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indicating that severability was not an option to remedy a law with multiple objects because it could not be determined which object was intended by the Legislature
Summary of this case from Keep Mich. Wolves Protected v. State, Dep't of Nat. Res.Opinion
Docket No. 57850.
Argued March 5, 1976 (Calendar No. 11).
Decided May 21, 1976.
Frank J. Kelley, Attorney General, and Robert A. Derengoski, Solicitor General.
Charles D. Hackney, George M. Elworth, Varda N. Fink, Michael J. Hodge, and Norbert G. Jaworski, Assistants Attorney General, in support of constitutionality. John D. Pirich, Assistant Attorney General, in opposition to constitutionality.
Amici Curiae:
Kenneth J. Guido, Jr. and Ellen G. Block for Common Cause.
Hyman Rice for State Bar of Michigan.
Gary L. Cowan, Daniel F. Curran and Dennis R. O'Connell for Michigan Consolidated Gas Company.
Dykema, Gossett, Spencer, Goodnow Trigg (by James D. Tracy, Nancy C. Kurtz and Ted T. Amsden) for Consumers Power Company.
Lafferty, Reosti, Papakhian James for Socialist Workers Party and CO DEL.
Keywell Rosenfeld for Michigan Press Association.
Honigman, Miller, Schwartz Cohn (by Avern Cohn, Stanley Siegel, and Joseph M. Polito) and Downs Edwards (McClellan, Schlaybaugh Whitbeck, of counsel) for Michigan Association of Broadcasters, Michigan State Grange, Michigan Library Association, Michigan Association of School Boards, Michigan Association of State College and University Governing Boards, Michigan Townships Association, Michigan State Building and Construction Trades Council, Michigan Community College Association, Michigan State Chamber of Commerce, Michigan State Farm Bureau, Michigan Association of Counties and County Road Association of Michigan. Cozadd, Shangle Smith for Michigan Association of Hospital Authorities, Inc.
In response to the request by the Legislature, on March 29, 1976 this Court issued an advisory opinion which held 1975 PA 227, the political reform act, unconstitutional in violation of art 4, § 24 of Michigan's Constitution. In that opinion we expressed our intention to issue a subsequent opinion to discuss the remaining nine certified questions contained in House Resolution 248 regarding the constitutionality of various provisions contained within 1975 PA 227. It is the purpose of this opinion to examine those remaining questions.
Advisory Opinion on Constitutionality of 1975 PA 227 (Question 1) 396 Mich. 123; 240 N.W.2d 193 (1976).
MCLA 169.1 et seq.; MSA 4.1701(1) et seq.
Const 1963, art 4, § 24 provides in pertinent part:
"No law shall embrace more than one object, which shall be expressed in its title."
An advisory opinion is not precedentially binding upon the Court and represents only the opinions of the parties signatory. See Advisory Opinion re Constitutionality of 1972 PA 294 , 389 Mich. 441; 208 N.W.2d 469 (1973).
A recent decision of the United States Supreme Court reviewing the constitutionality of Federal campaign legislation has provided substantial guidance in our deliberations. Buckley v Valeo, 424 U.S. 1; 96 S Ct 612; 46 L Ed 2d 659 (1976).
In our examination we also have been greatly assisted by the fine briefs and oral presentations of the Attorney General and eight amici. Their scholarly contributions are worthy of our highest praise.
The Legislature has undertaken the extremely difficult task of drafting legislation which will bring about meaningful political reform without causing unconstitutional intrusion upon the protected rights of the people. With regard to many of the provisions contained in 1975 PA 227 this task has been successfully accomplished. However, other provisions improperly infringe upon constitutional rights and must fall. Still other provisions cannot properly be judged in a factual vacuum and must be tested at a later time.
CERTIFIED QUESTION II — CONSTITUTIONALITY OF SECTION 40
We are asked in certified question II whether § 40 is unconstitutional as an infringement upon freedom of speech and the press as guaranteed by Const 1963, art 1, § 5.
MCLA 169.40; MSA 4.1701(40).
Section 40 of the 1975 PA 227 provides the following prohibition:
"Any person filing or aware of the filing of a sworn complaint according to the provisions of section 38 shall not publicize any information relative to the sworn complaint. A violation of this section shall be subject to penalty contained in section 178 of this act."
This state's Constitution (art 1, § 5) sets forth the following guarantee:
"Every person may freely speak, write, express and publish his views on all subjects, being responsible for the abuse of such right; and no law shall be enacted to restrain or abridge the liberty of speech or of the press."
It is our opinion that § 40 is constitutionally infirm.
Section 31 of the political reform act creates the Political Ethics Commission (PEC) as an autonomous body within the Department of State. The PEC is made up of six members appointed by the Governor with the advice and consent of the Senate.
MCLA 169.31; MSA 4.1701(31).
Formal complaints alleging violations of the act or rules promulgated under the act may be filed with the commission. Under § 38 the commission is charged with investigating these allegations to determine whether a violation has occurred. During the entire period of the investigation all information relating to the complaint, including any documents or reports in the commission's possession, must be held confidential by the PEC. Matters shall be made public by the PEC upon a final determination that a violation has occurred or if the person whose conduct is under investigation requests the information be made available to the public.
MCLA 169.38; MSA 4.1701(38).
In addition to providing for confidential proceedings before the PEC, § 40 of the act provides that "Any person filing or aware of the filing of a sworn complaint * * * shall not publicize any information relative to the sworn complaint". A violation of this section is a felony punishable by a "fine of not more than $10,000.00 or imprison[ment] for not more than 3 years, or both".
MCLA 169.178; MSA 4.1701(178).
No challenge is made to the Legislature's authority to impose confidentiality upon commission members and personnel, or its records and proceedings. Perhaps, as Amicus Michigan Association of Broadcasters suggests, this veil of secrecy "constitutes the least drastic means for advancing the claimed governmental interests".
However, in an effort to augment the confidentiality created by § 38 with the prohibition contained in § 40, the political reform act has improperly imposed restrictions upon the constitutionally protected freedoms of speech and the press.
On its face, § 40 prohibits not only media publication but private communications between two or more persons as well. In addition the prohibition extends for an indefinite duration. By its terms, § 40 prohibits communication of information even after the information has been made public by the commission or the person under investigation has authorized its revelation.
The act does not provide a definition of the term "publish". We may presume that the Legislature intended it to be used in its common and ordinary sense. Hammons v Franzblau, 331 Mich. 572, 574; 50 N.W.2d 161 (1951). According to Webster's Third New International Dictionary (1971), p 1837, "publish" means "to impart or acknowledge to one or more persons * * * ".
The Attorney General, in his brief in support of the constitutionality of 1975 PA 227, concedes that "A literal interpretation of § 40 appears to intrude upon the constitutional guarantee of free speech". However, he invites this Court to read into the statutes certain time limitations to construe the prohibition against publication of information as in effect only until such time as § 38 permits matters to be made public (i.e. upon final determination of the PEC that violation has occurred or person under investigation requests that information be made public).
Even with the limitation suggested by the Attorney General we do not believe § 40 would pass constitutional muster. If public discussion were banned until after the commission concluded its proceedings, it is very possible that violations of the act would not come to the attention of the public until after the election. Further, if the commission concluded that no violation had occurred, it is not clear when, if ever, the person bringing the complaint could make his case before the public.
