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

Decided: February 6, 1980.

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



On appeal from the Superior Court, Appellate Division, whose opinion is reported at 155 N.J. Super. 218 (1977).

For modification and affirmance -- Chief Justice Hughes and Justices Mountain, Sullivan, Clifford and Handler. For reversal -- Justices Pashman and Schreiber. The opinion of the Court was delivered by Handler, J. Pashman, J., dissenting. Schreiber, J., dissenting.

Handler

This appeal presents a constitutional challenge on First Amendment grounds directed to provisions of the New Jersey Campaign Contributions and Expenditures Reporting Act, N.J.S.A. 19:44A-1 to 26, which regulate group efforts to influence legislation. Also challenged is an administrative regulation, N.J.A.C. 19:25-12.1(e), that imposes a minimum expenditure of $100 as a threshold condition for enforcement of these provisions of the act.

Each of the courts below, the Chancery Division and the Appellate Division, had a different view of the breadth of the case. The trial court considered the constitutional attack as encompassing not only those provisions of the Campaign Contributions and Expenditures Reporting Act ("the act" or "reporting act") applicable to individuals seeking to influence legislation but also the act's many other provisions dealing with political campaigns and elections. That court held that the act, with certain exceptions, was in both aspects facially overbroad and consequently contravened the First Amendment to the Federal Constitution. 135 N.J. Super. 537 (Ch.Div.1975). It also ruled that the administrative regulation imposing a specific

monetary threshold as a precondition to enforcement was invalid. On appeal, the Appellate Division held that the trial court had improperly undertaken to decide issues which had not actually been raised, i.e., those provisions relating to political election and campaign activities, and it set aside the trial court's invalidation of this aspect of the act. 155 N.J. Super. 218, 221 n. 1, (App.Div.1977). Further, the Appellate Division disagreed with the trial court with regard to the statutory provisions governing legislative influence. The appellate court acknowledged that while this part of the act was facially overbroad, this objection could be readily overcome through a narrowing judicial construction, viz, that the act does not apply to persons spending less than $750 in attempting to influence legislation. The court's decision on these grounds thus obviated an additional ruling on the validity of the administrative regulation fixing a lesser monetary threshold.

Plaintiffs come to this Court as of right pursuant to R. 2:2-1(a) and raise several issues on appeal, including an initial contention that they have standing to maintain this action. The major issue presented, however, is whether the provisions of the act designed to regulate conduct seeking to influence legislative action are fatally and irreducibly overbroad under First Amendment precepts. Also questioned is the validity of the administrative regulation calling for enforcement of the act only with respect to such activity involving a minimum expenditure of $100. It is our conclusion that plaintiffs do have standing to pursue this action and, we now hold that, as properly understood and narrowly interpreted, the provisions of the New Jersey Campaign Contributions and Expenditures Reporting Act imposing requirements for reporting and financial disclosure upon persons acting in concert to influence legislation are not unconstitutionally overbroad under the First Amendment to the United States Constitution. We further hold that there is under the act so construed discretionary administrative power to impose a monetary enforcement threshold but that the administrative

regulation setting a $100 threshold is too low and is therefore an invalid exercise of administrative authority.

I

Defendants take the position that the plaintiffs lack standing to maintain this action which seeks to have certain provisions of the New Jersey Campaign Contributions and Expenditures Reporting Act declared unconstitutional. The statute, L. 1973, c. 83, N.J.S.A. 19:44A-1 et seq., was enacted in 1973 as a major governmental reform. It regulates campaign expenditures by candidates for political office and imposes a wide range of restraints, including financial reporting and disclosure, upon persons who seek to influence the election of political candidates, the outcome of elections for the passage or defeat of public questions, and the content and fate of legislation.

