LABOR‘S EDUCATIONAL AND POLITICAL CLUB—INDEPENDENT et al., Respondents-Appellants, v. John C. DANFORTH, Missouri Elections Commission et al., Appellants-Respondents, James C. Kirkpatrick et al., Defendants.
No. 59806.
Supreme Court of Missouri, En Banc.
Dec. 19, 1977.
Dissenting Opinion Feb. 1, 1978. Rehearings Denied Feb. 1, 1978.
561 S.W.2d 339
BARDGETT, Judge.
This appeal is from a judgment of the Circuit Court of Cole County, Missouri, which declared the Missouri Campaign Finance and Disclosure Act (hereinafter Act), sections 130.010 et seq., RSMo Supp.1975, unconstitutional. The various parties, being aggrieved in varying respects, appealed. Jurisdiction is in this court because this case involves the construction of the constitution of Missouri.
The suit was brought by Labor‘s Educational and Political Club—Independent (LEPCI) and other interested parties. They sought a declaratory judgment as to the validity and constitutionality of the Act and a permanent injunction against its enforcement. The defendants in this action are the Missouri Elections Commission and various public officials (hereinafter referred to collectively as defendants).
LEPCI сhallenged the Act on numerous grounds. Instead of repeating all of the grounds, it is sufficient to set forth the holdings of the circuit court. The circuit court held in pertinent part that:
1. One or more of the plaintiffs have a sufficient personal stake in a determination of the constitutional validity of each of the challenged provisions of the Act to present a real and substantial controversy admitting of specific relief, through a decree of this Court, of a conclusive character.
2. The Court denies the relief requested by plaintiffs in Count I of plaintiffs’ Petition but does rule that the entire Act is unconstitutional, invalid and void as it applies to all public offices, created by the Constitution, for which minimum qualification is stated. Therefore, the Court holds that the Act cannot apply to the offices of Governor, Lt. Governor, Auditor, Supreme Court Judges, Appellate Judges, all Circuit Court Judges and Judges of the Probate and Magistrate Courts.
3. Section 130.020.5, V.A.M.S., is constitutional and does not violate any of plaintiffs’ rights guaranteed by the equal protection clause of the Fourteenth Amendment to the United States Constitution, or
Article I, Section 10 of the Missouri Constitution , and does nоt violate any of plaintiffs’ rights guaranteed by the First Amendment to the United States Constitution orArticle I, Section 8 of the Missouri Constitution . Therefore, plaintiffs are denied the relief requested in Count III of plaintiffs’ Petition.4. Sections 130.015.1, 130.015.2 and 130.015.5, V.A.M.S., violate rights guaranteed by the First Amendment to the United States Constitution and are unconstitutional.
5. Section 130.010(4), V.A.M.S., is in violation of the due process clause of the Fourteenth Amendment to the United States Constitution and
Article I, Section 10 of the Missouri Constitution , and is unconstitutional.6. Section 130.020.7, V.A.M.S., is in violation of the First Amendment to the United States Constitution and
Article I, Section 8 of the Missouri Constitution , and is unconstitutional.7. Section 130.020.8, V.A.M.S., constitutes a restraint of freedom of speech which is violative of the First Amendment guarantees of the United States Constitution and
Article I, Section 8 of the Missouri Constitution , and is unconstitutional.8. Sections 130.025.5 and 130.025.7, V.A.M.S., are in violation of the freedom of expression and speech guaranteed by the First Amendment to the United States Constitution and
Article I, Section 8 of the Missouri Constitution , and are unconstitutional.9. Section 130.070.1, V.A.M.S., violates equal protection rights guaranteed by the Fourteenth Amendment to the United States Constitution and
Article I, Section 2 of the Missouri Constitution , and is therefore unconstitutional.10. Those sections of the Act not declared unconstitutional herein cannot stand alone, are unenforceable and unworkable to
accomplish the intent of the Initiative Petition and the Act, and the entire Act is unconstitutional, invalid and void. Relief requestеd by plaintiffs in Count II of plaintiffs‘s (sic) Petition is hereby granted. 11. Sections 129.070, 129.075, 129.100, 129.110, 129.120, 129.130, 129.140, 129.150, 129.160, 129.170, 129.180, 129.190, 129.200, 129.210, 129.220, 129.240, 129.250, 129.260, 129.270, R.S.Mo. 1969, and Section 129.230, R.S.Mo. Sub. 1973, repealed by enactment of this Act, are hereby reinstated and declared to be the existing law of the State of Missouri.
