State v. Brookins

BELL, Chief Judge. The issue this case presents is whether the Maryland “walk around services” statute, codified during the relevant time period at Maryland Code (1957, 2002 Replacement Volume), Article 33, § 13-209, 1 which prohibits both a candidate and a candidate’s campaign from paying for “walk around ³⁵⁰ services or any other services as a poll worker or distributor of sample ballots, performed on the day of election” and any person from receiving payment in any form for such services, unconstitutionally violates the freedom of speech, as guaranteed by the First Amendment to the Constitution of the United States. 2 I. Facts As relevant, § 13-209 provided: “13-209. “Walk Around Services’. “(a) Prohibited. — No candidate, slate of candidates, political committee, political party, or any person acting on behalf of any of the foregoing, may at any time, directly or indirectly pay, or incur any obligation to pay, nor may any person receive, directly or indirectly any sum of money or thing of value in return for a political endorsement or for ‘walk around services’ or any other services as a poll worker or distributor of sample ballots performed on the day of election. ³⁵¹ “(b) “walk around services’ defined — For the purpose of this section “walk around services’ include any of the following activities when performed for money on the day of the election while the polls are open: “(1) Distributing to any person any item enumerated in 13-602 of this title; “(2) Communicating a voting preference or choice in any manner; “(3) Stationing any person or object in the path of any voter; or “(4) Electioneering or canvassing within the meaning of § 16-206 of this article. “(C) Exceptions. — This section does not apply to: “(1) Meals, beverages, and refreshments served to campaign workers; “(2) Salaries of regularly employed personnel in campaign headquarters; “(3) Media advertising including but not limited to newspaper, radio, television, billboard, or aerial advertising; “(4) Rent and regular office expense or “(5) Cost of phoning voters or transporting voters to and from polling places.” i'fi ^ On November 5, 2002, Maryland held its general election for, inter alia, the offices of Governor and Lieutenant Governor. Shirley R. Brookins, Steven P. Martin and Rashida S. Hogg, the respondents, were charged, by indictment, in the Circuit Court for Prince George’s County, with violating § 13-209, respondent Brookins by paying for walk around services provided by third parties on election day, and respondents Martin and Hogg by conspiring to violate the section and incurring an obligation to pay for walk around services provided on election day. More particularly, the State of Maryland, by the State Prosecutor, the petitioner, alleged that respondent Brookins, the operator of a temporary employment agency in the District of Columbia, used campaign funds of the ³⁵² Republican nominees for Governor and Lieutenant Governor (hereinafter referred to as “Ehrlich/Steele”) to hire and pay approximately 200 residents of a homeless shelter located in the District to provide walk around services on the general election day; that she transported them to the polls, where those walk around services, i.e. accosting voters outside the polls, communicating a voting preference, and distributing Ehrlich/Steele campaign literature, were performed; and for which the respondent Brookins paid each worker the following day.

The State alleged that respondents Martin and Hogg, hired Maryland residents, mostly high school and college students, and offered them cash amounts ranging from $80.00 to $110.00 to render walk around services on the day of the election, including distributing Ehrlich/Steele campaign materials, communicating to voters accosted outside the polls a voting preference and advocating for the election of Robert Ehrlich for Governor and Michael Steele for Lieutenant Governor. The respondents filed in the Circuit Court for Prince George’s County, Motions to Dismiss the indictments on the grounds that § 13-209 was unconstitutional in that it violated their First Amendment free speech rights both on its face and as applied in this case. 3 The Circuit Court granted the respondents’ motions, holding “§ 13-209 is facially unconstitutional” and, thus, violative of the First Amendment guarantee of freedom of speech. Specifically, the court concluded that the State’s enunciated interest in curtailing the appearance of “undue influence and vote buying” was not so compelling or of sufficient “magnitude to warrant the curtailment of the Defendants’ (and all others) freedom of speech----” Pointing out ³⁵³ that “Maryland already has a statute that addresses vote buying (§ 16-201)” and, thus, provides a remedy for the actions targeted by § 13-209, the Court also was of the view that the statute “lack[ed] detailed parameters” and, in any event, was not sufficiently narrowly tailored to meet the compelling State interest. Having determined that the statute was facially unconstitutional, the court declined to address the other issues raised in the case, including its constitutionality under the State Constitution.

