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Full Opinion
Jordan BROWER, an individual, Appellant,
v.
STATE of Washington; Ralph Munro, as Secretary of State; and Football Northwest, a Washington general partnership, Respondents.
Supreme Court of Washington, En Banc.
*46 Eugster & Haskell, Stephen Eugster, Spokane, Shawn Newman, Olympia, for Appellant.
Christine Gregoire, Atty. Gen., Jeffrey Even, James Pharris, Asst. Attys. Gen., Olympia, Foster, Pepper & Shefelman, Peter DiJulio, Warren Pheaume, Grover Cleveland, Seattle, for Respondents. *43 *44
*45 MADSEN, J.
This case concerns Laws of 1997, ch. 220, and Referendum 48, which provide for construction and financing of new stadium facilities for the Seattle Seahawks, a professional football team. Appellant Jordan Brower raises numerous constitutional challenges to the legislation, primarily in connection with provisions which conditioned referral of Referendum 48 to the people on the payment of costs of the referendum election by a private entity, the "team affiliate." Other challenges are that the Act violates the single subject rule of article II, section 19 of the Washington Constitution, and that it contains an invalid emergency clause. We conclude the legislation is valid and affirm summary judgment in favor of respondents. In reaching this conclusion, we note that our recent decision in CLEAN v. State, 130 Wash.2d 782, *47 928 P.2d 1054 (1996), dictates the result on a number of the issues Brower has raised.
FACTS
During the 1997 legislative session, the Legislature enacted a bill (the Act) providing for construction and financing of a new football and soccer stadium and exhibition center as a public-private enterprise. Laws of 1997, ch. 220. At the time the legislation was considered, Respondent Football Northwest, Inc., had an option to purchase the Seattle Seahawks football team from its owner who wanted to move the team to California. Football Northwest declared it would not exercise the option to purchase, which was to expire unless exercised by July 1, 1997, unless the legislation was enacted.
The Legislature did not pass the bill outright, however. Instead, the Legislature referred sections 101 through 604 of the Act to the people. Among other things, this part of the Act authorizes creation of a public stadium authority by "any county that has entered into a letter of intent relating to the development of a stadium and exhibition center" with a "team affiliate" or entity with a contractual right to become a "team affiliate." Section 102; RCW 36.102.020.[1] The stadium authority can then enter into agreements with a professional football team for development of a new stadium and exhibition center. Sections 105, 106; RCW 36.102.050,.060.
Mr. Brower's constitutional challenges primarily concern sections 605 through 608 of the Act, which were not referred to the people. Section 607 directed the Secretary of State to submit sections 101 through 604 to a vote of the people on or before June 20, 1997. RCW 36.102.803. The Secretary of State designated these sections as Referendum Bill No. 48 pursuant to RCW 29.79.250. Section 607 also directed the Attorney General to prepare an explanatory statement and transmit it to the Secretary of State; directed the Secretary of State to prepare a voters' pamphlet addressing the referendum measure; provided for an accelerated canvass of the results of the election; and provided that the special election would be limited to submission of the Act, i.e., no other ballot measures could be submitted for a vote at the same time. Id.
Section 605 stated that "[t]he legislature neither affirms nor refutes the value of this proposal," set forth the Legislature's intent that the voters be provided an opportunity to express their decision, and concluded by stating that "[i]t is also expressed that many legislators might personally vote against this proposal at the polls, or they might not." RCW 36.102.801.
Section 606 provided that the Act would be null and void unless the team affiliate entered into an agreement with the Secretary of State to reimburse the state and counties for the cost of a special election to be held on Referendum 48. RCW 36.102.802. A reimbursement agreement for costs of the election was entered into by the Secretary of State and the Seattle Seahawks, Inc., on May 14, 1997. Seattle Seahawks, Inc., immediately assigned all of its interest in and obligations under the agreement to Football Northwest. The expenses have been paid.
Section 608 contained an emergency clause providing that sections 606 and 607 (the provisions for conducting the special election and for reimbursement of the costs of the election) should take effect immediately. Laws of 1997, ch. 220, § 608.