12. Plaintiffs are excused from complying with any and all provisions of Chapter 130, V.A.M.S., and defendants are all, and each of them, personally enjoined from enforcing, administrating, investigating, or in any way compelling compliance with said chapter and from instituting criminal prosecuting or civil proceeding to compel compliance with the Act.
The Act which is being challenged was passed by the voters of Missouri in 1974 by way of the initiative process. It contains a comprehensive scheme for the regulation of campaign finances and disclosure. The circuit court held that the entire Act was unconstitutional as to all public offices created by the constitution because the Act was in effect a constitutional amendment which did not follow the appropriate procedure set forth in
Contrary to what either LEPCI asserts or what the circuit court concluded, this Act was not a proposed constitutional amendment and, therefore, any reliance on
It is a basic principle of constitutional law that when a statute conflicts with a provision in the constitution the statute must give way. The court must, therefore, determine whether the entire Act conflicts with
In deciding this issue it is necessary to deal with offices created by arts. IV and V first because they create constitutional offices and then separately deal with
Having decided that additional statutory qualifications for a constitutional office would be invalid, it is necessary to determine whether this Act does impose additional qualifications.
Although the Missouri constitution speaks in terms of qualifications for offices, the cases usually refer to these constitution
The difference between an eligibility requirement and a qualification requirement has been confused by the cases and, even when they are defined, the difference may appear to be both academic and esoteric. The more easily understandable definitions and the ones the court adopts for the purposes of this opinion are contained in State ex rel. Elliott v. Bemenderfer, 96 Ind. 374 (1884). The Indiana Supreme Court said at 376: “Eligible means capable of being chosen; while qualified means the performance of the acts which the person chosen is required to perform before he can enter into office. Searcy v. Grow, 15 Cal. 117. Abbott, in defining the word ‘qualify,’ says: ‘It means to take the oath and give the bond required by law from an administrator, executor, public officer or the like, before he may enter on the discharge оf his duties.’ L.Dict. In Steinback v. State, ex rel., 38 Ind. 483, it was said: ‘The term qualified was not used in its ordinary or popular signification, as possessed of endowments or accomplishments, or intellectual capacity, or moral worth to discharge the duties of an office, but the framers of the Constitution intended thereby that a person who had been elected to an office, and had taken the oath of office, and given bond, where a bond is required, was qualified and had the right to assume and discharge the duties of such office.‘”
LEPCI contends that secs. 130.035.1, 130.035.3 and 130.070(1), purport to amend the minimum eligibility requirements for constitutional offices and are, therefore, unconstitutional. Sec. 130.035.1 establishes disclosure requirements; sec. 130.035.3 provides that a certificate of election shall not be issued to a candidate who fails to make the proper disclosures; and sec. 130.070(1) voids an election where violations of the Act occur, or if it is impossible to hold a special election prohibits the guilty candidate from becoming a candidate for any public office for ten years. Although there is some conflict in the cases of other jurisdictions concerning this matter, it is our opinion that the disclosure requirements and sanctions applicable to them, with the exception of the ten-year disability provided for in sec. 130.070(1), do not constitute additional eligibility requirements and, therefore, are not violative of the constitution of Missouri. Secretary of State v. McGucken, 244 Md. 70, 222 A.2d 693 (1966); Coutremarsh v. Metcalf, 87 N.H. 127, 175 A. 173 (1934); Maloney v. Kirk, 212 So.2d 609 (Fla. 1968) (dissenting opinion of Drew, J.); State ex rel. LaFollette v. Kohler, 200 Wis. 518, 228 N.W. 895 (1930).
In Secretary of State v. McGucken, supra, the court upheld the withholding of a certificate of election from a candidate for a violation of a provision of the Corrupt Practices Act requiring candidates for office to appoint a campaign treasurer. The court stated at 222 A.2d 695: “. . . [I]t is obvious that the statute, which is a part of the Corrupt Practices Act, was intended to do no more than enhance the effectiveness of those regulations requiring a full disclosure of the financial aspects of the campaign of a candidate for office. Clearly the Act, including sec. 213(a) thereof, has no bearing on the eligibility of a candidate for office.”