With respect to individuals seeking to influence legislation, the immediate focus of this appeal, the statute defines "any two or more persons acting jointly . . . to influence the content, introduction, passage or defeat of legislation" as constituting a "political information organization." N.J.S.A. 19:44A-3g. It requires that such a political information organization, "before receiving any contribution or expending any money to . . influence the content, introduction, passage or defeat of legislation, appoint one treasurer and designate one depository and file the name and address thereof with the Election Law Enforcement Commission." N.J.S.A. 19:44A-13. "No contributions or other thing of value" can otherwise "be received by a political information organization", nor can any "expenditure . . . be made" by such an organization "except through [its] duly appointed treasurer." N.J.S.A. 19:44A-14. Each political information organization must also file a "full report" with the Election Law Enforcement Commission detailing all contributions received and all expenditures made or incurred by it in seeking "to influence" legislation. N.J.S.A. 19:44A-8. This

report must also contain the names and addresses of all persons or entities having contributed more than $100 and the names and addresses of persons and groups "to whom expenditures have been made and the amount and purpose of each such expenditure" as well as all receipts and expenditures generated by testimonial affairs. Ibid. If the political information organization also seeks to provide "political information concerning any candidate or candidates for public office or with respect to any public question", N.J.S.A. 19:44A-3g, it must then file another series of reports. N.J.S.A. 19:44A-16b, 19:44A-17, and 19:44A-18. Additional reports must be filed with the Commission by the depository of such organizations whenever a deposit has been made by its treasurer, N.J.S.A. 19:44A-15, and whenever a public solicitation has been authorized by such an organization. N.J.S.A. 19:44A-19. The act does not apply, however, to a "bona fide" representative of the news media in connection with the dissemination of material "in the normal course of its business" or to educational entities conducting classes, educational events, and the like. N.J.S.A. 19:44A-3g. Also excluded from the act's coverage are persons acting alone who expend no more than $100 exclusive of travel expenses. N.J.S.A. 19:44A-14.

The lead plaintiff in this action is New Jersey Chamber of Commerce; other plaintiffs are major trade associations, a labor union local, a private business corporation, a citizens' group, a taxpayer's organization, a sportsmen's federation, and several individuals, two mayors and a husband and wife. Defendants in the action are the New Jersey Election Law Enforcement Commission ("the Commission"), the administrative agency responsible for the act's enforcement, and Common Cause and the State Attorney General, who intervened as parties-defendant. The complaint alleged that each of the plaintiffs in varying capacities had attempted to influence the course of legislation and further intended to do so in the future, and also, that some of the plaintiffs on occasion had attempted to influence the outcome

of campaigns on public questions. Consequently, some of the plaintiffs were "political committees" (N.J.S.A. 19:44A-3i) as well as "political information organizations" under the act. The major contention was that the act on its face is violative of the First Amendment to the United States Constitution and our State counterpart, Art. I, pars. 6 and 18 of the New Jersey Constitution (1947). The primary relief sought was a declaration that the act was unconstitutional on its face and in its application to plaintiffs.

Prior to the pretrial conference, the Commission pursuant to its statutory rule-making authority under N.J.S.A. 19:44A-6b, promulgated rules and regulations dealing with a broad range of matters. These included N.J.A.C. 19:25-4.7 which dealt with communications by corporations and labor organizations with stockholders or members; N.J.A.C. 19:25-1.7 restricted the definition of legislation to state-level enactments. The contributions of goods and services were the subjects of N.J.A.C. 19:25-11.4. Another rule, N.J.A.C. 19:25-12.1, exempted from reporting "a political information organization whose expenditures for political activity during the calendar year did not exceed $100.00" exclusive of the "traveling expenses of any member of such political information organization . . . if such traveling expenses are voluntarily paid by such member . . . without any understanding or agreement . . . that they shall be, directly or indirectly, repaid . . .." Following the promulgation of these rules, plaintiffs filed an amended complaint with the Chancery Division as well as a notice of appeal in the Appellate Division, contending that the Commission had exceeded its rule-making authority and these rules were invalid. The Appellate Division remanded the appeal to the Chancery Division for a disposition of these issues at the trial level together with the issues which the trial pleadings raised.