In electing persons to serve in positions of public trust, it is fundamental to our system of government that the voters be provided with the information necessary to make informed choices. Section 40 restricts freedom of speech and the media and could impede the flow of vital information to the voter.
Of course, the freedom of speech and of the media has its limitations and is not an absolute right. Near v Minnesota ex rel Olson, 283 U.S. 697, 708; 51 S Ct 625; 75 L Ed 1357 (1931); Whitney v California, 274 U.S. 357, 371; 47 S Ct 641; 71 L Ed 1095 (1927). However, when the state seeks to restrict this right, its efforts must be strictly scrutinized. Former Chief Justice THOMAS M. KAVANAGH, in Kropf v Sterling Heights, 391 Mich. 139, 157-158; 215 N.W.2d 179 (1974), set forth the principle to guide our deliberations:
"For the state itself to legislate in a manner that affects the individual right of its citizens, the state must show that it has a sufficient interest in protecting or implementing the common good, via its police powers, that such private interests must give way to this higher interest. Different degrees of state interest are required by the courts, depending upon the type of private interest which is being curtailed. When First Amendment rights are being restricted we require the state to justify its legislation by a `compelling' state interest." (Emphasis added.)
Proponents of the constitutionality of § 40 argue that compelling state interests are present. They maintain that confidentiality provided by this section will reduce the possibility that the complaint system will be abusively used as a means to discredit a candidate or public official with a nonmeritorious complaint. Also they suggest that confidentiality protects against pretrial publicity which could adversely affect an impartial consideration of the complaint and encourages those persons with information to come forward. Finally, they maintain that by keeping matters confidential until it is determined that a violation has occurred it will preserve public confidence in the integrity of the government from being unnecessarily or prematurely diminished.
These are no doubt important considerations but they do not amount to "compelling state interests" sufficient to justify the substantial restrictions imposed by § 40 on the guarantees of free speech and press.
Possible injury to the reputation of a public official does not afford a basis for repressing speech. See New York Times Co v Sullivan, 376 U.S. 254, 272; 84 S Ct 710; 11 L Ed 2d 686 (1964). Publication and discussion of information relative to proceedings before the PEC does not pose an imminent threat to the administration of its proceedings. There is no jury to be prejudiced by pretrial publicity and the PEC members should be capable of making independent determinations. Finally, while some measure of the confidentiality maintained by the PEC over its proceedings may help preserve the integrity of governmental institutions, a complete ban on public discussion may well do more to destroy than preserve the public's confidence.
Section 40 was conceived as one means of providing fair and honest elections. However, in seeking to accomplish this noble goal the act has impermissibly infringed upon the freedoms of speech and the press.
CERTIFIED QUESTION III — CAMPAIGN ORGANIZATION, EXPENDITURE, AND REPORTS
Certified question III asks:
"Is Chapter 2 of Act No 227 of the Public Acts of 1975, which requires a specific organizational structure for campaigns, limits expenditures and contributions for promoting or opposing candidates or ballot questions, and requires reports in violation of §§ 1, 3 or 5 of article I of the State Constitution of 1963?"
Const 1963, art 1, §§ 1, 3 and 5 state:
"All political power is inherent in the people. Government is instituted for their equal benefit, security and protection."
"The people have the right peaceably to assemble, to consult for the common good, to instruct their representatives and to petition the government for redress of grievances."
"Every person may freely speak, write, express and publish his views on all subjects, being responsible for the abuse of such right; and no law shall be enacted to restrain or abridge the liberty of speech or of the press."
It is our opinion that:
1. The requirement for a specific organizational structure for campaigns is constitutional.
2. Expenditure limitations as they apply to "persons" as defined within the act are unconstitutional.
"(1) `Person' means a business, individual, proprietorship, firm, partnership, joint venture, syndicate, business trust, labor organization, company, corporation, association, committee, or any other organization or group of persons acting jointly." MCLA 169.14; MSA 4.1701(14).
3. Limitation of contributions to candidate committees are constitutional excepting those made by a candidate and family to his own candidate committee.
4. Disclosure and record keeping requirements are constitutional, both as to promotion of or opposition to a candidate or ballot question.
1. Organizational Structure for Campaigns.
Under Const 1963, art 2, § 4, the Legislature is given the power to regulate the conduct of elections. It provides in pertinent part:
"The legislature shall enact laws to preserve the purity of elections, to preserve the secrecy of the ballot, to guard against abuses of the elective franchise, and to provide for a system of voter registration and absentee voting."
The organization structure for campaigns provided in chapter 2 lies within permissible limits.
2. Limitation on Expenditures.
Subsequent to the request of the Michigan House of Representatives for an advisory opinion, the United States Supreme Court decided Buckley v Valeo, 424 U.S. 1; 96 S Ct 612; 46 L Ed 2d 659 (1976), rev'g in part, aff'g in part, 171 US App DC 172; 519 F.2d 821 (1975), which effectively disposes of the greater part of question III.
This Court has held that First Amendment rights under the Federal Constitution are applicable to the state via the Fourteenth Amendment. Book Tower Garage, Inc v Local No 415, 295 Mich. 580, 586; 295 N.W. 320 (1940). Also, the rights endowed under Const 1963, art 1, §§ 1, 3, and 5 are similar to those protected under the First Amendment of the Constitution of the United States.
Although the regulation of elections is a permissible legislative activity, such legislation must be examined closely when it infringes on fundamental freedoms guaranteed by the United States and our state Constitutions.
In Buckley, supra 14, the Supreme Court spoke generally of contribution and expenditure limits before regarding each issue with specificity. The court stated:
"The act's contribution and expenditure limitations operate in an area of the most fundamental First Amendment activities. Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order `to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people'. Roth v United States, 354 U.S. 476, 484 [ 77 S Ct 1034; 1 L Ed 2d 1498] (1957). Although First Amendment protections are not confined to `the exposition of ideas,' Winters v New York, 333 U.S. 507, 510 [ 68 S Ct 665; 92 L Ed 840] (1948), `there is practically universal agreement that a major purpose of th[e] Amendment was to protect the free discussion of governmental affairs, * * * of course includ[ing] discussions of candidates. * * *' Mills v Alabama, 384 U.S. 214, 218 [ 86 S Ct 1434; 16 L Ed 2d 484] (1966)."
The Supreme Court proceeded thereafter to find the limitations of expenditures on behalf of a candidate to be in violation of First Amendment rights because:
"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. The distribution of the humblest handbill or leaflet entails printing, paper, and circulation costs. Speeches and rallies generally necessitate hiring a hall and publicizing the event. The electorate's increasing dependence on television, radio, and other mass media for news and information has made these expensive modes of communication indispensible instruments of effective political speech." (19.)
Three distinctive limitations on expenditures imposed by the Federal act were found to be unconstitutional. Included were limitations on expenditures by candidates from personal or family resources, overall limitations on expenditures by or on behalf of candidates, and the $1,000 limitation on expenditures by "persons".
Four provisions of chapter 2 of the Michigan act must fall in light of the Buckley rationale. Sections 83 and 84 which impose maximum expenditure limits upon campaigns and § 91 which fixes ceilings upon expenditures by individuals and committees are unconstitutional because of their direct infringement on First Amendment freedom of speech. Section 61 is defective in its referral to "expenditure * * * limits".
MCLA 169.83, 169.84; MSA 4.1701(83), 4.1701(84).
MCLA 169.91; MSA 4.1701(91).