Missouri‘s own Corrupt Practices Act, sec. 129.010 et seq., RSMo 1969, was upheld as constitutional in State ex rel. Crow v. Towns, 153 Mo. 91, 54 S.W. 552 (1899), although the validity of its disclosure requirements were not at issue.
State ex rel. Palagi v. Regan, 113 Mont. 343, 126 P.2d 818 (1942), is a case wherein the relator Palаgi sought a writ of mandamus to compel the respondent, a county clerk, to file his petition as a candidate for nomination to the office of county sheriff at the primary election to be held in July 1942. The respondent had refused to accept the nominating petition on the sole ground that Palagi was elected sheriff of Cascade County in 1938 for a term of four years, ending January 4, 1943, and was removed
The same result was reached in a two-year disqualification in State v. Carrigan, 82 N.J.L. 225, 82 A. 524 (1912).
The court holds that the provision of sec. 130.070(1) which prohibits a candidate who has wilfully violated the Act the right from being a candidate for any office for ten years following such violation is an eligibility requirement. As such, this requirement is unconstitutional with respect to аll offices where the eligibility requirements to hold the same are set forth affirmatively in the constitution of Missouri.
LEPCI also contends that the ten-year disqualification provision of sec. 130.070(1) is violative of
As noted supra, the ten-year disqualification provision is unconstitutional with respect to those offices for which the candidate‘s qualifications are affirmatively set forth in the constitution. However,
LEPCI challenges the various expenditure provisions of the Act on First Amendment grounds. The United States Supreme Court had occasion to consider the constitutionality of the Federal Election Campaign Act (hereinafter the Federal Act),
Before the Act can be analyzed according to the precepts enunciated in Buckley, special scrutiny is required of sec.
The court finds the following sections of the Act unconstitutional because they abridge protected First Amendment rights as incorporated by the Fourteenth Amendment: sec. 130.015.1 (limit on expenditures by a candidate or political committee supporting such candidate for statewide public office); sec. 130.015.2 (limit on expenditures by a candidate or political committee supporting such candidate for any other public office); sec. 130.015.5 (limitation on expenditures by committees whose expenditures are attributable to a candidate); sec. 130.020.7 (limitation on expenditures by a candidate or member of his immediate family); sec. 130.020.8 (although this section speaks of limiting contributions by a person to a candidate and by a рerson to all candidates, by definition it also limits expenditures so that it would include independent expenditures in support of candidates); sec. 130.025.5 (limitation on expenditures by political committees); and sec. 130.025.7 (attributing certain advertising expenditures to candidates on a pro rata basis and thereby limiting expenditures).
These sections can be grouped into three categories based on the holdings in Buckley. The first category includes those sections which place limits on independent expenditures outside the framework of an organized campaign but advocating the election or defeat of a clearly identified candidate. The U.S. Supreme Court found such limitations unconstitutional at 424 U.S. 39-51, 96 S.Ct. 612. Within this category fall secs. 130.025.5, 130.025.7 and 130.020.8. The first two sections can place a ceiling on independent expenditures by attributing them to a particular candidate. Expenditures may be attributed to a candidate only if they are authorized or requested by the candidate, in which case the expenditure is treated as an expenditure by the candidate and a contribution by the person or group making the expenditure. See 424 U.S. 46, note 53, 96 S.Ct. 612. Sec. 130.020.8, when construed in light of the definition in sec. 130.010(4), limits independent expenditures by a person other than a candidate.
The second category includes any limit on expenditures by candidates from personal or family resources. The United States Supreme Court found such a restriction unconstitutional at 424 U.S. 51-54, 96 S.Ct. 612. Within this category falls sec. 130.020.7.
The third and final category established by Buckley includes limits on the total amount of money that may be expended on behalf of a candidate. 424 U.S. 54-59, 96 S.Ct. 612. This category includes secs. 130.015.1-.2 and .5.
