State v. Dodd, 75778

• Decision Date: 08 May 1990
• Docket Number: No. 75778,75778
• Citation: 561 So.2d 263
• Parties: 15 Fla. L. Weekly S284, 15 Fla. L. Weekly S301 STATE of Florida, et al., Appellants, v. Jack P. DODD, Appellee.
• Court: Florida Supreme Court

Page 263

561 So.2d 263

15 Fla. L. Weekly S284, 15 Fla. L. Weekly S301

STATE of Florida, et al., Appellants, v. Jack P. DODD, Appellee.

No. 75778.

Supreme Court of Florida.

May 8, 1990.

Robert A. Butterworth, Atty. Gen., Mitchell D. Franks, Deputy Atty. Gen., and James A. Peters, Asst. Atty. Gen., and Ken Rouse, General Counsel, Dept. of State, Tallahassee, for appellants.

Terrell C. Madigan of Papy, Weisenborn & Papy, Tallahassee, for appellee.

KOGAN, Justice.

We have on appeal an order of the Circuit Court of the Second Judicial Circuit declaring unconstitutional section 106.08(8), Florida Statutes (1989) (the "Campaign Financing Act"), which has been certified as a matter of great public importance requiring immediate resolution by this Court. State v. Dodd, No. 90-766 (Fla. 1st DCA March 30, 1990). We have jurisdiction. Art. V, § 3(b)(5), Fla. Const.

Appellee Jack Dodd is a candidate for the 1990 Republican nomination as Florida's commissioner of agriculture, a statewide office. In February 1990, Dodd filed a declaratory judgment action against the state alleging that the Campaign Financing Act violates his free speech and associational rights. Dodd sought an injunction preventing the state and others from enforcing the statute, which provides:

A candidate who is running for legislative office or a statewide office, except a candidate for a vacant office being filled by special election, may not accept or solicit any campaign contribution during a regular or special session of the Legislature.

*264s 106.08(8), Fla.Stat. (1989). ¹

At a hearing, the state argued that the Campaign Financing Act advances governmental interests sufficiently compelling to justify any intrusion upon the rights of free speech and association. These reasons generally consist of avoiding corruption and the appearance of corruption occurring when legislators accept contributions during legislative sessions, a practice whose frequency has prompted an increasing level of condemnation by the press and the public at large. The state also has argued that the statute "focuses" legislators' attention on the legislative process by preventing the distractions of campaign financing.

After weighing the arguments, the trial court found that the effort to prevent corruption or the appearance of corruption was in fact compelling but that the statute was not narrowly tailored so as to employ the least intrusive means available. Thus, the trial court concluded that the statute impermissibly chilled free speech and associational rights. The trial court also found the statute unconstitutionally overbroad and vague.

At this point in time, there is no question that "the use of funds to support a political candidate is 'speech'; [and] independent campaign expenditures constitute 'political expression "at the core of our electoral process and the First Amendment freedoms." ' " Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 110 S.Ct. 1391, 1396, 108 L.Ed.2d 652 (1990) (citations omitted).

Also implicated is the right of free association, article I, section 5, Florida Constitution, which inevitably will be chilled if state action effectively forbids political candidates to raise the wherewithal needed to contact, associate, and assemble with others for the purpose of political discussion and debate. Restrictions on the amount a person or group can spend "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." Buckley v. Valeo, 424 U.S. 1, 19, 96 S.Ct. 612, 634, 46 L.Ed.2d 659 (1976) (footnote omitted). The right of association is implicated here precisely because "[m]aking a contribution, like joining a political party, serves to affiliate a person with a candidate [and] enables like-minded persons to pool their resources in furtherance of common political goals." Id. at 22, 96 S.Ct. at 636.

Simultaneously, we recognize that the governmental intrusion upon free speech and association occurring in this instance is particularly grave. As the Buckley Court noted,

contribution restrictions could have a severe impact on political dialogue if the limitations prevented candidates and political committees from amassing the resources necessary for effective advocacy.

Id. at 21, 96 S.Ct. at 635. In the present case, the Campaign Financing Act does in fact have the effect of cutting off all sources of campaign financing for any period of time in which the legislature is in regular or special session. We note that, under Florida law, there is no limit on the number of special sessions that may occur in any given period of time. Thus, the restriction imposed by the statute potentially is limitless. We recognize, of course, that present custom restricts legislative sessions to no more than two or three months of the year. However, we also must take into account the fact that unusually long or numerous sessions also can occur, particularly when the legislature must reapportion the state's legislative districts, as it must in 1992.