The State timely noted an appeal to the Court of Special Appeals and, simultaneously, filed with this Court a Petition for Writ of Certiorari. We issued the writ of certiorari before there were any proceedings in the intermediate appellate court. State v. Brookins, 374 Md. 582 , 824 A.2d 58 (2003). On appeal, the respondents argued that, because the measure limits speech, the determination of whether it meets constitutional muster turns on the time-honored test of whether the State law is “narrowly tailored to meet a compelling state interest” to survive strict scrutiny.

With regard to that standard, the respondents asserted that § 13-209 is unconstitutional because it neither enunciates a compelling state interest nor is sufficiently narrowly-tailored, and, thus, it impermis-sibly violates their right to freedom of speech guaranteed by the First Amendment of the United States Constitution. The State argued that § 13-209 is constitutional. In support of its position, the State first argued that this Court should not apply strict scrutiny in its analysis of whether or not § 13-209 is unconstitutional. To the contrary, the State asserted that we should employ a less stringent standard because the provision is, at its heart, about the conduct of spending money, and only incidentally affects speech.

The State alternatively argued that the provision is constitutional even under the strict scrutiny analysis because 1) the law was enacted to meet a compelling state interest, “to prevent real or apparent corruption of the electoral process”, and 2) the provision was narrowly tailored to accomplish that objective. ³⁵⁴ Following oral argument, the Court issued, on September 4, 2003, an Order affirming the judgment of the Circuit Court, with the reasons therefor to be set forth in an opinion to follow. State v. Brookins, 376 Md. 697 , 831 A.2d 453 (2003). We now give our reasons.

II

The First Amendment to the United States Constitution provides that “Congress shall make no law ... abridging the freedom of speech____” That right, “among the fundamental personal rights and liberties[, is] secured to all persons by the Fourteenth Amendment against abridgement by a State.” Thornhill v. Alabama, 310 U.S. 88, 95 , 60 S.Ct. 736, 740 , 84 L.Ed. 1093, 1098 (1940). “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.” Buckley v. Valeo, 424 U.S. 1, 14 , 96 S.Ct. 612, 632 , 46 L.Ed.2d 659, 685 (1976). Accordingly, as the Supreme Court has recognized, “the First Amendment ‘has its fullest and most urgent application’ to speech uttered during a campaign for political office.” Eu v. San Francisco Cty. Democratic Central Comm., 489 U.S. 214, 223 , 109 S.Ct. 1013, 1020 , 103 L.Ed.2d 271, 282 (1989) (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 , 91 S.Ct. 621, 625 , 28 L.Ed.2d 35, 41 (1971)). Further, [t]he First Amendment affords the greatest protection to political expression in order “ ‘to assure the unfettered exchange of ideas for the bringing about of political and social changes desired by the people.’ ” Buckley, 424 U.S. at 14 , 96 S.Ct. at 632 , 46 L.Ed.2d at 685 (quoting Roth v. United States, 354 U.S. 476, 484 , 77 S.Ct. 1304, 1308 , 1 L.Ed.2d 1498, 1506 (1957)).