At the pretrial conference, plaintiffs withdrew their claim that the act was unconstitutional as applied to them; they also conceded that there was a "compelling State interest in the [82 NJ Page 65] disclosure of expenditures and contributions directed at influencing legislation." Shortly after the pretrial conference, counsel for plaintiffs advised the court that plaintiffs were no longer challenging any of the provisions of the act relating to political committees, whether or not in connection with any campaign or public questions, and that their sole attack was related to the act's effect upon political information organizations with respect to attempts to influence legislation.*fn1 The matter then proceeded to trial during which plaintiffs concentrated primarily upon their claims relating to First Amendment issues*fn2 and the validity of the administrative regulation setting the monetary threshold.

Both courts below found plaintiffs had sufficient status to maintain this action. Defendants continue to press the standing issue. They contend that plaintiffs, as lobbyists, trade associations, and special interest groups, regularly undertake to influence the course of legislation and presumably engage in substantial activity and spend considerable sums of money to this end. Hence defendants argue that plaintiffs are not representative of the type of individual citizen who is directly subject to the act, that is, persons who are not otherwise regularly engaged in lobbying, but rather are drawn together spontaneously, frequently over a single issue or cause, and organize into informal, and often temporary, ad hoc groups solely for the purpose of seeking to influence particular legislation. Defendants also assert that no adequate showing of actual injury resulting from the anticipated enforcement of the act was made by plaintiffs even with respect to such unstructured groups of individuals seeking to influence legislation. Consequently, for these reasons, it is urged that plaintiffs lack standing to maintain their action.

Dealing first with the question of constitutional injury or harm, it is recognized that in order to mount a successful overbreadth challenge there must be a strong showing that the "statute's deterrent effect on legitimate expression is . . . 'real and substantial' . . .," Young v. American Mini Theaters Inc., 427 U.S. 50, 60, 96 S. Ct. 2440, 2447, 49 L. Ed. 2d 310, 320 (1976); see also Bigelow v. Virginia, 421 U.S. 809, 817, 95 S. Ct. 2222, 2230, 44 L. Ed. 2d 600, 609 (1975); Laird v. Tatum, 408 U.S. 1, 13-14, 92 S. Ct. 2318, 2325-2326, 33 L. Ed. 2d 154, 163-164 (1972), and that the sweep of the legislation will impermissibly hobble the exercise of protected First Amendment rights, Buckley v. Valeo, 424 U.S. 1, 69-70, 96 S. Ct. 612, 658-659, 46 L. Ed. 2d 659, 716-717 (1976); NAACP v. Alabama, 357 U.S. 449, 462-463, 78 S. Ct. 1163, 1171-1172, 2 L. Ed. 2d 1488, 1499-1500 (1958). The prospect of First Amendment harm must be real, not fanciful. Anderson v. Sills, 56 N.J. 210, 220 (1970). On this point, the trial

court observed that "[t]he testimony [of several experienced state legislators and others well-schooled in government] uniformly conveyed the view based upon practical political experience over the years that these typical single-issue, less organized groups, upon learning that the act applied to them, would undoubtedly be inhibited or discouraged from engaging in the activity described." 135 N.J. Super. at 547. While recognizing that "the extent of such discouragement is not calculable in advance of some experience under the act," the Appellate Division also concluded that "[t]he evidence warrant[ed] a finding of a cognizable measure of harm to protectable interests." 155 N.J. Super. at 224-225. Despite defendants' characterization of these proofs as essentially "speculative," we are satisfied that such evidence comports with common experience, is reasonably to be believed, and shows a sufficient adverse effect upon First Amendment concerns to indicate constitutional injury.

The further question is whether this constitutional offense is one which plaintiffs are in position to assert as a basis for judicial relief. Entitlement to sue requires a sufficient stake and real adverseness with respect to the subject matter of the litigation. Crescent Park Tenants Ass'n v. Realty Equities Corp., 58 N.J. 98, 107 (1971). A substantial likelihood of some harm visited upon the plaintiff in the event of an unfavorable decision is needed for purposes of standing. Home Builders League of South Jersey, Inc. v. Berlin Tp., 81 N.J. 127, 134-135 (1979); So. Burlington Cty. NAACP v. Mt. Laurel Tp., 67 N.J. 151, 159, n.3 (1975), app. dism. 423 U.S. 808, 96 S. Ct. 18, 46 L. Ed. 2d 28 (1975). Here, it may be that plaintiffs, or at least those who are trade associations, special interest groups and the like, and who, by their own pleadings, regularly engage in the business of influencing legislation, do not stand to be affected in the exercise of their First Amendment rights by the enforcement of the reporting act. Indeed, some are probably subject to regulation of their lobbying activities under the Legislative

