Rehearing
OPINION ON REHEARING EN BANC
This аppeal involves the constitutionality, under the First and Fourteenth Amendments, of Colo.Rev.Stat. § 1-40-110 (1980)
The plaintiffs initiated a petition to amend the Colorado Constitution by removing motor carriers from the jurisdiction of the State Public Utilities Commission. In order to obtain the required number of signatures, the plaintiffs wished to pay other individuals to circulate the petitions. Plaintiffs brought suit under 42 U.S.C. § 1983 (1982) claiming that the statutory prohibition against such payment violates their rights of free speech and political association. The district court rejected the
I
The critical facts are not in dispute. Colorado is one of 23 states to allow its citizens to place propositions on the ballot through the initiative process. Colo. Const, art. V, § 1; Colo.Rev.Stat. § 1-40-101 et seq. (1980); see Defendant’s Exhibit E (“Initiative Provisions by State”). Under Colorado law, sponsors of the initiаtive must submit their proposition to the directors of the State Legislative Council and Drafting Office for review and comment. The draft is then submitted to a three-member board,
The plaintiffs submitted their initiative measure to the Secretary of State, and set out to obtain the required 46,737 signatures of registered voters. When the trial began the plaintiffs had slightly over one month remaining to obtain approximately 30,000 more signatures.
II
We have considered, sua sponte, several questions relating to the justiciability of the constitutional issue presented: (1) the desirability of abstention because of the criminal sanctions in the Colorado statute banning the payment of initiative petition circulators; (2) the question of ripeness since the plaintiffs have not yet been prosecuted for violating the Colorado statute; and (3) the possibility that the appeal is moot since the November 1984 election, which was originally in question, has alreаdy passed. We conclude that we should decide the merits of the appeal.
A.
We feel that abstention is not proper here. In opposing an injunction pending appeal, the State’s memorandum cited Younger v. Harris,
We also believe the dispute is ripe despite the absence of a pending criminal prosecution against any of the plaintiffs. The plaintiff class consists of five individuals and a corporation called “Coloradans for Free Enterprise, Inc.” The individual plaintiffs are registered voters in Colorado and several of them testified that they wished to pay others for their time and labor in circulating the petitions. Additionally plaintiffs Grant and Hoskins have been designated as representatives of the petition to deregulate Colorado’s transportation industry and plaintiff Coloradans for Free Enterprise, Inc., has supported the petition. Plaintiffs' Exhibit 1.
The plaintiffs are therefore parties “against whom these criminal statutes directly operate____” Doe v. Bolton,
C.
We also believe that the appeal is not moot even though the November 1984 general election has passed, as the Court held in First National Bank of Boston v. Bellotti,
These requirements are satisfied here. First, Colorado law requires proponents of an initiative to obtain a substantial number of signatures within a six-month period. Even if a proponent could obtain a favorable ruling within that time, he would likely be unable to take advantage of his victory by using paid circulators to obtain the necessary signatures. First National Bank of Boston v. Bellotti,
For these reasons we turn to the merits of plaintiffs’ constitutional claim.
Ill
A.
As noted, the district court rejected the plaintiffs’ claim on the merits, finding that the statute does not impose a burden on their right to free speech. The court stated that plaintiffs are not restricted in the
As to the first asserted state interest, the court found that the testimony lends credence to the State’s contentions that paid circulators would be persuaded to use sales techniques, not inherently illegal, just to enhance their own compensation. The court also referred to testimony about an incident in Florida where circulators padded petitions with names taken from a telephone book and cited evidence that no effort is made in Colorado to verify the validity of signatures except on the filing of written objections.
With respect to the second asserted state interest, the district court pointed to evidence of the history of the initiative process as supporting the State’s contention that there is a significant need to insure any measure has a substantial base of support before it is submitted to the electorate. Specifically, the court pointed out that the initiative process originated in the West as a “grassroots” means of protecting citizens from overpowering special interest groups, and that this process is relatively rigid in practice in that once the measure is submitted to State officers for review and presented to the public, it cannot be changed.