Additionally, LEPCI contends that sec. 130.010(4) violates the due process clause of
“Due process requires that a criminal statute provide adequate notice to a person of ordinary intelligence that his contemplated conduct is illegal, for ‘no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.’ United States v. Harriss, 347 U.S. [612], at 617, 74 S.Ct. [808], at 812 [98 L.Ed. 989]. See also Papachristou v. Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). Where First Amendment rights are involved, an even ‘greater degree of specificity’ is required. Smith v. Goguen, 415 U.S. 566, 573, 94 S.Ct. 1242, 1247, 39 L.Ed.2d 605 (1974). See Grayned v. Rockford, 408 U.S. 104, 109, 92 S.Ct. 2294, 2299, 33 L.Ed.2d 222 (1972); Kunz v. New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280 (1951).”
Unlike the court in Buckley, we are not determining the scope of one phrase not heretofore defined. Here, we are attempting to dissect from a single definition two terms which, for constitutional purposes, are radically different, to wit, limits on expenditures are unconstitutional while some limits on contributions are not. Buckley, supra. This simply cannot be done with any degree of certainty. Indeed, it is impossible to determine which part of the definition is related to “expenditures” and which part is related to “contributions“.
The court holds that sec. 130.010(4) is so ambiguous and vague that it fails to provide the adequate notice to a person of ordinary intelligence as to whether his contemplated conduct with respect to political contributions and expenditures is illegal in view of Buckley, supra. For these reasons, sec. 130.010(4) does not meet constitutional standards.
As noted supra, sec. 130.070(1) punishes one successful candidate who wilfully violates any provision of the Act with a ten-year prohibition against being a candidate for any public office (where a special election after removal cannot be held), but another like candidate, if the office can be filled by a special election, suffers no disenfranchisement at all. LEPCI contended that sec. 130.070(1) violated the equal protection provisions of
In deciding whether particular legislation violates the equal protection clause, two different avenues may be taken. If the legislation touches “fundamental rights” or involves a “suspect class” in need of special protection, the courts must strictly scrutinize the legislation. Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976). If not, the legislation will be struck down only if it is not rationally related to some legitimate state interest. Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 813-814, 96 S.Ct. 2488, 49 L.Ed.2d 220 (1976). Unfortunately the right of a person to seek public office is one of the nebulous areas where strict scrutiny is sometimes applied and sometimes not. Bullock v. Carter, 405 U.S. 134, 143, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972). State and federal cases following Bullock have not been consistent in determining if a fundamental right was involved. Cahnmann v. Eckerty, 40 Ill.App.3d 180, 351 N.E.2d 580 (1976), cites Bullock for the proposition that the right to candidacy is not a fundamental right, while Mancuso v. Taft, 476 F.2d 187 (1st Cir. 1973), found the right to candidacy
LEPCI does not attack the government‘s power to bar a candidate from office for violation of its campaign laws. Its argument is that in barring some office holders and not others, the equal protection clause is breached. Sec. 130.070(1) substantially infringes on the right of some candidates to seek public office, not because of the degree or seriousness of their violation of the Act, but simply as a result of the particular office they have chosen to seek. In Bullock the court held a law denying the right to run for office because of wealth required strict scrutiny; we hold a law denying the right to run for office based on the particular office sought also requires strict scrutiny. A ten-year limitation on the right to run for public office has a real and appreciable impact on the right to vote by denying the electorate of a possible candidate for an appreciable period of time; it infringes on the candidate‘s freedoms of expression and association; and it discriminates against such candidates by allowing other candidates for other offices who have committed the same or similar offenses the right to continue to be candidates for public office.
Having determined that the strict scrutiny test is to be applied, it is necessary for the government to show a “compelling interest” in the classification. Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). The attorney general urges that because there is no authority to hold special elections for somе public offices, these offices would be left vacant if voiding an election would be the government‘s only recourse for a violation of the Act, and this would be of little or no benefit to the public, but he does not identify such offices.
LEPCI raises numerous objections to sec. 130.020.5 of the Act. That section prohibits certain entities, including labor organizations, from making contributions or expenditures in an election.
