Fortson v. Weeks , 232 Ga. 472 ( 1974 )

Per curiam.

This appeal is from a judgment declaring the "Campaign Financing Disclosure Act” (Ga. L. 1974, p. 155) unconstitutional. We reverse. Parts of the Act are unconstitutional. However, the judiciary will not, and indeed can not, void an enactment of the General Assembly merely because it is defective in part. Constitutional principles dictate that such defective parts be excised and the remainder sustained provided the legislative scheme can be preserved. We have determined that is required here. The attacks upon the Act and our conclusions are set forth in the divisions which follow. As will appear in the opinion, the Act requires public disclosure of contributions and expenditures made in connection with campaigns for certain elective public offices.

1. It is asserted that the body of the Act contains matter not expressed in the title and therefore violates the Georgia Constitution which provides, "No law shall pass which refers to more than one subject matter, or contains matter different from what is expressed in the title thereof.” Code Ann. § 2-1908 (Const., Art. Ill, Sec. VII, Par. VIII). In this regard three attacks are made.

First, it is argued that the title of the Act limits it to "certain State offices” whereas the body of the Act includes other offices, namely "all county and municipal elected officials.” We agree. The title of the Act states, "An Act to provide procedures for public disclosure of contributions and expenditures made in connection with campaigns for certain State offices . . .” The body of the Act states its policy and intent is, ". . . to protect the integrity of the democratic process and insure fair elections for the offices of Governor, Lieutenant Governor, Attorney General, Secretary of State, Comptroller General, Commissioner of Agriculture, State School Superintendent, Commissioner of Labor and Public Service Commission, and members of the Georgia House of Representatives and Georgia Senate, all county and municipal elected officials.” All county and municipal elected officials are not state officers. Truesdel v. Freeney, 186 Ga. 288, 292 (197 SE 783). Therefore, "all county and municipal elected officials” not being included in the title to the Act, their inclusion in the body of the Act is unconstitutional and the Act can not be enforced as to candidates seeking such offices.

The fact that the title of the Act thereafter refers to later provisions of the Act as applying to candidates for "certain offices” and concludes by stating "and for other purposes” does not alter our conclusion. The purpose of the title is to place members of the General Assembly on notice generally as to the subject matter of the legislation. As stated in Prothro & Kendall v. Orr, 12 Ga. 36, 43, "To prevent fraud and surprise, how important it is, that the members [of the General Assembly] should be notified at least by the Title of the Act, of the subject matter about which they are legislating; at any rate, that they should not be misled by the Title,” and, "Had the Title been general — as for instance, an act in relation to the public officers, or for the particular objects designated, and for other purposes — the construction would have been different. But here the Title is definite, and therefore, necessarily limited. And to permit other and totally different matter to be incorporated, would be to let in the very mischief intended to be prevented; and thus render the Constitution of none effect.” Id., p. 41. In our opinion a reasonable construction of the title requires a conclusion that the Act related only to "certain state offices.”

Although the inclusion of "all county and municipal elected officials” is unconstitutional, this does not render the entire Act unconstitutional. As stated by Justice Lumpkin in Hancock v. State, 114 Ga. 439, 442 (40 SE2d 317), "It often happens that a portion of an Act not covered by its title must be treated as unconstitutional, while the remainder of it which is covered by the title is upheld. It would not be difficult to give instances of this kind ad nauseam. The rule applicable to such a question as that now before us was well stated by the present Chief Justice of this court in Elliott v. State, 91 Ga. 694, 696 [17 SE 1004]. He said, 'When a statute can not be sustained as a whole, the courts will uphold it in part, when it is reasonably certain that to do so will correspond with the main purpose which the legislature sought to accomplish by its enactment, if, after the objectionable part is stricken, enough remains to accomplish that purpose. But if the objectionable part is so connected with the general scope of the statute that, should it be stricken out, effect can not be given to the legislative intent, the rest of the statute must fall with it.’ ” As we view the Act its purpose is "to protect the integrity of the democratic process and to insure fair elections.” The Act does not purport to include all elective offices and the fact that "all county and municipal elected officials” must be deleted because not encompassed in the title does not destroy its main purpose or scheme. These are merely categories of elected officials. The scheme of the Act setting forth the requirements and providing the procedures "to protect the integrity of the democratic process and to insure fair elections” has not been disturbed.