The Act had as its legislative title: "AN ACT Relating to a mechanism for financing stadium and exhibition centers and education technology grants;...." Laws of 1997, ch. 220, at 1060. While provision was originally made in the Act to use any excess funds collected over bonded indebtedness for computer purchases for schools, i.e., education *48 technology grants, HB 2192, § 24(4), this provision was deleted before passage by the Legislature, although the reference remained in the title. The ballot title of Referendum 48 prepared by the Attorney General and included in the voters' pamphlets and on the ballot stated: "Shall a public stadium authority be authorized to build and operate a football/soccer stadium and exhibition center financed by tax revenues and private contributions?" Clerk's Papers (CP) at 93.
On May 2, 1997, prior to the June 17 date set for the special election, Brower filed a complaint in Thurston County Superior Court against the State seeking an injunction to prevent the election on the basis that the Act contained an invalid emergency clause. In an amended complaint, he also sought declaratory relief, alleging that the Act is unconstitutional on numerous grounds. On May 21, 1997, Football Northwest moved to intervene. All parties stipulated to an order permitting intervention, which was entered May 27, 1997. On June 9, 1997, the superior court entered an order staying all proceedings until after the June 17, 1997 special election. Referendum 48 was passed by a margin of 51.1% with a voter turnout of 51%.
Following the election, the parties filed cross-motions for summary judgment. The trial court granted summary judgment in favor of the State and Football Northwest. This court granted direct review of Brower's appeal. Respondent Football Northwest has moved to strike portions of Brower's brief. The motion has been passed to the merits.
ANALYSIS
Authority to Submit Referendum 48 to the People
We are reviewing a grant of summary judgment in favor of respondents. Review of summary judgment is de novo, with the appellate court engaging in the same inquiry as the trial court. Gunnier v. Yakima Heart Ctr., Inc., 134 Wash.2d 854, 858, 953 P.2d 1162 (1998). Summary judgment is proper if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. CR 56(c).
Mr. Brower raises numerous constitutional challenges to the legislation. A statute is presumed to be constitutional and the challenger bears the burden of establishing the unconstitutionality of the legislation beyond a reasonable doubt. Island County v. State, 135 Wash.2d 141, 146-47, 955 P.2d 377 (1998); Leonard v. City of Spokane, 127 Wash.2d 194, 197, 897 P.2d 358 (1995). The presumption of constitutionality applies to measures approved by the people. State ex rel. O'Connell v. Meyers, 51 Wash.2d 454, 458, 319 P.2d 828 (1957); Washington Fed'n of State Employees v. State, 127 Wash.2d 544, 558, 901 P.2d 1028 (1995).
The people's power to legislate directly takes two forms, the initiative and the referendum. Const. art. II, § 1. An initiative is a proposed law directly from the people through the filing of signed petitions with the Secretary of State. Const. art. II, § 1(a). An initiative may be an initiative to the people, or to the Legislature. The former is placed directly on the ballot for voter approval or rejection. The latter may be enacted by the Legislature, or the Legislature may decline to act on the measure, in which case it will be placed on the ballot, or the Legislature may enact an alternative to the initiative, in which case both the initiative and the legislative alternative will be placed on the ballot. Id.
The referendum is the second power reserved to the people, permitting the voters to approve or reject a measure which has been enacted by the Legislature. Const. art. II, § 1(b). A measure may be referred to the people in two ways. First, voters may refer a measure by submitting petitions signed by the required number of voters to the Secretary of State within 90 days of the end of the session in which the measure was enacted. Id. at § 1(b), (c). Second, the Legislature may refer a measure to the people without the voters petitioning for a referendum. Id. This case involves a measure referred to the people by the Legislature.
1. Conditioning Act on agreement of private party to reimburse costs of special election.
Mr. Brower maintains that the Legislature does not have general authority to refer a *49 matter to the people, but instead has only that authority expressly set out in art. II, § 1(b). Here, the Legislature provided that the Act would be null and void unless the team affiliate entered into an agreement with the Secretary of State to reimburse the state and the counties for the costs of the special election. This, Brower contends, illegally placed the power of referendum in the hands of a private party, because no referendum would occur unless the team affiliate agreed to reimburse the costs of the special election. Brower further argues that aside from art. II, § 1(b), the Legislature does not have authority to grant a private party the power to perform a legislative act, particularly where, as here, the private party stands to benefit from the legislation. Respondents maintain that the Legislature did not delegate legislative authority, but instead validly conditioned the effectiveness of the Act on third party conduct, i.e., the contingency that a third party reimburse the state and counties for their election costs.