MCLA 169.61; MSA 4.1701(61).
3. Limitation of Contributions.
Limitations on contributions, however, excepting those made by the candidate and family, were found to be not such a deprivation of free speech. The Court rationalized:
MCLA 169.93(6); MSA 4.1701(93)(6).
"By contrast with a limitation upon expenditures for political expression, a limitation upon the amount that any one person or group may contribute to a candidate or political committee entails only a marginal restriction upon the contributor's ability to engage in free communication. A contribution serves as a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support. The quantity of communication by the contributor does not increase perceptibly with the size of his contribution, since the expression rests solely on the undifferentiated, symbolic act of contributing. At most, the size of the contribution provides a very rough index of the intensity of the contributor's support for the candidate. A limitation on the amount of money a person may give to a candidate or campaign organization thus involves little direct restraint on his political communication, for it permits the symbolic expression of support evidenced by a contribution but does not in any way infringe the contributor's freedom to discuss candidates and issues. While contributions may result in political expression if spent by a candidate or an association to present views to the voters, the transformation of contributions into political debate involves speech by someone other than the contributor." (20-21.)
In short, the Court found that the great potential for abuse inherent in the contribution of large sums of money could be avoided. The purpose served by limiting contributions outweighed the constitutional rights which were infringed. The Court elaborated, 26-27:
"To the extent that large contributions are given to secure political quid pro quos from current and potential office holders, the integrity of our system of representative democracy is undermined. Although the scope of such pernicious practices can never be reliably ascertained, the deeply disturbing examples surfacing after the 1972 election demonstrate that the problem is not an illusory one.
"Of almost equal concern as the danger of actual quid pro quo arrangements is the impact of the appearance of corruption stemming from public awareness of the opportunities for abuse inherent in the regime of large individual financial contributions."
The pertinent provision of 1975 PA 227 concerned with contribution limitations is § 93. The analogous provisions in the Federal act are found in 18 U.S.C. § 608. Section 93 limits the amount which persons (as defined in the act) and committees may contribute to candidate committees of candidates for state elective office.
MCLA 169.93; MSA 4.1701(93).
However, the Supreme Court did not find similar potential dangers in the contributions of candidates and their families to the candidate's own campaign committee. Buckley, supra, found unconstitutional a limitation similar to subsection 93(6) of the Michigan act because it limited political expression and would serve no governmental interest once the limit on independent expenditures was removed. Such abuses as quid pro quo or undue pressure are not present in the use of a candidate's own or family funds.
Section 93(7) limits to $1,700 annually aggregate contributions to all committees in support of or in opposition to a candidate "except that this subsection shall not apply to the transfer of funds between an organization and a subsidiary, subunit or affiliate of that organization". The meaning of the exception is obscure. In this factual vacuum, we can make no determination as to validity.
MCLA 169.93(7); MSA 4.1701(93)(7).
Therefore, we find § 93 to be constitutional, excepting subsections (6) and (7).
4. Disclosure and Record Keeping.
In Buckley, the Supreme Court also dealt with the impact of the compelled disclosure of contributions and expenditures on behalf of candidates encompassed by the Federal act. The Supreme Court stated:
2 U.S.C. § 431, et seq.
"We long have recognized that significant encroachments on First Amendment rights of the sort that compelled disclosure imposes cannot be justified by a mere showing of some legitimate governmental interest. Since Alabama we have required that the subordinating interests of the State must survive exacting scrutiny. We also have insisted that there be a `relevant correlation' or `substantial relation' between the governmental interest and the information required to be disclosed. See Pollard v Roberts, 283 F. Supp. 248, 257 (ED Ark, 1968) (three-judge court), aff'd, 393 U.S. 14 [ 89 S Ct 47; 21 L Ed 2d 14] (1968). This type of scrutiny is necessary even if any deterrent effect on the exercise of First Amendment rights arises, not through direct government action, but indirectly as an unintended but inevitable result of the government's conduct in requiring disclosure. NAACP v Alabama, supra, at 461 [ 357 U.S. 449; 78 S Ct 1163; 2 L Ed 2d 1488 (1958)]. Cf. Kusper v Pontikes, 414 U.S. 51, 57-58 [ 94 S Ct 303; 38 L Ed 2d 260] (1973)." (64-65.)
The governmental interests espoused by the Supreme Court as justification for the disclosure requirements included: (1) informing the public as to the source of campaign money and its utilization by the candidate; (2) deterrence of actual corruption and the avoidance of the appearance of corruption by bringing publicity to large contributions; (3) providing data to be used in the detection of violations of contribution limitations.
Although ballot questions were not at issue in Buckley, the same rationale applies to the reporting and disclosure requirements for contributions and expenditures relative to ballot questions.
See MCLA 169.55-169.57, 169.92; MSA 4.1701(55)-4.1701(57), 4.1701(92).
CERTIFIED QUESTION IV — CONSTITUTIONALITY OF SECTION 95
Certified question IV addresses the constitutionality of § 95 of 1975 PA 227. This section prohibits the use of corporate contributions or expenditures for the purpose of influencing the nomination or election of a candidate, or for the qualification, passage, or defeat of a ballot question. The specific question is whether this prohibition provides unequal protection of the laws or infringes upon the right to freedom of expression and assembly as guaranteed by Const 1963, art 1, §§ 1, 2, 3, and 5.
Section 95 of 1975 PA 227 provides:
"(1) Except with respect to the exceptions and conditions in subsections (2) and (3) and to loans made in the ordinary course of business, a corporation may not make a contribution or expenditure or provide volunteer personal services which services are excluded from the definition of a contribution pursuant to section 5(3)(a).
"(2) An officer, director, stockholder, attorney, agent, or any other person acting for a corporation or joint stock company, whether incorporated under the laws of this or any other state or foreign country, except corporations formed for political purposes, shall not make a contribution or expenditure or provide volunteer personal services which services are excluded from the definition of a contribution pursuant to section 5(3)(a). A corporation may make an expenditure solely for the establishment and administration of a separate segregated corporate political education fund to be utilized for the sole purpose of making contributions to and expenditures on behalf of candidate committees.
"(3) Contributions to and expenditures from a fund established under subsection (2) shall be limited to money or anything of ascertainable value obtained through the voluntary contribution of the employees of the corporation under which the fund was established. A corporation which is nonprofit may also obtain money or anything of ascertainable value received through the contributions of members, who are individuals, of that corporation. The fund may not make a contribution or expenditure by utilizing money or anything of ascertainable monetary value obtained by using or threatening to use job discrimination or financial reprisals, or obtained as condition of employment.
"(4) A person who knowingly violates this section is subject to section 176." MCLA 169.95; MSA 4.1701(95).
Section 5(1) of the act defines "contribution" as follows:
"`Contribution' means a payment, gift, subscription, assessment, expenditure, contract, payment for services, dues, advance, forbearance, loan, donation, pledge or promise of money or anything of ascertainable monetary value, whether or not conditional or legally enforceable, or a transfer of anything of ascertainable monetary value to a person, made for the purpose of influencing the nomination or election of a candidate, or for the qualification, passage, or defeat of a ballot question. An offer or tender of a contribution is not a contribution if expressly and unconditionally rejected or returned." MCLA 169.5(1); MSA 4.1701(5)(1).
