HomeMy WebLinkAboutMINUTES - 04251995 - 1.31 ORDINANCE NO. 95-8
Campaign Spending Reform Ordinance
(Voluntary campaign expenditure limits for
supervisorial campaigns; advertising disclosure
requirements for independent expenditure committees )
The Contra Costa County Board of Supervisors ordains as follows
(omitting the parenthetical footnotes from the official text of
the enacted or amended provisions of the County Ordinance Code) .
SECTION I . SUMMARY. This Ordinance amends the Fair Campaign
Ordinance to specify contribution limits for independent
committees, to add additional reporting requirements for
candidates and independent committees, to add Article 530-2 . 7
"Supervisorial Campaigns, " which specifies the contribution and
voluntary expenditure limits or campaigns for the office of
supervisor, and to add Article 530-2 . 9 "Campaign Advertising
Disclosure, " which specifies the advertising disclosure
requirements for mass mailings sent by independent committees .
SECTION II . Section 530-2 . 407 is added to the County Ordinance
code to specify the limits for contributions to committees making
independent expenditures, to read:
530-2 . 407 Contributions to committees making independent
expenditures . fn any county election cycle, any committee that
makes more than five thousand dollars ( $5,000 ) in independent
expenditures for or against a candidate for the office of County
Supervisor during the twelve months preceding the election for
that office shall not accept contributions exceeding two thousand
five hundred dollars ( $2,500 ) from a single source other than
contributions from broad based political committees, which are
limited to five thousand dollars ($5,000 ) .
(Ord. 95-8 §2 . )
SECTION III . Article 530-2 . 7 is added to the County Ordinance
Code to specify the contribution and voluntary expenditure limits
for supervisorial campaigns, to read:
Article 530-2 .7
Supervisorial Campaigns
530-2 . 702 Application.
(a) This Article applies only to candidates for the office
of County Supervisor. Unless otherwise specified, "candidate"
includes recall candidates . "Recall candidates" means those
candidates who are running to replace an incumbent Supervisor who
is the subject of a ballot measure calling for his or her recall .
ORDINANCE NO. 95-8
1
(b) Ordinance Code sections 530-2 .402, 530-2 . 404 , 530-2 . 405
and 530-2 . 603 shall not apply to candidates for the office of
County Supervisor.
(c) To the extent that there is any conflict between the
provisions of this article and the other provisions of Chapter
530-2, the provisions of this chapter shall prevail as to
campaigns for the office of County Supervisor.
(Ord. 95-8 § 3 . )
530-2 .703 Individual campaign contributions .
(a) In a single election cycle, no person or political
committee (other than the candidate or a broad based political
committee) shall make, and no candidate or campaign treasurer
shall accept, any contribution to or for a single candidate for
County Supervisor or to or for a committee authorized in writing
by the candidate to accept contributions to him or her, which
will cause the total amount contributed by that person or
political committee in support of that candidate during that
election cycle to exceed one hundred dollars ($100) , except as
provided in subparagraphs (b)and (c) below.
(b) For candidates, except recall candidates, who adopt the
voluntary expenditure ceiling defined in section 530-2 . 707 , in a
single county election cycle, no person or political committee
(other than the candidate or a broad based political committee)
shall make, and no candidate or campaign treasurer shall accept,
any contribution to or for a single candidate for County
Supervisor or to or for a committee authorized in writing by the
candidate to accept contributions to him, which will cause the
total amount contributed by that person or political committee in
support of that candidate during that election cycle to exceed
seven hundred and fifty dollars ($750 ) .
(c) For recall candidates who have adopted the voluntary
expenditure ceiling defined in section 530-2 . 707 , the
contribution limits for special elections specified in Government
Code section 85305 subsection(c) ( 1 ) and ( 2 ) shall apply.
(Ord. 95-8 § 3 . )
530-2 . 704 Broad based political committee campaign
contributions .
(a) In a single election cycle, no broad based political
committee shall make, and no candidate or campaign treasurer
shall accept, any contribution to or for a single candidate for
County Supervisor or to or for a committee authorized in writing
by the candidate to accept contributions to him or her, which
will cause the total amount contributed by such broad based
political committee in support of that candidate during that
election cycle to exceed two thousand five hundred dollars
( $2, 500 ) , except as provided in subparagraphs (b) and (c) below.
In a single election cycle, the total aggregate amount of
ORDINANCE NO. 95-8
2
contributions from all broad based political committees which a
candidate may accept shall not exceed ten thousand dollars
($10,000) except as provided in subparagraphs (b) and (c) below.
(b) For candidates, except recall candidates, who adopt the
voluntary expenditure ceiling defined in section 530-2 . 707 , in a
single county election cycle, no broad based political committee
shall make, and no candidate or campaign treasurer shall accept,
any contribution to or for a single candidate for County
Supervisor or to or for a committee authorized in writing by the
candidate to accept contributions to him or her, which will cause
the total amount contributed by such broad based political
committee in support of that candidate during that election cycle
to exceed five thousand dollars ($5,000 ) . In a single county
election cycle, the total aggregate amount of contributions from
all broad based political committees which a candidate adopting
the voluntary expenditure ceiling may accept shall not exceed
forty thousand dollars ($40,000 ) .
(c) For recall candidates who adopt the voluntary
expenditure ceiling defined in section 530-2 . 707 , during the
special election cycle for the election to replace the incumbent
subject to recall, the contribution limits for special elections
specified in Government Code section 85305 subsection(c) ( 3 ) shall
apply. In a single special election cycle, the total aggregate
amount of contributions from all broad based political committees
which a recall candidate adopting the voluntary expenditure
ceiling may accept shall not exceed forty thousand dollars
( $40, 000 )
(Ord. 95-8 S 3 . )
530-2 .705 Return of excess contributions . If for any
reason the contribution limits set forth in Section 530-2 . 703 and
530-2 . 704 have been exceeded, the candidate, other than a recall
candidate, or campaign treasurer may within thirty days after
receipt, return the excess amount of the contribution to the
contributor without penalty. The return of excess contributions
by recall candidates shall be governed by the provisions of the
California Code of Regulations .
(Ord. 95-8 S 3 . )
530-2 . 706 Limitation on personal loans .
(a ) In a single election cycle, no candidate shall lend to
his or her campaign or controlled committee any amount in excess
of five thousand dollars ( $5, 000 ) except as provided in
subparagraph (b) below.
(b) For candidates who adopt the voluntary expenditure
ceiling defined in section 530-2 . 707 , in a single election cycle,
the candidate shall not lend to his or her campaign or controlled
committee any amount in excess of thirty thousand dollars
($30, 000 ) .
(Ord. 95-8 S 3 . )
ORDINANCE NO. 95-8
3
530-2 . 707 Voluntary expenditure limits
(a) Statement accepting expenditure ceiling: All
candidates, other than recall candidates, who adopt the
expenditure ceiling specified in subsection (b) below may accept
contributions in the amounts specified in section 530-2 ..703,
subsection (b) and section 530-3 .704, subsection (b) . All recall
candidates who adopt the expenditure ceiling specified in
subsection (b) below may accept contributions in the amounts
specified in section 530-2 . 703, subsection (c) and section 530-
3 .704 , subsection (c) . Before accepting any contributions in the
amounts specified in those sections, a candidate as specified in
subsection (b) below, must file a statement with the County
Clerk- election division at the time the candidate files the
declaration for candidacy.
(b) Amount of expenditure ceiling. During an election
cycle, candidates who agree to accept the voluntary expenditure
ceiling shall not incur campaign expenditures exceeding eighty
thousand dollars ($80, 000) , except as set forth in subsection (c)
below.
(c) Contributions from individuals . During an election
cycle, a candidate who accepts the voluntary expenditure ceiling
and who raises twenty percent of the amount of that ceiling in
contributions of less than one hundred dollars ( $100 ) from
individuals residing in the supervisorial district in which the
candidate stands for election, may incur ten thousand dollars
($10,000 ) in campaign expenditures in addition to that amount
permitted in subsection (b) .
(d) Notification by candidate who exceeds ceiling. A
candidate who declines to accept the voluntary expenditure
ceiling and who receives contributions or makes expenditures
equal to or exceeding the amount of the expenditure ceiling shall
notify the County Clerk-election division by both telephone and
guaranteed overnight mail on the day the expenditure ceiling is
exceeded.
(e) Exclusions . For purposes of this Article, expenditures
subject to the expenditure ceiling do not include:
( 1 ) expenditures for campaigns for other offices;
( 2 ) expenditures for campaigns for the office of
Supervisor which occurred prior to the effective date of this
ordinance;
( 3 ) expenditures for office holder expenses . "Office
holder expenses" means those expenditures arising out of the
office holder' s official duties which directly assist the office
holder in performing his official duties, or which directly
relate to a governmental purpose. "Office holder expenses"
include but are not limited to, (a) donations to charitable
organizations; (b) the cost of tickets to political events; (c )
the cost of postage, office supplies, stationary and similar
ORDINANCE NO. 95-8
4
expenses related to the conduct or performance of the office
holder's governmental duties; (d) reasonable expenses for travel
to conferences, seminars, educational events and similar
activities related to the office holder' s position; (e) the cost
of books or publications reasonably related to the office
holder's position; (f ) litigation expenses related to the office
holder's actions as a supervisor. The expenses listed in items
(a) through (f ) shall not be considered "office holder expenses"
if they are used in connection with any office holder' s campaign
for a future term of office as a Supervisor.
(Ord. 95-8 § 3 . )
530-2 . 708 . Separate and special election cycles .
(a) There shall be separate election cycles for the primary
election and for the general election, unless the candidate is
elected to office in the primary election.
(b) There shall be a special election cycle for the election
to fill the seat of an incumbent Supervisor who is the subject of
a ballot measure seeking the Supervisor' s recall. The special
election cycle shall begin the date the recall measure is
certified for the ballot and shall terminate the day of the
special recall election.
(Ord. 95-8 § 3 . )
530-2 . 709 . Fair Campaign Pledge . For elections for the
office of County Supervisor, paragraph 10 of the Fair Campaign
Pledge shall read:
"I shall limit my campaign expenses in each election
cycle to no more than that amount permitted in Ordinance Code
section 530-2 . 707 "Voluntary Expenditure Limits . "
(Ord. 95-8 § 3 . )
530-2 . 710 Contributions cumulated. In a single election
cycle, if an individual, committee, or broad based political
committee contributes at least one hundred dollars to a
candidate, then the cumulative amount of any contributions to
that candidate and contributions to independent expenditure
committees on behalf of that candidate made by such individual or
committee shall not exceed seven hundred and fifty dollars
($750 ) , and in the case of broad based political committees shall
not exceed five thousand dollars ( $5, 000 ) .
(Ord. 95-8 § 3 . )
SECTION IV. Section 530-2 . 802 of the County Ordinance Code is
amended to require the filing of additional campaign and
independent expenditure statements seven days prior to the
election, to read:
530-2 . 802 Candidate and Committee reports . (a ) Each
candidate, each committee supporting or opposing a candidate for
county office, each committee supporting or opposing a local
ORDINANCE NO. 95-8
5
ballot measure which is being voted on only in Contra Costa and
each county general purpose committee which supports or opposes
candidates for county office or local ballot measures being voted
on only in Contra Costa County, shall file a campaign statement
in the County Clerk-election division office, on every date a
statement is required by the Political Reform Act covering the
same time period as the statement filed pursuant to state law and
two additional statements . The first additional statement shall
be filed by 12:00 noon on the seventh day before the election
covering the period between the previous statement filed and
12:00 midnight of the eighth day before the election. The second
additional statement shall be filed by 12:00 noon on the last
Friday before the election covering the period between the
previous statement filed and 12:00 midnight of the last Thursday
before the election. These additional filings must be timely
received by the filing officer and are not accomplished by
deposit in the mail. These statements shall include, in addition
to all matters required by this section, the same disclosures
required for the last campaign statement before the election by
the Political Reform Act.
(b) Each committee supporting or opposing the qualification
of a local ballot measure to be voted on only in Contra Costa
County shall file in the County Clerk-election division office a
statement of organization and a campaign statement on every -date
such statements are required by the Political Reform Act covering
the same time period as the statement filed pursuant to state
law, and additional campaign statements on the fifth day after
filing the statement of organization and the fifth day of every
month thereafter until petitions are filed or the deadline for
filing petitions, whichever is earlier. The closing date for the
period covered by an additional campaign statement shall be five
days prior to the deadline for filing the statement.
(c) In addition to campaign statements, each candidate, each
county general purpose committee, and each committee supporting
or opposing a candidate for county office or the qualification or
passage of a local ballot measure which is being voted on only in
Contra Costa County, which makes independent expenditures for or
against any candidate for county office or for or against the
qualification of, or passage of any local ballot measure, shall
file an independent expenditure report in the County Clerk-
election division office, on every date a report is required by
the Political Reform Act covering the same time period as the
report filed pursuant to state law, and two additional reports .
The first additional report shall be filed by 12 :00 noon on the
seventh day before the election covering the period between the
previous report filed and 12:00 midnight of the eighth day before
the election. The second additional report shall be filed by
12:00 noon on the last Friday before the election covering the
period between the previous report filed and 12 : 00 midnight of
the last Thursday before the election. These filings must be
timely received by the filing officer and are not accomplished by
ORDINANCE NO. 95-8
6
deposit in the mail . Each independent expenditure report shall
contain the same disclosures required by Government Code Section
84203 .5 (b) . (Ords . 95-8 S 4 ; 92-9 , 92-1 , 91-10, 84-14 , 84-9 . )
SECTION V. Section 530-2 . 804 of the County Ordinance Code is
amended to require disclosure of the identities of persons who
direct or control independent committees, to read:
530-2 . 804 Campaign Statement. Each county campaign
statement required to be filed by candidates for county office,
county general purpose committees, committees supporting or
opposing a candidate for county office, or committees supporting
or opposing the qualification of, or passage of, a local ballot
measure which is being voted on only in Contra Costa County shall
contain:
( 1 ) (a) the total amount of all contributions received during
the period covered by the campaign statement that equaled twenty-
five dollars, or more, and (b) the total of all contributions of
less than that amount.
( 2) If the cumulative amount of contributions during the
election cycle from a person is more than twenty-five dollars and
less than one hundred dollars and a contribution has been
received from that person during the period covered by the
campaign statement, the statement shall include the date, amount,
and type of each contribution, such as monetary or nonmonetary
(in-kind contribution) . In the case of in-kind contributions,
the fair market value shall be reported. If the value is
unknown, a written valuation shall be obtained from the donor and
this valuation reported.
( 3 ) If the cumulative amount of contributions during the
election cycle from a person is one hundred dollars or more and a
contribution has been received from that person during the period
covered by the campaign statement, the statement shall contain
the same disclosures required by Government Code Section 84211
subsections (f ) , (r) , and (u) -
(4 ) The statement shall contain the same disclosures of
expenditures required by Government Code section 84211
subsections (b) , (h) , (i ) , ( j ) , (m) , (s ) , (t) , and (v) .
( 5 ) Candidates and committees need not duplicate any reports
of contributions, loans, or expenditures required by state law
but may certify that reports made pursuant to this section are in
addition to those made pursuant to state law.
( 6 ) In the case of campaign statements filed by a committee,
other than a candidate controlled committee, the statement shall
contain the full name, and street address of any person or
ORDINANCE NO. 95-8
7
persons who direct or control the contributions or expenditures
made by the committee.
(Ords . 95-8 § 5, 92-9 , 92-1, 91-10, 84-9 . )
SECTION VI . Section 530-2 . 806 of the County Ordinance Code is
amended to require disclosure of the identities of persons who
direct or control independent committees domiciled outside this
county, to read:
530-2. 806 Out-of-county committee reports . Committees
domiciled outside this county which make independent expenditures
or contributions for or against any candidate for county office,
or for or against the qualification of, or passage of any local
ballot measure which is being voted upon only in Contra Costa
County shall file a report with the county clerk' s elections
division, in the time and manner required by Government Code
Sections 84200 ff . and section 530-2 . 804, subsection ( 6 ) for
committees domiciled in this county which either support or
oppose a candidate for county office or support or oppose a local
ballot measure which is being voted on only in this county.
(Ords . 95-8 § 6 , 92-1, 91-10, 84-9 . )
SECTION VII . Article 530-2 . 09 is added to the County Ordinance
Code to require disclosure of contributors on mailers by
independent committees, to read:
Article 530-2 . 09
Campaign Advertising Disclosure
530-2. 902 Disclosure of contributors required. Any
committee that makes, during the calendar year in which the
election is held, more than five thousand dollars ( $5 ,000 . ) in
independent expenditures for or against a candidate for county
office or for or against the qualification of, or passage of a
local ballot measure being voted on only in this county shall
list the following information in a clear and legible manner on
the bottom one-third of the front page of any mass mailing sent
by the committee in the election for which the independent
expenditures were made.
( 1 ) The names and occupations of individuals and the names
and business interests of non-individuals, of the five largest
contributors to the committee during the twelve months preceding
the most recently passed campaign reporting period listed in
order of the amount of contributions (except that no contributor
with cumulative contributions of two hundred fifty dollars ( $250 )
or less need be listed) . The disclosure shall read: "Major
funding by: (name and occupation or business interest) " . In the
case of contributions from committees, the disclosure shall read:
"Major funding by: (name of committee) ; Expenditures directed
ORDINANCE NO. 95-8
8
by: (name and occupation or business interest of persons or non-
individuals who direct or control the expenditures of the
committee) " ; and
(2 ) If the committee has received at least one third of its
total contributions during the twelve months preceding the most
recently passed campaign reporting period from large out-of-
county contributor(s ) , the disclosure shall state "Major funding
from large out-of-county contributors. " "Large out-of-county
contributors" means a) those contributors who either are not
residents of the county or do not have a principal place of
business in the county and b) whose cumulative contributions to
the committee are $500 or more for the twelve month period
preceding the most recently passed campaign reporting period.
(3) This section does not apply to communications from an
organization to its members .
(Ord. 95-8 § 7 . )
SECTION VIII. EFFECTIVE DATE. This ordinance becomes effective
30 days after passage, and within 15 days after passage shall be
published once with the names of supervisors voting for and
against it in the CONTRA COSTA TIMES a newspaper published in
this County.
PASSED ON April 25 , 1995 , by the following vote:
AYES: Supervisors Rogers , Smith, DeSaulnier, Torlakson and Bishop
NOES: None
ABSENT: None
ABSTAIN: None
ATTEST: PHIL BATCHELOR, Clerk of the
Board and Cou ty Administrator
By:
Depu y oard Chair
[SEAL]
MAM\am
a:\docs\campaign.ord
ORDINANCE NO. 95-8
9
I. 3
COUNTY COUNSEL'S OFFICE
CONTRA COSTA COUNTY
MARTINEZ,CALIFORNIA
Date: April 20, 1995 Correction to
Ordinance Code Citation
To: Board of Supervisors
From: Victor J. Westman, County Counsel
By: Mary Ann McNett Mason, Deputy County Counsel
Re: Recent U.S. Supreme Court Decision addressing prohibition on
distribution of anonymous campaign literature
On April 19, 1995, the United States Supreme Court announced
its decision in McIntyre v. Ohio Elections Commission, U.S. ;
1995 WL 227810 (U.S. ) . (Copy attached. ) McIntyre involved an Ohio
statute which prohibited any person from writing or distributing any
publication designed to promote the election or defeat of a candidate
or a measure unless there appeared on the publication the name and
address of the officer of the organization issuing the publication or
the name of the person who was responsible for the publication. The
Court held that the statute' s prohibition of distribution of
anonymous campaign literature abridged freedom of speech in violation
of the First Amendment. Under McIntyre, regulations of core
political speech must be examined with "exacting scrutiny" and can be
upheld only if such regulations are narrowly tailored to serve an
overriding state interest. The Court ruled that Ohio' s interests in
preventing fraudulent and libelous statements, and in providing the
electorate with relevant information, were insufficient to support
the statute 's disclosure requirement.