The legislative authority of the State is vested in the Legislature, art. II, § 1, and it is unconstitutional for the Legislature to abdicate or transfer its legislative function to others, Keeting v. Public Util. Dist. No. 1, 49 Wash.2d 761, 767, 306 P.2d 762 (1957).
[H]owever, conditioning the operative effect of a statute upon a future event specified by the Legislature does not transfer the state legislative power to render judgment to the persons or entity capable of bringing about that event. The Legislature, itself, determines the statute would be expedient only in certain circumstances. The power to make this judgment is not transferred merely because the circumstances may arise at the discretion of others. The substance of the act is complete in itself and the Legislature is the body which rendered the judgment as to the expediency of conditioning the operation of the statute upon the specified event. Diversified Inv. Partnership v. Department of Soc. & Health Servs., 113 Wash.2d 19, 28, 775 P.2d 947 (1989); see State v. Storey, 51 Wash. 630, 632, 99 P. 878 (1909) ("[t]he mere fact that the act does not take effect until the contingency arises does not indicate a delegation of legislative power, even where the contingency depends upon the action of certain persons").
Here, the Legislature determined that it was necessary to condition the Act on a requirement that the costs of the election be paid by the team affiliate in order to avoid the expenditure of any public funds in connection with a public stadium project unless the voters approved the Act. Because this judgment was made by the Legislature, no unconstitutional delegation of legislative authority occurred.
Moreover, the Legislature may condition the effectiveness of legislation on the acts of a private party who may possibly benefit from the legislation. In Story, for example, legislation prohibiting livestock running at large in any county where three-fourths of the lands were fenced required county commissioners to determine whether three-fourths of the county was fenced when ten or more freeholders applied for enforcement of the act. Storey, 51 Wash. 630, 99 P. 878. The effectiveness of the act was thus conditioned on the acts of the freeholders, private persons, who had to apply for enforcement of the legislation, as well as upon private parties having fenced lands within the county. No unconstitutional delegation of legislative powers was found. As in Diversified Inv., the decision of what event made the legislation effective was made by the Legislature, not the third party. Moreover, by applying for enforcement of the act in Storey, the freeholders obviously sought to benefit from the provisions of the legislation.[2]
Brower contends, though, that while the Legislature may enact measures whose effectiveness is contingent upon a future *50 event, it has no authority to condition the referral of a measure in such a manner.
The state constitution is not a grant but rather is a restriction on the law-making power. Clark v. Dwyer, 56 Wash.2d 425, 431, 353 P.2d 941 (1960). "[T]he power of the legislature to enact all reasonable laws is unrestrained except where, either expressly or by fair inference, it is prohibited by the state and federal constitutions." Id. The power to enact contingent legislation has clearly been recognized. The question is whether any limitation on this power exists because the legislation is referred to the people.
Article II, section 1(b) of the Washington Constitution provides:
The second power reserved by the people is the referendum, and it may be ordered on any act, bill, law, or any part thereof passed by the legislature, except such laws as may be necessary for the immediate preservation of the public peace, health or safety, [or][[3]] support of the state government and its existing public institutions, either by petition signed by the required percentage of the legal voters, or by the legislature as other bills are enacted ....
(Emphasis added.) The Legislature is granted the discretionary authority to refer an enactment to the people for approval or rejection. Art. II, § 1(b) also states that referral shall be "as other bills are enacted," indicating that just as the Legislature can condition the effectiveness of other bills on third party conduct, it can condition the effectiveness of a provision referring an act to the people.
The Legislature has authority both to refer a measure to the people and to condition the effectiveness of an enactment upon the happening of a future event, and nothing in art. II, § 1 restrains the Legislature from exercising the two powers in connection with one piece of legislation. Accordingly, section 606 does not unconstitutionally delegate legislative authority to the team affiliate.
2. Authority to refer only part of an act.
Brower contends that the Legislature cannot refer only part of an act to the people. Here, sections 101 through 604 of the Act were referred to the people, but the sections concerning the Legislature's position on the measure, reimbursement of costs of the special election, conducting the election, and the emergency clause were not referred. Brower contends that while the people can order a referendum "on any act, bill, law, or any part thereof passed by the legislature," the Legislature can order a referendum only "as other bills are enacted[,]" i.e., only if the act is a complete act. Const. art. II, § 1(a),(b).