We are convinced that the district court’s views cannot be reconciled with the Supreme Court’s recent decisions. For example, in Buckley v. Valeo,
However, the Court invalidated various limitations on expenditures, such as the prohibition against individuals or groups spending more than $1000 per year on behalf of a political candidate. Federal Election Campaign Act Amendments of 1974, Pub.L. No. 93-443, § 101(e)(1), 88 Stat. 1263, 1265; see Buckley,
The Act’s expenditure ceilings impose direct and substantial restraints on the*1451 quantity of political speech____ It is clear that a primary effect of these expenditure limitations is to restrict the quantity of campaign speech by individuals, groups, and candidates. The restrictions, while neutral as to the ideas expressed, limit political expression “at the core of our electoral process and of the First Amendment freedoms.”
Id. at 39,
Since 1976 the Court has relied on Buckley as authority for the general rule that limits on political expression are contrary to the First Amendment. For example, the Court recently cited on Buckley for the proposition “that prevеnting corruption or the appearance of corruption are the only legitimate and compelling government interests thus far identified for restricting campaign finances.” Federal Election Commission v. National Conservative Political Action Committee,
Buckley identified a narrow exception to the rule that limits on political activity were contrary to the First Amendment. The exception relates to the perception of undue influence of large contributors to a candidate____ Federal Courts of Appeals have recognized that Buckley does not support limitations on contributions to committees formed to favor or oppose ballot measures.
Id. at 296-97,
In discussing the ordinance’s impermissible restraint on freedom of expression, the Court noted that by limiting contributions the ordinance “automatically affects expenditures” and that “limits on expenditures operate as a direct restraint on freedom of expression” of groups engaging in ballot measure campaigns. Id. at 299,
The distinction between the State’s interests in regulating campaigns for candidates and for ballot measures was also discussed in First National Bank of Boston v. Bellota,
Referenda are held on issues, not candidates for public office. The risk of corruption perceived in cases involving candidate elections ... simply is not present in a popular vote on a public issue. To*1452 be sure, corporate advertising may influence the outcome of the vote; this would be its purpose. But the fact that advocacy may persuade the electorate is hardly a reason to suppress it: The Constitution “protects expression which is eloquent no less than that which is unconvincing.” ... We noted only recently that “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of оthers is wholly foreign to the First Amendment____”
Bellotti,
The clear import of the decisions of the Supreme Court is that restraints on political association and communication, imposed by restrictions on financing of campaigns for ballot measures, are suspect and subject to strict scrutiny. Coloradans for Free Enterprise, Inc., and the individual plaintiffs are barred from reaching out through paid solicitors to contact more of the public. When examined with the exacting scrutiny which the Court’s decisions demand, the Colorado ban on compensation of solicitors, as applied to these proponents of the initiative measure, fails since all of the interests which the State suggests in defense of this prohibition are or cаn be protected by less intrusive measures.
B.
As noted, the district court concluded that the Colorado statute does not impose a burden on plaintiffs’ right to free speech because they could still personally communicate their belief in the proposition.
The record also establishes that the available pool of circulators will be smaller if
they cannot be compensated for their work. The district court itself acknowledged that “the evidence indicates plaintiffs’ purposes would be enhanced if the corps of volunteers could be augmented by a cadre of paid workers.” I R. 38; see also Urevich v. Woodard,
Thus, the effect of the statute’s absolute ban on compensation of solicitors is clear.
C.
In light of the Colorado statute’s restriction on plaintiffs’ political expression and their efforts to communicate through petition circulators they would employ, it is incumbent on the State to show that the governmental interests suggested satisfy the exacting scrutiny given to limitations on core First Amendment rights of political expression. See Buckley,
First, we cannot accept the district court’s initial rationale for upholding the ban on payment of petition circulators— i.e., protection of the integrity of the initiative process. Although the State has every right to take strong measures to prevent overreaching, improper offers of consideration for signatures, fraudulent signatures and other dishonest activities by petition circulators, the State may do so only by measures tailored to attack those problems within clearly recognized areas permitted by the Supreme Court. This is borne out by the teachings of the Court’s recent opinions. Solicitation of signatures for the ballot measure “is not so inherently conducive to fraud and overreaching as to justify its prohibition.” Village of Schaumburg v. Citizens For a Better Environment,
Although the State strenuously argues that it is not asserting a concern about fraud, it seems clear that the State has been compelled to attempt to avoid the Court’s rejection in Buckley of the rationale of preventing fraud. Buckley held thаt the prevention of corruption did not constitute an interest sufficiently substantial to warrant the direct infringement of political communication represented by campaign expenditure limitations; that concern could be addressed by other measures.
