)'. The initiative is a state-created procedure, which originated in the populist movement as a device to permit more direct citizen input. Less than half of the states provide, by constitution or statute, for this type of direct democracy.

Thus Colorado would not violate the federal Constitution if it prohibited the initiative entirely. It could deny its citizens any method, other than action through their elected representatives, to amend the state constitution or to adopt new laws. Because the state need not allow the initiative at all, surely it can place reasonable restrictions on its use. For example, it could require, instead of a total of signatures equal to five percent of those who last voted for secretary of state, a total equal to twenty-five percent, fifty percent, or even one hundred percent of such voters. The state need only act uniformly toward all who would use the process it allowed. Cf. Gordon v. Lance, 403 U.S. 1, 91 S.Ct. 1889, 29 L.Ed.2d 273 (1971) (upholding sixty percent vote requirement in referendum on incurring bond indebtedness).

Colorado has legislated in an area reserved to it — the initiative is not among the rights which the federal constitution explicitly protects — and in a manner, as discussed in part I, that only minimally interferes with First Amendment rights. Viewed from this perspective, this case seems analogous to the case recently before the Supreme Court, Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico, — U.S. -, 106 S.Ct. 2968, 92 L.Ed.2d 266 (1986). There the Court upheld the validity of a Puerto Rican statute that restricted advertising aimed at residents while permitting advertising aimed at nonresidents. The Court acknowledged that it was dealing with a First Amendment issue, albeit commercial speech, but based its opinion upholding the restriction on the power of Puerto Rico to prohibit casino gambling altogether. “In our view, the greater power to completely ban casino gambling necessarily includes the lesser power to ban advertising of casino gambling, and Carey [v. Population Services Int’l, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977)] and Bigelow [v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975) ] are hence inapposite.” — U.S. at-, 106 S.Ct. at 2979.

There also the appellant made the related argument, like that made by the majority in the instant case, that having chosen to permit gambling for residents the First Amendment prohibits the legislature from using restrictions that touch on speech to accomplish its goal of controlling access. The Supreme Court answered that argument as follows:

“[I]t is precisely because the government could have enacted a wholesale prohibition of the underlying conduct that it is permissible for the government to take the less intrusive step of allowing the conduct, but reducing the demand through restrictions on advertising. It would surely be a Pyrrhic victory for casino owners such as appellant to gain recognition of a First Amendment right to advertise their casinos to the residents of Puerto Rico, only to thereby force the legislature into banning casino gambling by residents altogether. It would just as surely be a strange constitutional doctrine which would concede to the legislature the authority to totally ban a product or activity, but deny to the legislature the authority to forbid the stimulation of demand for the product or activity through advertising on behalf of those who would profit from such increased demand.”

Id. (emphasis in original).

I agree with the majority that a state which chooses to create a right may not take it away without providing the procedural due process guarantees of the federal Constitution. But the instant statute does not deny procedural due process. The limitation here is in the definition of the right. Suppose, for example, the statute provided that initiative petitions could not be circulated at all, but must be posted in designated public places where registered voters could come to and sign. I dare say we would not find such a law would violate First Amendment rights. I see no principled difference in the law at issue here.

Ill

Even if we focus exclusively on the speech component of the petition circulating activity before us here, that speech is most analogous to the “speech by proxy” achieved through contributions to a political campaign committee. Such speech is not appropriately reviewed under a strict or exacting scrutiny standard. Just as contributors to a campaign committee depend on others to espouse their political views for them, the hirers of petition circulators depend on paid circulators to decide what “pitch” to use to obtain signatures. Justice Marshall stated in Citizens Against Rent Control, 454 U.S. at 301, 102 S.Ct. at 440:

“this Court has always drawn a distinction between restrictions on contributions, and direct limitations on the amount an individual can expend for his own speech. As we noted last term in California Medical Assn. v. FEC, 453 U.S. 182, 196 [101 S.Ct. 2712, 2722, 69 L.Ed.2d 567 (1981)] (MARSHALL, J., joined by BRENNAN, WHITE, and STEVENS, JJ.), the ‘speech by proxy’ that is achieved through contributions to a political campaign committee ‘is not the sort of political advocacy that this Court in Buckley found entitled to full First Amendment protection.’ ”

1 . Whether the Colorado state courts have used strict scrutiny to review governmental actions affecting the initiative, as the majority opinion suggests at 1455 n. 14, is relevant, if correct, only to whether this statute is compatible with the state constitution. That question is not before us. Nor is there any question here of constitutional due process or equal protection that would warrant or at least account for the majority's invocation of employee discharge cases. The only question before us is whether this statute is incompatible with First Amendment free speech guarantees of the United States Constitution.

2 . The state also seeks to support the constitutionality of the legislation by arguing that petition solicitors are in a sense election judges, and unpaid volunteers are somehow more trustworthy and dependable than paid solicitors. I agree with the majority that the argument is wholly unconvincing. Neither the unpaid volunteer nor the paid solicitor is likely to violate a statute that makes it a felony to falsify signatures or otherwise breach the integrity of the petitions. An overzealous volunteer would in fact seem more likely to overstate supporting arguments for the proposition than the paid solicitor, and both are likely to use friendship or other appeals irrelevant to the merits to obtain signatures. Further, those who sign the petitions do not represent that they will vote for the proposition that is the subject of the initiative or express any opinion other than their willingness to have the proposition appear on the ballot.