As pointed out in Boyle, 482 F.2d at 763, there are two purposes for a statute such as sec. 130.020.5. The first is to assure that any money used by the entity for political expenditures is segregated. The second is to assure that a dissenting union member is not forced to contribute to support political views with which he disagrees. Both purposes serve legitimate state interests in preserving the integrity of the ballot box by preventing corporate and union officials from using general union dues to promote politiсal parties and candidates without the consent of stockholders or union members with different political views, and by protecting individuals who may refuse to contribute to campaign funds against reprisals. See also United States v. Chestnut, supra, at 590. Although the statute may limit to a small extent freedom of association and discriminate against corporations, labor unions, and bank and trust companies, it is neither overbroad nor unreasonable. In light of the authorities cited supra and the substantial government interest involved, we hold sec. 130.020.5 not to be in violation of the United States or Missouri constitutions.
LEPCI also attacks sec. 130.020.5 on the grounds that it touches areas in which the United States Congress is supreme. LEPCI has cited no cases, and we are unable to find any, which hold contributions of union funds to political candidates to be a “concerted activity” protected by
LEPCI contеnds that sec. 130.035.1(5) and (6) are overbroad and violate constitutionally protected privacy rights under
The scope of the reporting requirements of income and the identification of sources, such as customers, clients, and patients, under sec. 130.035.1(5) and (6) have been set forth in Chamberlin and need not be further detailed here. We have considered the cases cited by defendants but believe that City of Carmel-By-The Sea v. Young, 2 Cal.3d 259, 85 Cal.Rptr. 1, 466 P.2d 225 (1970), and County of Nevada v. MacMillen, 11 Cal.3d 662, 114 Cal.Rptr. 345, 522 P.2d 1345 (1974), are most persuasive, both of which appear in Chamberlin at 883.
Neither here nor in Chamberlin have the parties who have defended the Act shown the important governmental interest, if any, the protection of which necessitates the all-pervasive reporting requirements of these two sections. These reporting requirements were not upheld in Chamberlin but rather the adjudication of the validity was put off to another day and another case.
Having decided the merits of LEPCI‘s attacks upon the Act, we must now consider whether the Act may still stand without those sections we have found in violation of the United States of Missouri constitutions. Sec. 130.085 contains the Act‘s “severability clause“. However, this section has little import because
In State ex rel. Enright v. Connett, 475 S.W.2d 78 (Mo. banc 1972), the court examined the doctrine of severability as it exists in Missouri. Quoting from State ex rel. Audrain County v. Hackmann, 275 Mo. 534, 205 S.W. 12, 14 (banc 1918), the court stated at 81: “The test of the right to uphold a law, some portions of which may be invalid, is whether or not in so doing, after separating that which is invalid, a law in all respects complete and susceptible of constitutional enforcement is left, which the Legislature would have enacted if it had known that the exscinded portions were invalid.”
The Enright court also quoted from State ex rel. Harvey v. Wright, 251 Mo. 325, 158 S.W. 823 (1913): “We cannot state the rule better or more briefly. We might state it in different language by saying that if, after cutting out and throwing away the bad parts of a statute, enough remains which is good to clearly show the legislative intent, and to furnish sufficient details of a working plan by which that intention may be made effectual, then we ought not, as a matter of law, to declare the whole statute bad. Cooley on Con. Lim. (7th Ed.) 247; State ex rel. [Tolerton] v. Gordon, 236 Mo. [142], loc. cit. 171, 139 S.W. 403; State ex rel. [Applegate] v. Taylor, 224 Mo. [393], loc. cit. 474, 123 S.W. 892; State v. Bockstruck, 136 Mo. 335, 38 S.W. 317.” 475 S.W.2d at 82.
The court has held supra that all of the expenditure limitations, part of the penalty provisions, and the section defining “contribution” and “expenditure” are invalid for thе reasons set forth. These sections pertain to essential elements of the Act. Of particular significance is sec. 130.010(4), for without an adequate definition the Act becomes ambiguous and uncertain in its enforcement. When we look to “what is left“, we cannot find an act which is “complete and susceptible of constitutional enforcement“, Enright, supra, at 81, nor do we find “sufficient details of a working plan“, Enright at 82. The remainder of the Act is so dependent on the definitions in sec. 130.010(4), and they are so intertwined with the remainder that the remainder of the Act cannot stand alone. Those sections remaining cannot be enforced according to the intent expressed by the people in their initiative petition and, therefore, the court holds that the entire Act is invalid and void.
Finally, we find the trial court properly denied fees for LEPCI‘s attorneys.
The judgment is affirmed.
Opinion modified on court‘s own motion.