The Buckley Court continued: “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, 668 , 92 L.Ed. 840 , 847] (1948), ‘there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs ... of course includ(ing) discussions of candi- ³⁵⁵ dates____’ Mills v. Alabama, 384 U.S. 214, 218 , [ 86 S.Ct. 1434, 1437 , 16 L.Ed.2d 484, 488 ] (1966). This no more than reflects our ‘profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open,’ New York Times v. Sullivan, 376 U.S. 254, 270 , [ 84 S.Ct. 710, 721 , 11 L.Ed.2d 686, 701 ] (1964). In a republic where the people are sovereign, the ability of the citizenry to make informed choices among candidates for office is essential, for the identities of those who are elected will inevitably shape the course that we must follow as a nation.” Buckley, 424 U.S. at 14-15 , 96 S.Ct. at 632 , 46 L.Ed.2d at 685 . See also McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 347 , 115 S.Ct. 1511, 1518-19 , 131 L.Ed.2d 426, 439-440 (1995) (noting that no form of speech is entitled to greater constitutional protection than political speech); Burson v. Freeman, 504 U.S. 191, 196 , 112 S.Ct. 1846, 1850 , 119 L.Ed.2d 5, 12-13 (1992); Meyer v. Grant, 486 U.S. 414, 421 , 108 S.Ct. 1886, 1891 , 100 L.Ed.2d 425, 434 (1988).

See also, Eanes v. State, 318 Md. 436, 445 , 569 A.2d 604, 608 (1990) (holding that “[t]he ‘freedom to think as you will and to speak as you think’ is a ‘means indispensable to the discovery and spread of political truth’ and is essential both to ‘stable government’ and to ‘political change.’ ” (quoting Whitney v. California, 274 U.S. 357, 375-77 , 47 S.Ct. 641, 648-49 , 71 L.Ed. 1095, 1105-06 (1927))). “When a law burdens core political speech, we apply ‘exacting scrutiny,’ and we uphold the restriction only if it is narrowly tailored to serve an overriding state interest.” McIntyre v. Ohio Elections Comm’n, 514 U.S. at 347 , 115 S.Ct. at 1519 , 131 L.Ed.2d at 440 . See Meyer v. Grant, 486 U.S. at 423 , 108 S.Ct. at 1893 , 100 L.Ed.2d at 436 ; Burson v. Freeman, 504 U.S. at 197 , 112 S.Ct. at 1850 , 119 L.Ed.2d at 13 (1992). Meyer v. Grant makes clear that petition circulation is “core political speech” for which the First Amendment protection is “at its zenith.” 486 U.S. at 425 , 108 S.Ct. at 1894 , 100 L.Ed.2d at 438 . The Supreme Court has also recognized, as we have seen, that “the constitutional guarantee has its fullest ³⁵⁶ and most urgent application precisely to the conduct of campaigns for political office,” Monitor Patriot Co. v. Roy, 401 U.S. at 272 , 91 S.Ct. at 625 , 28 L.Ed.2d at 41 , and that “[a]dvocacy of the election or defeat of candidates for federal office is no less entitled to protection under the First Amendment than the discussion of political policy generally or advocacy of the passage or defeat of legislation.” Buckley, 424 U.S. at 48 , 96 S.Ct. at 648 , 46 L.Ed.2d at 704 .

Consequently, the actions that make up the walk around services that § 13-209 proscribes on election day are no less “core political speech.” Particularly, where a statute restricts or burdens political speech, the State has the burden of showing that there is a sufficiently compelling reason, unrelated to the content of the speech, for enacting the legislation. Burson, 504 U.S. 191, 196-98 , 112 S.Ct. 1846, 1850-51 , 119 L.Ed.2d 5, 12-15 (1992). Furthermore, the State must prove that the statute is narrowly tailored to effectuate that compelling interest and is “the least restrictive means to further the articulated interest.” Id., U.S. v. Playboy Entm’t Group, Inc., 529 U.S. 803, 813 , 120 S.Ct. 1878, 1887 , 146 L.Ed.2d 865, 879 (2000) (quoting Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 126 , 109 S.Ct. 2829, 2836 , 106 L.Ed.2d 93, 105 (1989)); State v. Sheldon, 332 Md. 45, 53 , 629 A.2d 753, 758 (1993). Stated differently, the State’s burden is met if it establishes that the statute remedies the conduct aimed at without excessively abridging the speech of those not engaged in the targeted action.