Next, it is argued that the title of the Act states, "to provide for the investigation by the Attorney General of any apparent violations of this Act” whereas the body of the Act fails to mention the Attorney General. In our opinion this does not render the Act unconstitutional. It is mere surplusage. The Act gives the Attorney General no authority in addition to that which he may otherwise have by law. The scheme of the Act is not destroyed. The Act is penal with fine and imprisonment being specified for its violation. Such violations may be prosecuted by the appropriate prosecutorial officers of this state. The campaign financing disclosure reports are required to be filed with the Secretary of State and made available for public inspection. If violations of the Act come to the attention of appropriate prosecutorial officers, it is their duty to prosecute such violations. Furthermore, the fact that the title states the Attorney General was given authority to investigate apparent violations of the Act, in our opinion, could not have misled the members of the General Assembly to believe violations of the Act were not subject to prosecution as any other criminal violation. The title clearly provides, "to provide for penalties for violations of this Act.” The penalties are fine and imprisonment which must be pursued by the appropriate officer in the appropriate criminal court of this state.

Finally, it is pointed out that the title of the Act states, "to provide for the filing of campaign disclosure reports by certain candidates and by officers of certain campaign committees,” and, "to provide for the promulgation of rules and regulations.” This is provided for in the body of the Act by designating who must file the reports, when they shall be filed, the content of the reports, and that they shall be filed with the Secretary of State who is directed to retain such reports for five years and make them available for public inspection. The Secretary of State is authorized to promulgate rules and regulations to carry out the Act. There is no quarrel with these provisions.

However, the body of the Act establishes a "State Campaign Ethics Commission.” It is invested with the duty and power to "make rules as are necessary to administer this Act and to carry out its duties under this Act,” to "receive and review documents filed with it. .. ” to make such documents available to the public and appropriate prosecutorial officers, and to make an annual report to the General Assembly. It is argued that nowhere in the Act are candidates or other persons required to file documents with the "Commission”; that these are directed to be filed with the Secretary of State and, consequently, there are no duties for the "Commission” to perform. We agree. Nowhere in the Act does it appear that the "Commission” has any administrative duties to perform or which would require it to promulgate rules. The administrative duties of receiving and filing the required campaign reports and making rules therefor are placed upon the Secretary of State. It appears the "Commission” is given "carte blanche” authority to adopt whatever rules it deems appropriate to carry out whatever duties it desires to assume. Such sweeping authority can not be sustained under the provision of the title which states, "to provide for the promulgation of rules and regulations.” In our opinion that portion of the title as well as the "catchall” provision "and for other purposes” is insufficient to place the members of the General Assembly on notice as to what we interpret as the "Commission’s” undefined and apparently unlimited authority. On the other hand, if the "Commission’s” duties and powers are strictly limited to the establishment of rules for administrative purposes it has no function because these administrative duties have been reposed in the Secretary of State with whom the reports are filed. Therefore, we hold that the provisions establishing a "State Campaign Ethics Commission” is unconstitutional because such matter is not contained in the title of the Act. However, upon the constitutional principles recognized above we find that the elimination of the "Commission” does not require a declaration that the entire Act is unconstitutional. Its principal scheme is still intact. The candidates for the offices covered by the Act must publicly disclose their campaign contributions and expenditures by filing reports thereof with the Secretary of State.

2. It is contended that the Act is vague and ambiguous because it requires a financing disclosure report to be filed "15 days prior to the general election campaign.” Taken out of context this contention would appear to have validity. However, in our opinion the provision wherein this appears when read in its entirety places a candidate on notice as to when such reports must be filed. The provision states, "Such campaign financing disclosure reports shall be filed 45 days and 15 days before the primary election, and 10 days after the primary election. Candidates in a general election campaign shall make such reports 15 days prior to the general election campaign and all campaign candidates shall make a final campaign disclosure report no later than December 31 of the year in which the election occurs.” (Emphasis supplied.)