RENDLEN, J., withdraws concurrence and dissents in separate opinion filed.
FINCH, J., withdraws concurrence and concurs in dissenting opinion of RENDLEN, J.
SEILER, J., withdraws his opinion concurring in part and dissenting in part and concurs in dissenting opinion of RENDLEN, J.
RENDLEN, Judge, dissenting.
On reconsideration of the majority opinion, I have determined that valuable portions of the Election Campaign Expenditures Act remain viable and furnish a workable statutory scheme, readily severable from those sections otherwise struck down. In this effort, able assistance was furnished by numerous suggestions from various sources filed in support of the motions for rehearing. For the reasons following, I respectfully dissent.
Analysis of “live”1 portions of the Act (Chapter 130, RSMo Supp.1974) reveals they in large measure fulfill the plan adopted by an overwhelming majority (more than 70%) of the voters in the 1974 Initiative Election. Clearly it was intended that if partial nullification occurred, portions of the Act remaining were to be severed and retained. This clear intention to save the Act is found in the severability clause2 and in the independent nature of the Act‘s enforceable features.
Though the majority has struck that part pertaining to ceilings on spending limits and the disclosure requirement as to candidates’ personal income,3 four additional features or parts of the plan for election control remain essentially unscathed. These contain the heart and central theme of the Law, i.e., the strict accounting and public reporting of political monies by candidates and committees.
The four additional identifiable features of the Act, though interrelated, are independent. They (together with the stricken portion) are: I. Candidates and political committees must strictly account for all political monies received and expended. II. Public disclosure of such accounts are required before, during and after a campaign. III. Important new constraints on the political spending practices of corporations,
I cannot agree with the sweeping conclusion of the majority that in the four “live” parts (listed first above) “we cannot find an act which is complete and susceptible of constitutional enforcement.” In fulfilling our duty to harmonize and whеre possible identify workable portions as expressions of the people‘s will, much that remains is “complete and susceptible to constitutional enforcement . . . which the (people) would have enacted if (they) had known that the exscinded portions were invalid.” State ex rel. Enright v. Connett, 475 S.W.2d 78 at 81 (Mo.banc 1972). This conclusion is reached by application of the time honored rule: “when the unconstitutional portion is stricken out, [if] that which remains is complete in itself and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must be sustained.” (Emphasis added.) Household Finance Corporation v. Shaffner, 356 Mo. 808, 203 S.W.2d 734, 737 (banc 1947).
THE SEVERABILITY ISSUE
Adopted through the initiative process, the Act was arranged by the reviser of statutes in 16 sections. Those sections contain 95 subsections plus 45 paragraphs totaling 140 parts, of that number only 18 were stricken by the majority for reasons4 other than non-severability. Qualitatively and quantitatively a substantial workable basis (more than 85%) of this sorely needed election control plan remains.
To point up the broad range and workable quality of the Act‘s “remaining” sections, I now examine its several features.4
FEATURE I
STRICT ACCOUNTING PRACTICES REQUIRED OF CANDIDATES & COMMITTEES
Section 130.020 contains eight subsections with several paragraphs which remain intact.5 Many valuable aspects of the law, warranting retention are found in this section. They deal with collection and distribution of anonymous contributions, and safeguards against abuses in this area of campaign financing. This section also provides for disclosure of indirect contributions and requires that cash contributions in the amount of $50 or more from an individual be accompanied by contribution statements on forms approved by the Commission. Further, no candidate may accept a contribution from a political committee of more than $100 unless the contribution is accompanied by a written statement setting forth the full name and address of each person who has contributed more than $25 of the contribution.
Section 130.025—Subsections 1, 2, 3, 4 and 6 (subsection 5 was otherwise invalidated) provide comprehensive control requirements essential for the financial reporting process by political committees. Committees must appoint a treasurer who shall properly account or be removed and no contributions are to be received until (1) the
Section 130.030—Records and accounts required—Commission may inspect. This section, coupled with § 130.035 (the reporting section), and § 130.045 (time for filing reports) are keys to the statutory scheme. The section contains six subsections (with several paragraphs) requiring that each candidate and political committee maintain records and accounts, lists of contributions, information showing whether the contributor is a member of the immediate family, names and addresses of persons to whom amounts were paid or promised, and listings of all anonymous contributions received (including those accepted, those returned to the donor and those transmitted to the state treasurer). This section also requires the candidate to notify the appropriate officer of the name and the address of the depository where the monies received from contributions are to be kept, and that all contributions must be deposited in a named bank and campaign accounts must be current within ten days.