You may wish to consider the McIntyre decision concerning
section 530-2 . 902 of the impending Campaign Spending Reform
Ordinance.
MAM\am
attachment
Date: -,7 36
REQUEST TO SPEAK FORM
(Two [2] Minute Limit)
Complete this form and place it in the box near the speakers' rostrum before addressing the Board.
� Q &!o
Name: a'zk U/� ,�'" �- x- 1'1 Phone: 2-B-7 - S 21
Address: j 5- SP U,O C r City:
I am speaking for: Myself OR ❑ Organization:
NAME OF ORGANIZATION
CHECK ONE: I
❑ I wish to speak on Agenda Item # , a
My comments will be: ❑ General For ❑ Against
❑ I wish to speak on the subject of:
❑ I do not wish to speak but leave these comments for the Board to consider:
COUNTY COUNSEL'S OFFICE
CONTRA COSTA COUNTY
MARTINEZ,CALIFORNIA
Date: April 20, 1995
To: Board of Supervisors
From: Victor J. Westman, County Counsel
By: Mary Ann McNett Mason, Deputy County Counsel � � / •
Re: Recent U.S. Supreme Court Decision addressing prohibition on
distribution of anonymous campaign literature
On April 19, 1995, the United States Supreme Court announced
its decision in McIntyre v. Ohio Elections Commission, U.S. ;
1995 WL 227810 (U.S. ) . (Copy attached. ) McIntyre involved an Ohio
statute which prohibited any person from writing or distributing any
publication designed to promote the election or defeat of a candidate
or a measure unless there appeared on the publication the name and
address of the officer of the organization issuing the publication or
the name of the person who was responsible for the publication. The
Court held that the statute' s prohibition of distribution of
anonymous campaign literature abridged freedom of speech in violation
of the First Amendment. Under McIntyre, regulations of core
political speech must be examined with "exacting scrutiny" and can be
upheld only if such regulations are narrowly tailored to serve an
overriding state interest. The Court ruled that Ohio' s interests in
preventing fraudulent and libelous statements, and in providing the
electorate with relevant information, were insufficient to support
the statute' s disclosure requirement.
You may wish to consider the McIntyre decision concerning
section 530-2 .-2-8.9 of the impending Campaign Spending Reform
Ordinance. Qoz
MAM\am
attachment
1.
4972 Daily Appellate Report ` Thursday,Apn7 20;`'1995
s,
CONSTITUTIONAL
in an election need bear the required information.
LAW; See, e.g.,FL st Nat Bank of Boston v. Bellotti, 435
1.' U.S. 765, 776-777. ;:When`a law burdens such
State Law Prohibiting Distribution of speech, the_Court,applies "exacting scrutiny,."„”
_4 4dnonymous Campaign Literature Violates upholding the restriction only if it is narrowly'
(`
First Amendments Freedom of Speechtailored to.serve an overriding state interest" See;
{ '
e.g.,id.,at786. Pp.9-14.
r Protection. (c) Section 3599.09(A)'s anonymous speech ban_ is
not justified by Ohio's"asserted interests in.
Cite as 95 Daily Journal D.A.R.4972 preventing fraudulent and libelous statements and .
in providing the electorate with relevant informs-
SUPREME COURT OF THE UNITED STATES. tion. The claimed informational interest is plainly
insufficient to support the statute's disclosure
Syllabus requirement; since the speaker's identity is no
different from other components of a document's
McINTYRE,ExECUTOit of ESTATE contents that the ,'author is free to include or
OF MCENTYRE,DECEASED v.OHIO exclude, and the author's name and,address add
: BLECTIORB COMMISSION little to the reader's. ability to evaluate 'the
CERTIORARI TO THE SUPREME COURT OF OHIO` document in the case of a handbill written by.a
No.93-986. Argoed October 12, 1994 private citizen unknown to the reader. Moreover,
Decided April 19, 199S
the state interest in preventing fraud and' libel
l (which,Ohio vindicates by means of other, more
purporting to express the views of"
After petitioner's decedent distributed"ted leafletsCONCERNED direct prohibitions) does not justify §3599.09(A)'s
'
PARENTS AND TAX PAYERS" opposing a proposed extremely broad prohibition of anonymous leaflets.
school tax levy, she was fined by respondent for The statute. encompasses all documents,
violating §3599.09(A) of the Ohio Code, which regardless of whether they are arguably false or
prohibits the distribution of campaign literature misleading. Although a State might somehow
that does not contain the name and address of the demonstrate that its enforcement interests justify a
' person or campaign official issuing the literature. more limited identification requirement, Ohio has
The Court of Common Pleas reversed,but the Ohio not met that burden here. Pp. 14-20.
Court of Appeals reinstated the fine. In affirming, (d) This Court's opinions in BellW4 435 U.S., at
the.State Supreme Court held that the burdens 792, n. 32—which commented in dicta on the
§3599.09(A) imposed on voters' First Amendment Prophylactic effect of requiring identification of the
FE• rights were "reasonable" and "nondiscriminatory" source of corporate campaign advertising---and
6 and therefore valid. Declaring that §3599.09(A) is Buckley v. Valeo, 424 U.S. 1, 75-76—which
intended .to identify persons who distribute approved mandatory disclosure of campaign-
i:,
f( campaign materials containing fraud, libel, or false related expenditures—do not establish the
d constitutionality of§3594.09(A), since neither case
advertising and to provide voters with a mechanism involved a prohibition of anonymous campaign
for evaluating such materials, the court literature. Pp.20-23.
distinguished Talley v. California, 362 U. S. 60, in 67 Ohio St 3d 391 618 N.E.2d 152 reversed.
which this Court invalidated an ordinance SMMNS,J.,delivered the o a or the Const, is
}!f prohibiting all anonymous leafletting.
Nell Section 3599.09(A)'s prohibition of the which &CONNOR, KENNEDY, SouTsR, QIAsBURo, and
;,
%1 distribution of anonymous campaign literature BRE4ER, JJ., joined" tiHNSBURO, J., Billed a
,Y acoacaraiug opinion. THOMAS, J., filed as opinion
bridges the freedom of speech in violation of the
First Amendment 7-24. coacazriag.in the Judgment SCALIA, J., filed a
PP. dissenting opinion,, in Which REHNQUIST, C.J.,
(a) The freedom to publish anonymously is joins,
1 protected by the First Amendment, and, as Talley
indicates, extends beyond the literary realm to the
advocacy of political causes. Pp. 7-9.
`'•�'i (b) This Court's precedents make abundantly clear SUPREME COURT OF THE UNITED STATES
ii
that the Ohio Supreme Court's reasonableness
standard is significantly more lenient than is No.93-986
appropriate in a case of this kind. Although Talley
concerned a different limitation than §3599.09(A) JOSEPH MCINTYRE,EXECUTOR OF ESTATE or MAR-
and thus does not necessarily control.here, the GARET McUffYRE,DEc:BAsw,PETITIONER v.
i First Amendment's protection of anonymity
OHIO ELECTIONS COMMISSION
nevertheless applies. Section 3599.09(A) is not ON WRIT or CERTIORARI To THE KmREA[E COURT
or OHIO
simply an election code provision subject to the [April 19, 19951
"ordinary litigation" test set forth in Anderson v.
Celebrezze, 460 U: S. 780, and similar cases. JUSTICE STEVENS delivered the opinion of the
Rather, it is a regulation of core political speech. Court.
j? Moreover, the category of documents it covers is The question presented is whether an Ohio
f defined by their content—only those publications statute that prohibits the distribution of anonymous
containing speech designed to influence the voters campaign literature is a 'law . . . abridging the
�{� Y ' n 4
, tP -. •s �. �r
Thursday,April'20, 1995 Daily Appellate Report 4973
freedom•of speech' withinthe meaning of the.First at 396, 618 N. E. 2d, at 155, quoting Andersons-.vJill
r t
Amendment. Ce;brexze, 460 U.S. 780, 788 (1983). Under that
standard,the majority concluded that the statute was
I plainly valid:
'The minor requirement imposed by R.C..
On;April 27,.1988, Margaret McIntyre distributed 3599.09 that those persons producing i
leaflets-to persons attending a public meeting at the campaign literature identify themselves as the i'1 i
Blandon Middle School in Westerville, Ohio. At,this source thereof neither impacts the content of
meet►ng. the superintendent of schools planned to their message nor significantly yburdens their.
-
discuss._an:.imminent referendum on a proposed ability to have it disseminated. This burden,is
school tax -levy. ,. •The leaflets expressed. Mrs. more than counterbalanced by the state
McIntyre's opposition to the levy.2 There is no interest in providing the voters to whom the
suggestion that the text of her message was false,' message is directed with a mechanism by
misleading;::or:libelous. She had composed and which.they may better evaluate its validity.
printed it on her home computer and had paid a Moreover,the law serves to identify those who 4
professional printer to.make additional copies.. Some engage in fraud,libel or false advertising. Not + �;
of the handbills identified her as the author, others only are such interests sufficient to overcome
merely. purported to express the views of the minor burden placed upon such persons,
•CONCERNED PARENTS AND TAX PAYERS." Except these interests were specifically acknowledged
for the help.provided by, her son and a.friend, who in IFbst National Bank of Boston v.I BeOott(.
placed*some of the leaflets on car windshields in the .435 U.S. 765 (1978),) to be regulations of the . !'
school:;: parking lot,. Mrs.. McIntyre acted sort which would survive constitutional ecru-
independently..
cru-inde enden tiny.- 67 Ohio St. 3d,at 396,618 N. E. 2d at
While Mrs. McIntyre distributed her handbills, an 155-156. • ±
official of the school district, who supported the tax In dissent,Justice Wright argued that the statute
proposal, advised her that the unsigned leaflets did should be tested under a more severe standard .
not conform to the Ohio.election laws. Undeterred, because of its significant effect "on the ability of
Mrs. McIntyre appeared at another meeting on the individual citizens to freely express their views in
next evening and handed out more of the handbills. writing on political issues.' Id., at 398, 618 N. E. 2d,
The proposed school levy was defeated at the at 156-157. He concluded that §3599.09(A) "is not
next two elections,but it finally passed on its third try narrowly tailored to serve a.compelling state interest
in November 1988. Five months later, the same and is, therefore, unconstitutional as applied to
school official filed a complaint with the Ohio Elections McIntyre.' Id,at 401,618 N. E.2d,at 159.
Ill
Commission charging that Mrs. McIntyre's Mrs. McIntyre passed away during the pendency i i;
distribution of unsr'gned leaflets violated §3599.09(A) of this litigation. Even though the amount in .
of the.Ohio Code.3 The Commission agreed and controversy is only $100, petitioner, as the executor
I
imposed a fine of$100. of her estate, has pursued her claim in this Court,.
The Franklin County Court of Common Pleas Our grant of certiorari, 510 U. S. _ (1994), reflects u
reversed. Finding that Mrs. McIntyre did not'mislead our agreement with his appraisal of the importance of t
the public nor.act in a surreptitious manner,' the the question presented.
court concluded that the statute was unconstitutional
as applied to her conduct. App. to Pet. for Cert."A—
34 to A-35. The Ohio Court of Appeals,by a divided i;F
vote, reinstated_ the fine. Notwithstanding doubts Ohio maintains that the statute under review is a
about the continuing validity of a 1922 decision of the reasonable regulation of the electoral process. The
Ohio Supreme Court upholding the statutory State does not suggest that all anonymous
predecessor of§3599.09(A), the majority considered publications are pernicious or that a statute totally
itself bound by that precedent. Id.,at A-20 to A-21, excluding them from the marketplace of ideas would
citing State v. Babst, 104 Ohio St. 167, 135 N. E. 525 be valid. This is a wise(albeit implicit) concession, for
(1922). The dissenting judge thought that our the anonymity of an author is not ordinarily a
intervening decision in TaUey v. California, 362 U. S. sufficient reason to exclude her work product from i
60 (1960), in which we invalidated a city ordinance the protections of the First Amendment.
prohibiting all,anonymous leafletting, compelled the "Anonymous pamphlets, leaflets, brochures and
Ohio court to adopt a narrowing construction of the even books have played an important role in the
statute to save its constitutionality. App. to Pet. for progress of mankind." Talley v. California, 362 U. S.
Cert.A-30 to A-31. 60, 64 (1960). Great works of literature have
The Ohio Supreme Court affirmed by a.divided frequently beenproduced by authors writing under
vote. The majority distinguished Mrs. McIntyres case assumed names. Despite readers' curiosity and the
from Talley on the ground that§3599.09(A)"has as its public's interest in identifying the creator of a work of
purpose the identification of persons who distribute art, an author generally is free to decide whether or
materials containing false statements." 67 Ohio St. not to disclose her true identity. The decision in favor
3d 391,394,618 N. E.2d 152, 154 (1993). The Ohio of anonymity may be motivated by fear of economic or
court believed that such a law should be upheld if the official retaliation, by concern about social ostracism,
burdens imposed on the First Amendment rights of or merely by a desire to preserve as much of one's
voters are "reasonable" and "nondiscriminatory." Id., privacy as possible. Whatever the motivation may be,
j 4974
Daily Appellate.Report,,,„ Thlusday,April A , X 995:
at least in the field of literary endeavor,the interest m designed to; influence voters in an..election In
having anonymous"works enter the," the
of contrast, the Los;'Angeles`ordinance'prohibited,'all
{e
ideas unquestionably outweighs any public interest m anonymous^,handbilling in any, place under Ply .
g' requiting disclosure as a ' condition of entry:5 circuaiatances:" Id., at 6"1. For thaf reason,,Ohio
;. Accordingly, an author's decision" to remain correctly,argues that Talley.does not necessarily
V.` i anonymous, dike other decisions concerning control the disposition of this case. We must,
J omissions or additions to the content of a publication, therefore,:decide whether and to what entent the First
i is an aspect of the freedom of speech protected by the Amendment's protection of anonymity encompasses
First Amendment documents intended to influence the electoral
L. The freedom to publish anonymously extends process:`
beyond the literary realm: In Talley, the Court heldOhio places its principal reliance on cases such
�t that the First Amendment protects the distribution of as Anderson v: Celebnezze, 460 'U. S. 780 (1983);
a, unsigned handbills urging readers to boycott certain StonerV Broom, 415 U.'S. 724 (1974); and Burdick'
:. Los Angeles merchants who were allegedly engaging Takashi, 504 U. S. (1992), in which we,reviewed
' in discriminatory employment practices. 362 U. S. electioni code provisions governing the voting process
60. . Writing for the Court, Justice Black noted that itself.' See Anderson, supra (filing deadlines), Storer,
r I "[plersecuted groups and sects from time to time supra(ballot access); Burdick; supra (write-in voting);
throughout history , have been' able to criticize see also Tashjian v. Repubtrican party of ConnecHaut,
s I oppressive practices and laws either anonymously or 479 1 U.S.208 (1986) (eligibility of independent voters "
s not at all." Id., at 64. Justice Black recalled to vote in party primaries). In those cases we refused
a it England's abusive press licensing laws and seditious to adopt "any 'litmus-paper test'.that will separate
libel prosecutions, and he reminded us that even the valid from invalid restrictions." Anderson, 460 U.S.,
y' arguments favoring the ratification of the Constitution at 789, quoting Storer, 415 U. S., at 730. Instead,we
advanced in the Federalist Papers were_published pursued an analytical process comparable" to that
under fictitious names. Id., at 64-65. On oc asion, used by courts "in ordinary litigation": we considered
{ i quite apart from any threat of persecution, an the relative interests of the State and the injured
advocate may believe her ideas will be more persua- voters, and we evaluated the extent to which the
I� sive if her readers are unaware of her identity. State's interests necessitated the contested
Anonymity thereby provides a way for a writer who restrictions. Anderson, 460 U. S., at 789. Applying
may be personally unpopular to ensure that readers similar reasoning in this case, the Ohio Supreme
>� will not prejudge her message simply because they do Court upheld §3599.09(A) as a "reasonable' and
not hlte its proponent. Thus, even in the field of °nondiscrimvw2ory"burden on the rights of voters: 67 .
r z° political rhetoric,where"the identity of the speaker is Ohio St. 3d 391,396, 618 N. E. 2d 152, 155 (1993),
an important component of many attempts to quoting Anderson,460 U. S.,at 788.
persuade," City of Ladue v. Gi11eo, 512 U. S. _, _ The"ordinary litigation"test does not apply,here:,
(1994) (slip op., at 13), the most effective advocates Unlike the statutory provisions challenged in Storer,.
have sometimes opted for anonymity. The specific and Anderson,§3599.09(A)of the Ohio Code does not,
holding in Talley related to advocacy of an economic control the mechanics of the electoral process. It is a.
boycott, but the Court's reasoning embraced a regulation of pure speech. Moreover,,even though
t ` respected tradition of anonymity in the advocacy of this provision applies evenhandedly to advocates of.
a I political causes 6 This tradition is perhaps best differing viewpoints 8-it is a direct regulation.of the
exemplified by the secret ballot, the hard-won right to content of speech. Every written document covered.
vote one's conscience without fear of retaliation. by the statute must contain"the name and residence .
or business address of the chairman, treasurer,, or.
III secretary of the organization issuing the same, or the
person who issues,makes,or is responsible therefor.'s.
California had defended the Los Angeles Ohio Rev. Code Ann. §3599.09(A) (1988).
ordinance at issue in Talley as a law "aimed at Furthermore, the category of covered documents is;,
providing_a_way to identify those responsible for fraud, defined by their content—only those publications:;;
false advertising and libel." 362 U. S., at 64. We containing speech designed to influence the voters in..,
r. rejected that argument because nothing in the text or an election need bear,the required markings.9 lbid
legislative history of the ordinance limited its Consequently, we are not faced with an ordinary,"
application to those evils.7 Ibid. We then made clear election restriction; this case "involves a limitation on
that we did "not pass on the validity of an ordinance political expression subject to exactinscrutiny_'
limited to prevent these or any other supposed evils." Meyer v. Grant,486 U. S. 414,420(1988).1g 0 ;
Ibid. The Ohio statute likewise contains no language Indeed, as we have explained on many prior
limiting its application to fraudulent, false, or libelous occasions, the category of speech regulated by the''
! (! statements; to the extent, therefore, that Ohio seeks Ohio statute occupies the core of the protection
to justify §3599.09(A) as a means to prevent the afforded by the First Amendment:
dissemination of untruths, its defense must fail for "Discussion of public issues and debate on the
the same reason given in Talley. As the facts of this qualifications of candidates are integral to the
€� case demonstrate, the ordinance plainly applies even operation of the system of government
i when there is no hint of falsity or libel. established by our Constitution. The First
t Ohio's statute does, however, contain a different Amendment affords the broadest protection to .
limitation: It applies only to unsigned documents such political expression in order 'to assure
y =
5
St x, ...�•.3 r �•S. s�, do «^ t .•.