This argument is based on a misreading of art. II, § 1(b). The provision states in relevant part that a referendum "may be ordered on any act, bill, law, or any part thereof passed by the legislature ... either by petition ... of the legal voters, or by the legislature as other bills are enacted...." Const. art. II, § 1(b) (emphasis added). The language plainly means that a referendum may be ordered on a part of any act, bill, or law by either of two methodspetition of the people, or by the Legislature in the same way that it enacts other bills. See State ex rel. Lofgren v. Kramer, 69 Wash.2d 219, 221-22, 417 P.2d 837 (1966) (treating words "as other bills are enacted" as relating to the process by which bills are enacted). Under art. II, § 1(b) the Legislature can constitutionally order a referendum on only part of an act.[4]
3. Whether legislation can be referred to the people where the Legislature takes no position on the value of the legislation.
Mr. Brower also argues, as part of his claim that only a complete act can be referred to the people, that the Legislature cannot refer a measure on which it has refused to take a position. He maintains that *51 Referendum 48 is unconstitutional because it is in fact an unlawful initiative to the people rather than a referendum. Because the constitution is a restraint on legislative power, Mr. Brower's argument will prevail only if something in or fairly inferable from the state constitution prohibits the Legislature from referring an act while taking no position on its value. See Clark, 56 Wash.2d at 431, 353 P.2d 941.
Ordinarily, when a bill is passed by the Legislature the Legislature affirmatively adopts the provisions of the bill. The Act is clearly an unusual piece of legislation because the Legislature deliberately took no position on the value of the legislation before referring it to the people. Section 605. Nevertheless, examination of the state constitution leads to the conclusion that, although unusual, Referendum 48 is a valid referendum.
The legislative rights of the people reserved in state constitutions are to be liberally construed in order to preserve them and render them effective. State v. Superior Court for Thurston County, 97 Wash. 569, 577, 166 P. 1126 (1917). In accord with this view, this court has rejected technical construction of statutes implementing art. II, § 1, as well as the constitutional provision itself, except insofar as "necessary to fairly guard against fraud and mistake in the exercise by the people of this constitutional right." Id. at 578, 166 P. 1126 (quotation marks and citation omitted). For example, in an early case, the court applied a liberal construction of the provision by reading art. II, § 1(b) as allowing for a referendum by the Legislature of a joint resolution of the Legislature ratifying the federal constitutional amendment for national prohibition. State ex rel. Mullen v. Howell, 107 Wash. 167, 181 P. 920 (1919). The court rejected the notion that the matter could not be referred because it was not "an act, bill, or law" within the meaning of art. II, § 1(b).
Thus, we apply a liberal construction to preserve the right of referendum.
When the Legislature refers a measure to the people, it leaves the decision whether the measure will become law in the hands of the people. Further, while an initiative must have the signatures of the required percentage of legal voters, as does a referendum ordered by the people via petition, in the case of a referral by the Legislature the Legislature votes to refer a matter which it determines should be decided by the people. Whether the Legislature has affirmed the value of the measure or not, that vote assures that the Legislature has made a representative determination that the people should decide whether the measure becomes law. These considerations lead us to reject Brower's narrow construction as impeding the right of referendum. Whether the Legislature takes a stand on the merits of the legislation or not, the Legislature must vote to send the matter to the people and the people then make the final decision as to whether the matter becomes law.
We do not find anything in or fairly inferable from the state constitution which indicates that the Legislature's power is restrained in this regard.
Because we find the Legislature had authority to refer Referendum 48, it follows that we reject Brower's contention that the measure is actually an initiative to the people which is unlawful because it lacks sufficient signatures on a petition. Legislation may be referred to the people without petition signatures when the Legislature votes to refer.
Veto Power
Brower maintains that the Act unconstitutionally granted a veto power to Football Northwest in violation of art. III, § 12 of the Washington State Constitution which vests the right to veto legislation in the hands of the Governor. Brower apparently reasons that because the team affiliate could decline to agree to reimburse the costs of the special election, it had the power to veto the Act.
Brower cites no authority for the proposition that a third party's failure to act to bring about an event upon which the effectiveness of legislation is contingent would constitute a veto within the meaning of the constitution. Moreover, in this case, the Legislature itself made the determination that the Act would *52 be null and void unless a reimbursement agreement was entered. Section 606 did not allow a possibility of a second entity overriding the Legislature's intent. There is no merit to the argument that the veto power has been unlawfully transferred to a private party.