Activities Disclosure Act of 1971, N.J.S.A. 52:13C-18 et seq. Nevertheless, these plaintiffs might well be deemed "political information organizations" under the act here challenged, N.J.S.A. 19:44A-3g, and, it ought not be assumed that any cumulative or incremental regulatory burdens of these two acts would be inconsequential. Moreover, the status of plaintiffs in relation to the reporting act is not that of total strangers or casual interlopers. Plaintiffs, as regular lobbyists, would have an obvious, albeit indirect, interest in the effect upon others of statutory and administrative regulations governing access to the legislative process. Cf. Common Cause v. N.J. Election Law Enforce. Comm'n, 74 N.J. 231 (1977) (Common Cause, whose members are affected by electoral laws, has standing to challenge election law regulations of ELEC). These circumstances adequately demonstrate that plaintiffs have a stake in the outcome of these proceedings and there is genuine adverseness between the parties in terms of the litigated controversy. Crescent Park Tenants Ass'n v. Realty Equities Corp., supra.

In addition to these considerations governing standing to sue, a plaintiff's particular interest in the litigation in certain circumstances need not be the sole determinant. That interest may be accorded proportionately less significance where it coincides with a strong public interest. Elizabeth Federal Savings & Loan Ass'n v. Howell, 24 N.J. 488, 499 (1957) ("'[B]ut slight private interest, added to and harmonizing with the public interest' is sufficient to give standing. . . ." (citations omitted)). In this case, the concerns of the public are weighty. The gravamen of the action is that the New Jersey Campaign Contributions and Expenditures Reporting Act will have a chilling effect upon the First Amendment expressional and associational impulses of a substantial segment of the general citizenry. Thus even were plaintiffs able to show only slight or indirect injury to themselves, the harm to others has been demonstrated and, where First Amendment values are threatened, as here, the ability to assert rights on behalf of others is recognized as a

salutary exception to conventional requirements of standing. Broadrick v. Oklahoma, 413 U.S. 601, 610-612, 93 S. Ct. 2908, 2914-2916, 37 L. Ed. 2d 830, 839-840 (1973); Anderson v. Sills, supra, 56 N.J. at 220 ("[T]here is good reason to permit the strong to speak for the weak or the timid in First Amendment matters.") This exception has been carved out of the general rule of standing to protect "the transcendent value to all society of constitutionally protected expression . . .." Gooding v. Wilson, 405 U.S. 518, 521, 92 S. Ct. 1103, 1105, 31 L. Ed. 2d 408, 413 (1972); see Dombrowski v. Pfister, 380 U.S. 479, 486-487, 85 S. Ct. 1116, 1120-1121, 14 L. Ed. 2d 22, 28-29 (1965); Note, "The First Amendment Overbreadth Doctrine," 83 Harv.L.Rev. 844, 853 (1970).

In reaching a conclusion as to plaintiffs' capacity to sue, it is also fitting to measure plaintiffs' status in the case against the essential purposes of the standing doctrine in New Jersey. These are to assure that the invocation and exercise of judicial power in a given case are appropriate. Further, the relationship of plaintiffs to the subject matter of the litigation and to other parties must be such to generate confidence in the ability of the judicial process to get to the truth of the matter and in the integrity and soundness of the final adjudication. Also, the standing doctrine serves to fulfill the paramount judicial responsibility of a court to seek just and expeditious determinations on the ultimate merits of deserving controversies. Plaintiffs, in bringing their complaint in this case, have met these objectives. We thus have no hesitancy in concluding that plaintiffs have requisite standing to maintain this action.