0.
lfusday,Aplii 20, 1995 . Daily Appellate.Report
4975
(the) unfettered` interchange of ideas for the requirement in §3599..09(A) Is ,fustified by s two.,
banging about.of,political.and social changes ;, important and legitimate.state interests Ohio,fudges. ;
:desired"by.the people.'- Roth v. United States, its interest in'
preventing .fraudulent- and `hbeloui
354'
U.'S.- 476,.484"(1957). Although First statements and its interest in providing the electorate _
Amendment;`pmtections are not:confined.to with relevant information to be sufficiently compelling
:the exposition of ideas;.W6iters v New.York, to justify the anonymous speech ban.' These two
333 U.S 507,510(1948), 'there is practicallyinterests necessarily overlapto some extent, but it
univeisal egreemerit that a:major purpose of useful to discuss them separately r
:that.',Amendment, was to protect .the free Insofar as the interest in informing the electorate
d;acussion:.';of governmental affairs, of means nothing more than the provision of additional
course`includ[irig) discussions of.candidates information that may either buttress or. undermine
'Mills v._ Alabama, 384 U. S. 2.14, 218 the argument in a document;we think the identity of
(1966). This,no more than reflects our 'pro- . the speaker is no different from other components;of
found national commitment to the,principle the'document's 'content that the author .is,free 'to k
.. that debate ..on '.public issues should be include or exclude.l l We have already held that the "
uninhibited;robust,and wide-open,'New YorkState may not.compel. a:newspaper"that:.prints
Ttntes Co v:.''Sullivan, `376..U.-8.. 254,. 270 editorials critical of a particular can to provide
(1964)... In a republic where the.people are . space for a reply,by the candidate. Miami Herald #;
sovereign, the ability of the citizenry to make publishing Co. v..Torrallo, 418 U.'S. 241;(1974) The,
informed-choices among candidates for officesimple interest.in.providing..voters with ,additional
is essential,for the identities of those who are relevant information does` not .,justify ; a state }
elected,.will..inevitably.shape the course that requirement that a writer make statements-or disclo
we follow es a-nation. As,the Court observed sures she would otherwise omit. Moreover,"in the.- t
in."Monitor Patriot Co:v. Roy, 401 U.S. 265, case of a handbill written by a private citizen who is "
272 (1971),.-it can hardly be doubted that the not known to the recipient, the name and address of - }`
constitutional guarantee has its fullest and the author adds little,'if anything, to the
..'reader's f
most urgent application precisely to the ability to evaluate the document's message.. Thus,
conduct of campaigns for political office." Ohio's"informational interest,is plainly.insufficient to �!
Buckley v.-Valeo,424 U. S. 1, 14-15.(1976). support the constitutionality of its disclosure require-
Of course,.core political speech need not center went.' a
on a candidate for office. The principles enunciated in The state interest in preventing fraud and libel
Buckley extend equally to issue-based elections such stands on a different footing. We agree with Ohio's
as the: school-tax.referendum that Mrs. McIntyre submission that this interest carries special weight y
sought.to,influence through her.handbills.' See First during election campaigns when false statements; if'
Nat Bank of Boston v.Bellotti,435 U. S.765,776-777.. credited,may"have serious adverse consequences for h
(1978) (speech on income tax referendum 'is at the the public at large. Ohio does not, however, rely 1
heart of:the First Amendment's protection'. Indeed, solely on §3599.09(A) to protect that interest. . Its
the speech in which Mrs. McIntyre engaged—Banding Election Code y.includes ' detailed'_ and specific
out .'leafletsin ` the. :advocacy of.`a politically prolubitions against"making .or disseminating false
controversial" viewpomt—is the essence of First statements during.political campaigns. Ohio Rev.
Amendment expression..`.See lidem tat Society for Code Ann.§§3599.09.1(B),3599.09.2(B)(1988).These
kishna Consciousness w: Lee, 505 U. S. (1992); regulations apply,both to,candidate elections and to
Lovell v Grob% 303 :U.S. 444 (1938) . .That this issue=driven ballot measures.12 Thus,Ohio's prohibi- I �'
advocacy::,occurred:.in the,heat of a controversial tion of anonymous leaflets plainly is not its principal i
referendum vote'. only strengthens the protection weapon against fraud.13 Rather; it serves as an aid
afforded to Ms::.:McIntyre's. expression: urgent, to enforcement of the specific prohibitions and as a
important,, and>,effective speech can be no less deterrent to the "making of false statements by
Protected `than..impotent speech, lest the-right to unscrupulous prevaricators. Although these ancillary
i kw{
speak be relegated to those instances when it is least benefits are assuredly legitimate, we are not
needed. .-See Terminiello v. Chicago, 337'U.S. 1, 4. persuaded that they justify §3599.09(A)'s extremely
(1949). No:form;-of. speech is:entitled to greater broad prohibition: w
constitutional protection than Mrs. Mclntyre's. As this 'case demonstrates, the . prohibition
i.
When_a law ;burdens core political speech, we encompasses documents that are not even arguably
aPPIY 'exacting scrutiny,' and we uphold the false or misleading. It applies not only to the activities
rcatzictiononly if it.is'narrowly tailored to serve an of candidates and their organized supporters,but also y
avarriding state interest. See, e.g.,Bellotti, 435 U."S., to individuals acting independently and using only
at 786. Our.precedents thus make abundantly clear their own modest resources.14 It applies not only to
that the Ohio Supreme Court applied a significantly elections of public officers, but also to ballot issues
more lenient standard than is appropriate in a case of that present neither a substantial risk of libel norany ('!q
this kind. potential appearance of comipt advantage. It {.
applies not only to leaflets distributed on the eve of an
IV election,when the opportunity for reply is limited,but
also to those distributed months in advance.16 It
Nevertheless, the State argues that even under applies no matter what the character or strength of
the strictest standard of review, the disclosure the authors interest in anonymity. Moreover, as this
�W
;i 4976 Dally Appellate.Report, Thursday,April 20, 1995
case also demonstrates, the absence of the author's various sources are supported by an interest in
name on a document does not necessarily protect avoiding the appearance of corruption that has no
either that. person;or-a distributor,of a forbidden application to this case.
y document from being held responsible for compliance True, in another portion of the Buckley opinion
with,the election code. Nor has the State explained we expressed approval of a requirement that even
!; Y�"; why rt can more easily,enforce the direct bans on "independent expenditures" in excess of a threshold
disseminating false documents.sgamat anonymous -level be reported to the Federal Election Commission.
a! authors and.distnbutors than against wrongdoers who Id, at 75-76. But that requirement entailed nothing
might use false names and addresses in an attempt to more than an identification to the Commission of the
avoid detection. .--...:We =reoognite that,.;a State's amount and use of money expended in support of a
enforcement ,interest.might justify,.a,more limited candidate. See fd., at 157-159 160 (reproducing
identification requirement,but Ohio has shown scant relevant portions of the statutef 9). Though such
cause for inhibiting the leafletting at issue here. mandatory reporting undeniably impedes protected
First Amendment activity, the intrusion is a far cry
V from compelled self-identification on all election-
,,: < related writings. A written election-related document
Finally, Ohio vigorously.argues that our opinions —particularty a leaflet-is often a personally crafted
in Rist Nat. Bank of Boston v. Bellotti,.435 U. S. 765 statement of a political viewpoint. Mrs. McIntyre's
!. (1978), and :Buckley v. Valeo; 424 U.S. 1 (1976), handbills surely fit that description. As such,
I.
i
Amply support the constitutionality'of its disclosure identification of the author against her will is
requirement. .Neither case is controlling: the former particularly.intrusive; it reveals unmistakably the
concerned.the scope of First Amendment protection content of her'thoughts on a controversial issue.
P P gh
afforded to corporations; the relevant portion of the Disclosure of an expenditure and its use, without
tatter concerned mandatory disclosure of campaign- more, reveals far less information.. It may be
cql related expenditures. Neither case involved a information that a person prefers to keep secret, and
fsi
prohibition of anonymous campaign literature. undoubtedly it often gives away something about the
In Bellotti, we' reversed a judgment of the spender's political views. Nonetheless, even though
Supreme Judicial Court of Massachusetts sustaining money may 'talk,' its speech is less specific, less
a state law that prohibited corporate expenditures personal, and less provocative than a handbill-end
designed to influence the vote on referendum as a result, when money supports an unpopular
proposals. 435 U.S. 765. The Massachusetts court viewpoint it is less likely to precipitate retaliation.
had held that the First Amendment protects corporate Not only is the Ohio statute's infringement on
speech only if its message pertains directly to. the speech more intrusive than the Buckley disclosure
pug
s business interests of the corporation. Id,at 771-772. requirement, but it rests on different and less
!`i.' Consistently with our holding today,we noted that the powerful state interests. The Federal Election
'inherent worth of.the speech in terms of its capacity Campaign Act of 1971, at issue in Buckley, regulates
for informing the p•ublic does not depend upon the only candidate elections not referenda or other issue-
identity of its source, whether corporation, based ballot measures; and we construed
' association, union, or individual.' Id, at*777. We 'independent expenditures' to mean only those
�! also made it perfectly clear that we were not deciding expenditures that'expressly advocate the election or
whether the First Amendment's protection of defeat of a clearly identified candidate." Id, at 80. In
corlforate speech is coextensive with the protection it candidate elections, the Government can identify a
affords to individuals.17 Accordingly, although we compelling state interest in avoiding the corruption
commented in dicta on the..prophylactic effect of that might result from campaign expenditures.
requiring identification of the source of corporate Disclosure of expenditures lessens the risk that
advertising,18 that footnote did not necessarily apply individuals will spend money to support a candidate
to independent communications by an individual like as a quid pro quo for special treatment after the
Mrs. McIntyre. candidate is in office. Curriers of favor will be
Our reference in ,the BeUotd footnote to the deterred by the knowledge that.all expenditures will
` of disclosure requirements cited be scrutinized by the Federal Election Commission
prophylactic effect'.
a portion of our.earlier opinion in Buckley, in which and by the public for just this sort of abuse 20
we stressed the importance of providing -"the Moreover, the federal Act contains numerous
electorate with information 'as to where political legitimate disclosure requirements for campaign
campaign money comes from and how it is spent by organizations; the similar requirements for
the candidate.'" 424 U.S., at 66. We observed that -independent expenditures serve to ensure that a
the 'sources of a candidate's financial support also campaign organization will not seek to evade
alert the voter to the interests to which a candidate is disclosure by routing its expenditures through
most likely to be responsive and thus facilitate individual supporters. See Buckley, 424 U. S., at 76.
predictions of future performance in office.' Id,at 67. In short, although Buckley may permit a more
Those .comments concerned contributions to the narrowly drawn statute, it surely is not authority for
candidate or expenditures authorized by the Candi- upholding Ohio's open-ended provision.21
date or his responsible agent. They had no reference
to the kind of independent activity pursued by Mrs. VI
McIntyre. Required disclosures about the level of
financial support a candidate has received from
,• ... _,. .,.'
Thursday,Ap4129, 1995 - Daily Appellate.Report 4977. j(
Under our Constitution, .anonymous,
pamphleteering is-, not a pernicioils, .fraudulent;. vers ii
practice,,but an honorable tradition-of advocacy and MW a tea,raa lac
of dissent. Anonymity is a shield from the tyranny of
the majority. See generally J. S. Mill, On Liberty, in
toasteteettae YOsterville serhmts. asked•ss to vote m
On Liberty and Considerations on Representative new buildings and gamelons Progress- We 9&V* them .hat they as
Government 1, 3-4 (R McCallum ed. 194 . It thus. d""awe "'e wei�'s ° st1OAi "i0 now °r° " la the district.
growth ;
exemplifies the purpose behind the Bill of Rights,and No.she f1,W out t1wvO is:a i oitlIon dorlar=deflclt - WW
of the First Amendment in particular: to protect us are tate tee s sldAte'schools must be spilt because O
unpopular individuals from retaliation—and their and yet .e are cera 3 Schools are cling closed - wi
ideas from suppression--at the hand of an intolerant d &Monet school is Mot a full Operating school, but a sv 'I
society. The right to remain anonymous may be school. '
abused when it shields fraudulent conduct.- ' But he"dwhts-we asbed to wo On a _+o seMber.eawmission t
formulate toe hew bardarfes ler 4*.Oaks they .erkae long ace ha
political speech by its nature will sometimes have came w with a vm V workable elan. Their plan was totally dtsraq
unpalatable consequences, and, in general, our
society a000rds,greater weight to the value of free rusts es cos e.rers sellar. must be sceseed. our ehiler. ;
easeatlen and wel4ars must COMM first. WASTE !W+ CII Ltd K M
speech than to the dangers of its misuse. ' See
Abrams v. United States,250 U.S.616,630-31 (1919)
NJAsE votE to
(Holmes,J.; dissenting). Ohio has not shown that its
interest in preventing the misuse of anonymous i iv `
election-related speech justifies a prohibition of all TMAW"U' '
a'.
uses of that speech. The State may,and does,punish ennorrs I f
fraud directly. But it cannot seek to punish fraud "TAX t aavam
indirectly by indiscriminately outlawing a category of
speech, based on its content, with no necessary 3. Ohio Rev. Code Ann. §3599.09(A) (1988)
relationship to the danger sought to be prevented.. provides:
One would be hard pressed to think of.a better 'No person shall write, print, post, or distribute,.or,
example of the pitfalls of Ohio's blunderbuss cause to be written, printed, posted, or distributed, a.
approach than the facts of the case before us. notice, placard, dodger,
The judgment .of the Ohio Supreme Court is y advertisement, sample ballot,sined..
another form of. oral publication which is designed 1
reversed. to promote the nomination or election or defeat of a !'
It is so ordered. candidate, or to promote the adoption or defeat of any
issue,or to influence the voters in any election, or make g
Footnotes: i?
an expenditure for the purpose of financing.political
1. The term "liberty"in the Fourteenth Amendment communications through newspapers, • magazines,
to the Constitution makes the First Amendment outdoor advertising facilities, direct mailings,,or,other
applicable to the States. The Fourteenth Amendment similar types of general public political advertising, or.
reads, in relevant part: "No Stats shall . . . deprive any through flyers, handbills, or other nonpeiiodical printed
person of life,liberty,or property,without due process of matter,unless there appears on such form of publication
law.:*
aw.:* U.S. Const., Amdt. 14, g1. Referring to that in a conspicuous place or is contained within said
Clause in his separate inion in v. Cal'oniia,
Pam P tett rl statement the name and residence or business address of •
274 U.S. 357 (1927), Justice Brandeis stated that "all the chairman,treasurer,or secretary of the organization
fundamental rights comprised within the term liberty are issuing the same,or the person who issues, makes,or is
protected by the Federal Constitution from invasion by responsible therefor. The disclaimer 'paid political
the States. The right of free speech, the right to teach advertisement'is not sufficient to meet the requirements
and the right of assembly are, of course, fundamental of this division. When such publication is issued by the
frights." Id.,at 373 (Brandeis,J., concurring). Although regularly constituted central or executive committee of a
the text of the First Amendment provides only that political party,organized as provided in Chapter 3517. of
'Congress shall make no law . . . abridging the freedom the Revised Code, it shall be sufficiently identified if it
of speech . . . ," Justice Brandeis' view has been bears the name of the committee and its chairman or
embedded in our law ever since. See Fust Nat. Bank of treasurer. No person, firm,or corporation shall print or c
Boston v. Bellotti, 435 U.S. 765, 779-780 (1978); 'see rope any notice, placard, dodger, advertisement,
also Stevens, The Bill of Rights: A Century of Progress, sample ballot, or any other form of publication in
59 U.Chi. L. Rev. 13,20,25-26(1992). violation of this section. This section does not apply to
2. The following is one of Mrs. McIntyre's leaflets, the transmittal of personal correspondence that is not
in its original typeface: reproduced by machine for
general distribution.
"Phe secretary of state may, by rifle, exempt, from
the requirements of this division, printed matter and
certain other kinds of printed communications such as
campaign buttons, balloons, pencils, or like items, the
size or nature of which makes it unreasonable to add an
identification or disclaimer. The disclaimer or
identification, when paid for by a campaign committee,
shall be identified by the words 'paid for by' followed by
the name and address of the campaign committee and
I' 4978 . Daily Appellate Report. Thursday,Apra LO0,;1995
the appropriate officer of the I.committee, identified by RevolutionaryAmerica 220 (1990)(positing that`Junius',
4i name and title.'
may have"been,33r Phillip Francis). The "Letters of.
y _ Section 3599.09(B) contains a ' comparable Junius were "widely reprinted in colonial_newspapers,
prohibition against unidentified communications uttered and lent 'coinsiderable support 'to .the revolutionary,
i over`the broadcasting facilities of any radio or television cause." PbweU v. McCormack, 395 U.S..06, 531,n .6,0,'
station. No question concerning that provision is raised (1969).
in this case. Our opinion, therefore, discusses only 7: In his concurring opinion, Justice Harlan added
written communications and
• �;i , particularly', leaflets of the these words-
kind Mrs. McIntyre distributed. Cf. Turner Broadcasting "Here the State says that this ordinance is aimed..at
System,bm v. FCC,512 U.S. `'(1994).(slip the prevention of 'fraud, deceit, false advertising,
---
op:, at - (discussing application of First negligent use of words, obscenity, and libel,' In.that it_
Amendment principles to regulation of television and will aid in the detection of those responsible, for
radio). spreading material of that character. But the ordinance..
c if The complaint against`Mrs: McIntyre also`alleged is not so limited,and I think it will not do for the,State
violations of two other provisions of the Ohio Code, but simply to say that the circulation of all anonymous,
those charges were dismissed and are not,before this handbills'must be suppressed in order to identify,the,•
d 1 gl Court distributors of those that may be of an.obnoxious.,
I,�ff 4. American names such as Mark Twain (Samuel. character. In the absence of a more substantial showing
i Langhorne Clemens) and O. 'Henry (William Sydney as to Los Angeles'actual experience with the distribution
Po come readily to mind. Benjamin Franklin of obnoxious handbills, such a generality is for,me too.
employed numerous different pseudonyms.. See 2 W. C. remote to furnish a constitutionally acceptable.
pi•l Bruce, Benjamin Franklin Self-Revealed: A Biographical justification for the deterrent effect on free speech which.
and Critical Study Based Mainly on His Own Writings,' this all-embracing ordinance is likely to have.'.Wley v.
�i ch. 5 (2d ed. 1923). Distinguished French authors such California,362-U.S.60,66-67(1960)(footnote omitted).
;E5 as Voltaire (Francois Marie Arouet) and George Sand 8. Arguably, the disclosure requirement places.a,
(Amandine Aurore Lucie Dupm), and British authors more significant burden on advocates of unpopular
f ? such as George Eliot (Mary Ann Evans), Charles Lamb causes than on .defenders of the status..quo. For
(sometimes"wrote as "Elia', and Charles Dickens purposes of our analysis, however, we assume the
(sometimes wrote as 'Boz'), also published under statute evenhandedly burdens all speakers who have a.
assumed names. Indeed, some believe the works of legitimate interest in remaining anonymous.
Shakespeare were actually written by the Earl of Oxford 9.' Covered documents are those "designed -,to
rather than b William Shaks r of Stratford-on-Avon:
Ir y pe promote the nomination or election or defeat .of a
j� See C.Ogburn,The Mysterious William Shakespeare:The candidate, or to promote the adoption or defeat of any
Myth & the Reality (2d ed. 1992); but see S. issue, or to influence the voters in any election ...
+{i Schoenbaum, Shakespeare's Lives (2d 'ed. 1991) Ohio Rev.Code Ann.§3599.09(A)(1988). _..
(adhering to the traditional view that Shaksper was in 10.In Meyer,we unanimously applied strict scrutiny.
.
' Shakespeare to invalidate an election-related law making it illegel,to"
fact the author) See also Stevens The .
j I Canon of Statutory Construction, 140 U. Pa. I. Rev. pay petition circulators for obtaining signatures to place
1373(1992)(commenting on the competing theories), an initiative on the state ballot. . 486 U.S.. 414.
d 5. Though such a requirement might provide Similarly, In.Burson v. FYvemrar, 504 U.S. _ (1992),,
! assistance to critics in evaluating the quality and although the law at issue—forbidding campaign-related
significance of the writing, it is not indispensable. To speech within 100 feet of the entrance to.a polling;place,
draw an analogy from a nonliterary-context, the now- --was an election-related restriction, both the plurality
pervasive practice of grading law school examination and dissent applied strict scrutiny because the law.was,
papers "blindly" (Le., under a system in which the 'a facially content-based restriction on political speech in
professor does not know whose paper she is grading) a public forum." Id,at—(slip op.,at 6);see also id,at
indicates that such evaluations are possible—indeed, — (slip op., at 3) (KENNEDY, J., concurring; id, at—
perhaps more reliable—when any bias associated with (slip op.,at 1)(STEVENS,J.,dissenting).
the author's identity is prescinded. 11. 'Of course, the identity of the.source is helpful
i. 6.That tradition is most famously embodied in the in evaluating ideas. But 'the best test of truth is the
Federalist Papers, "authored by James Madison, power•of the thought to get itself accepted in the
Alexander Hamiltdn,and John Jay, but signed'PubUus." competition of the market'(Abrams v. United States, 1250.