Fed. Election Comm’n v. Mass. Citizens for Life, Inc., 479 U.S. 238, 265 , 107 S.Ct. 616, 631 , 93 L.Ed.2d 539, 561 (1986). In Meyer v. Grant, supra, a case factually similar to the one at bar, at issue was the constitutionality of Colo.Rev.Stat. § 1-40-110 (1973), 4 which prohibited the use of paid petition ³⁵⁷ circulators. Section 1-40-110, which made it a felony to pay petition circulators to obtain the requisite number of signatures, id. at 417, 108 S.Ct. at 1889 , 100 L.Ed.2d at 431 , was one of the provisions of a State law that permitted voters to place propositions, i.e. proposals for new laws or amendments to the Constitution, on the ballot through an initiative process, so long as they were able to obtain the signatures of at least five percent of the qualified voters on an initiative petition within a six-month period.

Id., 486 U.S. at 416 , 108 S.Ct. at 1889 , 100 L.Ed.2d at 431 . The appellees, proponents of an amendment to the state constitution, paid individuals to help obtain enough signatures to have their proposed amendment placed on the ballot and were subsequently charged with violating the State law. The United States District Court for the District of Colorado held that the statute was constitutional, id. at 418-19 , 108 S.Ct. at 1890 , 100 L.Ed.2d at 432-33 , and the Circuit Court of Appeals for the 10th Circuit, sitting en banc, reversed, 5 id. at 419 , 108 S.Ct. at 1890-91 , 100 L.Ed.2d at 433 , holding that “the effect of the statute’s absolute ban on compensation of solicitors is clear. It impedes the sponsors’ opportunity to disseminate their views to the public It curtails the discussion of issues that normally accompanies the circulation of initiative petitions.

And it shrinks the size of the audience that can be reached.... In short, like the campaign expen ³⁵⁸ diture limitations struck down- in Buckley , the Colorado statute imposes a direct restriction which ‘necessarily reduces the quantity of expression.’ ” Id. (quoting Grant v. Meyer, 828 F.2d 1446, 1453-1454 (10th Cir.1987) quoting Buckley v. Valeo, 424 U.S. 1, 19 , 96 S.Ct. 612, 634 , 46 L.Ed.2d 659, 687 (1976)). Furthermore, the Appellate Court rejected the State’s justifications of the measure: “to prevent fraud or to protect the public from circula-tors that might be too persuasive”, id. at 420, 108 S.Ct. at 1892 , 100 L.Ed.2d at 434 , and “to assure that [an initiative] had a broad base of public support.” Id.

The Supreme Court agreed with the Court of Appeals. As an initial matter, it concluded that the provision prohibiting the use of paid petition circulators was “a limitation on political expression subject to exacting scrutiny.” Id. at 420 , 108 S.Ct. at 1891 , 100 L.Ed.2d at 434 . That is so, the Court explained, because “[t]he circulation of an initiative petition of necessity involves both the expression of a desire for political change and a discussion of the merits of the proposed change. Although a petition circulator may not have to persuade potential signatories that a particular proposal should prevail to capture their signatures, he or she will at least have to persuade them that the matter is one deserving of the public scrutiny and debate that would attend its consideration by the whole electorate.

This will in almost every case involve an explanation of the nature of the proposal and why its advocates support it. Thus, the circulation of a petition involves the type of interactive communication concerning political change that is appropriately described as “core political speech.” Id. at 421-22 , 108 S.Ct. at 1891-92 , 100 L.Ed.2d at 434-35 . (footnotes omitted). Thus, the Court said, the issue the appellees championed was a “matter of societal concern that appellees have a right to discuss publicly without risking criminal sanctions.” Id. at 421 , 108 S.Ct. at 1891 , 100 L.Ed.2d at 434 (citing Thornhill v. Alabama, 310 U.S. at 101-02 , 60 ³⁵⁹ S.Ct. at 744, 84 L.Ed. at 1101-02 (“The freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment”)).