The State makes no showing that the Colorado General Assembly cannot effectively protect the integrity of the initiative process by laws more narrowly tailored to specific abuses. Colorado has existing statutes that make it unlawful to forge a signature on a petition, to make false or misleading statements relating to a petition, or to pay someone to sign a petition. See Colo.Rev.Stat. §§ 1-13-106, 1-40-119, 1-40-110 (1980). The statutes also require that conspicuous warnings of criminal offenses be printed on every petition and that circulators attach аn affidavit attesting, inter alia, to the validity of the petition’s signatures. See Colo.Rev.Stat. § 1-40-106 (1986 cum.supp.); see also Colo. Const, art. V, § 1. Finally, the Colorado statutes provide elaborate protest procedures for challenging the sufficiency of signatures on any petition, permitting both an administrative determination and an opportunity for judicial review.
The State suggests that paid petition circulators may be too persuasive, or use irrelevant arguments, in convincing persons to sign the petitions. It suffices to say that the relative merits of the method of presentation and of the ballot measure itself are for the public to weigh and consider. The First Amendment is a value-free provision whose protection is not dependent on “the truth, popularity, or social utility of the ideas and beliefs which are offered.” NAACP v. Button,
Second, we cannot accept the State’s defense of the statute based on its assertion of a compelling interest in requiring that an initiative have a wide base of public support before an initiative measure is placed on the ballot. This argument ignores the requirement in Colo.Rev.Stat. § 1-40-105 (1986 cum.supp.) that a petition be signed by registered electors in an amount equal to at least five percent of the total number of votes cast for all candidates for the office of Secretary of State at the previous general election. Such a requirement for petition signatures, which in this case called for a minimum of 46,737 signatures of registered voters, protects the State’s interest in requiring a broad base of popular support. See Sirico, The Constitutionality of the Initiative and Referendum, 65 Iowa L.Rev. 637, 659-63 (1980) (“a legislative act or state constitutional provision presumably sets the requirement [for the number of signatures necessary to place an initiative on the ballot] sufficiently high to limit the plebes-cite’s use to matters in which interest is sufficiently great to justify a check on the representative lawmakers”). Further, as noted above, the validity of the required number of signatures can be reviewed in State administrative and judicial proceedings questioning the signatures.
D.
There remain two further arguments made by Judge Logan's dissent which we should consider.
First, it is said that the Colorado statute’s interference with First Amendment rights is minimal since the Constitution does not require states to provide their citizens with an initiative procedure. We disagree. It is true that the United States Constitution does not confer the right to use the initiative procedure. See Kelly v. Macon-Bibb County Board of Elections,
In the same vein Judge Logan’s dissent relies on the reasoning in Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, — U.S. -, -,
The proposition that activities “deemed harmful” by a state can sometimes be regulated to minimize their harmful effects without violating the First Amendment does not save the restrictive Colorado statute in question here. See, e.g., Young v. American Mini Theatres, Inc.,
In addition, Posadas is inapplicable to the present case for a more fundamental reason — the speech restricted in Posadas was merely “commercial speech which does ‘no more than propose a commercial transaction____’” Posadas, — U.S. at-,
Second, Judge Logan argues in dissent that the “speech by proxy” doctrine makes strict scrutiny inappropriate in this case. The opinion of the district judge likewise reasoned that the contributor was paying someone else to speak and thus the contributor’s speech was not restricted.
Unlike California Medical Assn., the present case involves limitations on expenditures by PACs, not on the contributions they receive; and in any event these contributions are predominantly small and thus do not raise the same concerns as the sizeable contributions involved in California Medical Assn.
Another reason the “proxy speech” approach is not useful in this case is that the contributors obviously like the message they are hearing from these organizations and want to add their voices to that message; otherwise they would not part with their money. To say that their collective action in pooling their resources to amplify their voices is not entitled to full First Amendment protection would subordinate the voices of those of modest means as opposed to those sufficiently wealthy to be able to buy expensive media ads with their own resources.
Id. at 495,
We think that Federal Election Commission compels a similar refusal to use the “speech by proxy” analysis here. It is the plaintiffs’ expenditures, not contributions to them, which are limited. These expenditures advance the plaintiffs’ own political expression for the ballot measure, a right of communication given constitutional protection. As the Court said in Citizens Against Rent Control: “Contributions by individuals to support concerted action by a committee advocating a position on a ballot measure is beyond question a very significant form of political expression.”