Publius's opponents, the Anti-Federalists, also tended to U.S. 616, 630 (1919) (Holmes, J., dissenting)A., Don't
publish under pseudonyms:,prominent among them were underestimate the common man. People are intelligent
"Cato,"believed to be New York Governor George Clinton; enough to evaluate the source of an anonymous writing. .
'Centinel,' probably • Samuel Bryan or his father, They can see it is anonymous. They know it is
Pennsylvania judge and legislator George Bryan; 'The anonymous. They can evaluate its anonymity along with .
Federal Farmer,"who may have been Richard Henry Lee, its message,as long as they are permitted,as they must
a Virginia member of the Continental Congress and a be,to read that message. And then,,once they have done
i signer of the Declaration of Independence; and"Brutus," so, it is for them to decide what is 'responsible', what is
who may have been Robert Yates, a New York Supreme valuable, and what is truth.' New York v. Duryea, 76
Court justice who walked out on the Constitutional Misc. 2d 948, 966-967, 351 N. Y. S. 2d 978, 996 (1974) .
Convention. 2 H. Storing, ed., The Complete Anti- (striking down similar New York statute as overbroad).
• Federalist(1981). A forerunner of all of these writers 12. Section 3599.09.1(B)provides:
was the pre-Revolutionary War English pamphleteer 'No person, during the course of any campaign for
i "Junius,"whose true identity remains a mystery. See J. nomination or election to public office or office of a
M. Faragher, ed., The Encyclopedia of Colonial and political party, by means of campaign materials,
r
'Ihiusday;-Apiil 20,`1995 _ � ���Dail efldW�Re" .,'rt � � '4979 �
Y APPe Po
including sample ballot's, an"advertisement on radio or 14.We stressed the Importance of this distinction in
television,or in 'a-newspaper or periodical; a public Buckley v. Vaieo,-424 U.S. 1;37(1976).
ry ` 'speech;"press release,or otherwise,'shall knowingly and 'Treating these expenses,[the expenses'ince led :
i with intent-to'affect-the outoome'of such campaign do "by campaign volunteers] as,contributions when j
any ofthe'following made to'-the' candidate's campaign or 'at the
'(1)Use the title of an office not currently held by a dizect[on of the candidate or his staff forecloses'
candidate'in a manner that,im ties that the candidate an avenue of abuse without limiting actions
P fig.. !r
does currently hold that office or use the term 're-elect' voluntarily'undertaken by citizens independently"
when,the candidate has never been elected at a primary,. of a carididate's campaign.' (Footnote omitted.) '
:general;'or special election,to the office for which he is_aAgain,In striking down the independent expenditure
candidate, ; z R; "limitations of the Federal Election Campaign Act of 1971,
r
6(2);Malde`a false`'statement concerning,the formal 18 U.S.C."§608(e)(1) -(1970 'ed., Supp:. Iii{ (repealed
schooling'or training' completed or attempted, by',,a 1976),-'we distinguished'another section of the statute
candidate;"a,degree; dipiomia,;certificate, scholarship, (g608(b), which we'upheld) that placed a ceiling on
award,prize,or honor�reeeived earned,o_r held political campaign �'t
.grent;. by contributions, a _
a ieandidate; 'or, the period of time during which a 'By DMtmst, .§608(e)(1) :limits expenditures 'for
candidate .attended any schboi, _College, community 'express "advocacy •-of 'candidates. made totally r
"technkal school,or institution; independently of:the candidate'.end his campaign.
.Mahe a false statement oormertiing 'Lha Unlike contributions;:such independent expenditures
professional,occupational,or'vocational licenses held by. may Well provide little assistance to the candidate's
sicandidate; or concerning any position the candidate' ;cgnampaiand indeed may prove counterproductive: -The
` 'held for which he received a cw w -absence of, prearrangement and 'coordimtion of 'an
ages, �,,•
` '(4) Make a false statement that a candidate 'or expenditure,.with`the candidate or his agent not only
public official has been indicted or convicted.of a theft undermines the value of the expenditure to. the
offense, extortion,'or other crime I involving financial candidate, but also 'alleviates the danger, that, j
corruption or Moral.turpitude; -' expenditures will be given as a quid pro quo for improper
1(5) Make a statement that a candidate hes been commitments from . the candidate. Rather than
indicted for any crime or has been the subject'of a preventing circumvention of the contribution limitations,
finding by' the Ohio elections commission without §608(e)(1), severely. restricts all independent advocacy
disclosing the outoome of any legal proceedings resulting despite its substantially diminished potential for abuse.'
Brom the indictment or finding; 424 U.S.,at 47.
:' 0(6) Malde a false statement that a candidate'or 15. 'The risk of corruption perceived in uses
official has a record of treatment or :confinement for involving candidate elections, e. g., United States v. '
�.s
mental disorder, Automobile Woskers,1352 U.S. 567(1957)]; United States
1(7) Make a false statement that a candidate or v.00,.1335 U.S.'106(1948)], simply is not present in a
official has been subjected to military discipline for popular vote on a public issue.' First Nat.Bank of Boston
c dminal misconduct or dishonorably discharged from the v.BeUottl,435 U.S.765,790(1978)(footnote omitted). r;r {�of 's C::•
armed services; 16. As the Illinois Supreme Court explained in
"(8)Falsely identify the source of a statement,issue 'People v. White, 116 ill. 2d 171, 180, 506 N. E. 2d 1284,
statements under the name of another person without 1288(Ill. 1987),which struck down a similar statute:
authorization, 'or falsely state the endorsement of or "Implicit in the state's ... justification is the concern '-
opposition to a candidate by a person or publication;. that the public could be misinformed and an election
19) Make a false statement concerning the voting swayed on the strength of an eleventh-hour anonymous
record of a candidate or public official; smear campaign to which the candidate could not
'(10)Post,publish,circulate,distribute,or otherwise meariftVWly'respond. The statute cannot be upheld on
disseminate a.false statement, either knowing the same this ground,however,because it sweeps within its net a
to be false or with reckless disregard of whether"it was great deal of anonymous speech completely unrelated to
false or not, concerning a candidate that is designed to this concern. In the fust place, the statute has no time
promote the election, nomination, or defeat' of,the limit and applies to literature circulated two months
candidate. As used in this section,'voting record'means prior to an election as well as that.distributed two days
the recorded 'yes' or 'no' vote on a bill, ordinance, before. The-statute alsoprohibits anonymous literature
resolution,motion,amendment,or confirmation.' Ohio supporting or opposing not only candidates, but also
Rev.Code referenda. A public question clearly cannot be the victim '
13. The same can be said with regard to "libel,'as of character assassination.'
many of the above-quoted election code provisions The temporal breadth of the Ohio statute also
'Prohibit false statements about candidates. - To the distinguishes it from the Tennessee law that we upheld
extent those provisions may be underinclusive; Ohio in Burson v. Freeman, 504 U. S. _ (1992). -The
courts also enforce the common-law tort of defamation. Tennessee statute forbade electioneering within 100 feet
See, e.g., Voranese v. Gall, 35 Ohio 3t 3d 78, 518 N. E. of the entrance to a polling place. It applied only on
2d 1177(1988)(applying the standard of New York 71mes election day. The' state's interest in preventing voter
Co. v. Sullivan, 376 U.S. 254 (1964), to an Ohio public' intimidation and election fraud was therefore enhanced
official's state-law libel claim arising from an election- by the need to prevent last-minute misinformation to
related advertisement). Like other forms of election which there is no time to respond. Moreover,Tennessee
I fraud,then,Ohio directly attacks the problem of election- geographically confined the reach of its law to a 100-foot
r related libel;to the extent that the anonymity ban serves no-solicitation zone. By contrast, the Ohio law forbids
the same interest,it is merely a supplement. anonymous campaign speech wherever it occurs.
i
1
4980. ' Dally AppellateReport : Thiusday,`April 20,F1995
17 ,R47n dgcIding-whether this novel aiid.;restrictive :;.+< Ne..93-986
glosson; the First;,Amendment.:.comports ,with•.the. „• , . ,_. .,,xtz,, al,:
.Constitution and:the meoedents,of,this;Court;:we:need .4OSMM,Wc1NTVRZ, R or,sSTATX OF MAR
nOt survey the,outer boundaries,:of the.Amendment's CARET,MC1NTYRE,DECZABED,,PSTITIONSR.v.'•rr
protection of corporate speech,;or,address,the abstract 0100 ELECTIONS COM USSION
question.•whether,corporations have.the Rill measure,of O>t WRIT OF tZR?loROAPRl O7l�8i1PREl &COURT
i� rights , that individuals, enjoy„ under the,: First Il►P
19'199
Amendment."'Bellotti,435 U.S.,at 777-778
b1 a footnote to,that passage,we continued JUSTICE GINSBURCI,concurring.
Ii `Nor..is there.any occasion to consider.In this case '.
The dissent is stirring in its appreciation of
whether,,under different circumstances,•a juatlfication g
'
for:a restrictlont on speech that would be:inadequate as
democratic values. But I do not see the'Court s
opinion ae`unguided by'bedrock principle,"tradition,
l :
applied,to individuals might suffice to sustain the.acme or our case law. See post, at 8, 5A,`9-11. Margaret
restriction as, applied to oorporations,,unions,,or like
I entities." Id,,at 777-778,n J3.11 Mdrilyre s case," it seems`to' me, bears.a marked
Is- "'Corporate advertising,unlike some methods of
resemblance
Margaret Gilleo's case ':Arid M
ary
participation in political campaigns,is,M. mly to be,highly t3race's? `All three decisions,.I believe; are sound,
r an hardly sensational,, applications of our `First
visible. Identification•of the source of advertising
may be
s *required as a means of disclosure,so that the people will Amendment jurisprudence.
e$, - be able-to evaluate .the arguments to which.they are In for a calf is not always. in for a cow The
!. being subjected." SeeBuckley, 424 U.S, 'at 66-67; Court s decision finds unnecessary;overintrusive,.and
United States v. Harriss, 347.U.S. 612, 625-626(1954): inconsistent , with American ideals the State's
In add_ition, we emphasized.in Buddey the.prophylactic imposition of a fine on an u►dividual leafleteer who,
effect of requiring that the source of comniunication`be within''her local community,'spoke. her 'aunil;',but
�'•� disclosed. _424 U.3:, at 67." Bellotti,435.U.S.,at 742, sometimes not her name. We do not thereby hold
n.32. that the'State may not in other,larger circumstances,
i 19. One of those provisions addressing require the speaker to disclose its interest- by
contributions by campaign committees,requires: disclosing its identity. Appropriately leaving open
"the identification of each'person to whom,; matters not presented by McIntyre's handbills; the
expenditures have been made by such committee Court recognizes that a State's interest in protecting
or on behalf of such committee `within the : an election process 'might justify a more limited
calendar year in an aggregate amount or value In identification requirement." Ante, at 19.'" But the
44 excess of$100,the amount,date,and,purpose of Court,has convincingly,.explained why Ohio lacks
each such expenditure and the name and address 'cause for inhibiting the leafletting at issue here:"
rif of,and office sought by,each candidate on whose Ibid
behalf such expenditure was made.". 2 U.S.C.
-§434(b)(9) (reprinted in Buckley, 424 U S., at .Footnotes: '
158).: 1. See City of Ladue v. Gilleo,512 U;S. (1994),
}! A separate provision,,2 U.S.C. §434(e)(reprinted in iri;which we held that the City of Ladue could not
i! Buckley,424.U.S.,at 160);requires individuals making prohibit homeowner GWeds display of a small sign; on
contributions or expenditures to file statements contain- her lawn or in a window, opposing war in the`Perslan
ing the same information.: Clulf
.20. This interest also,serves•to distinguish United 2. Grace was the'tone picketer"who stood on the
States v. Harriss, 347 U.S. 612 (1954);,in which we sidewalk in front of this Court with a sign containing the
j upheld limited disclosure requirements for lobbyists. The text of the First Amendment, prompting us to exclude
activities of lobbyists who..have direct access.to elected ' public sidewalks from the statutory ban on display of a
`` representatives, if undisclosed,,may• well present the 'flag;banner,or device"on Court grounds; United States
appearance of corruption. v.Grace,.461 U.S. 171. 183,(1983).,-:21. We note,here also that the;federal Act, while
constitutional on its face,may not be constitutional In all
its applications. Cf Brouni .v.-Sodalist:.Workers .'74
Campaigrt,Comm (Ohio), 459 U. S. 87,88 (1982) (holding SUPREME COURT OF,THE UNITED STATES
{` Ohio disclosure requirements unconstitutional as applied
to'a minor political party which historically has been the No.93-986
object of harassment by government officials-and private
parties'; Buckley, 424 .U.S., at 74 (exempting minor JOSEPH WINTYRE,ExccUTolt OP ESTATE OP MAK-
parties from disclosure requirements if they can show'a GARET MCOTYRE,DECEASED,PETITIONER v.. .
reasonable probability that the compelled disclosure of a OHIO ELECTIONS COMMISSION
party's contributors'names will subject them to threats, ON WRIT OF CERTIORARI TO THE SUPREME COURT
harassment,or reprisals from either Government officials OP OHIO
or private parties'. [April 19, 19951
JUSTICE THOMAS,concurring in the judgment.
I agree with the majority's conclusion that Ohio's
election law, Ohio Rev. Code Ann. §3599.09(A), is
SUPREME COURT OF THE UNITED STATES inconsistent with the First Amendment. I would
apply, however, a different methodology to this case.
'V, Thursday,:April 20, 1995 , Daily Appellate Report 4981 4
Instead of asking whether'an honorable tradition' of writing of-the American Revolution occurred." 1 B. ?
anonymous speech has existed throughout American Bailyn, -Pamphlets of the American Revolutidi i3
history;'br what.the "value"'of anonymous'speech (1965). This practice continued during the struggle
might be; we should determine whether the phrase for ratification. See, e.g.; Pamphlets`' on' the
'freedom of speech, or of the press,' as originally Constitution of the United States (P. Ford, ed. 1888).
understood,protected anonymous political leafletting. Regardless of whether one designates the right
I believe that it did. involved here as one of press or one of speech, ,
n` however, it makes little difference in terms of our
analysis, which seeks to determine only whether the
First Amendment, as originally understood, protects 1p;
-..The First Amendment states that the government anonymous writing.
"shall make no law .:. abridging the freedom of There is little doubt that the Framers engaged in
speech,or of the press." U. S.Const.,Arndt. 1. When anonymous .political writing. The essays in the
interpreting the Free Speech and Press Clauses, we Federalist Papers,published under the pseudonym of
must be guided by their original meaning, for '[t]he 'Publius," are only the most famous example of the "f
Constitution is a written instrument. As such its outpouring of anonymous political writing that `?
meaning does not alter. That which it meant when occurred during the ratification of the Constitution.
adopted, it means now." South Carolina v. United Of course, the simple fact that the Framers engaged F
States, 199 U. S. 437, 448 (1905). We have long in certain conduct does not necessarily prove that
recognized that the meaning of the Constitution they forbade its prohibition by the government. See
'must necessarily depend on the words of the post, at'4 (SCALIA, J., dissenting). In this case,
constitution [and] the meaning and intention of the however,the historical evidence indicates that Found-
convention which framed and proposed it for adoption ing-era Americans opposed attempts to require that L;
and ratification to the conventions ...in the several anonymous authors reveal their identities on the
states." Rhode Island v. Massachusetts, 12 Pet. 657,, ground that forced disclosure violated the"freedom of
721 (1838). See also INS v. Chadha, 462 U. S. 919, the press."
959 (1983). We should seek the original understand- For example, the earliest and most famous
ing when we interpret the Speech and Press Clauses, American experience with freedom of the press, the i
just as we do when we read the Religion Clauses of 1735 Zenger trial, centered around anonymous
the First Amendment. When the Framers did not political pamphlets. The case involved a printer,John
discuss the precise question at issue,we have turned Peter Zenger, who refused to reveal the anonymous
to "what history reveals was the contemporaneous authors of published attacks on the Crown governor
understanding of [the Establishment Clause's] of New York. When the governor and his council j
guarantees." Lynch v. Donnelly, 465 U. S. 668, 673 could not discover the identity of the authors, they
(1984). ')T]he line we must draw between the prosecuted Zenger himself for seditious libel. See J.
permissible and the impermissible is one which Alexander, A Brief Narrative of the Case and Trial of
accords with history and faithfully reflects the John Peter Zenger 9-19 (S. Katz ed. 1972). Although
understanding of the Founding Fathers.' Abvtgton the case set the colonies afire for its example of a jury
School Dist. v. Schempp, 374 U. S. 203, 294 (1963) refusing to convict a defendant of seditious libel
(BRENNAN, J., concurring); see also Lee v. Weisman, against Crown authorities, it also signified at an early
i
505 U. S. _ (1992) (slip op., at 2-3) (SCALIA, J., moment the extent to which anonymity and the
dissenting). freedom of the press were intertwined in the early
American mind.
II During the Revolutionary and Ratification v
periods, the Framers' understanding of the
Unfortunately, we have no record of discussions relationship between anonymity and freedom of the
of anonymous political expression either in the First press became more explicit. In 1779, for example,
Congress, which drafted the Bill of Rights, or in the the Continental Congress attempted to discover the
state ratifying conventions. Thus, our analysis must identity of an anonymous articlein the Pennsylvania
focus on the practices and beliefs held by the Packet signed by the name"Leonidas." Leonidas,who
Founders concerning anonymous political articles and actually was Dr. Benjamin Rush, had attacked the
pamphlets. As an initial matter, we can safely members of Congress for causing inflation throughout
maintain that the leaflets at issue in this case impli- the States and for engaging in embezzelment and
cate the freedom of the press. When the Framers fraud. 13 Letters of Delegates to Congress 1774-
thought of the press, they did not envision the large, 1789,p. 141 n. I (G. Gawalt&R. Gephart eds. 1986).
corporate newspaper and television establishments of Elbridge Gerry, a delegate from Massachusetts,
a our modern world. Instead, they employed the term moved to haul the printer of the newspaper before
"the press'to refer to the many independent printers Congress to answer questions concerning"Leonidas.'
who circulated small newspapers or published a Several members of Congress then rose to oppose
' writer's pamphlets for a fee. See generally B. Bailyn Gerry's motion on the ground that it invaded the
& J. Hench, The Press & the American Revolution freedom of the press. Merriweather Smith of Virginia
(1980); L. Levy, Emergence of a Free Press (1985); B. rose, quoted from the offending article with approval,
Bailyn, The Ideological Origins of the American and then finished with a declaration that'fw]hen the
Revolution (1967). "It was in this form--as pamphlets liberty of the Press shall be restrained . . . the
--that much of the most important and characteristic liberties of the People will be at an end." Henry
!I
t
l 4982 Daily Appellate.Report Thursday,A 199.5
Laurens, Notes of Debates, July 3, 1779, id, at 139. "foreign enemies" would attempt ,to scuttle the
4 Supporting Smith, John Penn of;,North Carolina Constitution``by "'fill(iiW the press`with objet Noris"'
argued that-the'writer''no doubt had good designs,' agamat the proposal: Bostori°Independent Chronicle;+
} andlthat '(t)he hberty'of the Press ought not'"to be' Oct 4, -1787, 13 'Documeritary' Historyof the'
t restrained. Ibid. In -the end, these arguments' Ratification of the Constittitiofi`315(J Kaminski&_G:
'f persuaded the assembled delegates; who''sat'mute' Salad& eds =1981) (hereinafter DocumentaryHis=
l.
inresponse to Gerry's*motion. kE,*t-141.'"Neithei tory): He`' called upon, printers to refrain -from+
i, the printer• 'nor Dr. •Rush ever;,appeared •before" publishing •when`the author'''chooses to remain'
•i Congress to'answer for their publications 'D. Teeter;' cofioealed.' Ibid. Benjamin Russell,the editorof the
Press Freedom and the Public Prin ' Penns Prominent Federalist newspaper the,Massacliusetts`
-f' ting•. Pennsylvania;, P P�._.