The Court concluded: “The refusal to permit appellees to pay petition circulators restricts political expression in two ways: First, it limits the number of voices who will convey the appellee’s message and the hours they can speak and, therefore limits the size of the audience they can reach. Second, it makes it less likely that the appellees will garner the number of signatures necessary to place the matter on the ballot, thus limiting their ability to make the matter the focus of statewide discussion.” Id. at 422-23, 108 S.Ct. at 1892 , 100 L.Ed.2d at 435-36 . The Court rejected the appellant’s contention that the statute was not overly burdensome because it allowed the appel-lees other means of political speech: “That appellees remain free to employ other means to disseminate their ideas does not take their speech through petition circulators outside the bounds of First Amendment protection. Colorado’s prohibition of paid petition circula-tors restricts access to the most effective, fundamental, and perhaps economical avenue of political discourse, direct one-on-one communication.

That it leaves open ‘more burdensome’ avenues of communication, does not relieve its burden on First Amendment expression. The First Amendment protects appellees’ right not only to advocate their cause but also to select what they believe to be the most effective means for so doing.” Id. at 424 , 108 S.Ct. at 1893 , 100 L.Ed.2d at 436 (citations omitted). Nor was the Court persuaded that the Colorado statute was justified by the compelling government interest proffered, to “protect the integrity of the electoral process.” It explained: “[W]e are not prepared to assume that a professional circu-lator — whose qualifications for similar future assignments ³⁶⁰ may well depend on a reputation for competence and integrity — is any more likely to accept false signatures than a volunteer who is motivated entirely by an interest in having the proposition placed on the ballot.” Id. 486 U.S. at 426 , 108 S.Ct. at 1894 , 100 L.Ed.2d at 438 . The Court further declined to accept the State’s argument that the Colorado statute was narrowly tailored to effectuate its stated interest, holding that the State had not proven that it was necessary to inhibit the appellees’ exercise of expression in order to maintain the integrity of the initiative process.

Id. at 426-27 , 108 S.Ct. at 1894-95 , 100 L.Ed.2d at 438 . To the contrary, the Court concluded that portions of the Colorado initiative statute, including those that made it a crime to “forge a signature on a petition”, Colo.Rev.Stat. § 1-13-105 (1980), to make false or misleading statements relating to a petition, Colo.Rev.Stat. § 1-40-119 (Supp.1987), or to pay someone to sign a petition, Colo.Rev.Stat. § 1-40-110, more adequately dissuaded paid petition circulators from subverting the integrity of the petition initiative process than did the. provision at issue. Id. In the case sub judice, the State submits that “[t]his is not a case about speech-it is a case about money,” which, in addition to being able to be used to hire laborers, can be used to corrupt.

Section 13-209, it contends, limits the use on money and only incidentally affects or restricts speech and therefore, is not subject “to the full measure of First Amendment protection that a direct restriction on speech would receive.” Therefore, the State asserts (quoting Buckley, 424 U.S. at 19 , 96 S.Ct. at 635 , 46 L.Ed.2d at 688 , and Fed. Election Comm’n v. Beaumont, 539 U.S. 146 , -, 123 S.Ct. 2200, 2210 , 156 L.Ed.2d 179, 193-94 .(2003)), because it “applies only to payments for a narrow category of electioneering type activities on a portion of a single campaign day, [§ 13-209] cannot possibly be read to seriously restrict the ‘quantity of campaign speech,’ ... or to curtail core political expression or activity critical to ‘effective speech or political association----’” Rather than strict or exacting scrutiny, “where complex competing constitutionally protected interests such as the right ton ³⁶¹ vote or the right to spend political money is involved,” the State argues for a “more flexible balancing standard” one in which “the level of scrutiny is based on the importance of the ‘political activity at issue’ to effective speech or political association.” Beaumont, 539 U.S. at 146 , 123 S.Ct. at 2210 , 156 L.Ed.2d at 193-94 . As demonstrated by the cases cited, Beaumont, supra; Fed. Election Comm’n v. Colorado Rep. Fed. Campaign Comm., supra; Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377 , 120 S.Ct. 897 , 145 L.Ed.2d 886 (2000); Buckley, supra, the State relies heavily on those cases in which the validity of restrictions of campaign contributions were at issue.