Thus the reasoning of the dissent, which seeks to escape the strict scrutiny test for First Amendment restrictions, does not withstand analysis and that test must be followed as in Bellotti and Citizens Against Rent Control. And for reasons stated earlier, the Colorado restriction on First Amendment rights does not withstand strict scrutiny.
IV
We are further persuaded by the analysis of other courts which have generally struck down similar restrictions on the payment of petition circulators as violative of the First and Fourteenth Amendments.
It is true that in State v. Conifer Enterprises, Inc.,
[a] restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in today’s mass society requires the expenditure of money.
In Libertarian Party of Oregon v. Paulus, Civ. No. 82-521FR, slip op; (D.Ore. Sept. 3, 1982), the federal district court relied primarily on Buckley in striking down, on First Amendment grounds, an Oregon statute prohibiting payment to petition circulators. The court held that the statute restricted political speech because obtaining signatures on a nominating petition required the circulator to explain the candidate’s views on political issues.
In Hardie v. Fong Eu,
More recently, the federal district court for the District of Maryland invalidated a state statute like that of Colorado. Ficker v. Montgomery County Board of Elections,
The federal district court for the District of Columbia also invalidated a statute prohibiting payment to circulators of initiative petitions, reasoning that the restriction on First Amendment interests was not justified by the legislative findings or record evidence. D.C. Committee on Legalized Gambling v. Rauh, No. 79-3296, slip op. at 2 (D.D.C. Dec. 21, 1979).
Thus persuasive precedents since Buckley reject the efforts to restrict First Amendment rights by means like those employed by the Colorado statute.
V
In sum, we conclude that Colo.Rev.Stat. § 1-40-110 unconstitutionally imposes a direct and substantial restriction on plaintiffs’ right to political speech, employing unnecessarily broad prohibitions. In the area of free expression “[precision of regulation must be the touchstone____” NAACP v. Button,
Notes
. Colo.Rev.Stat. § 1-40-110, as enacted, provides:
Any person, corporation, or association of persons who directly or indirectly pays to or receives from or agrees to pay to or receive from any other person, corporation, or assoсiation of persons any money or other thing of value in consideration of or as an inducement to the circulation of any initiative or referendum petition or in consideration of or as an inducement to the signing of any such petition commits a class 5 felony and shall be punished as provided in section 18-1-105, C.R.S. 1973.
This statute has been challenged on several occasions since its enactment. In Urevich v. Woodard,
We also note that a group of Colorado residents recently filed an action in the Colorado courts, arguing that Colo.Rev.Stat. § 1-40-110 does not apply to the circulation of a referendum seeking the repeal of a city ordinance. In the alternative, the plaintiffs argued that if the statute was applicable to their referendum, then it was in violation of their state constitutional rights to free speech, free assembly аnd petition, freedom of association and power of referendum. Hermes v. City of Commerce City, No. 86-CV-2203, Verified Complaint at 3-6 (D.Ct. Adams County, Colo., Sept. 17, 1986). The trial judge agreed and held that the statutory ban against payment of petition circulators is unconstitutional. Hermes v. City of Commerce City, No. 86-Civ-2203, Reporter's Transcript at 5-7 (D.Ct. Adams County, Colo., Oct. 31, 1986). Some of the defendants appealed the district judge’s ruling to the Supreme Court of Colorado on December 3, 1986. Ford v. City of Commerce City, No. 86-SA-459 (Colo. Dec. 3, 1986) (Notice of Appeal). However, the City Council apparently voted to repeal the ordinance in question slightly more than one month later, and the plaintiffs accordingly moved to dismiss the appeal as moot. Ford v. City of Commerce City, No. 86-SA-459, Motion to Dismiss Appeal or in the Alternative for an Extension of Time at 1, 2 ¶ 1 (Colo. July 15, 1987). The Supreme Court of Colorado granted the motion to dismiss the appeal on July 23, 1987. Ford v. City of Commerce City, No. 86-SA-459 (Colo, filed July 24, 1987).