It seems obvious to us that the particular phrase complained of inadvertently inserted the word "campaign” and does not confuse the clear intent that a disclosure report shall be filed "15 days prior to the general election . . .” The provision requires reports before and after the primary election. Similarly, it requires reports before and after the general election. We conclude that the word "campaign” in the phrase complained of is an obvious clerical and typographical error and should be ignored.

3. It is argued that such terms as "family,” "firm,” "partnership,” "committee,” "association,” "labor organization,” and "organization or group of persons” are not defined in the Act and are too vague to be enforced. These terms are used in defining a "person” under the Act. They are also used in connection with the requirements that contributions and expenditures of $101.00 or more must be reported. For instance, the Act provides, "When separate contributions of less than $101 are knowingly received from a common source, they shall be aggregated annually for reporting purposes. For purposes of fulfilling this requirement, members of the same family, firm or partnership, or employees of the same person, as herein above defined, shall be considered to be a 'common source. ’ ” It also provides that the chairman or treasurer of campaign committees keep a detailed and exact account of "The name and mailing address of every person making any contributions and the amount of such contributions”; and, "All expenditures made by a candidate or the campaign committee of $101.00 or more in amount and for any such expenditure of a lesser amount if the aggregate amount of such expenditure to the same person during a calendar year exceeds $101.” In our opinion when these terms are given a reasonable meaning and the provisions wherein they appear are given a reasonable construction the Act is not too vague to be enforced.

4. It is contended that the Act violates the equal protection clauses of the Federal and State Constitutions by establishing an arbitrary class of "certain State offices.” See Truesdel v. Freeney, 186 Ga. 288, supra. In resolving this question it is to be noted that we have already concluded that the Act covers only those offices of state government individually named. We have excluded all county and municipal officers because they were not included in the title. The individual offices named in the Act are all of the offices of the executive and legislative branches of the state government filled by public election. In our opinion this is a reasonable classification. The only public elective offices of State Government not included within the Act are justices of this court, judges and district attorneys. District attorneys are generally considered to be quasi judicial officers. 27 CJS 622, § 1; 63 AmJur2d 337, § 1. The judiciary is a separate independent branch of State government. It is a recognized classification under our constitutional form of government. It has also been established that the inherent power to control the judicial branch of government is vested in the Georgia Supreme Court and rules and regulations for conduct have been promulgated not only for judges but for all attorneys. Wallace v. Wallace, 225 Ga. 102 (166 SE2d 718). It may be noted that attorneys are the only persons eligible for the said offices of Justice and Judge.

The Georgia Code of Judicial Conduct adopted before the enactment of the Campaign Financing Disclosure Act is an example of the action that has been taken. The Code among other things provides for the conduct of justices and judges as well as candidates for these judicial offices, including a prohibition against soliciting or accepting campaign funds. This must be handled by committees of responsible persons during limited periods. There are other limitations upon not only a judge’s personal conduct but upon his political activity. There is also a requirement that a judge must file an annual statement of any extra compensation received for personal services. See 231 Ga. A-l et seq. In addition, there is a Constitutional Commission which may remove judges for misconduct. See 231 Ga. A-17 et seq. Attorneys are also subject to disciplinary rules prescribed by the Supreme Court. From this it is apparent that not only is the judiciary a separate classification from the executive and legislative branches of government but that rules and procedures have already been established to assure appropriate conduct for justices, judges, district attorneys, and lawyers not only during political campaigns but at all other times. We hold that the classification contained in the Act is reasonable and there is no denial of equal protection under either the Federal or State Constitution.