Section 7(1) of the act defines "expenditure" as follows:
"`Expenditure' means a payment, donation, loan, pledge, or promise of payment of money or anything of ascertainable monetary value for goods, materials, services, or facilities in assistance of, or in opposition to, the nomination or election of a candidate, or the qualification, passage, or defeat of a ballot question. An offer or tender of an expenditure is not an expenditure if expressly and unconditionally rejected or returned." MCLA 169.7(1); MSA 4.1701(7)(1).
Section 2(2) defines "ballot question" as follows:
"`Ballot question' means a question which is submitted or which is intended to be submitted to a popular vote at an election whether or not it qualifies for the ballot." MCLA 169.2(2); MSA 4.1701(2)(2).
Const 1963, art 1, §§ 1, 3, and 5 are quoted in fn 9, supra.
Section 2 states:
"No person shall be denied the equal protection of the laws; nor shall any person be denied the enjoyment of his civil or political rights or be discriminated against in the exercise thereof because of religion, race, color or national origin. The legislature shall implement this section by appropriate legislation."
It is our opinion that corporate contributions or expenditures for the purpose of influencing the nomination or election of a candidate may be constitutionally prohibited in order to preserve the integrity of the electoral process. However, we would view the prohibition of corporate contributions or expenditures for the purpose of influencing the qualification, passage, or defeat of a ballot question as an unconstitutional abridgement of freedom of speech and press as guaranteed by art 1, § 5.
1. Equal Protection.
Corporations have been prohibited from contributing to electoral campaigns in Michigan since 1913, the year in which the corrupt practices act passed. The legislative intent in prohibiting financial involvement of corporations in the elective process was to prevent the use of corporate funds to impose undue influence upon elections. Large aggregations of capital controlled by a few persons could have a significant impact upon the nomination or election of a candidate. The possibility of misuse of corporate assets by persons acting on behalf of uninformed or unwilling shareholders and the attempts at influence or importunity which might be exerted upon a successfully elected candidate by a contributing corporation represent abuses which the passage of the corrupt practices act sought to eliminate.
As relating to corporate contributions, 1913 PA 109, § 14, now MCLA 168.919; MSA 6.1919:
"No officer, director, stockholder, attorney, agent or any other person, acting for any corporation or joint stock company, whether incorporated under the laws of this or any other state or any foreign country, except corporations formed for political purposes, shall pay, give or lend, or authorize to be paid, given or lent, any money belonging to such corporation to any candidate or to any political committee for the payment of any election expenses whatever."
People v Gansley, 191 Mich. 357; 158 N.W. 195 (1916), decided by an equally divided Court.
The state's interest in preserving the integrity of the elective process must be balanced against the assumed right to free expression of an artificial entity (i.e., a corporation) regarding the candidacy of persons seeking election to public office. Recognizing that the state must show a compelling interest to justify interference with the fundamental right of freedom of speech or press, it is our opinion that this test is met and that the Legislature can exercise its power to insure the integrity of the elective process by prohibiting any corporate contributions or expenditures made for the purpose of influencing either the nomination or election of a candidate. We need not discuss further those circumstances under which corporations may be afforded First Amendment protection.
Williams v Rhodes, 393 U.S. 23, 31; 89 S Ct 5; 21 L Ed 2d 24 (1968).
The prohibition against corporate contributions or expenditures for such purposes does not violate their right to equal protection under the law as guaranteed by art 1, § 2. The United States Supreme Court in Buckley, supra, recently restated the established principle that:
"[A] `statute is not invalid under the Constitution because it might have gone further than it did,' Roschen v Ward, 279 U.S. 337, 339 [ 49 S Ct 336; 73 L Ed 722 (1929)], that a legislature need not `strike at all evils at the same time', Semler v Dental Examiners, 294 U.S. 608, 610 [ 55 S Ct 570; 79 L Ed 1086 (1935)], and that `reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind,' Williamson v Lee Optical Co, 348 U.S. 483, 489 [ 75 S Ct 461; 99 L Ed 563 (1955)]." (105.)
Katzenbach v Morgan, 384 U.S. 641, 657; 86 S Ct 1717; 16 L Ed 2d 828 (1966).
It is our opinion that restricting the application of § 95 to corporations alone did not constitute a violation of equal protection of the law.
2. Ballot Questions.
We believe a significant distinction exists between corporation contributions or expenditures made for the purpose of influencing the nomination or election of a candidate and, on the other hand, corporate contributions or expenditures made for the purpose of expressing a position or opinion concerning a public issue which may include the qualification, passage or defeat of a ballot question. Though Buckley did not address ballot-question campaigns, the Court determined that expenditures for communication of views and opinions about public issues are constitutionally protected. Political expression must be afforded the broadest protection in order "to assure the unfettered interchange of ideas for the bringing about of political and social changes desired by the people". That our discussion involves corporations and not individuals does not render inapplicable our society's "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open".
Monitor Patriot Co v Roy, 401 U.S. 265, 272; 91 S Ct 621; 28 L Ed 2d 35 (1971).
New York Times Co v Sullivan, 376 U.S. 254, 270; 84 S Ct 710; 11 L Ed 2d 686 (1964).
Contributions or expenditures by corporations to communicate their positions or opinions concerning ballot questions serve to enlighten the public and encourage an informed decision-making process. Such contributions or expenditures create no danger of incurring obligations from an elected official to a major contributor. The right of the public to be informed is a paramount consideration in seeking to preserve the free exchange of ideas in the market place.
First National Bank of Boston v Attorney General, 362 Mass. 570; 290 N.E.2d 526 (1972); Schwartz v Romnes, 495 F.2d 844 (CA 2, 1974).
Red Lion Broadcasting Co, Inc v FCC, 395 U.S. 367; 89 S Ct 1794; 23 L Ed 2d 37 (1969).
A ballot question may affect the assets, the conduct, or, indeed, the very existence of a corporation. Especially in such cases, the corporation is deserving of a public forum to express its position or opinion, much the same as the public has a right to hear those same matters.
Cf. People v Gansley, supra.
It is our opinion that insofar as § 95 interferes with the right of the public to hear divergent views of public importance by prohibiting corporations from making contributions or expenditures for the purpose of communicating its opinion concerning ballot questions, it is violative of Const 1963, art 1, § 5. We make no judgment upon the extent to which art 1, § 5, protects the right of corporations to freely express their ideas in other contexts.
CERTIFIED QUESTION V — CONSTITUTIONALITY OF CHAPTER 3
We are asked to decide whether § 101 of the act in chapter 3 constitutes an appropriation for private purposes passed by the Legislature in violation of art 4, § 30 of the Michigan Constitution.
MCLA 169.101; MSA 4.1701(101).
Section 30 of article 4 provides:
"The assent of two-thirds of the members elected to and serving in each house of the legislature shall be required for the appropriation of public money or property for local or private purposes."
Since the act was enacted upon a vote of less than two-thirds of the members of each house, and since we have concluded that § 101 is an appropriations bill in our discussion of certified question VI, the only remaining question is whether § 101 constitutes an appropriation for private purposes. If it is such an appropriation, § 101 is invalid under art 4, § 30.
At the outset, it should be recognized that the term public purpose should not be narrowly construed by the courts, for the determination of what constitutes a public purpose for which an appropriation of public money may be made is primarily the responsibility of the Legislature.
As stated in Gregory Marina, Inc v Detroit, 378 Mich. 364, 394; 144 N.W.2d 503 (1966):
"[D]etermination of what constitutes a public purpose involves considerations of economic and social philosophies and principles of political science and government. Such determinations should be made by the elected representatives of the people."