1775-83,45 Journalism Q.445,451(1968) Centinel immediately adopted a policy'of refus", to'
At least one of the state legislatures 'shared publish Anti-Federalist pieces'unless z'the `author
Congress' view that the freedom of the press provided his'identity to be"handed to the publick,Af
fi protected anonymous writing. Also in 1779,,the required." Massachusetts Centinel,Oct 10,1787;fd;
upperhouse of the,New Jersey State-Legislature at 312,315-316'A few days-later,the'-Massachusettzi
attempted to punish the author of a satirical attack on Gazette announced that it :would emulate the'
y the Governor and the College of.New Jersey (now example set-by:he'Massachuseits CentineL Massa e
;.j Princeton)who had signed his work'Cincinnatus.'-' R, chuaetts'Gazette,:Oct.16, 1787, id.,'at 317 If'Ahe.
Hixson,'Isaac.Collins: A Quaker Printer-in 18th' same`asaue, the Gazette-carried an.article c]a�mvng"
F e Century:America 95 (1968). Attempting to enforce that requiring an anonymous writer to leave his name`
!•;"a
the crime of seditious'Ebel, the state Legislative with the printer, so that anyone who wished to know
rj Council grdered Isaac Collins—the printer and editor his identity•could be informed; 'appears perfectly
of the newspaper in which the article had appeared reasonable,and is perfectly consistent with'the hberfy
F�. to reveal; the author's identity. - Refusing, Collins of the'press." 'A Citizen, Massachusetts Gazette;Oct:
declared: "'Were-I to comply . .. I conceive I should 16,11787 lid.,' at 316. Federalists expressed similar
betray the trust reposed in me,and be far from acting thoughts m Philadelphia See A Philadelphia`
as a faithful guardian of the Liberty of the Press.'" Id; Mechanic;` Philadelphia Independent Gazetteer,.Oct
at 96. Apparently, the State Assembly.agreed that 291 1787, id.; at 318-319; Galba, Philadelphia Inde-
F anonymity was.protected by the freedom of the press,` pendent Gazetteer, Oct 31, 1787, id., at 319. `The
" as it voted to support the editor and publisher by Jewel, Philadelphia Independent Gazetteer, Nov' 2,
"4 frustrating the Council's orders. Id,at 95: 1787;id.,'af 320.
B . 1784, the same governor of New Jersey, ' Ordin
rlip y g y, arily, the fact that some Founding era
William Livingston, was at work writing anonymous editors'as a matter of policy decided not articles that defended the
to publish
Ui
5right to publish an articles would seem to shed little light
a anonymously as part of the freedom of the press. upon'what the framers thought the government could
Under the 'pseudonym 'Scipio," Livingston wrote do.' The widespread criticism raised by the 'Anti
fd+; several articles attacking the Legislature's failure to, Federalists, however, who were the driving force.
Fro' lower taxes,and he accused a state officer of stealing behind the demand for a Bill of Rights, indicates that
or losing state funds during the British invasion of they believed the freedom of the press to include the
New Jersey. Id, at 107-109; Scipio, Letter to the right to author anonymous political articles and
ii Printer, Feb. 24, 1784, The New-Jersey Gazette. pamphlets.i''That most other Americana shared this
I; Responding to the allegations;the officer called upon understanding is reflected in the Federalists' hasty
i;
Scipio "to avow your publication, give up your real retreat before the withering criticism of their assault
1 name." S.Tucker,To Scipio, Mar. 2, 1784,The New- on the liberty of the press.
Jersey Gazette.. Livingston replied with a four-part Opposition to Russell's declaration centered in
series defending'the Liberty of the Press." Although Philadelphia. Three Philadelphia papers published
�j Livingston at first defended anonymity because it :the'Citizen"piece that had run in the Massachusetts
�5 encouraged authors to discuss politics without fear of Gazette. Id., at 318-320.2 In response, one of the
reprisal,he ultimately invoked the liberty of the press leading Anti-Federalist writers, the 'Federal Farmer,"
as the guardian for anonymous political writing. 'I attacked Russell's policy: "What can be the views of
11 hope (locker] is not seriously bent upon a total those gentlemen in Boston, who countenanced the
y+, subversion of our political system,' Scipio wrote. Printers'm shutting up the press against a fair and
,i "And pray may not a man, in a free country, convey free investigation of this important system in the
j; thro' the press his sentiments on publick grievances usual way?" Letter From the Federal Farmer No. 5,
. . . without being obliged to send a certified copy of Oct. 13, 1787,2 The Complete Anti-Federalist 254(H.
the baptismal register to prove his name." Scipio, On Storing ed. 1981). Another Anti-Federalist,
the Liberty of the Press IV, Apr. 26, 1784, The New- "Philadelphiensis,'also launched a substantial attack
Jersey Gazette. on Russell and his defenders for undermining the
To be sure, there was somecontroversy among freedom of the press. 'In this desperate situation of
newspaper editors over .publishing anonymous affairs the friends of this despotic scheme of
articles and pamphlets. But this controversy was government,were driven to the last and only altema-
resolved in a manner that indicates that the freedom tive from which there was any probability of success;
of the press protected an authors anonymity. The namely, the abolition of the freedom of the Press."
tempest began when a Federalist, writing anony- Philadelphiensis, Essay 1, Independent Gazetteer,
mously himself, expressed fear that 'emissaries' of Nov. 7, 1787, 3 id, at 102. In Philadelphiensis' eyes,
Thursday,April 20, 1995. DailyAppellate Report 4983 _
Federalist attempts to suppress the Anti-Federalist foundation in truth.` 13 Documentary History 3137,
Pre"by,yrequiring the disclosure of authors'identities 314.. Likewise,the Massachusetts Gazette.refused to
only foreshadowed the oppression permitted by the release the names of Anti-Federalist writers,when I"
new, Constitution.' 'Here. we see pretty plainly requested. Jbid. When Federalist attempts to. ban
through,[the Federalists'] excellent regulation of the anonymity are followed by a sharp, widespread Anti-
press, how.things are to be. carried on after the; Federalist defense in the name of the,freedom of the
G
adoption,.of the new constitution.' Id., at, 103. press, and then by an open Federalist retreat on the f
According to Philadelphiensis, Federalist policies had issue,I must conclude that both Anti-Federalists and
already=ruined freedom in Massachusetts: "In Boston Federalists believed that the freedom of the press
the.hbe of the rasa is now corn Tete abolished; included the t to publish without revealing the f
rty P. P ly right P g i
and.hence all other privileges and rights of the people. author's name.
will in a short time be destroyed.' Id,at 104. .
- Not limited to Philadelphia, the Anti-Federalist
i%
attack was repeated widely throughout the States.:In
New York,,.one writer exclaimed that the Federalist The historical record is not as complete or as full s'
effort to suppress,anonymity would "REVERSE the as I would desire. For example, there is no evidence !j{
important doctrine of the freedom of the press,'whose that, after the adoption of the First Amendment, the r
'truth' was "universally acknowledged.' . Detector, Federal Government attempted to require writers to t"
New York Journal, Oct. 25, 1787,,in Documentary attach their names to political documents. Nor do we
History 318. ."Detector' proceeded to proclaim that have any indication that the federal courts of the early
that Russell's policy was'the introduction of this first Republic would have squashed such an effort as a i +
trait of slavery into your country!' Jbid. Responding violation of the First Amendment. The understanding
to the Federalist editorial policy,a Rhode Island Anti- described above,however,when viewed in light of the
Federalist wrote: 'The Liberty of the Press, or the Framers' universal practice of publishing anonymous
Liberty which every Person in the United States at articles and pamphlets, indicates that the Framers
present enjoys .. . is a Privilege of infinite Importance shared the belief that such activity was firmly part of
. . ..for which . . . we have fought and bled," and that the freedom of the press. It is only an innovation of 4
the attempt by "our aristocratical Gentry, to.have_ modern times that has permitted the regulation of
every Person's Name published who should write anonymous speech.
against the proposed Federal Constitution, has given The large quantity of newspapers and pamphlets
many of us a just Alarm.' Argus, Providence United the Framers produced during the various crises of
States Chronicle, Nov. 8, 1787, id., at 320-321. their generation show the remarkable extent to which
Edward Powars, editor of the Anti-Federalist Boston the Framers relied upon anonymity. During the
American,.Herald, proclaimed that his pages would break with Great Britain, the revolutionaries
remain "FREE and OPEN to all parties." Boston employed pseudonyms both to conceal their identity
American Herald, Oct 15, 1787, id, at 316. In the from Crown authorities and to impart a message.
Boston Independent Chronicle of Oct. 18, 1787, Often, writers would choose names to signal their
'Solon'accused Russell of attempting to undermine a point of view or to invoke specific classical and
'freedom,and independence of sentiments' which modern "crusaders in an agelong struggle against
'should.never.be chedeed in a fire country' and was tyranny." A. Schlesinger,Prelude to Independence 35
"so .essential to, the existance of free Governments.' (1958). Thus, leaders of the struggle for }
Id,at 313. independence would adopt descriptive names such as
The controversy . over Federalist attempts to 'Common Sense,' a"Farmer," or"A True Patriot," or
prohibit anonymous political speech is significant for historical ones such as 'Cato"(a name used by many
several reasons. First, the Anti-Federalists clearly to refer to the Roman Cato and to Cato's letters), or
believed the right to author and publish anonymous "Mucius Scaevola.' Id, at xii-xiii. The practice was
political articles and pamphlets was protected by.the even more prevalent during the great outpouring of
liberty .of the press. Second, although printers' political argument and commentary that accompanied
editorial policies did not constitute state action, the the ratification of the Constitution. Besides"Publius," j
Anti-Federalists believed that the Federalists were prominent Federalists signed their articles and pam-
merely flexing the governmental powers they.would phlets with names such as 'An American Citizen,"
fully exercise upon the Constitution's ratification. 'Marcus,' 'A Landholder," "Americanus"; Anti-
Third, and perhaps most significantly, it appears that Federalists replied with the pseudonyms "Cato,"
the Federalists agreed with the Anti-Federalist "Centinel," "Brutus,' the 'Federal Farmer," and 'The
critique. In Philadelphia,where opposition to the ban Impartial Examiner.' See generally 1-2 Debate on
was strongest,there is no record that any newspaper the Constitution (B. Bailyn ed. 1993). The practice of
adopted the non-anonymity policy,nor that of any city publishing one's thoughts anonymously or under
or State aside from Russell's Massachusetts Centinel pseudonym was so widespread that only two major
and the Federalist Massachusetts Gazette. Moreover, Federalist or Anti-Federalist pieces appear to have
these two papers' bark was worse than their bite. In been signed by their true authors,and they may have
the face of widespread criticism, it appears that had special reasons to do so.3
Russell retreated from his policy and, as he put it, If the practice of publishing anonymous articles
"'readily"reprinted several anonymous Federalist and and pamphlets fell into disuse after the Ratification,
Anti-Federalist essays to show that claims that he had one might infer that the custom of anonymous
suppressed freedom of the press "had not any political speech arose only in response to the unusual
!I 4984 Dail llate'Re rt . Thursda ,April 2U;1995
1 Y APPe Po Y'..
I�
!, .` 7-1
.
conditions of the 1776-1787 period..'. Ager all 'the ape 'or '"0 press:,,meant;to;the' peopld"who
Revolution and the Ratification were not 'elections,' drafted and ratified the First Amendment Similarly,
Z1181se, either for candidates or 'for`discrete issues. whether certain types of expression.have "value"
Records from: the first =federal elections indicate; today has little significance; what.is important is
however,-.that' anonymous.political pamphlets and whether the .Framers in 1791 believed.anonymous
newspaper articles remained the favorite,medium`for apeech,.sufficiently valuable to.deserve the protection
"i expressing views'on candidatea:.:In Pennsylvania, for of..the, Bill.of Rights., . And although the.majority
example,,writers for "or' against the-Federalist and ..faithfully._.follows our approach_ to, 'content-based'
Anti-Federalist candidates wrote under the names ' speech regulations, we, need ;not .undertake this
"Numa,`'Pomprlius,''A'Friend to Agricuiture,>Trade, analysia when the original understanding provides,the
and Good Laws," 'A Federal Centinel,' a-'Freeman,' , answer.
} 'Centinel,"'A Real Patriot to All True Federalists;'A While,li JUSTICE SCALIA,I am loath to overturn
{ Mechanic," 'Justice," "A German Federalist," and so a century of practice, shared by.almost,allof the
on. See generally 1 Documentary-History.of the First States,.I believe the historical evidence_jrom,,the
-1790pp.246- 62 (M. framing . outwrecent tradition.
Whenq Federal Elections... 1788
( Jensen&R Becker eds. 1976).• This appears to haveinterpreting other provisions of the Constitution, this
been the practice in all of the major states of which Court has believed itself bound by the;text of,the
we have substantial records today..See l id.,at 446- Constitution and by the intent of those who drafted
464 (Massachusetts); 2 id., at .108422, 175-229 and''ratified it It ,should hold itselfto;no less a
<,E (Maryland);2 id.,-.at 387-397 (Virginia); 3 id, at 204- standard when interpreting the Speech and-.Press
216,436-493(New York)..It seems that actual names Clauses. After reviewing the weight of the,historical
1II, ,were used rarely,and usually only.by candidates who evidence, it seems that the Framers understood the
r l' wanted to explain their positions to the electorate.- First Amendment to protect aauthor's. right autho ,right to
;+ The use of anonymous writing extended to issues express his thoughts on political candidates or issues
F as well as candidates. The ratification of .the in an anonymous fashion. Because the majority,has
Constitution was not.the only•.issue discussed via adopted an analysis that is largely unconnected to,the
( ,G anonymous writings in the press.:- James Madison Constitution's text and history, I concur only in the
and Alexander Hamilton, for example, resorted to judgment
{ pseudonyms in the famous'Helvidius'.and'Pacificus"
debates over President Washington's declaration of
E neutrality in the war between the British and French. Footnotes:
1I See Hamilton, Pacificus No. 1, June 29, 1793; 15 1. The Anti-Federalists recognized little difficulty in
• Papers of Alexander Hamilton 33-43'(H. Syrett ed. what today would be a state action problem, because
1969); Madison, Helvidius No. 1,.Aug. 24, 1793, 15 they considered Federalist conduct in supporting the
Papers of James Madison 66-73 (f. Mason et al.,eds. Constitution as a preview of the tyranny to come under
I� 1985). Anonymous writings continued in such the new Federal Government
Republican papers as the Aurora and Federalists 2. As noted earlier, several pieces,in support
organs such as the Gazette of the United States at appeared in the Federalist newspaper, the 'Philadelphia
least until the election of Thomas Jefferson. See Independent Gazetteer. They were immediately answered
generally,J. Smith,Freedom's Fetters(1956). by two Anti-Federalists in the. Philadelphia Freeman's
Journal. These Anti-Federalists accused the Federalists
of"preventing that freedom of enquiry which truth and
1 honour never dreads, but which tyrants and tyranny
This evidence leads me to agree with the could never endure.' 13 Documentary History, at 317-
I1 majority's result, but not its reasoning. The majority 318.
fails to seek the original understanding of the First 3. See Mason, Objections to the Constitution,
Amendment, and instead attempts to answer the Virginia Journal, Nov. 22, 1787, 1 Debate on the
question in this case by resorting to three Constitution 345 (B. Bailyn ed. 1993); Martin, The
approaches. First, the majority recalls the historical
Genuine Information, Maryland Gazette, Dec. 28, 1787-
r Feb. 8, 1788, id, at 631. Both men may have made an
I�! practice of anonymous writing from Shakespeare's exception to the general practice because they both had
works to the Federalist Papers to Mark Twain.. Ante,
at 6-7, 23. .Second, it finds that anonymous speech attended the Philadelphia Convention,but had refused to
has an expressive value both to the speakerand to sign the Constitution. As leaders of the fight against
society that outweighs public interest in disclosure.
ratification, both men may have believed that they owed
a nal explanation to their constituents of their Third, it finds that §3599.09(A) cannot survive strict �mO p
Y scrutiny because it is a'content-based'restriction on
decision not to sign.
i speech.
I cannot join the majority's analysis because it
deviates from our settled approach to interpreting the SUPRE=COURT OF THE UNITED STATES
Constitution and because it superimposes its modem
theories concernmg' expression uP on the constitu-
No.
tional text. Whether "great works of literature-by
Voltaire or George Eliot have been published JOSEPH XCUfTYRE,EX&CtI'OR Or ES'PA'18 or MAR-
anonymously should be irrelevant to our analysis, GARET MCUfTYRE,DECEASED,PETITIONER v.
because it sheds no light on what the phrases 'free OHIO ELECTIONS COMMISSION
Thlusda A n120 �1995 Dai[ (late Re rt ¢
Y, P Y.pPl Po
„4985, s
ON wjur os.caa'ntopm T 7,=SUPRUM Count were not"in'use because they were
y
OF OHIO,- t "" ` ii it alb
.pain,'
[Apn�f1 19 1996] regarded as cruel puwshntents "
present- case :hes 'between, those~two
JUSMCE'SCALIA,...with whom THE CHIEF JUSTICE extremes r: Anonymous electioneering was "not
prolpbited,by law in 1791:or.-in•1868: In fact,rt was,
Joins,dissenting widely,; practiced at the '-earlier; date; an -
} At a time when both;; political breaches of ,
understandable`legacy of-'the..revolutionary. in
Government and.;.both ,political parties <yretlect a
-which political;dissent:could produce-governmental
War desire to :leave ,".•more;. decnaionmakmg
repnsal I need not dwell upon the evidence;of that,
authority to the States, Y's.decision mogea in the since it is described at length in.today?s-concurren"ce.
opposite direction,"adding to-the- legacy of inflextbie ;See ante, a, -3-13 (THOMAS,--:J.,. ,concurring m ''
:central ,mandates (irrevocable even by,,,-Congress) u eri The ractice'of anonymous electioneering
imposed by this Court! constitutional Iurispiudenoe
-Judgment),
•ate ii"less general in 1868;'whe''the. 6u -
ti,
In as inion which reads as thou rt is"address' m yhave.,bee
°p teentli Amendment was adopted,but at least as late .
some peculiar law like"
tlae,the Los.Angeles municcipal as 1837-it`was respectable'enough to.be engaged in,
ordinance:at issue in,Talley v.:.0 Afarnia,362.U'S."
.60 i
the:Court-invalidates a s cies of, rotedion . by.Abraham Lincoln. See 1:A.- Beveridge;.Abraham.
:(1960)', pe p
. .for,the election process :diet exists m a"vane of Iancoln 1809-1858, ; pp 215-216 (1928), 1
P �. y ty. ;Un rks 155- 6 '(R .
fornns.:in every,Stats.except California,and that has a
oone�ted wa of.Abraham lancaln 1 1
Wilson ed:1947).:.;e.
pedigree dating back to the.'end of.the I9th;centuryW
h3ut to prove that anonymous electioneering was
Preferring :the views of the English 'utnlrtarian. used frequently is not to establish that it is con'stitti
hiloso her John ;Stuart •IM ante' at,23, tory the
P P tional right. :Quite,obviously; not every•restrictlori
considered judgment 9.the American.people s elected I
upon expression that did not exist in 1791 or in 1868 1
representatives from coast to coast, the Court t'(
is ipso fano unconstitutional, or.eIse`modern`election
discovers a hitherto unknown, right to-be<unknown ;r
while engaging in electoral politics. I dissent from this laws o S.
those involved k Burson ov. 24 U.'n,
S.
imposition :of .free-speech_ imperatrvea -that are 504 U.S. 191 (1992), and Buckley w•Valeo,424 U n '
demonstrably not those of the American people today, 1`(1976), would be.prohibited, as would (to mention
only a few other categories) modern antinoise "?
and that there is inadequatereason to believe were <1
those.of the society that begat the First Amendment regulation of the sort-involved in Kovacs v. Cooper,
or the Fourteenth. 336 U.S. 77 (1949), and .Wand v: Rock Against
Racism,-491 U.S 781 (1989), and modernp�parade-
permitting-raga
lation of the ort;involved in v. I
-
I New Hampshire,312U.S.569(1941)."