5. It is contended that the Act violates the constitutional guaranty of freedom of speech and of the fundamental political rights of the people. It is argued that, "no court in this country . . . has yet explicitly upheld a law requiring the disclosure for the sake of disclosure of persons who associated together for a purely political purpose.” It is stated that, "The recording and reporting requirements [of the Act] are intended to and will chill First Amendment rights without any legitimate purpose.” The argument recognizes that a compelling governmental interest permits some intrusion upon an individual’s personal affairs. However, it is asserted that the Act here is overbroad by compelling general disclosure of contributions to certain political campaigns; that the Act will "discourage citizens from exercising their rights in the full elective process ... no matter how noble and lofty-sounding [its] aims may be”; that the state, "may not make broad and unlimited inquiries about a person’s beliefs or associations because such questions, by deterring others from joining . . . [associations to effect a common political objective], necessarily chill and inhibit the exercise of First Amendment rights by all citizens”; and that, "The necessity for such protection is obvious. Without it, present and potential members of an association would not exercise their right to associate for fear that public awareness of their membership will lead to reprisal or retaliation.”

We do not agree. Some of the fears expressed above may result from a misinterpretation of the definition of "contribution” set forth in the Act. It states, " 'contribution’ means a gift, subscription, loan, forgiveness of debt, advance or deposit of money or anything of value conveyed or transferred for the purpose of influencing the nomination for election or election of any person for the offices provided for in Section 2.” The definition of "contribution” presents no problem so long as outright contributions of money are involved. Where the definition becomes difficult is in the area of publicity for candidate — an area in which the bulk of the candidate’s campaign expenditures will probably be made, but also in an area in which the citizen is entitled to exercise freely his First Amendment rights in support of his chosen candidate. We conclude that the donation of volunteer services to a candidate’s campaign does not constitute a "contribution” within the meaning of the Act and was not intended by the legislature to be the subject of reporting and disclosure. This means that the private citizen’s act of espousing or endorsing his candidate through his personal spokesmanship, whether to a private or a public audience, is not a "contribution.” This activity might take the form, for example, of propagandizing among one’s friends, or putting up campaign posters. However, where one expands his audience by purchasing, for example, an advertisement promoting the candidate in a newspaper, money changes hands and the question must be faced whether such an activity is a "contribution.”

The Act prohibits the making of a contribution except to the candidate or his campaign committee. However activities in the exercise of First Amendment freedoms may not be harshly channeled and controlled simply by being deemed "contributions,” for those activities are constitutionally protected from significant legislative chilling. Accordingly, even though we conclude that the purchase of media publicity for a candidate, the example here under consideration, is a "contribution” because it is covered by the Act’s definition, we construe this Act to mean that this and other financial outlays by persons in the course of the exercise of First Amendment rights, shall be deemed to be the equivalent of a direct contribution to the candidate or his campaign committee, so that the contributor is not in violation of the Act.

These contributions, of course, are subject to the reporting requirement of the Act. This does put upon the candidate or his committee the obligation to report such contribution if within his knowledge or if such knowledge might be discovered by reasonable inquiry. We conclude that this was the intent of the legislature and we see no constitutional obstacle to this reading. An inquiry to the advertising medium used should enable the candidate or his committee to learn the identity of the sponsor and therefore to report it as required.

This leaves finally the problem of the "phantom advertiser” whose identity cannot be learned through normal inquiry. We do not think this situation will often occur, because the tendency of those who make political contributions is to desire that the candidate know of their support. However, when it does occur, the candidate will be unable to give the name and address of the contributor. This does not put him in violation of the Act, however, because this would not be a "knowing” violation within the meaning of Section 10 of the Act concerning penalties. Alternatively, the candidate might report that the publicity had occurred but that it had been done anonymously.

In short, we do not think the problem of the phantom advertiser is great enough to undermine the purpose of the legislation to accomplish substantial disclosure, or that it threatens the candidate or his committee with being put in violation of the penal provisions through acts of others beyond their control.