This quotation is from the opinion written by then Chief Justice THOMAS M. KAVANAGH, concurred in by Justices BLACK and SMITH. Justice ADAMS, while dissenting on other grounds, agreed with Chief Justice KAVANAGH'S statement of the rule:
"I agree that the determination of what constitutes a public purpose is primarily a legislative function and that there has been no abuse by the legislature of that function in its determination that the construction and operation of marinas is within the broad concept of public purposes." 378 Mich. 364, 409.
The fact that certain individuals benefit from the appropriation does not necessarily imply that the appropriation is lacking a public purpose. The question is whether society at large has an interest in having those individuals benefited. Gaylord v Gaylord City Clerk, 378 Mich. 273, 299-300; 144 N.W.2d 460 (1966).
In this regard, it is highly relevant that the method of financing presidential elections established in the Federal Election Campaign Act of 1971, 26 USCA 9001, which is analogous to the provision before us, was held by the United States Supreme Court to be well within the "general welfare" clause of the United States Constitution, art I, § 8, in Buckley v Valeo, 424 U.S. 1; 96 S Ct 612; 46 L Ed 2d 659 (1976):
"[P]ublic financing of Presidential elections as a means to reform the electoral process was clearly a choice within the granted power. It is for Congress to decide which expenditures will promote the general welfare: `[T]he power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.' [Citations omitted.] * * * In this case, Congress was legislating for the `general welfare' — to reduce the deleterious influence of large contributions on our political process, to facilitate communication by candidates with the electorate, and to free candidates from the rigors of fundraising." (90-91.)
Similarly, the Michigan Legislature has determined that public financing of gubernatorial elections is for the general welfare of the public, and it is well within the Legislature's powers to so determine.
Chapter 3 may be said to have any of the following beneficial public purposes:
1. To allow gubernatorial candidates to become less dependent upon financial support from special-interest groups, thus promoting the appearance and reality of an executive with the welfare of the public at large in mind.
2. To encourage greater participation in gubernatorial campaigns by reducing financial obstacles for candidates with less fundraising abilities, and by enhancing the importance of smaller contributions.
3. To promote the dissemination of political ideas to the electorate by gubernatorial candidates who have been encouraged to campaign for the governorship.
We can only conclude that chapter 3 of the act, specifically § 101, does not constitute an appropriation for a local or private purpose, and thus did not require a two-thirds majority in both houses for passage under art 4, § 30.
Such conclusion is entirely consistent with prior decisions of this Court regarding the nature of a public purpose. As noted in Gaylord v Gaylord City Clerk, supra, p 299, a case which held that a Municipal Industrial Aid Financing Program involving the issuance of bonds to finance the construction of private industrial plants had a public purpose, the concept of public purpose has been construed quite broadly in Michigan:
"Michigan cases have steadily broadened the concept of public purpose. In Miller v Michigan State Apple Commission, 296 Mich. 248 [ 296 N.W. 245 (1941)], a State tax on apples, which was used to promote sale of Michigan apples, was upheld because stimulation of the State's apple industry would be beneficially reflected throughout the State. In Hays v Kalamazoo, 316 Mich. 443 (169 ALR 1218) [ 25 N.W.2d 787 (1947)], the expenditure of general funds of a city for membership in the Michigan Municipal League, a private nonprofit corporation established to advise and lobby for cities and villages in the State, was upheld as being for a public purpose. In Sommers v Flint, supra [ 355 Mich. 655; 96 N.W.2d 119 (1959)], a transfer of city property to the Federal government, without consideration, for use as an armory was upheld, based upon mutuality of obligation between the United States and the city in the field of national defense."
See also Gregory Marina, Inc v Detroit, supra, holding that the construction of marinas in which boatwells would be leased under non-transferable, perpetually renewable leases was a public purpose.
Most of the cases holding that the Legislature had made appropriations for private purposes are older cases which apparently took a narrower view of public purpose than the more recent cases cited above. See Michigan Corn Improvement Ass'n v Auditor General, 150 Mich. 69; 113 N.W. 582 (1907) (an appropriation to a private association working for the improvement of corn crops was an unconstitutional attempt to devote public funds to a private purpose); Michigan Sugar Co v Auditor General, 124 Mich. 674; 83 N.W. 625 (1900) (an appropriation to pay bounties to manufacturers of beet sugar was unconstitutional as authorizing taxation for a private purpose); Allen v Board of State Auditors, 122 Mich. 324; 81 N.W. 113 (1899) (an appropriation to compensate an individual wrongfully convicted of a crime was for a private purpose).
There is one relatively recent opinion holding that the Legislature had appropriated for a private purpose in violation of art 4, § 30. In Advisory Opinion re Constitutionality of PA 1966, No 346, 380 Mich. 554; 158 N.W.2d 416 (1968), the Court held that the act creating the Michigan State Housing Development Authority was in part valid and in part invalid as an appropriation for private purposes. Specifically, the Court held that the appropriation for the creation and administration of the Housing Authority was for a public purpose, but that the appropriations to the housing development fund and the capital reserve sinking fund were not for a public purpose. The housing development fund was to be used to make loans and advances to private corporations engaged in housing development. The capital reserve sinking fund was to be used to repay bonds issued for the same purpose.
This holding is not inconsistent with the result we reach today since the goals of chapter 3 are more closely and clearly related to the welfare of the public at large than the provision overturned in Advisory Opinion re Constitutionality of PA 1966, No 346, supra.
In sum, given the broad powers of the Legislature to determine public purpose, and the clear relationship between the goals of § 101 and the public welfare, there is little doubt that there has been no contravention of art 4, § 30 in the enactment of § 101 by less than a two-thirds majority in both houses.
CERTIFIED QUESTION VI — CONSTITUTIONALITY OF SECTION 101
Section 31, article 4 of the Michigan Constitution of 1963 provides in pertinent part as follows:
"The general appropriation bills for the succeeding fiscal period covering items set forth in the budget shall be passed or rejected in either house of the legislature before that house passes any appropriation bill for items not in the budget except bills supplementing appropriations for the current fiscal year's operation."
The Michigan Legislature passed several general appropriation bills after it passed the political reform act.
We are asked in certified question VI whether § 101 of the act is an appropriation bill within the meaning of art 4, § 31. If § 101 is an appropriation bill, it is invalid as having been passed prior to the passage of general appropriation bills.
Art 4, § 31 defines an appropriation bill as follows:
"Any bill requiring an appropriation to carry out its purpose shall be considered an appropriation bill."
Our central question therefore is whether the political reform act "[requires] an appropriation to carry out its purpose".
Little analysis is needed to demonstrate that the central purpose of chapter 3 of the act, and § 101 in particular, requires an appropriation. That purpose is to help finance gubernatorial campaigns with state funds through a voluntary check-off system from the state income tax, § 101(2), the establishment of a state campaign fund through the transfer of an amount equal to the sum checked off by taxpayers to that fund, § 101(4), and the granting of authority to the state treasurer to issue warrants on the state campaign fund to pay appropriate amounts of money to qualified gubernatorial candidates, § 102(5). Therefore, § 101 constitutes an appropriation bill which is invalid under the provisions of art 4, § 31 in that it was enacted prior to certain general appropriation bills. See also Boards of County Road Commissioners v Board of State Canvassers, 50 Mich. App. 89, 95; 213 N.W.2d 298 (1973), aff'd 391 Mich. 666; 218 N.W.2d 144 (1974), and MCLA 21.9; MSA 3.289.