Finally, we note that the same group of plaintiffs filed a related action in federal district court which raised similar claims based on federal constitutional law. Hermes v. Commerce City, No. 86-Z-1883 (D.Colo. filed Sept. 12, 1986). Although there has been no final ruling in that case, the plaintiffs have stated in their briefs to the Supreme Court of Colorado that they would ask the federal district court to dismiss the action if the state appeal was found to be moot. Ford v. City of Commerce City, No. 86-SA-459, Reply to Objection to Motion to Dismiss Appeal at 2 (Colo, received July 23, 1987).
. Violation of the statute is a class 5 felony, which is punishable by one to two years’ imprisonment plus one year of parole as the "presumptive” range of penalties. Colo.Rev.Stat. § 18-1-105 (1986 cum.supp.).
. The three-memher board consists of the Secretary of State, Attorney General, and Director of the Legislative Drafting Office. Colo.Rev.Stat. § 1-40-101(2) (1980).
. The petition must be "signed by registered electors in an amount equal to at least five percent of the total number of voters who cast votes for all candidates for the office of secretary of state at the preceding general election.” Colo.Rev.Stat. § 1-40-105 (1986 cum.supp.).
. In their petition for rehearing, the plaintiffs requested this court to certify the question of the statute’s constitutionality to the Colorado Supreme Court. Petition for Rehearing and Suggestion for Rehearing in Banc at 1 n. 1. Here, however, certification would be improper since the state statute is unambiguous, see Wisconsin v. Constantineau,
. These limitations included, inter alia, a maximum of $1000 on contributions by individuals and groups to candidates and authorized campaign committees, a $5000 limitation on campaign contributions by political committees, and a $25,000 limitation on total contributions by an individual during a calendar year. Federal Election Campaign Act Amendments of 1974, Pub.L. No. 93-443, § 101(b)(1), (2), & (3), 88 Stat. 1263, 1263.
. The Court in Buckley also invalidated limitations on the amount a candidate could spend from his personal or family funds, and limitations on overall campaign expenditures by candidates seeking nomination or election for federal office.
. The district court also considered the availability of other channels of communication in its analysis. This factor only becomes relevant in measuring the reasonableness of time, place, and manner regulations. See, e.g., Clark v. Community for Creative Non-Violence,
. Paul Grant, one of the plaintiffs, gave the following testimony based on his experience as a petition circulator:
[T]he way that we go about soliciting signatures is that you ask the person — first of all, you interrupt the person in their walk or whatever they are doing. You intrude upon them, “Are you a registered voter?”
Many people say, "I haven’t got time, don't bother me,” or "Yes, I am, but it is none of your business,” or "Yes, I am, so what?”
If you get a yes, then you tell the person your purpose, that you are circulating a petition to qualify the issue on the ballot in November, and tell them what about, and they say, "Please let me know a little bit more.” Typically, that takes maybe a minute or two, the process of explaining to the persons that you are trying to put the initiative on the ballot to exempt Colorado transportation from PUC regulations.
Then you ask the person if they will sign your petition. If they hesitate, you try to come up with additional arguments to get them to sign. If they don’t, you say, "Thanks, have a nice day.”
[We] [t]ried to explain the not just deregulation in this industry, that it would free up the industry from being cartelized, аllowing freedom from moral choices, price competition for the first time, lowering price costs, which*1453 we estimate prices in Colorado to be $150 million a year in monopoly benefits. We have tried to convey the unfairness and injustice of the existing system, where some businesses are denied to go into business simply to protect the profits of existing companies.
We tried to convey the unfairness of the existing system, which has denied individuals the right to start their own businesses. In many cases, individuals have asked for an authority and been turned down because huge corporate organizations have opposed them.
II R. 10-11.
. The defendants argue that petition circulators are "election judges" whose primary duty is to assure the validity of signatures. Appellees Brief on Rehearing at 11; see Sturdy v. Hall,
We find the argument unconvincing. Apart from counsel’s post-hoc assertions before this court, we find no evidence that the Colorado legislature intended for the solicitation process to be devoid of political advocacy. See P. Starr, The Initiative and Referendum in Colorado 9-21 (Aug. 11, 1958) (Master’s Thesis) (reviewing history of Colorado's adoption of the initiative procedure). It is true that the Government has a special interest in regulating the speech of its employees, see United States Civil Service Commission v. National Association of Letter Carriers,
. Paul Grant testified:
Money is very definitely a motivating factor to get someone to work on behalf of an effort, a matter of raising the demand and you get more supply. You pay people. You pay them more. You get more people able and willing to do it. Many of the people that I work with in the Coloradans for Free Enterprise, most of them — well, the majority of the people I work with in the Libertarian Party are people who have jobs, and they either have jobs or don’t have jobs. If they do have jobs, they can’t afford to take time off to work on the drive. If they don’t have jobs, and they are looking for them, they can’t afford to be volunteers. So money either enables people to forego leaving a job, or enables them to have a job.