Power is vested in the Commission to promulgate rules and regulations as to bookkeeping procedures. All records of contributions and expenditures shall be kept for at least two years following the election or after the last supplemental statement filed and, on written demand of the Commission, a candidate or a treasurer shall retain such records until an audit has been completed by the Commission. The treasurer is responsible for the committee‘s compliance with the requirements of the section. This designated officer is raised to a level of responsibility and accountability under the law which provides a focal point for control. The majority opinion offers no explanation or acceptable rationale for holding these sections do not constitute a severable working plan.
FEATURE II
A—CANDIDATES AND COMMITTEES REQUIRED TO PUBLICLY DISCLOSE AND REPORT CONTRIBUTIONS AND EXPENDITURES
Section 130.035 relates to candidates filing financial reports and the contents of those reports. This is an indispensable feature of any meaningful election reform act. It requires that every candidate sign and file sworn written reports (at the times prescribed in section 130.045) setting forth contributions received and expenditures made by the candidate while endeavoring to secure a nomination or election. Those reports must include: (1) All contributions, including transfer of funds from previous campaigns with the names and addresses of contributors, the amount contributed, and the dates the contributions were received. (Those contributing in the aggregate less than $25 need not be listed, but instead “may be grouped as one item and so identified.“) (2) All expenditures made by the candidаtes and the names and addresses of the persons to whom the amounts were paid or promised. (3) All anonymous contributions which were transmitted to the state treasurer, the amount of each such contribution and the date transmitted. (4) Any business or investment exceeding $1,000 in value.6
Political committees are similarly required to report and penalties are provided for non-compliance.
B—TIME FOR FILING REPORTS
Section 130.045 specifies the following times for filing financial reports: First not later than 40 days before the date of election; second not later than 7 days before said date and third, a report 30 days after an election. The period to be reported commences early (i.e., from the date a person “became a candidate“, § 130.045.2) and continues through the eleсtion. From this broad system of public reporting, the electorate may make timely candidate evaluations by examining the pre-election financial reports. This stands in marked contrast with the old law (
To augment the accounting and disclosure requirements of the Act, § 130.050 assigns the Secretary of State to assist the Commission in development of forms, publishing and furnishing manuals setting forth uniform bookkeeping methods, disseminating information, preserving reports, compiling statistics and with the responsibility for examining each report and statement filed in his office to determine “if the statements are properly completеd and filed within the time required” by the law. The Secretary of State is further clothed with authority to report violations to the Commission.
FEATURE III
PROHIBITIONS AGAINST CORPORATIONS, UNIONS, TRUST COMPANIES AND BANKS CONTRIBUTING DIRECTLY OR INDIRECTLY TO ANY CANDIDATE
Section 130.020.5 prevents financial institutions and corporations from expending or contributing their earnings or assets to any candidate. Similarly, labor unions are not permitted to use its funds or the dues collected from its members for such purposes. Such constraints do not apply to voluntary7 contributions or expenditures by individual employees or union members. This valuable safeguard for the Missouri election process is lost by the majority‘s denial of the principle of severability.
ESTABLISHMENT OF THE “MISSOURI ELECTIONS COMMISSION” WITH STATEWIDE AUTHORITY AND RULE MAKING POWERS
The “Missouri Elections Commission” is established by § 130.055 prescribing the qualifications, appointment, term, compensation, and similar features concerning its members. An executive director is to be appointed to serve at the pleasure of the Commission. Most importantly, § 130.060 vests authority in the Commission to promulgate “rules and regulations” to carry out the policies and purposes of the Act, establish procedures for handling complaints, publish advisory opinions, and bring civil actions as appropriate to cоntrol violations or threatened violations of the Act. In addition, general machinery for the operation of the Commission is provided in § 130.065.