The question posed by the present case is not the
Evidence that. anonymous electioneering"'was
easiest sort to answer for those who adhere to.the regarded as a constitutional right is sparse,and as far
Court's .(and the society's) traditional,view that the as I am aware evidence that it was generally regarded2
as such 'is'nonexistent The'concurrence points'.,to a
Constitution, liear+s its ,original., meaning„ and is .
„unchanging. 'Under that view,'(o]n every question of
'freedom of the'press objections that were made a
"against the refusal of some Federalist newspapers`to '
_construction, [we should] carry ourselves,.back'.to-.the
publish' arra ed essays o the. proposed
time when the Constitution was.'adopted;recollect the P Y PPceiTn6
spirit nnanifested in the debates;and instead,of-trying constitution (on the ground that they might be the
work of foreign agents). See ante,at 7-9 (THOMAS,J.,
(to find] what meaning may be squeezed�out of the
text, or invented against it, conform.to the probable concurring in judgment). But of course if every ,
one in which it was passed." T. Jefferson, Letter to partisan cry of freedom of the press were accepted
as v
William Johnsen (June 12, 2823), in..15 Writings of alid,our Constitution would be unrecognizable;
Thomas Jefferson 439, 449 (A. Lipscomb ed.-1904). and if one were to generalise from these particular
That=,technique is .simple of application :when yes' the First Amendment would be not only a
protection. for newspapers but a restriction upon
government conduct that is claimed to violate the Brill
of Rights or.the Fourteenth Amendment is shown,
them. Leaving aside, -however, the fact that "no �
:upon investigation, to have been engaged.in without governmental action was involved, the Anti-
objection at the very time the Brill of Rights or the Federalists had a point, inasmuch as the editorial
Fourteenth Amendment was adopted: There is no proscription of anonymity applied only to them; and
doubt, .
for example, that, laws against libel and thus had the vice of viewpoint discrimination. (Hence
obscenity do not violate `the freedom of speech' to the comment by Phtiladelphiensis, quoted in the
.which the:First Amendment refers; .they existed and concurrence:`'Here we see pretty plainly through(the
were universally approved in 1791. Application of the Federalists') excellent regulation of the press, how
principle of an unchanging Constitution is.also simple things are to be carried on after,the adoption of the
enough-at the other extreme, where the government new constitution." Ante, at 8 (quoting Philadel-
.conduct at issue was not engaged in at the time of Phiensis, Essay I, Independent Gazetteer, Nov. `7,
adoption,and there is ample evidence that the reason 1787' m 3 Complete Anti-Federalist 103 (H. Storing
it was not engaged in is that it was thought to violate ed. 1981)).)
the night embodied in the constitutional guarantee. The concurrence recounts other pre- and post-
Racks and thumbscrews,well known instruments for Revolution examples of defense of anonymity in the
name of'freedom of the press," but not a single one
involves the context of restrictions imposed in
AJ
i '
Daily p►Pheliate Report,. Thiusday,,A.pril 20;<1995
4r h.
i
connection,with Fa!free, democratic election, which is unique or,-extraordinary about it:i-Thw.earliest'atatute
all that is at issue here .For.many of them;moreover, -.of this sort was adopted•by Massachtisetts in"1890,
such as:'the 1735,Zenger;trial,,cgtte,rat 3-4,the.1779 little.-,.more'..than, 20'ryears ager the Fourteenth
',Le nidas':=controversy,,in the,Continental Congress, Amendment was.ratified. No less than 24 States had
„ ante, at 4, and„the 1779 agtion.,by..the New:Jersey, similar laws by'the•end of World-War I,1'and'today
rLegislahve Councxl:against,Isaac Collins;.ante, at 5, every State of the Union except California'has'one,
the issue,£ of anonynuty p was,,incidental ,to:{:,the` °as does`the District of Columbia.see'D.C.Code Ann.
4 << juriquestionably I,free-speech) :,,issue , of, •whether §1=1420(1992)'and as does the'Federal Government
criticism of the government:could be purashed by the where advertising relating 1. candidates for federal.
state .J ,, ..8 , s :> : . office is concerned, see 2 U.$'C: §441d(a) Sucli'a
w Thus,,:.the 'sum.total.pf..the.historical evidence :universal3 and long'establislied American legislative
marshalled by;the concurrence for the'principle-of practice must be=gveri precedence, 'I`think, over
constdutionai entitlement to anonymous electioneering, historical `and 'academic speculation' regarding"'a
Js.partisan claims in..the'debate on.ratification(which restriction that assuredly does not go to the heart"of
was.almoI. stAike..an.election),,•that.a viewpoint-based free'apeech"
- restriction.; on,,anonymity ., .by.;,newspaper-editors It sari b "said that we ignored a tradition'`as old,
.violates-freedom of speech This absence of historical and'almost as widespread, in'Texas y. Johnson;491
`. testimony:poncernutg the point,before us<is-hardly.- U S.'397'(1989),'.where we held unconstitutional`a
remarkable.• The issue of a governmental prohibition state law prohibiting desecration of'the United States
• upon anonymous:,electioneering in particular, (as flag.'See also United States v:EWunma ;'496U-.'-S.-310
opposed-to: a government,.prohibition.upon.:anony- (1990): But those 'cases merely stand for `the
�r
mous,.publication..in..general). simply 'never arose. proposition that post-adoption`tradition cannot alter
;Indeed; thereprobably never;arose even the abstract the core meaning-of a constitutional guarantee.�`As
i. question,of whether electoral openness and regularity we said in Johnson, "(ijf•there is a bedrock principle
was worth such a governmental.restriction.upon the underlying 'the First' Amendment, it is that the
{ normal right to-anonymous speech.. The idea of close government may not prolubit the expression of an
{; government.regulation of the electoral process.is a idea 'simply because society`finds the idea itself
more modern.phenomenon,.arriving in this country in offensive or ',disagreeable.* 491 U. S.';' at 414.
I the late 1800's. -See Burson v."man,supra,at 203 Prohibition of expression of contempt for the flag,
whether by contemptuous words; see Sheet v. New
{ .What we have,then,is,the.most difficult case for York, 394 U.S. 576 (1969), or by burning the flag,
determining the meaning.of the Constitution; No came, we said, within that."bedrock principle.. .The
accepted existence of governmental restrictions of the law at issue here, by contrast, forbids the expression
sort, . at issue .. here , demonstrates . their of no idea, but merely requires identificatiorf of the
constitutionality, but neither.can,their nonexistence• speaker when the idea is uttered in the electoral
�a j, clearly be attributed to constitutional objections. -In context: It is at the,periphery"of the First Amend
$I such a case, constitutional adjudication necessarily ment, like the law at issue in Burson, where we'took
?' involves not just histo but u ent "u gu '° p mg ag
1 history j dgm judgment as to idance from tradition in u 'hold' ainst
j whether the government action under challenge is constitutional attack restrictions upon electioneering
consonant with the concept of the protected freedom in the vicinity of polling places,see 504 U.S.;at 204-
(in this case, the freedom of speech and of the press) 206 (plurality.opinion);'id., at 214-216 (SCALIA,"J:,
that existed when the constitutional protection was concurrin in udgent)
{I accorded. In the present case, absent other ind tint
{ I would be inclined to agree with the concurrence that 11
a society which used anonymous political debate so
f� regularly would not regard as constitutional even The foregoing analysis suffices to decide this case
moderate restrictions made to improve the election for me. 'Where,the meaning of a constitutional text
process. a would, however,want further evidence of (such as 'the freedom of speech') is•unclear, the
:j
common practice in 1868, since I doubt that, the widespread '-and long-accepted' practices of the
li Fourteenth- Amendment time-warped the post-Civil American people are the best indication of what
�II
War States back to the Revolution.) fundamental beliefs it was intended to enshrine.
t I But there is other indication,of the most weighty Eben if I were to.close my eyes to practice, however,
sort: the widespread and longstanding traditions of and were to' be guided exclusively by deductive
our people. Principles of liberty fundamental enough analysis from our case law, I would reach-the same
to have been embodied within constitutional result'
guarantees are not readily erased from the Nation's Three basic questions must be answered to
consciousness. A governmental practice that has decide this case. Two of them are readily answered
become general throughout the United States, and by our precedents; the third is readily answered by
particularly one that has the validation of long, common sense and by a decent regard for the
accepted usage, bears a strong presumption of practical judgment of those more familiar with
constitutionality. And that is what we have before us elections than we are. The first question is whether
here. Section 3599.09(A)was enacted by the General protection of the election process justifies limitations
Assembly of the State of Ohio almost 80 years ago. upon speech that cannot constitutionally be imposed
See Act of May 27, 1915, 1915 Ohio Leg. Acts 350. generally. Of not, Talley v. California, which
Even at the time of its adoption, there was nothing invalidated a flat ban on all anonymous leafletting,
Thursday,";Apri120, 1995 ,:Daily Appellate Report - 4987
A
controls the_:decision here.)-,Our cases plainly answer U.S.C: §3685,;.and is.•stdl enforeed"'by:the-Postal
that question in the.affirmative—.indeed,they suggest Service:' Itis one of several federal,laws seem rwy p
that;no;justification`for regulation is,more compelling -invalidated-by today's opinion:.
than..protection of, the electoral •process. .":'Other The:, .Court's'..unprecedented •protection. for
' rights;even the most basic, are illusory if the right to anonymous speech does not even have the virtue of t"
vote is undermined.' Wesbeny v. Sanders,.376 U.-S. .establishing.a clear(albeit erroneous)rule of law. For
1,,17,(1964). The State hasa'compelling interest in after.having announced that this statute, because it
preserving the integrity of its election process.'..:Bu v. "burdens 'core political speech,': requires_'exacting
San.,Franctiseo.C1ty. Democratic Central .Comm.,•;489 scrutiny' and must be 'narrowly rtailored to serve an
U.,S. 214, 231 (1989). So significant have we found overriding state interest,' ante, at 13 (ordinarily*the 6 ``
.the interest in protecting the.electoral process to be kiss of death), .the opinion goes on to proclaim is
that welave have approved theprohibition of political soothingly (and unhelpfully) that 'a -. State's
speech entirely in areaa..:that, would impede that enforcement interest might:justify a more limited
process. Burson, supra, at 204-206 (plurality identification requirement." .Ante, at.19. See also t,
opinion). ante, at 2 (GINSBURG,J., concurring) ("We do not . ..
The second question relevant to our decision is hold that the State may not,in other, larger circum-
whether a 'right to anonymity' is such a prominent stances,require the speaker to disclose its interest by tq
! value in .our constitutional system that, even disclosing its,identity.1 Perhaps, then, not all the (
Protection of the electoral process cannot be State statutes I have.alluded to are invalid, but just
purchased at its expense. The answer,again,is clear. some of them; or indeed maybe all of them remain
no. Several of our cases have held that in peculiar valid in'larger cir6umstances"1 It may take decades
circumstances the compelled disclosure of a person's to work out the shape of this newly expanded right- ('q
identity would unconstitutionally deter the exercise of. to-speak-incognito,even in the elections field. And in iY
First Amendment associational rights. : See, ,e.g., `other areas, of,course, a whole new boutique of i
Braun v. Socialist Workers'74 Campaign Comm.(Ohio), wonderful First Amendment litigation opens its doors. {
459 U. S.87(1982);Bates v.Little Rock,361 U. S. 516 Must a parade permit, for example, be issued to a
(1960); NAACP v. Alabama ex rel.Patterson, 357 U.S. group that refuses to provide its identity, or that
449(1958). But those cases did not acknowledge any agrees to do so only under assurance that the identity `
general right to anonymity, or even any right-on the will not be made public? Must a municipally owned
part of all citizens to ignore the particular laws under theater that is leased for private productions book
challenge. Rather, they recognized a right to an_ anonymously sponsored. presentations? Must a
exemption , from otherwise valid . disclosure government periodical that has a'letters to the editor'
requirements on the part of someone who could show column disavow the policy that most newspapers have
a 'reasonable probability' that the compelled against the publication of anonymous letters? Must a
disclosure would result in "threats, harassment, or public university that makes its facilities available for
reprisals from either Government officials or private a speech by Louis Farrakhan or David Duke refuse to '>
parties.' This last quotation is.from Buckley v. Valeo, disclose the on-campus or off-campus group that.has
424 U. S. 1, 74 (1976) (per curiarn), which prescribed sponsored or paid for the speech? Must a municipal
the safety-valve of a similar exemption in upholding 'public-access'cable channel permit anonymous(and
the disclosure requirements of the Federal Election masked)performers? The silliness that follows upon a
Campaign Act, That is the answer our case,law generalized right to anonymous speech has no end. . .
provides to the Court's fear about the'tyranny of the The third and last question relevant to our
majority,' ante, at 23, and to its concern that decision is whether the prohibition of anonymous
"(plersecuted groups and sects from time to time campaigning is effective in protecting and enhancing
throughout .history have been able to criticize, democratic elections. In answering this question no,
oppressive practices and laws either anonymously or the Justices.of the majority set their own views—on a
not at all;"ante,at 8(quoting Talley,362 U. S.,at 64). practical matter that bears closely upon the real-life
Anonymity can still be enjoyed by those who require experience of elected politicians and not upon that of
it, without utterly destroying useful disclosure laws. unelected judges—up against the views of 49 (and
The record in this case contains not even a hint that perhaps all 50, see n. 4, supra) state legislatures and
Mrs. McIntyre feared 'threats, harassment, or the federal Congress. We might also add to the list on
reprisals'; indeed, she placed her name on some of the other side the legislatures of foreign democracies:
her fliers and meant to place it on all of them. See Australia,Canada, and England, for example, all have
App, 12,36-40. prohibitions upon anonymous campaigning. See, e.g.,
The existence of a generalized right of anonymity. Commonwealth Electoral Act 1918, §328 (Australia);
in speech was rejected by this Court in Lewis Canada Elections Act, R.S.C., ch. E-2, §261 (1985);
Publishing Co.v. Morgan,229 U. S. 288 (1913), which Representation of the.People Act, 1983, §110 (Eng-
held that newspapers desiring the privilege of second land). How is it, one must wonder, that all of these
class postage could be required,to provide to the elected legislators, from around the country and
Postmaster General, and to publish, a statement of around the world, could not see what six Justices of
the names and addresses of their editors, publishers, this Court see so clearly that they are willing to
business managers and owners. We rejected the require the entire Nation to act upon it: that requiring
argument that the First Amendment forbade the identification of the source of campaign literature
requirement of such disclosure. Id., at 299. The does not improve the quality of the campaign?
provision that gave rise to that case still exists, see 39
4988.: Daily,. kppellate Report., Thursday,April 20,:1995,,
i The Court says that the State has not explained had published, an editorial critical of a particular,..
"why_if can more easily enforce the direct bans on candidate to furnish space for that candidate to.reply.','.
disseminating false;,documents against anonymous But it is not usual for a.speaker to.put forward the,
authors.and distributors than against wrongdoers who best arguments against himself, and it is'.a.great.
might we false names and•addresses in an attempt to imposition upon flee speech to make hien do 'so..
avoid detection.':Ante,'at 19. I am not sure what this Whereas it is quite usual-it is expected—for a
..�i complicated comparison means. I am sure, however, speaker to identify himself, and,requiring that,:is.(at
Ct; that(1)a person-who is required to.put his name to a least when there are no.,special. circumstances
ji document is much less likely to lie than one who can present)virtually no imposition at all.
lie anonymously, and (2) the distributor of a leaflet We have approved much ,more onerous
which is unlawful because it is anonymous runs disclosure requirements in the name of fair elections.
{ much more risk of immediate detection and In Buckley v. Valeo, 424 U. S. 1 (1976), we upheld
); punishment than the distributor of a leaflet which is provisions of the Federal Election Campaign Act that
Ij unlawful because it is false. Thus, people will be required private individuals to report to the Federal
more likely to observe a signing requirement than a Election Commission independent expenditures made
ii naked"no falsity'requirement; and, having observed for communications advocating the election or,defeat
that requirement,will then be significantly less likely of a candidate for federal office. Id, at 80. Our
to lie in what they have signed. primary rationale for upholding this provision was that
But the usefulness of a signing requirement lies it served an 'informational interest' by 'increas[ing]
not only in promoting observance of the law against the fund of information concerning those who support
€; campaign falsehoods(though that alone is enough to the candidates,' id., at 81. The provision before us
sustain it).. It lies also in promoting a civil and here serves the same informational interest, as well
(.{ dignified level of campaign debate—which the State as more important interests, which I have discussed
'G� has no power to command, but ample power to above. The Court's attempt to distinguish Buckley,
encourage by such undemanding measures as a see ante, at 22-23, would be unconvincing, even if if
signature requirement. Observers of the past few were accurate in its statement that the disclosure
national elections have expressed concern about.the requirement there at issue 'reveals . far less
increase of character assassination--'mudslinging'' is - information' than requiring disclosure of the identity
i� the colloquial term--engaged in by political of the author of a specific campaign statement. That
)i candidates and their supporters to the detriment of happens not to be accurate, since the provision there
§} the democratic process. Not all of this, in fact not at issue required not merely "[dlisclosure of an ex-
much of it, consists of actionable untruth; most is penditure and its use, without more," ante, at 22. It
{' innuendo, or demeaning characterization, or mere required,among other things:
disclosure of items of personal life that have no "the identification of each person to whom
bearing upon suitability for office. Imagine how much expenditures have been made ... within the
all of this would increase if it could be done calendar year in an aggregate amount or value
anonymously. The principal impediment against it is in excess of $100, the amount, date, and
the reluctance of most individuals and organizations purpose of each such expenditure and the
� to be publicly associated with uncharitable and uncivil name and address of, and office sought by,
expression. Consider, ..moreover, the increased each candidate on whose behalf such
potential for "dirty tricks.' It is not unheard-of for expenditure was made.' 2 U. S.-C. §434(b)(9)
i campaign operatives to circulate material over the (1970 ed., Supp. IV) (emphasis added). See
name of their opponents or their opponents' also 2 U. S.C. §434(e) (1970 ed., Supp. IV).
supporters a violation of election laws in order to 424
� PP ( ) (Both reproduced in Appendix to Buckley,
I, attract or alienate certain interest groups. See, e.g., U. S.,at 158, 160).
I' B. Felknor, Political Mischief: Smear, Sabotage, and Surely in many if not most cases;this information will
II, Reform in U. S. Elections 111-112 (1992) (fake United readily permit identification of the particular message
j Mine Workers' newspaper assembled by the National that the would-be-anonymous campaigner sponsored.
I;1 Republican Congressional Committee); New York v. Besides which the burden of complying with this
Duryea, 76 Misc.2d 948, 351 N.Y.S.2d 978 (Sup. provision, which includes the filing of quarterly
{� 19741 (letters purporting to be from the "Action reports,is infinitely more onerous than Ohio's simple
Committee for the Liberal Party' sent by Repub- requirement for signature of campaign literature. If
'f licans How much easier—and sanction-free!—it Buckley y
•{ )• kley remains the law,this is an easy case.
jwould be to circulate anonymous material (for
example, a neatly tasteless, though not actionably * *
false, attack upon one's own candidate)with the hope
and expectation that it will be attributed to, and held I do not know where the Court derives its
against,the other side. perception that 'anonymous pamphleteering is not a
The Court contends that demanding the pernicious, fraudulent practice, but an honorable
disclosure of the pamphleteer's identity is no different tradition of advocacy and of dissent." Ante, at 23. I
from requiring the disclosure of any other information can imagine no reason why an anonymous leaflet is
that may reduce the persuasiveness of the pamphlet's any more honorable, as a general matter, than an
message. See ante, at 14-1,5. It cites Miami Herald anonymous phone call or an anonymous letter. It
Publishing Co. v. Tornillo, 418 U. S. 241 (1974),which facilitates wrong by eliminating accountability, which
held it unconstitutional to require a newspaper that is ordinarily the very purpose of the anonymity.