II R. 19-20.
. Lori Massie, Director of Recruitment for the ballot drive, testified:
A petition circulator can very easily be motivated by monеy. If he knows he can collect money for his efforts, he is far more likely to spend six hours a day at it, than he would otherwise. The way it is right now, it is kind of a painful process to go out there and stand and ask people to sign something, and after an hour of being beaten over the head with "no’s" or "drop dead” or whatever, if they were being paid and they knew that their success would relate to their pay, they would work on it. They would probably polish up their techniques also.
II R. 34.
. For examples of judicial review of ballot measures in Colorado, see Spelts v. Klausing,
. We note that in Colorado the right to the initiative is not a matter of legislative grace but a right reserved by the people in the State constitution. Colo. Const, art. II, §§ 1, 2 & art. V, § 1; In re Proposed Initiative Concerning Drinking Age in Colorado,
Dissenting Opinion
dissenting:
I agree that this appeal should be considered on the merits. And if I could agree with the implicit assumptions of the majority opinion in its discussion of the merits, I would be persuaded by it. But the majori
I
First, the statute at issue implicates First Amendment rights but proscribes only conduct. The statute does not prohibit citizens from spending their money in any way to express their views on a public issue on the ballot, including an initiative proposition after it has met the statutory requirements to appear on the ballot. The statute does not prohibit citizens from spending any amount of money or from associating to express their views on any public issue, including one they would like to see on an initiative ballot. Although it does prohibit paying someone for circulating an initiative petition or for signing it, the statute in no other way prohibits anyone from paying others to espouse their views to people whom they hоpe will sign an initiative petition. For example, it was reported that, in the 1982 Colorado initiative to allow grocery stores to sell wine, “substantial sums [were] spent to organize and advertise a petition drive, while avoiding actual payment to circulators.” The Initiative News Report, vol. IY, no. 3, at 2 (Feb. 11, 1983).
The majority treats the obtaining of signatures by paid petition circulators as inseparable from the dissemination of political ideas through such individuals. This is clearly not the case. Under the statute as written, it would be perfectly legal for plaintiff’s paid representatives to “approach[] a stranger, ask[] him if he is a registered voter, and, if the person is willing to listen, advance[ ] arguments why the petition should be placed on the ballot.” At 1452-53. They are simply forbidden to take the final step of obtaining the listener’s signature. It is thus conduct, not speech, that Colorado seeks to regulate. “ ‘[I]t has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.’ ” Ohralik v. Ohio State Bar Assn.,
Only because the majority opinion incorrectly characterizes the statute as directly restricting unalloyed political expression is it able to insist on the standard of strict or exact scrutiny, which the majority concedes is given only to “limitations on core First Amendment rights of political expression.” At 1453.
The First Amendment forbids the government from regulating speech in ways “that favor some viewpoints or ideas at the expense of others.” Members of the City Council v. Taxpayers for Vincent,
“While the First Amendment does not guarantee the right to employ every conceivable method of communication at all times and in all places, ... a restriction on expressive activity may be invalid if the remaining modes of communication are inadequate____ The Los Angeles ordinance does not affect аny individual’s freedom to exercise the right to speak and to distribute literature in the same place where the posting of signs on public property is prohibited. To the extent that the posting of signs on public property has advantages over these forms of expression, ... there is no reason to believe that these same advantages cannot be obtained through other means. To the contrary, the findings of the District Court indicate that there are ample alternative modes of communication in Los Angeles. Notwithstanding appellees’ general assertions in their brief concerning the utility of political posters, nothing in the findings indicates that the posting of political posters on public property is a uniquely valuable or important mode of communication, or that appellees’ ability to communicate effectively is threatened by ever-increasing restrictions on expression.”
Id. at 812,
The state has justified its limitation on paid solicitors by asserting its interest in ensuring that any initiative placed on the ballot has broad popular support.