II

The major issue in the case is whether the New Jersey Campaign Contributions and Expenditures Act is unconstitutional under the First Amendment because it is overbroad in its

scope and probable application. Where a statute is challenged on First Amendment grounds, the traditional presumption in favor of constitutional validity is not available. See U.S. v. C.I.O., 335 U.S. 106, 140, 68 S. Ct. 1349, 1366, 92 L. Ed. 1849, 1870-1871 (1948) (Rutledge, J., concurring); Thomas v. Collins, 323 U.S. 516, 529-531, 65 S. Ct. 315, 322-323, 89 L. Ed. 430, 439-441 (1945). The assessment of the constitutionality of an allegedly overbroad statute encroaching upon First Amendment interests turns upon whether there is a compelling state interest to be served by the statute and a substantial connection between that compelling governmental interest and the statutory regulation; the compelling state interest must clearly outweigh the "repressive effect" on expressional or associational rights engendered by the application of the statute. NAACP v. Alabama, supra, 357 U.S. at 462-465, 78 S. Ct. at 1171-1173, 2 L. Ed. 2d at 1499-1501. Where there is forced disclosure under the statute affecting First Amendment values, as in this case, "exacting scrutiny" of the governmental interest to be served is required. Buckley v. Valeo, supra, 424 U.S. at 64, 96 S. Ct. at 656, 46 L. Ed. 2d at 713. See Comment, "Buckley v. Valeo: The Supreme Court and Federal Campaign Reform," 76 Colum.L.Rev. 852, 876 (1976).

In this case, the identification and evaluation of the governmental interest to be vindicated by the reporting act can be drawn from several sources. The act deals in the main with spending limitations upon political candidates and funding relating to political campaigns and elections involving elective public office and public questions. As originally conceived, the act was directed only to these areas of political activity. The New Jersey Election Law Revision Commission, which proposed the adoption of such legislation, recognized the unique role of money in the political arena and took pains to emphasize in its initial report the importance of disclosure of the identity of persons spending money to affect political campaigns. New Jersey Election Law Revision Commission, Interim Report 2 (Sept. 1,

1970) ("Disenchantment and perhaps disillusionment with the political process today stems from lack of knowledge of its details, lack of any attempt to force the disclosure of the identity of major participants in the political funding process and lack of adequate dissemination of such information. A veil of secrecy shrouds much of this area."). The bill which was first introduced to carry out the recommendations of the Commission, Senate Bill 1124 (1970), was discussed at public hearings where the importance of money in political campaigns was emphasized, Public Hearings on S. Bill 1124 45-46, 60-61 (Feb. 6, 1973) (" Public Hearings "), and the need for disclosure of the source and amount of monetary contributions was stressed repeatedly. Id. at 4-8, 18, 61-62. The essential purpose of the bill was stated to be one which would reveal the identity of the individuals trying to influence candidates. Id. at 51.

The bill as reported out of the Assembly Judiciary Committee and passed into law contained the added provisions covering legislative influence, which are the subject of the present litigation. It seems evident that the major reasons underlying the statute as originally envisaged, namely, to require the disclosure of the sources and amounts of money used to influence political campaigns, were thought to be equally applicable to the legislative process. Public Hearings, supra, at 41-42, 77, 10A. The statute confirms this. It declares it "to be in the public interest and to be the policy of the State . . . to require the reporting of all contributions received and expenditures made . . . to influence the content, introduction, passage or defeat of legislation." N.J.S.A. 19:44A-2. The trial court capsulized the clear purposes of the statute, viz:

The manifest objective of the New Jersey Campaign and Expenditures Reporting Act is 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. No one doubts that money is a prime lubricant of the machinery of politics. For too many years the financial aspect of politics has

been shrouded either in a veil of secrecy or a fog of confusion. The average voter is aware of the tremendous cost involved in running even a modest campaign for elective office; however, he cannot help but wonder where the money comes from and more importantly . . . why it comes. So, too, the legislator is entitled to know much the same information with respect to the motivating forces behind the legislative bills coming before him. See the Legislative Activities Disclosure Act, L. 1964, c. 207, N.J.S.A. 52:13C-1 et seq. Surely an informed electorate as well as an informed legislature constitute the essence of a democratic society. Hence the public policy behind the enactment of the act. [135 N.J. Super. at 544, 343 A.2d at 800]

This vital governmental purpose -- to identify and monitor the source and flow of money intended to influence or affect the legislative and political process -- has been widely acknowledged. In United States v. Harriss, 347 U.S. 612, 74 S. Ct. 808, 98 L. Ed. 989 (1954), the United States Supreme Court sustained the disclosure provisions of the Federal Regulation of Lobbying Act, 2 U.S.C.A. § 261 et seq., as applied to persons seeking to influence the passage or defeat of congressional legislation. The Supreme Court explained the important governmental interest to be served by such legislation.