Irrespective of the fact that § 101 was violative of art 4, § 31 in that it was passed before certain general appropriation bills, § 101 could only serve as an appropriation for one fiscal year under the rationale of Board of Education of Oakland Schools v Superintendent of Public Instruction, 392 Mich. 613, 620; 221 N.W.2d 345 (1974).
In Oakland, dealing with a statute which purported to be an appropriation bill, but which did not take effect during the ensuing fiscal year, we held that "any provision that does not take initial effect during the ensuing fiscal year is intended to function only as an authorization — an intention to appropriate".
Under Michigan law, the "ensuing fiscal year" is the fiscal year commencing July 1 and closing June 30. See Oakland, 392 Mich. 618, fn 4.
The Court felt that such construction avoided conflict with art 4, § 31, for if such a provision were to be effective as an appropriation, the Legislature would be unable to match revenues with appropriations as is required under the Constitution.
Section 101(4) presents a very similar situation. That section reads as follows:
"(4) An amount equal to the amounts designated under subsection (2) each year is appropriated from the general fund of the state to the state campaign fund. The amounts appropriated under this section shall not revert to the general fund but shall remain available to the state campaign fund for distribution without fiscal year limitation except that any amounts remaining in the state campaign fund on December 31 immediately following a gubernatorial general election shall revert to the general fund."
This provision is a continuing appropriation, i.e. an appropriation that does take effect in the ensuing fiscal year, but which by its terms continues to appropriate beyond that fiscal period.
See Oakland, 392 Mich. 620, fn 5.
After the ensuing fiscal year, in which revenues can be matched with the appropriation, the conflict with art 4, § 31 created by such a statute is identical with that created by the type of provision found in Oakland; in both situations, the budgetary procedure required by the constitutional provision becomes impossible.
Therefore, under the rationale of Oakland, there can be an appropriation to the state campaign fund, only for the ensuing fiscal year but not thereafter, appropriations necessarily being made on a year-to-year basis.
CERTIFIED QUESTION VII — FINANCIAL DISCLOSURE
We are asked in certified question VII whether sections 131 and 132 which require the filing of certain financial information constitute "an invasion of the rights of privacy, or do they violate the equal protection clause or the prohibition against unreasonable searches and seizure". Section 131 specifies the individuals who must file and describes the procedures for filing and the penalties for failure to comply. Section 132 describes the information which must be disclosed by every individual who must file. Persons violating either section may be subjected to a fine not exceeding $1,000, up to 90 days in jail, and may be prohibited from assuming the duties of public office or from receiving compensation from public funds or both.
MCLA 169.131; MSA 4.1701(131).
MCLA 169.132; MSA 4.1701(132).
§§ 175, 180; MCLA 169.175, 169.180; MSA 4.1701(175), 4.1701(180).
The initial question we address concerns whether §§ 131 and 132 violate the equal protection clause of our Constitution. Those opposed to constitutionality argue that these sections:
"impose the same burdensome disclosure requirements on all public officials, without regard to their geographical jurisdiction or official duties." Brief of Michigan State Grange, et al., p 41.
Their argument is that the statute is overinclusive because it:
"imposes a burden upon a wider range of individuals than are included in the class of those tainted with the mischief at which the law aims." Tussman tenBroek, The Equal Protection of the Laws, 37 Calif L Rev 341, 351 (1949).
The analysis of an overbroad classification differs from the more common equal protection challenge to separate classifications. While separate classifications are subjected to challenge on the basis that there is no legitimate state reason for making a differentiation between members of the separate classes, the question that must be answered in an overbroad classification case is: Is the state's grouping of all individuals into a single class rationally related to the furtherance of a legitimate state interest. It is as reprehensible for the law to separately classify individuals who ought to be treated equally as it is for the law to fail to separately classify individuals who ought to be treated differently. While the drawing of lines need not be done with "mathematical nicety", the lines must be drawn for some rational reason.
We proceed with our analysis of the lines drawn and the burden imposed. Section 131 places into a single class individuals with vastly differing areas of responsibility and influence and totally differing constituencies, both as to size and geographical location. The act requires the same degree of financial disclosure of the Governor, the Mayor of Grand Rapids, a county road commissioner in Montmorency County, a member of the State Board of Horology, a member of the Michigan Bean Commission, or a city clerk, among others. They have different spheres of influence; some are empowered with wide discretion in matters of great significance while others perform only ministerial functions over rather routine matters. Logic alone must lead us to the conclusion that the possibilities for conflicts of interests of these various governmental officials are also of different proportions and the information required to be disclosed should reflect this fact.
The burden imposed concerns public disclosure of an individual's private financial affairs. At this juncture it is both convenient and necessary for us to depart from the analysis of the equal protection problem in order to discuss the right to privacy issue.
This Court has long recognized privacy to be a highly valued right. De May v Roberts, 46 Mich. 160; 9 N.W. 146 (1881). No one has seriously challenged the existence of a right to privacy in the Michigan Constitution nor does anyone suggest that right to be of any less breadth than the guarantees of the United States Constitution.
The United States Supreme Court has recognized the presence of constitutionally protected "zones of privacy". Griswold v Connecticut, 381 U.S. 479, 484; 85 S Ct 1678; 14 L Ed 2d 510 (1965); Roe v Wade, 410 U.S. 113; 93 S Ct 705; 35 L Ed 2d 147 (1973). These zones have been described as being within "penumbras" emanating from specific constitutional guarantees. Often mentioned as a basis of the right to privacy are the 1st, 3rd, 4th, 5th, 9th and 14th Amendments to the United States Constitution. The people of this state have adopted corresponding provisions in art 1 of our Constitution.
We reject the notion that an individual's entry into the governmental arena waives the right to privacy. New York Times Co v Sullivan, 376 U.S. 254; 84 S Ct 710; 11 L Ed 2d 686 (1964), insures the public an opportunity to make nonmalicious criticisms of a public official's official conduct. Those seeking public office are well advised to recall the words of Harry S. Truman:
"If you can't stand the heat, stay out of the kitchen!"
Public officials must recognize their official capacities often expose their private lives to public scrutiny. However, we see a great difference between "unavoidable exposure" and "compelled disclosure". We reject any notion that the Sullivan case can be read to require public officials to fuel the fires of those who seek to roast them.
The right to privacy includes certain activities which are fundamental to our concept of ordered liberty. Rights of this magnitude can only be abridged by governmental action where there exists a "compelling state interest". Roe, supra, 152, 155. Kropf v Sterling Heights, 391 Mich. 139, 157-158; 215 N.W.2d 179 (1974).
It is argued by those seeking to uphold the constitutionality of these provisions that disclosure of specified governmental official's financial affairs is necessary to further a legitimate and compelling state interest. We agree. Disclosure assists in preserving the integrity of the political process. It is legitimate for the Legislature to provide a means for effectively investigating possible conflicts of interest. Disclosure requirements promote integrity, fairness, and public confidence in government as well as providing the citizens with information concerning an officeholder's integrity and fitness for office.
Having determined that the state is possessed of a compelling interest in seeking disclosure of financial affairs, we must establish whether the means employed are sufficiently narrow. Even when motivated by a compelling reason, the abridgment of such rights must be accomplished by the least intrusive method.