Colorado has presented empirical data which compared initiatives proposed through workers paid to circulate petitions with those proposed through volunteer solicitors. Initiatives proposed through volunteer petitioners had a much greater chance of adoption. A state exhibit indicated that the voters adopted forty-eight percent of the initiatives circulated by volunteers, whereas they adopted only twenty-four percent of those using paid solicitors. The Initiative News Report, vol. IV, no. 3, at 2 (Feb. 11, 1983). Common sense tells me the same thing: A proposition for which large numbers of volunteers come forward to solicit the necessary signatures is more likely to have widespread popular support, and hence ballot appeal, than a proposition that requires paid workers to obtain the necessary signatures. The majority’s recital of what paid solicitors can do to enhance the possibility of a successful drive to put a proposition on the ballot, see Op. at 1452-1453, only increases my conviction that if enough money is spent the original “safety valve” purposes of the initiative would be thwarted.
In a recent publication, a former General Counsel of the U.S. House of Representatives Committee on the Judiciary wrote,
“Common Cause says if you hire the right people you can qualify anything for the ballot. In California, there are a dozen initiative-circulating consulting*1461 firms — the ‘initiative industry’ — that are now branching out into other states. What was originally, [sic] designed to be a volunteer or citizens' effort, which grew out of a progressive era in the West, has become a slick and professional industry.”
Parker, Washington Focus, Trial, Aug. 1987 at 17.
The state has ample justification, in my view, for any minor encroachment on First Amendment rights that might be involved in this state enactment. Cf. Hall v. Simcox,
II
There is another flaw in the majority’s analysis. The federal Constitution provides no individual citizen with the right to the initiative — the right to commence a procedure through which a proposed constitutional or other change in the law can be placed upon a state or federal ballot. See Georges v. Carney,
Thus Colorado would not violate the federal Constitution if it prohibited the initiative entirely. It could deny its citizens any method, other than action through their elected representatives, to amend the state constitution or to adopt new laws. Because the state need not allow the initiative at all, surely it can place reasonable restrictions on its use. For example, it could require, instead of a total of signatures equal to five percent of those who last voted for secretary of state, a total equal to twenty-five percent, fifty percent, or even one hundred percent of such voters. The state need only act uniformly toward all who would use the process it allowed. Cf. Gordon v. Lance,
Colorado has legislated in an area reserved to it — thе initiative is not among the rights which the federal constitution explicitly protects — and in a manner, as discussed in part I, that only minimally interferes with First Amendment rights. Viewed from this perspective, this case seems analogous to the case recently before the Supreme Court, Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico, — U.S. -,
There also the appellant made the related argument, like that made by the majority in the instant case, that having chosen to permit gambling for residents the First Amendment prohibits the legislature from using restrictions that touch on speech to accomplish its goal of controlling access. The Supreme Court answered that argument as follows:
“[I]t is precisely because thе government could have enacted a wholesale prohibition of the underlying conduct that it is permissible for the government to take the less intrusive step of allowing the conduct, but reducing the demand through restrictions on advertising. It would surely be a Pyrrhic victory for casino owners such as appellant to gain recognition of a First Amendment right*1462 to advertise their casinos to the residents of Puerto Rico, only to thereby force the legislature into banning casino gambling by residents altogether. It would just as surely be a strange constitutional doctrine which would concede to the legislature the authority to totally ban a product or activity, but deny to the legislature the authority to forbid the stimulation of demand for the product or activity through advertising on behalf of those who would profit from such increased demand.”
Id. (emphasis in original).
I agree with the majority that a state which chooses to create a right may not take it away without providing the procedural due process guarantees of the federal Constitution. But the instant statute does not deny procedural due process. The limitation here is in the definition of the right. Suppose, for example, the statute provided that initiative petitions could not be circulаted at all, but must be posted in designated public places where registered voters could come to and sign. I dare say we would not find such a law would violate First Amendment rights. I see no principled difference in the law at issue here.