The seminal case regarding the First Amendment and campaign regulation is Buckley . In that case, the appellants, various candidates, political contributors, political parties and organizations, brought suit in the United States District Court for the District of Columbia to challenge certain provisions of the Federal Election Campaign Act of 1971 and related provisions of the Internal Revenue Code of 1954, all as amended in 1974, that inter alia, limited the allowable amounts of campaign contributions and expenditures. 424 U.S. at 6-8 , 96 S.Ct. at 629-30 , 46 L.Ed.2d at 680-82 . They alleged that such restrictions violated their First Amendment right to free speech. 6 Similar to the case sub judice, the appellees argued that the Act only regulated conduct in the form of contributions and expenditures of money and that such conduct only incidentally affected speech. Id., 424 U.S. at 15 , 96 S.Ct. at 633 , 46 L.Ed.2d at 685 . ³⁶² The District Court upheld the constitutionality of the legislation and the Court of Appeals for the D.C. Circuit affirmed, the latter identifying a “ ‘clear and compelling interest in preserving the integrity of the electoral process.’” Id., 424 U.S. at 10 , 96 S.Ct. at 630 , 46 L.Ed.2d at 682 (quoting Buckley v. Valeo, 519 F.2d 821, 841 (D.C.Cir.1975)).

Particularly, the appellate court upheld the constitutional validity of the Act’s contribution and expenditure provisions, reasoning that those provisions were aimed at regulating conduct, id. at 15-16, 96 S.Ct. at 633 , 46 L.Ed.2d at 686 , and only incidentally affected or impacted speech. In so holding, it relied on United States v. O'Brien, 391 U.S. 367 , 88 S.Ct. 1673 , 20 L.Ed.2d 672 (1968), a case in which a defendant challenged his prosecution for burning his draft card, arguing that the act of burning the card was “ ‘symbolic speech’ engaged in as a ‘demonstration against the war and against the draft.’ ” Buckley, 424 U.S. at 16 , 96 S.Ct. at 633 , 46 L.Ed.2d at 686 (quoting O'Brien, 391 U.S. at 376 , 88 S.Ct. at 1678 , 20 L.Ed.2d at 679 (internal quotations omitted)). Assuming that the alleged communicative element of the conduct triggered the protections of the First Amendment, the Court sustained the defendant’s conviction, holding that there was “ ‘a sufficiently important governmental interest in regulating the nonspeech element’ that was ‘unrelated to the suppression of free expression’ and that had an ‘incidental restriction on alleged First Amendment freedoms ... no greater than (was) essential to the furtherance of that interest.’ ” Id., (quoting O'Brien, 391 U.S. at 376-77 , 88 S.Ct. at 1678 , 20 L.Ed.2d 672 at 680 ). Before the Supreme Court, the appellants in Buckley argued that the Court of Appeals failed to apply the appropriate critical scrutiny demanded by the First Amendment and equal protection principles.

Id. 424 U.S. at 11 , 96 S.Ct. at 631 , 46 L.Ed.2d at 683 . Exacting scrutiny was required, they asserted, because contributions and expenditures are “at the very core” of political speech, id. at 15 , 96 S.Ct. at 633 , 46 L.Ed.2d at 685 , and “the Act’s limitations ... constitute restraints on First Amendment liberty that are both gross and direct.” Id. ³⁶³ The Supreme Court agreed with the appellants. Having enunciated the generally accepted principle that the “First Amendment affords the broadest protection to political expression in order to ‘assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people,’ id. at 14 , 96 S.Ct. at 633 , 46 L.Ed.2d at 685 (quoting Roth v. United States, 354 U.S. 476, 484 , 77 S.Ct. 1304, 1308 , 1 L.Ed.2d 1498, 1506 (1957)), and that its purpose ‘was to protect the free discussion of governmental affairs, ... of course including] discussions of candidates ...,’ id., (quoting Mills v. Alabama, 384 U.S. 214, 218 , 86 S.Ct. 1434, 1437 , 16 L.Ed.2d 484, 488 (1966)), it held that the Act’s contribution and expenditure provisions regulated “in an area of the most fundamental First Amendment activities.” 424 U.S. at 14 , 96 S.Ct. at 632 , 46 L.Ed.2d at 685 . Furthermore, the Court rejected the argument analogizing those provisions to the limitations on conduct upheld in O’Brien: “The expenditure of money simply cannot be equated with such conduct as destruction of a draft card.