"[T]he governmental purpose * * * cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved." Shelton v Tucker, 364 U.S. 479; 81 S Ct 247; 5 L Ed 2d 231 (1960).
The encroachment must be shown to be necessary to, not merely rationally related to, the accomplishment of the state interest. Griswold, supra, 497.
With regard to at least some of the individuals listed in § 131 most of the information required by § 132 to be disclosed appears to be sufficiently narrow and necessary to the accomplishment of the state interest. The act contains certain threshold limits. Small amounts of income, debt, real estate and gifts need not be disclosed. Even when the threshold limits are reached the exact numerical amounts or values need not be disclosed to the public (except for the information required by subsection [e] which is to be filed with the Secretary of State and remain confidential, the exact value of income, real estate, or gifts need not be disclosed at all). The term gift as defined in § 121(5) does not include gifts received from members of the individual's immediate family or certain other close relatives. There are also broad exceptions to the required disclosure of creditors. Accounts payable, debts arising out of retail installment transactions or from loans made by financial institutions in the ordinary course of business, loans from a relative within the third degree of consanguinity, and land contracts that have been properly recorded with the county clerk or the register of deeds need not be included.
A notable exception exists regarding the language in § 132(1) which requires individuals to report information concerning "what they know or have reason to know" about members of their immediate family. In our opinion this language and similar language contained in § 132(2) present very real problems of vagueness. As the statute imposes criminal penalties for violations, due process requires that the statute provide adequate notice to a person of ordinary intelligence of conduct that is illegal. We believe the quoted language lacks the specificity required to alert individuals to the responsibility imposed upon them to discover the information required to be disclosed. While we agree with those who argue in support of the constitutionality of this section that immediate family members were included in the disclosure provisions in order to prevent the individual from circumventing the disclosure provisions by transferring an interest held by that individual to a member of his immediate family, we believe the same result may be accomplished with more precise language. See Ill Rev Stat 1971 ch 127, § 604a-102; Lehrhaupt v Flynn, 129 N.J. Super. 327; 323 A.2d 537, 541 (1974).
However, despite the fact that we find the disclosure provision to be sufficiently narrow for some officials, we are convinced that for many others listed in § 131 the disclosure requirements mandate production of information which is not "necessarily related" to achieving the state interests involved. For those minor officials whose sphere of influence is geographically limited or whose functions are routine and ministerial, we find the disclosure provisions of § 132 to be overbroad.
Similar considerations led the California Supreme Court in the case of Carmel-By-The-Sea v Young, 2 Cal.3d 259, 269; 85 Cal.Rptr. 1; 466 P.2d 225 (1970), to strike down a 1969 political reform act containing financial disclosure provisions.
"The financial disclosure requirements of the statute now before us encompass indiscriminately persons holding office in a statewide agency regardless of the nature or scope of activity of the agency, as well as those whose offices are local in nature * * *. No effort is made to relate the disclosure to financial dealing or assets which might be expected to give rise to a conflict of interest; that is, to those having some rational connection with or bearing upon, or which might be affected by, the functions or jurisdiction of any particular agency, whether statewide or local, or on the functions or jurisdiction of any particular public officer or employee."
In light of our comments concerning the overbreadth of the intrusion into the right to privacy of some of the officials listed in § 131, we return to our analysis of the equal protection question. We find the single class created by § 131 to be an arbitrary, capricious, and unreasonable grouping and, therefore, a violation of the equal protection clause. The grouping indiscriminately combines officials without regard to their function or jurisdiction. We are unable to discover a single thread connecting all the named officials.
As we conclude that the classification is overbroad, the entire statutory scheme set forth in §§ 131 and 132 for disclosure by public officials must fall.
Finally, §§ 131 and 132 are challenged on the basis that they violate the constitutional provisions against unreasonable searches and seizures. This section of the Constitution does not forbid all searches and seizures but only all unreasonable searches and seizures. Elkins v United States, 364 U.S. 206, 222; 80 S Ct 1437; 4 L Ed 2d 1669 (1960).
"We have recently held that `the Fourth Amendment protects people, not places,' * * * and wherever an individual may harbor a reasonable `expectation of privacy,' * * * he is entitled to the free from unreasonable governmental intrusion." Terry v Ohio, 392 U.S. 1, 9; 88 S Ct 1868; 20 L Ed 2d 889 (1968). (Emphasis added.)
In our discussion concerning the right to privacy, we found that the government could make reasonable intrusions upon that right. Therefore, if we assume, arguendo, that compelled disclosure is a search, we believe that it would be a reasonable search if it is accomplished by the least intrusive method.
CERTIFIED QUESTION VIII — DISCLOSURE AS OATH
The Legislature requests us to test the constitutionality of §§ 131 and 132 against the provisions of art 11, § 1 of the Constitution. That article contains the oath of office required to be taken and subscribed by all legislative, executive and judicial officers. This section also provides that:
"No other oath, affirmation, or any religious test shall be required as a qualification for any office or public trust."
We find no conflict between §§ 131 and 132 of the act and this section of the Constitution.
The oath, affirmation or religious test provision contained in art 11, § 1 was designed to protect a right which the citizens of our state and nation hold most dear: freedom of belief. While the government may legitimately impose restrictions upon the expression of one's beliefs, it is wholly without power to compel or require a citizen to adopt a belief. Cases involving "loyalty oaths" fall within that category.
Essentially in both Dapper v Smith, 138 Mich. 104; 101 N.W. 60 (1904), and Harrington v Secretary of State, 211 Mich. 395; 179 N.W. 283 (1920), the Court upheld the right of belief of the citizen in the face of the government attempt to force the citizen to make a decision. In Harrington, the Court held that the government could not force a potential candidate to choose a political philosophy. In Dapper, the potential candidate could not even be forced to decide if he wanted to be a candidate. The situation we have in this case is vastly different from that in Dapper and Harrington. Sections 131 and 132 do not require the potential candidate to form a belief or choose between differing thoughts. The financial disclosure requirements are not analogous to the filing of an oath, affirmation, or religious test. We believe they are more analogous to affidavits required by MCLA 168.557; MSA 6.1557 (change of name) and MCLA 168.558; MSA 6.1558 (name, address, residency, etc.). We find no violation of art 11, § 1 by §§ 131 and 132.
CERTIFIED QUESTION IX — LOBBY DISCLOSURE: FREE SPEECH
The issue raised by certified question IX is whether chapter 5, which contains the lobbyist disclosure provisions, removes political power inherent in the people; restricts the right of people to consult for the common good; inhibits the instructing of representatives; restricts or inhibits the petitioning of government for the redress of grievances; or abridges freedom of speech in violation of Const 1963, art 1, §§ 1, 3, or 5.
Section 12(3) of the act defines "lobbying" as follows:
"`Lobbying' means communicating directly or soliciting others to communicate with an official in the exclusive branch or an official in the legislative branch for the purpose of influencing legislative or administrative action. Lobbying does not include communications by a person to its own paid members, or shareholders even though the purpose of communications is to solicit such members or shareholders to communicate with officials; or the providing of technical information by a person who is not a lobbyist or an employee of a lobbyist solely at the request of an official in the executive branch or an official in the legislative branch." MCLA 169.12(3); MSA 4.1701(12)(3).