Present-day legislative complexities are such that individual members of Congress cannot be expected to explore the myriad pressures to which they are regularly subjected. Yet full realization of the American ideal of government by elected representatives depends to no small extent on their ability to properly evaluate such pressures. Otherwise the voice of the people may all too easily be drowned out by the voice of special interest groups seeking favored treatment while masquerading as proponents of the public weal. This is the evil which the Lobbying Act was designed to help prevent. [347 U.S. at 625, 74 S. Ct. at 816, 98 L. Ed. 2d at 1000 (footnote omitted).]

In Buckley v. Valeo, supra, the Supreme Court upheld the constitutionality of several disclosure provisions of the Federal Election Campaign Act of 1971 dealing with the related area of political elections and campaigns for public office. The Court stated that governmental interests may be "sufficiently important to outweigh the possibility of [First Amendment] infringement"

and that "[t]he governmental interests sought to be vindicated by the disclosure requirements [of the federal election campaign law] are of this magnitude." 424 U.S. at 66, 96 S. Ct. at 657, 46 L. Ed. 2d at 714-715. The Court stressed that disclosure provides the electorate with information to give greater voter insight into the political character of candidates. Ibid. Disclosure requirements also, according to the Court, "deter actual corruption and avoid the appearance of corruption." 424 U.S. at 67, 96 S. Ct. at 657, 46 L. Ed. 2d at 715. To the same effect are Advisory Opinion on Constitutionality of 1975 PA 227 (Questions 2-10), 396 Mich. 465, 513, 242 N.W. 2d 3, 23 (1976) (hereinafter " Advisory Opinion ") ("While requiring lobbyists to disclose information constitutes regulation of fundamental rights, compelling state interest justified such regulation. Both the electorate and public officials have a right to be informed of those interests represented by lobbyists.") and Fritz v. Gorton, 83 Wash. 2d 275, 307-309, 517 P. 2d 911, 930-931 (1974) (Notwithstanding the importance of First Amendment rights, the general public has a paramount right to information which would help it "evaluat[e] the influence of money upon legislative decision-making and related functions of government"; the state's lobbying and disclosure law was designed "for the expressed purpose of fostering openness in . . . government . . . [and] to exhibit in the public forum the identities and pecuniary involvements of those individuals and organizations that expend funds . See also Young Americans for Freedom, Inc. v. Gorton, 83 Wash. 2d 728, 522 P. 2d 189 (1974); Stoner v. Fortson, 379 F. Supp. 704 (N.D.Ga.1974); Fortson v. Weeks, 232 Ga. 472, 208 S.E. 2d 68 (1974); Note, "The Constitutionality of Financial Disclosure Laws," 59 Cornell L.Rev. 345, 346-349 (1974); cf. State v. Hoebel, 256 Wis. 549, 41 N.W. 2d 865 (1950) (lobbying statute is not vague, indefinite or uncertain).

It is the evident purpose of the New Jersey Campaign Contributions and Expenditures Reporting Act to preserve and enhance

the democratic political process in both its electoral and legislative aspects by encouraging openness in government. The act strives to ventilate the legislative process through the disclosure of the sources and flow of money designed to impact upon this vital governmental function. It requires public revelation of those who endeavor to control or direct the destiny of legislation through the use of moneys. This, and the ultimate public accountability of legislative representatives who respond to such endeavors, constitute governmental concerns of a compelling magnitude.