'Thursday,Apri120, 1995 Daily Appellate Report 4989
There are of course exceptions,and where anonymity election disclosure requirement as early as 1901,see Act
is needed'to_avoid"threats;haiassment;or reprisals" of Mar. 15, 1901, ch. .138,' §1,'1901' Cala Stats.`297,
the First Amendment will require an exemption from abandoned its law (then similar to OhWa) In 1983, see t
the Ohio law. C£ NAACP v.Alabamd ex neL Pcdfersor% Act of Sept::11; 1983, ch. 668, 1983 Cal. Stats.'2621,
357 U. S.449(1958). But to strike down the Ohio law. after a California Court of Appeal, relying primarily.on
in its general application- sindlar laws of 48 other our decision In?Wley,had declared the provision uncon-
States acid the Federal Government-on the ground stitutional, see Sdutster v..h Wertal Coitnty 1114niclpal
that-all anonymous communication is.iti-our society Coult 109 Cala App. 3d 8870.167 Cal.,Rptr. 447 (1980),
traditionally sacrosanct;,`seems..to'me'a.diatortion,,o -denied,450 U..& 1042(198 1).
the past that will lead to a coarsening of the future.
+respectfully dissent
it
Footnotes: ,
1. See A Ala. Code§17-22A413 (3upP:'1994),"
Alaska'
Stat. Ann. §15.56.010 (1988);Ariz. Rev. Stat. Ann. §16-
,- s i
912(Supp. 1994);Ark. Code Ann.§7-1-103(1993);Colo :
Rev. Stat.§1-13-108 (Supp. 1994); Conn. Oen.Stat.,§9=.
333w(Supp. 1994);Del.Code Ann.,Tit. 15,X8021,8023
(1993); Fla Stat: §§105.143 and ,106.1437 (1992); Oa
Code Ann..§21-2-415 (1993); Haw. Rev. Stat;,§11-215 sf• ri ri ri ti a,
(1988); Idaho Code §67-6614A (Supp. 1994); W. Comp.
Stat. §5/29-14 (1993); .Ind. .Code. §3-14-1-4 ':(Supp: . 1 Last 1
1994); Iowa Code §56.14 (1991); Kan. Stat Ann. §925- ' 1
2407 and 25-4156 (Supp. 1991); Ky. Rev. Stat;Ann.> TI1
§121.190 (Baldwin Supp. 1994); La Rev. ,Stat Ann. 1 Line') 1 1
§18:1463(West Supp. 1994);Me. Rev. Stat Ann.,Tit. 21 1 1
-A,§1014(1993);Md.Ann. Code,Art 33,§26-17 (1993); ' '
Mass. Oen. Laws §41 (1990); Mich. Comp. Laws,Ann. 1
§169.247 (West 1989); Minn. Stat §211B.04 -(1994);
Miss. Code.Ann. §23-15-899 (1990); Mo. Rev. Stat 1 1
§130.031 (Supp. 1994); Mont Code Ann: §13-35-225 Get
(1993); Neb. Rev. Stat §49-1474.01 (1993); New.'Rev.
Stat §294A.320 (Supp. 1993); N. ,H. Rev. Stat ,Ann. 1 Your ' }
§664:14. (Supp. 1992); N.J. Stat Anna .§19:34-38.1 11
(1989); N.M. Stat Ann. §§1-19-16 and 1-19-17 (1991); Oj A'�
N. Y. Elec. Law §14-106 (McKinney 1978); N.C..den. 1 1
Stat§163-274(Supp. 1994);N.D. Cent Code§16.1-10-
04.1 (1981); Ohio Rev. Code Ann. §3599.09(A) (1988); 1 Co 1 a
Okla. Stat,Tit 21, §1840 (Supp. 1995); Ore. Rev. Stat y•
§260.522 (1991); 25 Pa Cons. Stat §3258(1994);'R.I. 1 ✓ 1 y
Gen. Laws§17-23-2 (1988);S.C.Code Ann. §8-13-1354 1 1
(Supp. 1993); S.D. Comp. Laws Ann. §12-25-4.1 (Supp.
1994); Tenn.. Code Ann. §2-19-.120 (Supp. 1994); Tex.
Elec. Code Ann. §255.001 (Supp. 1995); Utah Code Ann. 1
§20-14-24 (Supp. 1994); Vt Stat. Ann., Tit 17, §2022 1
(1982); Va. Code Ann. §24.2-1014 (1993); Wash. Rev.
Code §42.17.510 (Supp. 1994); W. Va. Code §3-8-12
(1994);Wis.Stat§11.30(Supp. 1994);Wyo. stat§22-25 1 1
-110(1992).
Courts have declared some of these laws unconstitu- 1 Los Angeles Daily Journal 1 j
tional in recent years,relying upon our decision in Talley j
v. California, 362 U.S. 60 (1960). See, e.g., State v. 1 (2 13) 2 2 9 -5 3 0 0 1
Burgess, 543 So.2d 1332 (La. 1989); State v. North
Dakota Ed Assn, 262 N.W.2d 731 (N.D. 1978); People s�ss sss—
v. Duryea, 76 Misc. 2d 948, 351 N.Y. S.2d 978 (Sup.), f
affd, 44 App.Div.2d 663, 354 N.Y.S. 2d 129 (1974).
Other decisions, including all pre-Talley decisions I am
aware of,have upheld the laws. See, e.g., Commonwealth
v. Evans, 156 Pa Super..321,40 A.2d 137 (1944); State
v. Freeman, 143 Kan. 315, 55 P.2d 362 (1936); State v.
Babst, 104 Ohio St 167, 135 N. E.525(1922).
2.- It might be accurate to say that, insofar as the
judicially unconstrained judgment of American legisla-
tures is concerned, approval of the law before us here is
universal. California, although it had enacted an
fl
' ORDINANCE NO. 95-8
Campaign Spending Reform Ordinance
(Voluntary campaign expenditure limits for
supervisorial campaigns; advertising disclosure
requirements for independent expenditure committees )
The Contra Costa County Board of Supervisors ordains as follows
(omitting the parenthetical footnotes from the official text of
the enacted or amended provisions of the County Ordinance Code) .
SECTION I . SUMMARY. This Ordinance amends the Fair Campaign
Ordinance to specify contribution limits for independent
committees, to add additional reporting requirements for
candidates and independent committees, to add Article 530-2 . 7
"Supervisorial Campaigns, " which specifies the contribution and
voluntary expenditure limits for campaigns for the office of
supervisor, and to add Article 530-2 . 9 "Campaign Advertising
Disclosure, " which specifies the advertising disclosure
requirements for mass mailings sent by independent committees .
SECTION II . Section 530-2 .407 is added to the County Ordinance
code to specify the limits for contributions to committees making
independent expenditures, to read:
530-2. 407 Contributions to committees making independent
expenditures . In any county election cycle, any committee that
makes more than five thousand dollars ($5,000 ) in independent
expenditures for or against a candidate for the office of County
Supervisor during the twelve months preceding the election for
that office shall not accept contributions exceeding two thousand
five hundred dollars ($2,500 ) from a single source other than
contributions from broad based political committees, which are
limited to five thousand dollars ($5,000 ) .
(Ord. 95-8 §2 . )
SECTION III . Article 530-2. 7 is added to the County Ordinance
Code to specify the contribution and voluntary expenditure limits
for supervisorial campaigns, to read:
Article 530-2 .7
Supervisorial Campaigns
530-2. 702 Application .
(a ) This Article applies only to candidates for the office
of County Supervisor. Unless otherwise specified, "candidate"
includes recall candidates . "Recall candidates" means those
candidates who are running to replace an incumbent Supervisor who
is the subject of a ballot measure calling for his or her recall .
ORDINANCE NO. 95-8
1
q
(b) Ordinance Code sections 530-2.402, 530-2 .404 , 530-2 .405
and 530-2 . 603 shall not apply to candidates for the office of
County Supervisor.
(c) To the extent that there is any conflict between the
provisions of this article and the other provisions of Chapter
530-2, the provisions of this chapter shall prevail as to
campaigns for the office of County Supervisor.
(Ord. 95-8 S 3. )
530-2. 703 Individual campaign contributions .
(a) In a single election cycle, no person or political
committee (other than the candidate or a broad based political
committee) shall make, and no candidate or campaign treasurer
shall accept, any contribution to or for a single candidate for
County Supervisor or to or for a committee authorized in writing
by the candidate to accept contributions to him or her, which
will cause the total amount contributed by that person or
political committee in support of that candidate during that
election cycle to exceed one hundred dollars ($100) , except as
provided in subparagraphs (b)and (c) below.
(b) For candidates, except recall candidates, who adopt the
voluntary expenditure ceiling defined in section 530-2 . 707 , in a
single county election cycle, no person or political committee
(other than the candidate or a broad based political committee)
shall make, and no candidate or campaign treasurer shall accept,
any contribution to or for a single candidate for County
Supervisor or to or for a committee authorized in writing by the
candidate to accept contributions to him, which will cause the
total amount contributed by that person or political committee in
support of that candidate during that election cycle to exceed
seven hundred and fifty dollars ($750 ) .
(c) For recall candidates who have adopted the voluntary
expenditure ceiling defined in section 530-2 .707 , the
contribution limits for special elections specified in Government
Code section 85305 subsection(c) ( 1 ) and (2 ) shall apply.
(Ord. 95-8 S 3 . )
530-2 . 704 Broad based political committee campaign
contributions .
(a) In a single election cycle, no broad based political
committee shall make, and no candidate or campaign treasurer
shall accept, any contribution to or for a single candidate for
County Supervisor or to or for a committee authorized in writing
by the candidate to accept contributions to him or her, which
will cause the total amount contributed by such broad based
political committee in support of that candidate during that
election cycle to exceed two thousand five hundred dollars
( $2, 500) , except as provided in subparagraphs (b) and (c) below.
In a single election cycle, the total aggregate amount of
ORDINANCE NO. 95-8
2
contributions from all broad based political committees which a
candidate may accept shall not exceed ten thousand dollars
($10,000) except as provided in subparagraphs (b) and (c) below.
(b) For candidates, except recall candidates, who adopt the
voluntary expenditure ceiling defined in section 530-2 . 707 , in a
single county election cycle, no broad based political committee
shall make, and no candidate or campaign treasurer shall accept,
any contribution to or for a single candidate for County
Supervisor or to or for committee authorized in writing by the
candidate to accept contributions to him or her, which will cause
the total amount contributed by such broad based political
committee in support of that candidate during that election cycle
to exceed five thousand dollars ($5,000) . In a single county
election cycle, the total aggregate amount of contributions from
all broad based political committees which a candidate adopting
the voluntary expenditure ceiling may accept shall not exceed
forty thousand dollars ($40,000 ) .
(c) For recall candidates who adopt the voluntary
expenditure ceiling defined in section 530-2.707, during the
special election cycle for the election to replace the incumbent
subject to recall, the contribution limits for special elections
specified in Government Code section 85305 subsection(c) ( 3 ) shall
apply. In a single special election cycle, the total aggregate
amount of contributions from all broad based political committees
which a recall candidate adopting the voluntary expenditure
ceiling may accept shall not exceed forty thousand dollars
($40, 000)
(Ord. 95-8 § 3 . )
530-2 . 705 Return of excess contributions . If for any
reason the contribution limits set forth in Section 530-2 .703 and
530-2 . 704 have been exceeded, the candidate, other than a recall
candidate, or campaign treasurer may within thirty days after
receipt, return the excess amount of the contribution to the
contributor without penalty. The return of excess contributions
by recall candidates shall be governed by the provisions of the
California Code of Regulations .
(Ord. 95-8 § 3 . ) .
530-2 . 706 Limitation on personal loans .
(a ) In a single election cycle, no candidate shall lend to
his or her campaign or controlled committee any amount in excess
of five thousand dollars ($5,000) except as provided in
subparagraph (b) below.
(b) For candidates who adopt the voluntary expenditure
ceiling defined in section 530-2.707 , in a single election cycle,
the candidate shall not lend to his or her campaign or controlled
committee any amount in excess of thirty thousand dollars
($30, 000 ) .
(Ord. 95-8 § 3 . )
ORDINANCE NO. 95-8
3
530-2 . 707 Voluntary expenditure limits
(a) Statement accepting expenditure ceiling: All
candidates, other than recall candidates, who adopt the
expenditure ceiling specified in subsection (b) below may accept
contributions in the amounts specified in section 530-2 . 703,
subsection (b) and section 530-3.704, subsection (b) . All recall
candidates who adopt the expenditure ceiling specified in
subsection (b) below may accept contributions in the amounts
specified in section 530-2.703, subsection (c) and section 530-
3.704 , subsection (c) . Before accepting any contributions in the
amounts specified in those sections, a candidate as specified in
subsection (b) below, must file a statement with the County
Clerk- election division at the time the candidate files the
declaration for candidacy.
(b) Amount of expenditure ceiling. During an election
cycle, candidates who agree to accept the voluntary expenditure
ceiling shall not incur campaign expenditures exceeding eighty
thousand dollars ($80, 000) , except as set forth in subsection (c)
below.
(c) Contributions from individuals . During an election
cycle, a candidate who accepts the voluntary expenditure ceiling
and who raises twenty percent of the amount of that ceiling in
contributions of less than one hundred dollars ($100) from
individuals residing in the supervisorial district in which the
candidate stands for election, may incur ten thousand dollars
($10,000 ) in campaign expenditures in addition to that amount
permitted in subsection (b) .
(d) Notification by candidate who exceeds ceiling. A
candidate who declines to accept the voluntary expenditure
ceiling and who receives contributions or makes expenditures
equal to or exceeding the amount of the expenditure ceiling shall
notify the County Clerk-election division by both telephone and
guaranteed overnight mail on the day the expenditure ceiling is
exceeded.
(e) Exclusions . For purposes of this Article, expenditures
subject to the expenditure ceiling do not include:
( 1 ) expenditures for campaigns for other offices;
(2 ) expenditures for campaigns for the office of
Supervisor which occurred prior to the effective date of this
ordinance;
( 3 ) expenditures for office holder expenses . "Office
holder expenses" means those expenditures arising out of the
office holder's official duties which directly assist the office
holder in performing his official duties, or which directly
relate to a governmental purpose. "Office holder expenses"
include but are not limited to, (a) donations to charitable
organizations; (b) the cost of tickets to political events; (c)
the cost of postage, office supplies, stationary and similar
ORDINANCE NO. 95-8
4
expenses related to the conduct or performance of the office
holder's governmental duties; (d) reasonable expenses for travel
to conferences, seminars, educational events and similar
activities related to the office holder' s position; (e) the cost
of books or publications reasonably related to the office
holder's position; (f) litigation expenses related to the office
holder's actions as a supervisor. The expenses listed in items
(a) through (f ) shall not be considered "office holder expenses"
if they are used in connection with any office holder's campaign
for a future term of office as a Supervisor.
(Ord. 95-8 § 3 . )
530-2. 708 . Separate and special election cycles .
(a ) There shall be separate election cycles for the primary
election and for the general election, unless the candidate is
elected to office in the primary election.
(b) There shall be a special election cycle for the election
to fill the seat of an incumbent Supervisor who is the subject of
a ballot measure seeking the Supervisor' s recall . The special
election cycle shall begin the date the recall measure is
certified for the ballot and shall terminate the day of the
special recall election.
(Ord. 95-8 § 3 . )
530-2 . 709 . Fair Campaign Pledge . For elections for the
office of County Supervisor, paragraph 10 of the Fair Campaign
Pledge shall read:
"I shall limit my campaign expenses in each election
cycle to no more than that amount permitted in Ordinance Code
section 530-2. 707 "Voluntary Expenditure Limits . "
(Ord. 95-8 § 3 . )
530-2 . 710 Contributions cumulated . In a single election
cycle, if an individual, committee, or broad based political
committee contributes at least one hundred dollars to a
candidate, then the cumulative amount of any contributions to
that candidate and contributions to independent expenditure
committees on behalf of that candidate made by such individual or
committee shall not exceed seven hundred and fifty dollars
($750) , and in the case of broad based political committees shall
not exceed five thousand dollars ( $5, 000 ) .
(Ord. 95-8 § 3 . )
SECTION IV. Section 530-2 . 802 of the County Ordinance Code is
amended to require the filing of additional campaign and
independent expenditure statements seven days prior to the
election, to read:
530-2 . 802 Candidate and Committee reports . (a ) Each
candidate, each committee supporting or opposing a candidate for
county office, each committee supporting or opposing a local
ORDINANCE NO. 95-8
5
1
ballot measure which is being voted on only in Contra Costa and
each county general purpose committee which supports or opposes
candidates for county office or local ballot measures being voted
on only in Contra Costa County, shall file a campaign statement
in the County Clerk-election division office, on every date a
statement is required by the Political Reform Act covering the
same time period as the statement filed pursuant to state law and
two additional statements. The first additional statement shall
be filed by 12:00 noon on the seventh day before the election
covering the period between the previous statement filed and
12:00 midnight of the eighth day before the election. The second
additional statement shall be filed by 12:00 noon on the last
Friday before the election covering the period between the
previous statement filed and 12:00 midnight of the last Thursday
before the election. These additional filings must be timely
received by the filing officer and are not accomplished by
deposit in the mail . These statements shall include, in addition
to all matters required by this section, the same disclosures
required for the last campaign statement before the election by
the Political Reform Act.
(b) Each committee supporting or opposing the qualification
of a local ballot measure to be voted on only in Contra Costa
County shall file in the County Clerk-election division office a
statement of organization and a campaign statement on every -date
such statements are required by the Political Reform Act covering
the same time period as the statement filed pursuant to state
law, and additional campaign statements on the fifth day after
filing the statement of organization and the fifth day of every
month thereafter until petitions are filed or the deadline for
filing petitions, whichever is earlier. The closing date for the
period covered by an additional campaign statement shall be five
days prior to the deadline for filing the statement.
(c) In addition to campaign statements, each candidate, each
county general purpose committee, and each committee supporting
or opposing a candidate for county office or the qualification or
passage of a local ballot measure which is being voted on only in
Contra Costa County, which makes independent expenditures for or
against any candidate for county office or for or against the
qualification of, or passage of any local ballot measure, shall
file an independent expenditure report in the County Clerk-
election division office, on every date a report is required by
the Political Reform Act covering the same time period as the
report filed pursuant to state law, and two additional reports .
The first additional report shall be filed by 12:00 noon on the
seventh day before the election covering the period between the
previous report filed and 12:00 midnight of the eighth day before
the election. The second additional report shall be filed by
12:00 noon on the last Friday before the election covering the
period between the previous report filed and 12:00 midnight of
the last Thursday before the election. These filings must be
timely received by the filing officer and are not accomplished by
ORDINANCE NO. 95-8
6
deposit in the mail . Each independent expenditure report shall
contain the same disclosures required by Government Code Section
84203 .5 (b) . (Ords . 95-8 S 4 ; 92-9, 92-1 , 91-10, 84-14, 84-9 . )
SECTION V. Section 530-2 . 804 of the County Ordinance Code is
amended to require disclosure of the identities of persons who
direct or control independent committees, to read:
530-2. 804 Camnaian Statement. Each county campaign
statement required to be filed by candidates for county office,
county general purpose committees, committees supporting or
opposing a candidate for county office, or committees supporting
or opposing the qualification of, or passage of, a local ballot
measure which is being voted on only in Contra Costa County shall
contain:
( 1 ) (a) the total amount of all contributions received during
the period covered by the campaign statement that equaled twenty-
five dollars, or more, and (b) the total of all contributions of
less than that amount.
(2 ) If the cumulative amount of contributions during the
election cycle from a person is more than twenty-five dollars and
less than one hundred dollars and a contribution has been
received from that person during the period covered by the
campaign statement, the statement shall include the date, amount,
and type of each contribution, such as monetary or nonmonetary
(in-kind contribution) . In the case of in-kind contributions,
the fair market value shall be reported. If the value is
unknown, a written valuation shall be obtained from the donor and
this valuation reported.
