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New Jersey State Chamber of Commerce v. New Jersey Election Law Enforcement Commission

Decided: December 20, 1977.

NEW JERSEY STATE CHAMBER OF COMMERCE, A NONPROFIT NEW JERSEY CORPORATION, ET AL., PLAINTIFFS-RESPONDENTS,
v.
NEW JERSEY ELECTION LAW ENFORCEMENT COMMISSION, AN AGENCY OF THE STATE OF NEW JERSEY, ET AL., DEFENDANTS-APPELLANTS



Conford, Michels and Pressler. The opinion of the court was delivered by Conford, P.J.A.D.

Conford

The substantial question presented on this appeal is the constitutionality, from a freedom of expression standpoint, of those provisions of L. 1973, c. 83, the New Jersey Campaign Contributions and Expenditures Reporting Act (N.J.S.A. 19:44A-1 et seq.) ("reporting act' hereinafter), which impose public reporting obligations on "political information organizations.'*fn1 Such organizations are defined by the act as "any two or more persons acting jointly * * * which is organized for the purpose of, or which promotes political information concerning any candidate or candidates for public office or with respect to any public question, or which seeks to influence the content, introduction, passage or defeat of legislation' (emphasis supplied).

The gravamen of the trial court holding in this case was that certain groups having the purpose indicated by the language italicized above would be exposed to an impermissibly chilling effect in respect of First Amendment freedoms if subject to compliance with the requirements of the reporting act. Therefore those provisions were held facially invalid notwithstanding it was conceded that the State had a compelling public interest in adopting such legislation and that it would not have been invalid as applied to any of the plaintiff organizations in this case. N.J. Chamber of Commerce v. N.J. Elec. Law Enforcement Comm'n , 135 N.J. Super. 537, 544, 549-550 (Ch. Div. 1975).

The reporting act regulates disclosures concerning elections as well as lobbying, but the instant case involves only the latter aspect of the statute. Political information organizations, defined as above stated, are required to appoint

a treasurer and designate a depository before receiving contributions or expending money to influence the legislative process. N.J.S.A. 19:44A-13. Funds must be received and expended through the treasurer, N.J.S.A. 19:44A-14, and reports are required to be filed with the Election Law Enforcement Commission ("ELEC') (the administrator of the statute) as to contributions and expenditures made to seek to influence the legislative process. N.J.S.A. 19:44A-8, 16. There is no threshold monetary exemption for political information organizations, as there is for political committees. For the latter, there is a threshold of $100, exclusive of traveling expenses, expended to support or defeat a candidate for election or to aid the passage or defeat of a public question. However ELEC, purporting to act under its rule-making power, has adopted regulations which exempt political information organizations as well as political committees from the reporting and other requirements of the act if their total expenditures are less than $100 (exclusive of unreimbursed traveling expenses of a member) during the applicable calendar years. N.J.A.C. 19:25-12.1(d). Plaintiffs challenged that regulation in respect of political information organizations, and the trial court held it invalid as beyond the legislative delegation. 135 N.J. Super. at 550-551. Defendants appeal from that ruling as well as from the invalidation of the statutory regulations of political information organizations.

The record and arguments in this case fail to disclose any clear conception by plaintiffs or the trial court as to the definition of the groups or organizations thought to be impermissibly chilled in freedom of expression by the statutory regulations. It is readily conceded that plaintiffs themselves, comprising such organizations as the New Jersey Chamber of Commerce, several major trade associations, corporations engaged in lobbying as a profession, and other permanently devoted to influencing legislation, are validly subject to the statutory controls. With apparent approval, the trial court conceived the reporting act as designed "to identify and attempt

to regulate the significant flow of substantial wealth aimed at affecting the outcome of elections, public questions and the legislative process.' 135 N.J. Super. at 544. But it was satisfied from the proofs before it that "so-called single issue groups or ad hoc committees which spontaneously spring up to voice their special interest on specific bills before the Legislature,' id. at 546, would sustain such discouragement from having to comply with the act that the adverse effect on the exercise of their rights to express themselves to the Legislature outweighed the state interest in requiring compliance. While the court contrasted the effect of the act on "the well-organized lobbyist-type groups,' ibid. , there was no suggestion as how the line could properly be drawn by the Legislature or by a court between groups constitutionally regulable and those not. Upon inquiry by this court on the subject at oral argument, plaintiffs suggested that the constitutionally controllable groups would be only those who were permanent in nature and organized to protect business interests.

Brief reflection suffices to reject the concept that "single issue- ad hoc ' is the appropriate characterizing criterion. Common experience indicates that some single issues, such as school busing, quotas for minorities, public aid to indigents for abortion, etc., can inspire the spontaneous rise of powerful groups. Yet such groups may fade away when a campaign for or against a piece of legislation is over. It cannot reasonably be contended that such groups would not be legitimately subject to the compelling state interest in publicizing contributions and expenditures to influence legislation, notwithstanding their "single-issue- ad hoc ' character. See II, hereinafter.

After searching thought on the matter we have concluded, for reasons which will appear hereinafter, that the only significant and practicable criterion for the purpose under discussion is a reasonable financial threshold for expenditures of such groups or organizations.

I

Defendant-intervenor Common Cause argues that plaintiffs' cause of action should be barred for failure to prove injury by the statute. Plaintiffs admit that they are not injured, but they claim the right to advance the claim of overbreadth of the statute in respect of its effect on the First Amendment rights of others, the so-called single issue- ad hoc groups, who they assert are injured. Anderson v. Sills , 56 N.J. 210, 220 (1970); Broadrick v. Oklahoma , 413 U.S. 601, 611-612, 93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973). Defendant argues that the claimed inimical effect on the rights of the small groups is not shown to rest on more than speculation or surmise, citing Anderson v. Sills, supra , where the injury asserted by the plaintiffs was described by the court as "a mere abstraction.' 56 N.J. at 226. See also Bigelow v. Virginia , 421 U.S. 809, 817, 95 S. Ct. 2222, 44 L. Ed. 2d 600 (1975); Laird v. Tatum , 408 U.S. 1, 13-14, 92 S. Ct. 2318, 2326, 33 L. Ed. 2d 154 (1972) (requiring more than "allegations of a subjective 'chill," i.e. , "a claim of specific present objective harm or a threat of specific future harm'; and California Bankers v. Shultz , 416 U.S. 21, 94 S. Ct. 1494, 39 L. Ed. 2d 812 (1974).

Plaintiffs' proofs in this regard at the trial were that over any period of time there arise a multitude of small, informal and generally temporary groups, seeking to influence specific legislation, which keep no books, records or regular bank accounts. Some of plaintiffs' witnesses, present or former legislators, expressed the opinion that upon learning that the statute applied to them, members of such groups would be inhibited or discouraged from such activity. It seems obvious that the extent of such discouragement is not calculable in advance of some experience under the act. Much would depend upon the ...


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