Notwithstanding their stipulation that the State interest served by the legislation is of a compelling nature, plaintiffs contend that the act imposes so great a burden on such a wide range of constitutionally protected activities it must be considered overbroad and unconstitutional on its face. They further assert that the act is not susceptible to a narrowing construction which would shrink it to constitutional proportions and therefore the Appellate Division's attempt to do so by the imposition of a monetary enforcement threshold of $750 was legally ineffective.

We can agree with one aspect of plaintiffs' argument. The act would be overreaching if its terms were to be enforced literally and inflexibly. Applied in this fashion, the oppressive effect of the statute on virtually all individuals engaging in nonpartisan as well as political conduct would far exceed the outermost bounds of its legitimate governmental purpose. Cf. New York Civil Liberties Union, Inc. v. Acito, 459 F. Supp. 75 (S.D.N.Y.1978) (holding New York's disclosure law unconstitutionally overbroad). The trial court found that "[t]here can be little doubt that [the act] . . . will have a serious dampening effect upon the outflow of spontaneous expression from the typical single-issue, unstructured political group." 135 N.J. Super. at 549. The Appellate Division agreed that the act would "exert a substantially chilling effect on some groups who collect or spend small sums of money to influence legislation in limited

contexts . . . whose activities do not substantially affect the public policy underlying the reporting act." 155 N.J. Super. at 231. Accepting then this showing of overbreadth, we reach the resultant, difficult question whether the statute can reasonably be construed in a manner which will overcome its overreaching features.

In appropriate cases, a court has the power to engage in "judicial surgery" or the narrow construction of a statute to free it from constitutional doubt or defect. See, e.g., Broadrick v. Oklahoma, supra, 413 U.S. at 613, 617-618, 93 S. Ct. at 2916, 2918-2919, 37 L. Ed. 2d at 840-841, 843-844; United States v. Harriss, supra, 347 U.S. at 618, 74 S. Ct. at 812, 98 L. Ed. at 996-997; Borough of Collingswood v. Ringgold, 66 N.J. 350, 357 (1975), app. dism. 426 U.S. 901, 96 S. Ct. 2220, 48 L. Ed. 2d 826 (1976); State v. De Santis, 65 N.J. 462, 472-473 (1974); State v. Profaci, 56 N.J. 346, 349-350 (1970); Schmoll v. Creecy, 54 N.J. 194, 202-205 (1969); Woodhouse v. Woodhouse, 17 N.J. 409, 416 (1955). Cf. State v. Rosenfeld, 62 N.J. 594, 603 (1973) (in absence of ascertainable legislative preference among alternative statutory interpretations, judicial surgery is inappropriate). Although judicial surgery can be practiced in constitutional adjudications, the occasion for its application is not easy to identify or to explain. In Schmoll v. Creecy, supra, this Court framed the question that should properly be answered where a statute apparently contains a fatal constitutional defect: Would the Legislature want the statute to survive? The Court indicated that such an

inquiry cannot turn simply upon whether the statute, if adjusted to the constitutional demand, will cover more or less than its terms purport to cover. Although cases may be found which seem to speak in such mechanical terms, we think the sounder course is to consider what is involved and to decide from the sense of the situation whether the Legislature would want the statute to succumb. [54 N.J. at 202].

The trial court here approached the problem in "mechanical terms," believing that a narrow construction would "cover

. . . less than [the act's] terms purport to cover." Ibid. It concluded that "[t]he act is too precisely worded" to allow judicial surgery as an interpretive tool. 135 N.J. Super. at 551. The Appellate Division disagreed, as do we, that the act is not susceptible to a judicial interpretation which would mold it to a constitutional conformation. Neither court, however, focused upon the pivotal provisions of the act which, in our view, contribute to its overbreadth threat to First Amendment rights. Specifically, we refer to that section of the act which focuses upon individuals who seek "to influence the content, introduction, passage or defeat of legislation." N.J.S.A. 19:44A-3g; 19:44A-4a. The crucial phraseology, "to influence," is not defined. It is a term with amoebic contours; in normal parlance the word "influence" may be impregnated with a variety of meanings. See Black's Law Dictionary 700 (5 ed. 1979); Roget's International Thesaurus 103 (4 ed. 1977) ("power," "pressure," "domination," "sway," "leverage," etc.); Webster's Third New International Dictionary 1160 (1971) ("producing an effect," "power . . . to command belief," "manipulation of authority," etc.). It is the openendedness of this word which engenders the mischief of overbreadth. Without any selective limitation upon its meaning, the statute could well cover persons believed to have an "influence" upon legislation but whose conduct is quite innocuous and who do not have the demonstrated capacity or will to make a tangible impact on the legislative process.