As a result, we believe the present case involves weighty free speech and associational rights protected both by federal and Florida constitutional law. U.S. Const. amend I; Art. I, §§ 4, 5, Fla. Const. Any restrictions the state imposes on the conduct in question must be narrowly tailored to serve a compelling state interest. Austin, 110 S.Ct. at 1396; In re Estate of Greenberg, 390 So.2d 40, 42-43 (Fla.1980), appeal dismissed, 450 U.S. 961, 101 S.Ct 1475, 67 L.Ed.2d 610 (1981). This "strict scrutiny" test

requires careful examination of the governmental interest ... in order to determine whether that interest is substantial and compelling and requires inquiry as to whether the means adopted to achieve the legislative goal are necessarily and precisely drawn.

Greenberg, 390 So.2d at 42 (citation omitted).

Turning to the "compelling interest" prong of the test, we note that the United States Supreme Court has expressly stated that

preventing corruption or the appearance of corruption are the only legitimate and compelling government interests thus far identified for restricting campaign finances.

Federal Election Comm'n v. National Conservative Political Action Comm., 470 U.S. 480, 496-97, 105 S.Ct. 1459, 1468-69, 84 L.Ed.2d 455 (1985) (emphasis added). We thus believe it is beyond question, as the state now argues, that the Campaign Financing Act can be construed as embodying a compelling state interest.

We cannot agree, however, that the statute advances this interest through the least intrusive means.

One of the primary constitutional defects is that the Campaign Financing Act applies to all office-seekers without exception. As a result, it places restrictions on some public officials and candidates who could not possibly be subject to a corrupting quid pro quo arrangement. Dodd, for instance, presently holds no public office. He has no vote or influence to trade for campaign contributions. Similarly, incumbent cabinet officers have only a marginal role in the legislative process: They can neither vote on legislation nor threaten to veto it. Finally, judges facing a merit-retention election have absolutely no role in the legislative process at all. As a result, no quid pro quo would be possible that in any sense relates to the legislative process.

We find other infirmities. To the extent that the statute may be construed as applying to all legislative sessions, we believe the censorship thereby imposed has the potential to be so extreme as to be irremediably unconstitutional. It is possible that the legislature could be called into a series of sessions lasting for huge portions of any given year. In 1982, for instance, public records disclose a long series of sessions extending from January to June as the legislature grappled with the issues of reapportionment, the state budget and insurance reform. See Proclamations of the Governor, 1982 Fla.Laws xiii-xxxii.

In reaching these conclusions, we hasten to note that there may be instances in which the state could articulate a valid compelling interest in prohibiting all kinds of campaign contributions for narrowly defined periods of time in an election year. However, the sheer magnitude and practical impact of the present restriction renders it unconstitutional. Even assuming that a regular legislative session lasts only two months of the year, this is a two-month period in which the Campaign Financing Act halts all sources of financing. During this period, incumbents have virtually unlimited access to the press and free publicity merely by virtue of the public forum they are privileged to occupy. Nonincumbents, however, not only lack such a forum; the Campaign Financing Act also forbids them any means of counterbalancing the decided advantage enjoyed by the incumbents--an advantage that may be crucial in a primary election that typically occurs only three months after a regular session ends.

As the Buckley Court suggested, the rights of free speech and association forbid measures that "prevent[ ] candidates and political committees from amassing the resources necessary for effective advocacy." Buckley, 424 U.S. at 21, 96 S.Ct. at 635 (emphasis added). We believe that the prohibition at issue here has just such an effect because it cuts off the flow of resources needed for effective advocacy during a crucial portion of the election year.

Moreover, by focusing entirely on the legislative session, the Campaign Financing Act fails to recognize that corrupt campaign practices just as easily can occur some other time of the year. Legislative committees meet throughout the calendar, frequently with the involvement of lobbyists and other special interests. Indeed, much legislation is shaped in the months immediately prior to the regular session, when committees and legislative workshops occur virtually on a continuous basis. If corrupt practices can occur...