This leaves only the question of whether a person has a constitutional right to remain anonymous in his support of a political candidate. Conceding for the purposes of argument that anonymity in this regard is a constitutional right, it is not absolute and must yield to compelling state interests. Balancing governmental interest in protecting the integrity of the democratic process and to insure fair elections against an individual’s fundamental rights, we conclude that the limited intrusion here is constitutionally permissible. United States v. Harriss, 347 U. S. 612, 626 (74 SC 808, 98 LE 989). It is in the public interest to disclose who is financing political candidates. Any right to anonymity in this regard must yield to the public’s right to know who is "behind the scene.” Such information permits the voters to more intelligently appraise a candidate’s true position on public affairs. "This form of regulation of campaign financing has been justified as preventing corruption and undue influence. Presumably, if the required reports were comprehensive in scope and fully publicized, several substantial benefits might be expected to follow. Contributions motivated by the expectation of exerting undue influence upon the candidate after his election might be discouraged by the publicity. Conversely, decisions and appointments by an office-holder favoring the interests of known large contributors might be inhibited. If disclosure and publicity were prompt, the voter would have some additional knowledge about the candidates and their respective supporters that would be helpful to him in deciding for whom to vote.” Rosenthal, Campaign Financing and the Constitution, 9 Harv. J. Legis. 359, 403 (1972).

6. It is contended that Section 4 (c) of the Act which prohibits anonymous contributions and directs such contributions be deposited in the State Treasury is unconstitutional. It is argued that this is taking private property without compensation. We do not agree. Under the Act an anonymous contribution never becomes the property of the candidate or his committee. They are prohibited from accepting it. The contributor is unknown. In these circumstances we see no reason why the state can not require such anonymous political contributions to be placed on deposit in the State Treasury.

7. It is contended that the Act is unconstitutional because it is retroactive in that it requires the reports to disclose certain contributions received prior to its adoption. In this regard, Section 6 of the Act requires that the reports filed with the Secretary of State shall include contributions received and expenditures made in behalf of the candidate during the twelve months preceding the date of the report. Section 6 also contains the following: "Where a candidate or campaign committee has accepted contributions or made expenditures prior to the effective date of this Act, the reports required by this section shall include such information as the records of the candidate or his committee show, and such information as is otherwise known to the candidate or members of his committee, regarding such prior contributions and expenditures.”

The Georgia Constitution provides that no ex post facto law, retroactive law, or law impairing the obligation of contracts shall be passed. Code Ann. § 2-302. In the case of Bullard v. Holman, 184 Ga. 788 (193 SE 586, 113 ALR 763) (1937), this court said at page 792: "In the rulings just cited this court has definitely settled the law to be that our Constitution forbids the passage of only those retroactive, or rather retrospective, laws which injuriously affect the vested rights of citizens. The general rule throughout the United States is that a state legislature may constitutionally repeal, alter, or modify state laws enacted under the police power for the protection of the public, without violating any express or implied constitutional prohibition against retroactive statutes.”

Argued May 21, 1974 Decided June 20, 1974 Rehearing denied July 9, 1974. Arthur K. Bolton, Attorney General, Robert S. Stubbs, II, Executive Assistant Attorney General, Don A. Langham, Andrew J. Owen, Jr., Assistant Attorneys General, for appellants.

We hold that Section 6 of the Act, though restrospective in its requirements, does not affect vested rights of citizens so as to offend constitutional prohibitions against the enactment of a restrospective statute.

8. It is contended that the disclosure of contributions to political campaigns violates the right to a secret ballot. We find no merit in this contention. A campaign contribution can not be equated with a secret ballot.

9. Other contentions of unconstitutionality of the Act raised in the petition have not been argued in this court by the appellee. Suffice it to say that we have reviewed these contentions and find them to be without merit.

10. Finally, we conclude that the plaintiff had standing to attack the Act on the basis presented here. It must be remembered that although he is a candidate for public office he is also a citizen who complains that the Act not only inhibits his constitutional rights as a candidate but also as a citizen to make contributions to other candidates.

Judgment reversed.

All the Justices concur, except Nichols, P. J., and Undercofler, J., who dissent, and Jordan, J., who dissents from the ruling made in Division 7. Gunter, J., concurs specially in the ruling made in Division 5, and Ingram and Hall, JJ., concur specially in Division 6. Heyman & Sizemore, Lamar W. Sizemore, Ralph G. McCallum, Terry P. McKenna, Robert A. Bartlett, for appellee. Stan M. Lefco, Dave Hendrick, Nathan Crystal, Robert Windholtz, B. J. Powell, Gary Ackerman, Timothy S. Perry, amicus curiae.