(3) If the cumulative amount of contributions during the
election cycle from a person is one hundred dollars or more and a
contribution has been received from that person during the period
covered by the campaign statement, the statement shall contain
the same disclosures required by Government Code Section 84211
subsections (f ) , (r) , and (u) .
(4 ) The statement shall contain the same disclosures of
expenditures required by Government Code section 84211
subsections (b) , (h) , (i ) , ( j ) , (m) , (s ) , (t) , and (v) .
(5 ) Candidates and committees need not duplicate any reports
of contributions, loans, or expenditures required by state law
but may certify that reports made pursuant to this section are in
addition to those made pursuant to state law.
( 6 ) In the case of campaign statements filed by a committee,
other than a candidate controlled committee, the statement shall
contain the full name, and street address of any person or
ORDINANCE NO. 95-8
7
persons who direct or control the contributions or expenditures
made by the committee.
(Ords . 95-8 S 5, 92-9 , 92-1, 91-10, 84-9 . )
SECTION VI . Section 530-2 . 806 of the County Ordinance Code is
amended to require disclosure of the identities of persons who
direct or control independent committees domiciled outside this
county, to read:
530-2. 806 Out-of-county committee reports . Committees
domiciled outside this county which make independent expenditures
or contributions for or against any candidate for county office,
or for or against the qualification of, or passage of any local
ballot measure which is being voted upon only in Contra Costa
County shall file a report with the county clerk's elections
division, in the time and manner required by Government Code
Sections 84200 ff. and section 530-2.804, subsection (6 ) for
committees domiciled in this county which either support or
oppose a candidate for county office or support or oppose a local
ballot measure which is being voted on only in this county.
(Ords . 95-8 S 6 , 92-1, 91-10, 84-9 . )
SECTION VII . Article 530-2 . 09 is added to the County Ordinance
Code to require disclosure of contributors on mailers by
independent committees, to read:
Article 530-2 . 09
Campaign Advertising Disclosure
530-2 . 902 Disclosure of contributors required. Any
committee that makes, during the calendar year in which the
election is held, more than five thousand dollars ($5,000 . ) in
independent expenditures for or against a candidate for county
office or for or against the qualification of, or passage of a
local ballot measure being voted on only in this county shall
list the following information in a clear and legible manner on
the bottom one-third of the front page of any mass mailing sent
by the committee in the election for which the independent
expenditures were made.
(1 ) The names and occupations of individuals and the names
and business interests of non-individuals, of the five largest
contributors to the committee during the twelve months preceding
the most recently passed campaign reporting period listed in
order of the amount of contributions (except that no contributor
with cumulative contributions of two hundred fifty dollars ($250 )
or less need be listed) . The disclosure shall read: "Major
funding by: (name and occupation or business interest) " . In the
case of contributions from committees, the disclosure shall read:
'Major funding by: (name of committee) ; Expenditures directed
ORDINANCE NO. 95-8
8
by: (name and occupation or business interest of persons or non-
individuals who direct or control the expenditures of the
committee) " ; and
(2) If the committee has received at least one third of its
total contributions during the twelve months preceding the most
recently passed campaign reporting period from large out-of-
county contributor(s ) , the disclosure shall state "Major funding
from large out-of-county contributors. " "Large out-of-county
contributors" means a) those contributors who either are not
residents of the county or do not have a principal place of
business in the county and b) whose cumulative contributions to
the committee are $500 or more for the twelve month period
preceding the most recently passed campaign reporting period.
(3 ) This section does not apply to communications from an
organization to its members .
(Ord. 95-6 S 7 . )
SECTION VIII . EFFECTIVE DATE. This ordinance becomes effective
30 days after passage, and within 15 days after passage shall be
published once with the names of supervisors voting for and
against it in the a newspaper published in
this County.
PASSED ON by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST: PHIL BATCHELOR, Clerk of the
Board and County Administrator
By:
Deputy Board Chair
[SEAL)
MAM\am
as\does\campaign.ord
ORDINANCE NO. 95-8
9
COUNTY COUNSEL'S OFFICE
CONTRA COSTA COUNTY
MARTINEZ,CALIFORNIA
Date: February 15, 1995
To: Phil Batchelor, Clerk of the Board
Attn: Jeanne Maglio, Chief Clerk
From: Victor J. Westman, County Counsel
By: Mary Ann McNett Mason, Deputy County Counsel
Re: Campaign Spending Reform Ordinance
We have incorporated the changes to the Campaign Spending
Reform Ordinance made by the Board of Supervisors prior to the first
reading of the ordinance. A copy of the revised ordinance is
attached. We assume that the revised ordinance will be distributed
to the Board of Supervisors in the agenda packets for the meeting of
February 28, 1995 . At that meeting, the ordinance will be considered
for final adoption.
MAM\am
cc: Members, Board of Supervisors
(District Offices)
t
ORDINANCE NO. 95-
Campaign Spending Reform Ordinance
(Voluntary campaign expenditure limits for
supervisorial campaigns; advertising disclosure
requirements for independent expenditure committees )
The Contra Costa County Board of Supervisors ordains as follows
(omitting the parenthetical footnotes from the official text of
the enacted or amended provisions of the County Ordinance Code) .
SECTION I . SUMMARY. This Ordinance amends the Fair Campaign
Ordinance to specify contribution limits for independent
committees, to add additional reporting requirements for
independent committees, to add Article 530-2 . 7 "Supervisorial
Campaigns, " which specifies the contribution and voluntary
expenditure limits for campaigns for the office of supervisor,
and to add Article 530-2 . 9 "Campaign Advertising Disclosure, "
which specifies the advertising disclosure requirements for mass
mailings sent by independent committees .
SECTION II . Section 530-2 . 407 is added to the County Ordinance
code to specify the limits for contributions to committees making
independent expenditures, to read:
530-2 . 407 Contributions to committees making independent
expenditures . In any county election cycle, any committee that
makes more than five thousand dollars ( $5 ,000 ) in independent
expenditures for or against a candidate for the office of County
Supervisor during the twelve months preceding the election for
that office shall not accept contributions exceeding two thousand
five hundred dollars ($2 ,500 ) from a single source other than
contributions from broad based political committees , which are
limited to five thousand dollars ($5 , 000 ) .
(Ord. 95- §2 . )
SECTION III . Article 530-2 . 7 is added to the County Ordinance
Code to specify the contribution and voluntary expenditure limits
for supervisorial campaigns, to read:
Article 530-2 . 7
Supervisorial Campaigns
530-2 . 702 Application.
(a) This Article applies only to candidates for the office
of County Supervisor. Unless otherwise specified, "candidate"
includes recall candidates . "Recall candidates" means those
candidates who are running to replace an incumbent Supervisor who
is the subiect of a ballot measure calling for his or her recall .
ORDINANCE NO. 95-
1
J
(b) Ordinance Code sections 530-2 . 402, 530-2. 404, 530-2 . 405
and 530-2 . 603 shall not apply to candidates for the office of
County Supervisor.
(c) To the extent that there is any conflict between the
provisions o"f this article and the other provisions of Chapter
530-2 , the provisions of this chapter shall prevail as to
campaigns for the office of County Supervisor.
(Ord. 95- § 3 . )
530-2 . 703 Individual campaign contributions .
(a) In a single election cycle, no person or political
committee (other than the candidate or a broad based political
committee) shall make, and no candidate or campaign treasurer
shall accept, any contribution to or for a single candidate for
County Supervisor or to or for a committee authorized in writing
by the candidate to accept contributions to him or her, which
will cause the total amount contributed by that person or
political committee in support of that candidate during that
election cycle to exceed one hundred dollars ($100), except as
provided in subparagraphs (b)and (c) below.
(b) For candidates , except recall candidates , who adopt the
voluntary expenditure ceiling defined in section 530-2 . 707 , in a
single county election cycle, 'no person or political committee
(other than the candidate or a broad based political committee)
shall make, and no candidate or campaign treasurer shall accept,
any contribution to or for a single candidate for County
Supervisor or to or for a committee authorized in writing by the
candidate to accept contributions to him, which will cause the
total amount contributed by that person or political committee in
support of that candidate during that election cycle to exceed
seven hundred and fifty dollars ($750) .
(c) For recall candidates who have adopted the voluntary
expenditure ceiling defined in section 530-2 . 707 , the
contribution limits for special elections specified in Government
Code section 85305 subsection(c) ( 1 ) and (2 ) shall apply.
(Ord. 95- § 3 . )
530-2 . 704 Broad based political committee campaign
contributions .
(a) In a single election cycle, no broad based political
committee shall make, and no candidate or campaign treasurer
shall accept, any contribution to or for a single candidate for,
County Supervisor or to or for a committee authorized in writing
by the candidate to accept contributions to him or her, which
will cause the total amount contributed by such broad based
political committee in support of that candidate during that
election cycle to exceed two thousand five hundred dollars
-U2,500 ) , except as provided in subparagraphs (b) and (c) below.
In a single election cycle, the total aggregate amount of
ORDINANCE NO. 95-
2
contributions from all broad based political committees which a
candidate may accept shall not exceed ten thousand dollars
( $10 , 000 . ) except as provided in subparagraphs (b) and (c) below.
(b) For candidates , except recall candidates , who adopt the
voluntary expenditure ceiling definedinsection 530-2 . 707 , in a
single county election cycle, no broad based political committee
shall make, and no candidate or campaign treasurer shall accept,
any contribution to or for a single candidate for County
Supervisor or to or for a committee authorized in writing by the
candidate to accept contributions to him or her, which will cause
the total amount contributed by such broad based political
committee in support of that candidate during that election cycle
to exceed five thousand dollars ($5 , 000 . ) . In a single county
election cycle, the total aggregate amount of contributions from
all broad based political committees which a candidate adopting
the voluntary expenditure ceiling may accept shall not exceed
forty thousand dollars ( $40 , 000 . ) .
(c) For recall candidates who adopt the voluntary
expenditure ceiling defined in section 530-2 . 707 , during the
special election cycle for the election to replace the incumbent
subiect to recall , the contribution limits for special elections
specified in Government Code section 85305 subsection(c) ( 3 ) shall
apply. In a single special election cycle, the total aggregate
amount of contributions from all broad based political committees
which a recall candidate adopting the voluntary expenditure
ceiling may accept shall not exceed forty thousand dollars
( $40 , 000 .
530-2 . 705 Return of excess contributions . If for any
reason the contribution limits set forth in Section 530-2 . 703 and
530-2 . 704 have been exceeded, the candidate, other than a recall
candidate, or campaign treasurer may within thirty days after
receipt, return the excess amount of the contribution to the
contributor without penalty. The return of excess contributions
by recall candidates shall be governed by the provisions of the
California Code of Regulations .
(Ord. 95- § 3 . )
530-2 . 706 Limitation on personal loans .
(a) In a single election cycle, no candidate shall lend to
his or her campaign or controlled committee any amount in excess
of five thousand dollars ( $5 , 000) except as provided in
subparagraph (b) below.
(b) For candidates who adopt the voluntary expenditure
ceiling defined in section 530-2 . 707 , the limitation on personal
loans provided in subparagraph (a) above shall not apply.
(Ord. 95- § 3 . )
ORDINANCE NO. 95-
3
530-2 . 707 Voluntary expenditure limits
(a) Statement accepting expenditure ceiling. All
candidates , other than recall candidates, who adopt the
expenditure ceiling specified in subsection (b) below may accept
contributions in the amounts specified in section 530-2 . 703,
subsection (b) and section 530-3 . 704 , subsection (b) . All recall
candidates who adopt the expenditure ceiling specified in
subsection (b) below may accept contributions in the amounts
specified in section 530-2 . 703 , subsection (c) and section 530- .
3 . 704 , subsection (c) . Before accepting any contributions in the
amouhts specified in those sections, a candidate as specified in
subsection (b) below, must file a statement with the County
Clerk- election division at the time the candidate files the
declaration for candidacy.
(b) Amount of expenditure ceiling. During an election
cycle, candidates who agree to accept the voluntary expenditure
ceiling shall not incur campaign expenditures exceeding eighty
thousand dollars ($$0,000 . ) , or as set by the Board of
Supervisors by-Resolution.
(c) Notification by candidate who exceeds ceiling. A
candidate who declines to accept the voluntary expenditure
ceiling and who receives contributions or makes expenditures
equal, to or exceeding the amount of the expenditure ceiling shall
notify the County Clerk-election division bV both telephone and
guaranteed overnight mail on the day the expenditure ceiling is
exceeded.
(d) Exclusions . For purposes of this Article, expenditures
subject to the expenditure ceiling do not include:
( 1 ) expenditures for campaigns for other offices ;
_( 2 ) expenditures for campaigns for the office of
Supervisor which occurred prior to the effective date of this
ordinance;
( 3 ) expenditures for office holder expenses . "Office
holder expenses" means those expenditures arising out of the
office holder' s official duties which directly assist the office
holder in performing his official duties , or which directly
relate to a governmental purpose. "Office holder expenses"
include but are not limited to, (a) donations to charitable
organizations; (b) the cost of tickets to political events ; (c)
the cost of postage, office supplies , stationary and similar
expenses related to the conduct or performance of the office
holder's governmental duties ; (d) reasonable expenses for travel
to conferences , seminars , educational events and similar
activities related to the office holder' s position; (e) the cost
of books or publications reasonably related to the office
holder's position; (f ) litigation expenses related to the office
holder' s actions as a supervisor. The expenses listed in items
(a) through (f ) shall not be considered "office holder expenses"
ORDINANCE NO. 95-
4
if they are used in connection with any office holder' s campaign
for a future term of office as a Supervisor.
(Ord. 95- 3 . )
530-2 . 708 . Separate and special election cycles .
(a) There shall be separate election cycles for the primary
election and for the general election, unless the candidate is
elected to office in the primary election.
(b) There shall be a special election cycle for the election
to fill the seat of an incumbent Supervisor who is the subject of
a ballot measure seeking the Supervisor' s recall . The special
election cycle shall begin the date the recall measure is
certified for the ballot and shall terminate the day of the
special recall election.
(Ord. 95- § 3 . )
530-2 . 709 . Fair Campaign Pledge. For elections for the
office of County Supervisor, paragraph 10 of the Fair Campaign
Pledge shall read:
"I shall limit my campaign expenses in each election
cycle to no more than eighty thousand dollars ( $80 , 000 . ), or as
set by resolution of the Board of Supervisors . "
(Ord. 95- § 3 . )
530-2 . 710 Contributions cumulated. In a single election
cycle, if an individual, committee, or broad based political
committee contributes at least one hundred dollars to a
candidate, then the cumulative amount of any contributions to
that candidate and contributions to independent expenditure
committees on behalf of that candidate made by such individual or
committee shall not exceed five hundred dollars ( $500 . ) , and in
the case of broad based political committees shall not exceed
five thousand dollars ( $5 , 000 ) .
(Ord. 95- § 3 . )
SECTION IV. Section 530-2 . 804 of the County Ordinance Code is
amended to require disclosure of the identities of persons who
direct or control independent committees, to read:
530-2 . 804 Campaign Statement. Each county campaign
statement required to be filed by candidates for county office,
county general purpose committees, committees supporting or
opposing a candidate for .county office, or committees supporting
or opposing the qualification of, or passage of, a local ballot
measure which is being voted on only in Contra Costa County shall
contain:
( 1 ) (a) the total amount of all contributions received during
the period covered by the campaign statement that equaled twenty-
five dollars, or more, and (b) the total of all contributions of
less than that amount.
ORDINANCE NO. 95-
5
( 2 ) If the cumulative amount of contributions during the
election cycle from a person is more than twenty-five dollars and
less than one hundred dollars and a contribution has been
received from that person during the period covered by the
campaign statement, the statement shall include the date, amount,
and type of each contribution, such as monetary or nonmonetary
(in-kind contribution) . In the case of in-kind contributions,
the fair market value shall be reported. If the value is
unknown, a written valuation shall be obtained from the donor and
this valuation reported.
( 3) If the cumulative amount of contributions during the
election cycle from a person is one hundred dollars or more and a
contribution has been received from that person during the period
covered by the campaign statement, the statement shall contain
the same disclosures required by Government Code Section 84211
subsections (f ) , (r) , and (u) .
(4 ) The statement shall contain the same disclosures of
expenditures required by Government Code section 84211
subsections (b) , (h) , (i ) , ( j ) , (m) , (s ) , (t) , and .
(5 ) Candidates and committees need not duplicate any reports
of contributions, loans , or expenditures required by state law
but may certify that reports made pursuant to this section are in
addition to those made pursuant to state law.
(6 ) In the case of campaign statements filed by a committee,
other than a candidate controlled committee, the statement shall
contain the full name, and street address of any person or
persons who direct or control the contributions or expenditures
made by the committee.
(Ords . 95- § 4, 92-9 , 92-1, 91-10, 84-9 . )
SECTION V. Section 530-2 . 806 of the County Ordinance Code is
amended to require disclosure of the identities of persons who
direct or control independent committees domiciled outside this
county, to read:
530-2 . 806 Out-of-county committee reports . Committees
domiciled outside this county which make independent expenditures
or contributions for or against any candidate for county office,
or for or against the qualification of, or passage of any local
ballot measure which is being voted upon only in Contra Costa
County shall file a report with the county clerk' s elections
division, in the time and manner required by Government Code
Sections 84200 ff . and section 530-2 . 804 , subsection ( 6 ) for
committees domiciled in this county which either support or
oppose a candidate for county office or support or oppose a local
ballot measure which is being voted on only in this county.
(Ords . 95- § 5, 92-1 , 91-10, 84-9 . )
ORDINANCE NO. 95-
6
SECTION VI . Article 530-2. 09 is added to the County Ordinance
Code to require disclosure of contributors on mailers by
independent committees, to read:
Article 530-2 . 09
Campaign Advertising Disclosure
530-2 . 902 Disclosure of contributors required. Any
committee that makes , during the calendar year in which the
election is held, more than five thousand dollars ($5 , 000 . ) in
independent expenditures for or against a candidate for county
office or for or against the qualification of , or passage of a
local ballot measure being voted on only in this county shall
list the following information in a clear and legible -manner on
the bottom one-third of the front page of any mass mailing sent
by the committee in the election for which the independent
expenditures were made.
( 1) The names and occupations of individuals and the names
and business interests of non-individuals , of the five largest
contributors to the committee during the twelve months_ preceding
the most recently passed campaign reporting period listed in
order of the amount of contributions (except that no contributor
with cumulative contributions of two hundred fifty dollars ($250
or less need be listed) . The disclosure shall read: "Major
funding by: (name and occupation or business interest) " . In the
case of contributions from committees , the disclosure shall read:
"Major funding by: (name of committee) ; Expenditures directed
by: (name and occupation or business interest of persons or non-
individuals who direct or control the expenditures, of the
committee) " ; and
( 2) If the committee has received at least one third of its
total contributions during the twelve months preceding the most
recently passed campaign reporting period from large out-of-
county contributor(s ) , the disclosure shall state "Major funding
from large out-of-county contributors . " "Large out-of-county
contributors" means a) those contributors who either are not
residents of the county or do not have a principal place of
business in the county and b) whose cumulative contributions to
the committee are $500 or more for the twelve month period
preceding the most recently passed campaign reporting period.
( 3 ) This section does not apply to communications from an
organization to its members .
(Ord. 95- § 6 . )
SECTION VII . EFFECTIVE DATE. This ordinance becomes effective
30 days after passage, and within 15 days after passage shall be
published once with the names of supervisors voting for and
against it in the a newspaper published in
this County.
ORDINANCE NO. 95-
7
PASSED ON by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST: PHIL BATCHELOR, Clerk of the
Board and County Administrator
By:
Deputy Board Chair
[SEAL]
MAM\am
a:\docs\campaign.ord
ORDINANCE NO. 95-
8