FEATURE V
CANDIDATE AND COMMITTEE SPENDING CEILINGS
Section 130.015 deals with spending “ceilings” as to candidates and political committees. The majority, applying Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), invalidated subsections 1, 2 and 5 but apparently left intact subsections 3, 4 and 6 of § 130.015. However, removal of 1, 2 and 5 strips the remaining subsections of their vitality. Also stricken are those spending limits as to candidate, his family or political committee in § 130.020(7) and § 130.020(8) and related sections 130.025.5 and 130.025.7. Similarly § 130.070(1) was invalidated under the Fourteenth Amendment to the United States Constitution and Art. I, § 2 of the Missouri Constitution. Nullification of these sections effectively removed the limits on spending from the Act. However, the remaining features of the Act are severable and should be retained.
Section 130.085—Severability Clause. It is here provided that if any section of the Act is held invalid such invalidity shall not affect other provisions of the Act “which can be given effect without the invalid provisions . . . and to this end the provisions of Section 130.010 to 130.085 are declared severable.” This section can best be described as an expressiоn of the voters intent that if specific sections are declared constitutionally infirm, the remaining portions should, if possible, be saved. From this we sense the purpose and belief of the electorate that the four features of the Act (I, II, III & IV, supra) can and were intended to stand alone, if V was nullified. To attain this purpose, the principal of severability should be applied. I respectfully submit that the sections of the Act discussed above which have been nullified only for want of severability, should instead be declared valid, enforceable statutes of our state.
THE VAGUENESS ISSUE
The sections of the Act remaining after excision of the spending ceiling feature (Feature V, supra) contain many references to the terms to expend and to contribute. A reading of the Act, whether casual or careful, presents no difficulty arising from the use of these terms. They are used in their ordinary sense. To say, as does the majority, that they are vague and ambiguous is unjustified. The majority fails to indicate an instance of such vagueness, except through its troubled and erroneous treatment of section 130.010[4]. This misplaced reliancе on the so-called “vagueness” of section 130.010[4] is the false premise underlying the majority‘s insistence that features I, II, III & IV be stricken.
The majority‘s conclusion stems from the mistaken notion that the terms are defined in § 130.010[4], and that the definitions are unacceptably vague, permitting the terms to be used interchangeably throughout the
(1) advance, (2) conveyance, (3) deposit, (4) distribution, (5) transfer of funds, (6) payment, (7) gift, (8) pledge, (9) subscriptions of money or (10) anything of value; and they include (but are not limited to): (1) the candidate‘s own money or property, (2) loans, (3) cancellations of loans, (4) expenses and receipts from fund raising events, (5) purchase of advertising, (6) payment of compensation by a third party for services given to a candidate, (7) money from the sale of goods or services, (8) money from rebates or refunds, and (9) contracts to make contributions or expenditures.
In addition, some services or other objects are specifically excluded from the examples of contribution such as uncompensated services by speakers, writers or publishers, internal dissemination of information by a union, corporation or other organization to its members, shareholders or employees; “home hospitality“, voluntary personal services by volunteer campaign workers; and incidental personal expenses incurred by volunteer campaign workers. Also, expenditures by political organizations not linked to a particular candidate, for office overhead, salaries of full time staff members, purchase of office equipment, rent and other normal operating expenses are not attributed to any candidate for the purposes of the Act.
It is thus apparent that the verbs to contribute and to expend are used throughout the Act in their common and usual sense or meaning of the terms as follows:
- To contribute: = to give or to lend or to furnish to a common fund or to bring about a common result.
- To expend: = to pay out, to distribute, to spend, to consume by using up.
See the Oxford English Dictionary, Compact Edition, Volume I. See also Webster‘s New World Dictionary, Second College Edition, 1974, and Webster‘s Third New International Dictionary, 1976.
The terms as they appear in context are readily understood. It strains credulity to say the use of these verbs render the entire statute remaining non-severable or unconstitutionally vague. I would hold those parts of the Act exclusive of § 130.035(5) and (6) and those not nullified by force of Buckley v. Valeo, supra, severable features of the Act.8
My determination that portions of the Act are severable revives a number of contentions not reached by the majority because of its invalidation of the entire Act. Those contentions challenge “live” sections of the Act on other grounds than non-severability. I have considered such contentions and find them without merit; it would, however, serve no purpose to burden this dissent with a discussion of those issues.
The majority ignores the presumption of statutory validity and does violence to the long standing principle of severability of legislative acts. The severable features of