Ill
Even if we focus exclusively on the speech component of the petition circulating activity before us here, that speech is most analogous to the “speech by proxy” achieved through contributions to a political campaign committee. Such speech is not appropriately reviewed under a strict or exacting scrutiny standard. Just as contributors to a campaign committee depend on others to espouse their political views for them, the hirers of petition circulators depend on paid circulators to decide what “pitch” to use to obtain signatures. Justice Marshall stated in Citizens Against Rent Control,
“this Court has always drawn a distinction between restrictions on contributions, and direct limitations on the amount an individual can expend for his own speech. As we noted last term in California Medical Assn. v. FEC,453 U.S. 182 , 196 [101 S.Ct. 2712 , 2722,69 L.Ed.2d 567 (1981)] (MARSHALL, J., joined by BRENNAN, WHITE, and STEVENS, JJ.), the ‘speech by proxy’ that is achieved through contributions to a political campaign committee ‘is not the sort of political advocacy that this Court in Buckley found entitled to full First Amendment protection.’ ”
. Whethеr the Colorado state courts have used strict scrutiny to review governmental actions affecting the initiative, as the majority opinion suggests at 1455 n. 14, is relevant, if correct, only to whether this statute is compatible with the state constitution. That question is not before us. Nor is there any question here of constitutional due process or equal protection that would warrant or at least account for the majority's invocation of employee discharge cases. The only question before us is whether this statute is incompatible with First Amendment free speech guarantees of the United States Constitution.
. The state also seeks to support the constitutionality of the legislation by arguing that petition solicitors are in a sense election judges, and unpaid volunteers are somehow more trustworthy and dependable than paid solicitors. I agree with the majority that the argument is wholly unconvincing. Neither the unpaid volunteer nor the paid solicitor is likely to violate a statute that makes it a felony to falsify signatures or otherwise breach the integrity of the petitions. An overzealous volunteer would in fact seem more likely to overstate supporting arguments for the proposition than the paid solicitor, and both are likely to use friendship or other appeals irrelevant to the merits to obtain signatures. Further, those who sign the petitions do not represent that they will vote for the proposition that is the subject of the initiative or express any opinion other than their willingness to have the proposition appear on the ballot.
Concurrence Opinion
concurring in the judgment).
In a case challenging federal regulation of corporate and labor union solicitation practices on equal protection and First Amendment grounds, the District of Columbia Circuit stated:
“While heightened scrutiny often attends a legislative classification alleged to impinge on First Amendment interests, we reject plaintiffs' argument that the most stringent review standard should apply in this case. Decisions in point may lack perfect consistency and crystal clarity, but they do reveal that the nature and quality of the legislative action determine the intensity of judicial review of intertwined equal protection, First Amendment claims.
Mosley itself enunciated review standards that were not the most exacting, and Buckley v. Valeo drew distinctions bearing on the rigorousness of review based on the character of the several legislative proscriptions the Court scrutinized____ We are therefore confident that the matter before us does not call for a review standard more demanding than this elevated, but not strictest, test: the challenged legislative action must bear a substantial relation to an important governmental interest.”
But even if we do apply strict or exacting scrutiny, see Citizens Against Rent Control,
“Whatever its doctrinal roots, there is a principle to be distilled from American Party [v. White,415 U.S. 767 ,94 S.Ct. 1296 ,39 L.Ed.2d 744 (1964) ] and Storer [v. Brown,415 U.S. 724 ,94 S.Ct. 1274 ,39 L.Ed.2d 714 (1974)]: in order to keep ballots manageable and protect the integrity of the electoral process, states may condition access to the ballot upon the demonstration of a ‘significant, measurable quantum of community support,’ but cannot require so large a demonstration of suрport that minority parties or independent candidates have no real chance of obtaining ballot positions____ In appraising the collective burden imposed by access requirements, one must place substantial weight on empirical evidence demonstrating how often minority parties and independent candidates have actually been able to satisfy them.”
L. Tribe, § 13-20, at 783-84 (footnotes omitted). Just as placing too many candidates on a ballot wastes state resources and confuses voters, so does placing numerous initiatives on a ballot. See Anderson,
. Although the "speech by proxy” doctrine has never been endorsed explicitly by a majority of the Supreme Court, it continues to receive attention in Court opinions. See FEC v. National Conservative Political Action Comm.,
Dissenting Opinion
dissenting:
I respectfully dissent for the reasons set forth in the district court’s memorandum and this court’s per curiam opinion (Holloway, Circuit Judge, dissenting) entitled Grant v. Meyer,
I do not view the Colorado statute as a burden on First Amendment rights. Further, I believe that the statute here considered, i.e., Sect. 1-40-110 C.R.S. (1980) which prohibits payment of initiative petition circulators, is fully justified in protecting the integrity of Colorado’s initiative process.