Chapter 5 requires lobbyists and lobbyist agents to register annually with the Secretary of State and to pay a $5 registration fee. At that filing, the lobbyist must disclose the names of all of his lobbyist agents in the state, and lobbyist agents must declare the name, address, and nature of business of everyone who is compensating them.
Sections 12(4) and 12(5) state:
"(4) `Lobbyist' means a person whose expenditures for lobbying are more than $1,000.00 in value in any 12-month period, or the state or political subdivision which contracts for a lobbyist agent.
"(5) `Lobbyist agent' means a person who receives compensation, reimbursement of actual expenses, or both, in a combined amount in excess of $1,000.00 in any 12-month period for lobbying." MCLA 169.12(4), 169.12(5); MSA 4.1701(12)(4), 4.1701(12)(5).
Quarterly reports must be filed by each lobbyist detailing:
(1) all expenditures in any way related to lobbying, including expenses for advertising and mass mailings;
(2) all financial transactions between the lobbyist and public officials or their families over $50, except those in the ordinary course of business;
(3) each contribution or membership fee of $500 or more in the current fiscal year paid to a lobbyist whose primary purpose is lobbying, with the name, address, and occupation of the source of such funds; and
(4) a brief description of the lobbying activities engaged in.
Public officials are to be notified when their names are included in a lobbyist's report and quarterly and annual summaries of these reports are to be published and given wide public dissemination.
Lobbyists are to obtain and preserve for five years all the documentation necessary for the information required in these reports filed with the Secretary of State. Lobbyist agents are in turn responsible for furnishing their employer (the lobbyist) with a full accounting on a quarterly basis of all lobbying and expenditures related thereto which must be included in the lobbyist's quarterly report. The information disclosed in these reports may not be used for commercial purposes, although it can be used for the solicitation of campaign contributions.
Lobbyist agents may not accept employment on a contingent fee basis and gifts by lobbyists and lobbyist agents to public officials and their families are prohibited. In general, public officials are prohibited from accepting compensation for lobbying. Fines and penalties are imposed for violations of the chapter's provisions.
We find with regard to regulation of lobbyist activities involving direct communication with officials in the executive and legislative branches that the disclosure provisions are not violative of the constitutional provisions cited above. We find more troublesome, however, the disclosure provisions as they relate to the "soliciting of others to communicate" with officials. Resolution of any problems which may arise respecting the interpretation and application of this language is better deferred until the issues are raised in a factual context.
The right of freedom of speech, of association, the right to consult for the common good, to instruct representatives, to petition the government, are all fundamental. As we have indicated elsewhere in this opinion, when the government seeks to regulate a fundamental right, the regulation may be upheld only if justified by a compelling state interest. While requiring lobbyists to disclose information constitutes regulation of fundamental rights, compelling state interest justifies such regulation. Both the electorate and public officials have a right to be informed of those interests represented by lobbyists. The constitutionality of legislation regulating the activities of lobbyists has been upheld by the United States Supreme Court. United States v Harriss, 347 U.S. 612; 74 S Ct 808; 98 L Ed 989 (1954). However, those challenging the constitutionality of Michigan's act argue that when chapter 5 is closely scrutinized it is vague and overbroad.
Federal Regulation of Lobbying Act, 60 Stat 812, 839 (1946); 2 U.S.C. § 261-270.
Because criminal penalties attach to violations of this statute, fair notice must be provided to a person of ordinary intelligence as to the conduct proscribed. The Michigan statute sufficiently delineates the type of conduct regulated: (1) that a person spend more than $1,000 in a 12-month period; (2) communicating directly with an executive branch or legislative official; or (3) soliciting others to such communication; and that (4) such communication be for the purpose of influencing legislative or administrative action. The statute is more descriptive of the types of communication regulated than the Federal lobbying act discussed in Harriss, supra. Legislative and administrative actions are sufficiently defined in §§ 12(1) and 2(1), respectively. Thus, we conclude that chapter 5 is sufficiently specific to withstand a vagueness challenge.
The statute upheld in Harriss differs from the Michigan act in two respects:
First, the Federal lobbying act as construed by the United States Supreme Court in Harriss covered only the so-called professional lobbyists. Chapter 5 requirements of the Michigan legislation apply not only to those who are paid or pay others, but also those who lobby in their own behalf, provided their expenditures for such activities exceed $1,000. Second, unlike the Federal lobbying act, the requirements of chapter 5 are not restricted to direct communications between the lobbyist or lobbyist agent and the public official. Under § 12(3) lobbying is also defined as "soliciting others to communicate with an official in the executive branch or an official in the legislative branch for the purpose of influencing legislative or administrative action".
In our opinion, the rights of legislators, public officials and the public to know the source of monies expended to influence governmental action applies equally to professional lobbyists and those representing their own interests. By imposing the $1,000 threshold, the Legislature has helped to insure that only significant expenditures need be disclosed. In order to avoid manifest overbreadth, however, the words "soliciting others to communicate" with an official "for the purpose of influencing legislative or administrative action" must be interpreted to mean express and direct requests to so communicate. Even as so construed, the validity of restraints placed upon such requests is more appropriately tested in the factual context of an actual case or controversy.
CERTIFIED QUESTION X — LOBBY DISCLOSURE: EQUAL PROTECTION
The final question is whether restrictions placed upon lobbyists and lobbyist agents deny them equal protection of the law. This issue concerns the definition of "lobbyist" contained in § 12(4) and the exceptions to the definition of "lobbyist" carved out by § 12(6). These exceptions include political parties, § 12(6)(d), religious organizations, § 12(6)(f), and persons whose annual expenditure or compensation for lobbying is $1,000 or less, §§ 12(4) and 12(5). None of the above classifications constitutes a violation of equal protection. Political parties have long been subject to distinct and separate regulatory treatment. The Michigan Constitution recognizes that religious groups have been traditionally accorded special status. Const 1963, art 1, § 4. Finally, we cannot say in this factual vacuum that the $1,000 threshold is wholly without rationality. See Buckley v Valeo, supra, 82-83. In our opinion, the foregoing restrictions do not constitute a denial of equal protection of the law.
MCLA 169.12(4), 169.12(6); MSA 4.1701(12)(4), 4.1701(12)(6).
Michigan Election Law, MCLA 168.1 et seq.; MSA 6.1001 et seq.
WILLIAMS, COLEMAN, FITZGERALD, and LINDEMER, JJ., concurred.
A majority of the Court having expressed the opinion that this legislation is ineffective as violating the one-object limitation, the expression of any other or further opinion at this time is inappropriate.
RYAN, J., concurred with KAVANAGH, C.J.
The Constitution permits an advisory opinion as to the constitutionality of legislation only "after it has been enacted into law". Const 1963, art 3, § 8.
The words "after it has been enacted into law" were proposed as an amendment on the floor by delegate (now Secretary of State) Austin who stated that the purpose was to "prevent the supreme court from getting involved until the legislative process was completed and they would be working with a law rather than some bills or proposals for legislation." 1 Official Record, Constitutional Convention 1961, p 1548.
This further opinion, on questions 2-10, may assist the Legislature in its consideration of proposals for enactment of a revision of the act declared unconstitutional in Advisory Opinion on Constitutionality of 1975 PA 227 (Question 1), 396 Mich. 123; 240 N.W.2d 193 (1976). However, in expressing an opinion regarding the constitutionality of a matter again on the legislative agenda, the Court becomes involved in the legislative process contrary to the purpose of the after-enactment limitation. Further advice should not be given until the legislative process is completed.