Some forms of communication made possible by the giving and spending of money involve speech alone, some involve conduct primarily, and some involve a combination of the two. Yet this Court has never suggested that the dependence of a communication on the expenditure of money operates itself to introduce a nonspeech element or to reduce the exacting scrutiny required by the First Amendment.” Id. at 17 , 96 S.Ct. at 633 , 46 L.Ed.2d at 686 . Assuming the appropriateness of categorizing “the expenditure of money as conduct,” the Court determined nevertheless that the contributions and expenditure limitations at issue in that case would not meet the O’Brien test. Id. at 17 , 96 S.Ct. at 634 , 46 L.Ed.2d at 686 .

While it treated expenditures and contributions the same for purposes of reasonable time, place and manner regulations, noting, in that regard, a critical difference between the limitations imposed in that case and those cases applying reasonable time, place and manner restrictions — “the present Act’s contribution and expenditure limitations [also] impose direct quantity restrictions on politi ³⁶⁴ cal communication and association by persons, groups, candidates, and political parties,” id. at 17-18 , 96 S.Ct. at 634 , 46 L.Ed.2d at 687 , the Court acknowledged a distinction between restrictions on contributions and expenditures insofar as they affect political expression. The Court pointed out that any law limiting the amount of expenditures made by a candidate or a campaign on behalf of a candidate has a direct impact on political expression because the ability to spend money to convey a candidate’s political message is inextricably linked to the quantity, and perhaps the quality, of that candidate’s political speech. Id., 424 U.S. at 19 , 96 S.Ct. at 634-35 , 46 L.Ed.2d at 687-88 . Thus, the Court stated: “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 indispensable instruments of effective political speech.” Id.

(footnotes omitted). On the other hand, the Court observed: “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 communi ³⁶⁵ cation 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.” Id., 424 U.S. at 20-21 , 96 S.Ct. at 635-36 , 46 L.Ed.2d at 689 (footnote omitted). In sum, in contrast to restrictions on expenditures, as to which the Court emphasized, “this Court has never suggested that the dependence of a communication on the expenditure of money operates itself to introduce a nonspeech element or to reduce the exacting scrutiny required by the First Amendment,” id. at 16 , 96 S.Ct. at 633 , 46 L.Ed.2d at 687 , the Court held that provisions restricting campaign contributions did not unjustifiably burden First Amendment freedoms.

Id. at 29 , 96 S.Ct. at 640 , 46 L.Ed.2d at 693-94 . In so doing, it paid deference to the congressional judgment as to the governmental interests to be furthered, id. at 27-28 , 96 S.Ct. at 638-39 , 46 L.Ed.2d at 692-93 , and concluded that, in the case of contribution restrictions, the test is whether the State “demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgment” of that interest, 424 U.S. at 25 , 96 S.Ct. at 638 , 46 L.Ed.2d at 691 , a lesser standard than strict or exacting scrutiny. See Beaumont, 539 U.S. at 146 , 123 S.Ct. at 2210 , 156 L.Ed.2d at 193-94 . This less exacting standard has been applied in the cases on which the State relies, all decided subsequently to Buckley ³⁶⁶ and involving restrictions on campaign contributions.

In Beaumont, supra, the issue was whether the prohibition against corporations contributing directly to candidates for federal office should be applied to nonprofit advocacy corporations. 539 U.S. at 146 , 123 S.Ct. at 2204-05 , 156 L.Ed.2d at 186 . The Court rejected the argument that the determination as to whether the application of the prohibition was consistent with the First Amendment was subject to strict scrutiny. Id. at---, 123 S.Ct. at 2210-11 , 156 L.Ed.2d at 193-94 . To be