The inquiry becomes whether the Legislature would, hypothetically, countenance a construction of the term "to influence" so as to avoid the application of the act to such persons and rid it of its overbreadth features while still preserving its essence. Schmoll v. Creecy, supra. We believe so.

There are available meanings or definitions of these statutory words which would be constitutionally acceptable. For example, in United States v. Harriss, supra, the United States Supreme Court, as we already noted, sustained provisions of the Federal [82 NJ Page 77] Regulation of Lobbying Act, 2 U.S.C.A. § 261 et seq. In doing so it reversed the lower court which had ruled that sections 305 and 308 of the act, requiring respectively the reporting of contributions and expenditures of particular sums of money "to influence the passage or defeat of legislation in Congress" and the registration and reporting of paid lobbyists, violated the First Amendment guarantee of freedom of speech. The Supreme Court declared that the key to a proper construction of the lobbying act was section 307 and that section, as found by the Court, limited the coverage of sections 305 and 308 to those persons who solicited, collected, or received contributions with the principal purpose of influencing the passage or defeat of legislation by the Congress. The Court held that, in order to "avoid constitutional doubts," the method of accomplishing the purpose denominated by section 307 must be through direct communication with members of Congress or exhortations to others to communicate directly with members of Congress. 374 U.S. at 620-624, 74 S. Ct. at 813-815, 98 L. Ed. at 998-1000. Cf. Advisory Opinion, supra, 242 N.W.2d at 23 ("[I]n order to avoid manifest overbreadth . . . 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." (emphasis added)). See also United States v. Rumely, 345 U.S. 41, 45, 73 S. Ct. 543, 545, 97 L. Ed. 770, 775 (1953); Buckley v. Valeo, 519, F.2d 821, 869-874 (D.C. Cir. 1975) aff'd in part and rev'd in part, 424 U.S. 1, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976); United States v. Nat'l Committee for Impeachment, 469 F.2d 1135, 1140-1141 (2 Cir. 1972); N.Y. Civil Liberties Union, Inc. v. Acito, supra, 459 F. Supp. at 85; ACLU v. Jennings, 366 F. Supp. 1041, 1056 (D.C.D.C.1973) vacated as moot 422 U.S. 1030, 95 S. Ct. 2646, 45 L. Ed. 2d 686 (1975); Note, "Developments in the Law: Elections," 88 Harv.L.Rev. 1111, 1253-1254 (1975). In addition to these judicial perceptions of a satisfactory constitutional meaning

of the concept "influencing legislation," common understanding also offers reasonable definitions of the term, definitions which would be more responsive to constitutional demands, i.e., "to influence" as denoting to exert power over others, or to command belief, or to have a dominant effect. Webster's Third New International Dictionary, supra. Further, a more practical and serviceable understanding of the phenomenon of legislative influence, entailing specifically the element of communications with legislators, has also occurred to the Legislature and has been within legislative contemplation. Cf. N.J.S.A. 52:13C-18, 52:13C-20e, and 52:13C-20g (Legislative Activities Disclosure Act of 1971).

Confronted by the unrestrained reach of the literal provisions of the act, we have no compunctions in concluding that judicial interpretation of the crucial terms, "to influence . . . legislation," to reach a constitutionally compatible result is called for under all of the circumstances. For one thing, this critical language is fully amenable to interpretative analysis; the terms are not so plain, settled, and unambiguous as to preclude a narrowing, selective judicial construction. Furthermore, there is available a limiting and discrete interpretation of the language which is quite consistent with the principal purpose of the reporting act. Additionally, the Legislature, by the inclusion of the ...


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