Special Legislation
Mr. Bower maintains that the referendum on sections 101 through 604 of the Act constitutes special legislation in violation of art. II, § 28 of the Washington State Constitution. He maintains that the Act provides that a single entity, the team affiliate, benefits from the legislation by agreeing to reimburse the costs of the special election. This challenge appears to relate to the entire Act.
Initially, Respondent Football Northwest urges the court to decline to consider this issue on the ground that Brower did not assert a special legislation claim in his complaint. An issue which was not raised in summary judgment proceedings ordinarily will not be considered on appeal. 4 Lewis H. Orland & Karl B. Tegland, Washington Practice: Rules Practice 560 (1992); see, e.g., Lewis v. Bell, 45 Wash.App. 192, 196-97, 724 P.2d 425 (1986). However, the record shows the issue was before the trial court, and we will address it.
Const. art. II, § 28(6) provides in relevant part that "[t]he legislature is prohibited from enacting any private or special laws in the following cases ... For granting corporate powers or privileges." Special legislation is legislation which operates upon a single person or entity while general legislation operates upon all things or people within a class. CLEAN, 130 Wash.2d at 802, 928 P.2d 1054; Convention Ctr. Coalition v. City of Seattle, 107 Wash.2d 370, 380, 730 P.2d 636 (1986). A class may consist of one person or corporation provided the law applies to all members of the class. CLEAN, 130 Wash.2d at 802, 928 P.2d 1054; Convention Ctr., 107 Wash.2d at 380, 730 P.2d 636. However, it is not what the law includes, but rather what it excludes, which is the test of special legislation. Island County v. State, 135 Wash.2d 141, 150, 955 P.2d 377 (1998). "`Thus, to survive a challenge as special legislation, any exclusions from a statute's applicability, as well as the statute itself, must be rationally related to the purpose of the statute.'" Id. (quoting City of Seattle v. State, 103 Wash.2d 663, 674-75, 694 P.2d 641 (1985)).
Mr. Brower argues the legislation applies to a single entity. He emphasizes language in the act defining "team affiliate" as "a" professional football team and any affiliate of "the" team designated by the team, and stating that an "`affiliate of the team' means any person or entity that controls, is controlled by, or is under common control with the team." Section 101(10); RCW 36.102.010(10) (emphasis added). He also points out that the Act provides that if the voters reject sections 101 through 604, the Legislature will not pass any similar measure "for the team affiliate," section 604; RCW 36.102.800, and cites other references to "the team affiliate" in section 106, RCW 36.102.060 and Section 606, RCW 36.102.802.
The Act is not special legislation. The Act allows for "any county" to create a public stadium authority if the county has entered into a letter of intent relating to the development of a stadium and exhibition center with a team affiliate or entity with a contractual right to become a team affiliate. Section 102; RCW 36.102.020. The stadium authority can then enter into agreements with a professional football team for development of a new stadium and exhibition center. Sections 105, 106; RCW 36.102.050, .060. The definition of a "team affiliate" is "a professional football team that will use the stadium and exhibition center, and any affiliate of the team designated by the team. An `affiliate of the team' means any person or entity that controls, is controlled by, or is under common control with the team." Section 101(10); RCW 36.102.010(10). A "professional football team" is "a team that is a member of the national football league or similar professional football association." Section 101(5); RCW 36.102.010(5).
The legislation applies to a class any county is authorized to form a public stadium authority provided it satisfies the letter of intent requirement. See CLEAN, 130 Wash.2d at 802, 928 P.2d 1054 (holding *53 that legislation concerning construction and financing of a baseball stadium which applies only to counties of a certain size was not special legislation, even where only one county had a population of that sizepossibility existed that another county could reach the given population in the future). Moreover, the term "team affiliate" also refers to a class, because it includes any national football league team or a team of a similar association, and affiliates designated by such a team. Finally, the exclusions from the Act's provisions are rational. Counties which have not entered a letter of intent would not be in a position to have a professional football team playing its home games at a stadium in the county.
Lending of Credit
Mr. Brower contends that the state advanced funds and services to conduct the special election on Referendum 48, and this constituted lending of credit to a private party, the team affiliate, which was obliged to reimburse these costs. His premise is that the election was an election solely to benefit a private party, and the election costs were the costs of the private party.
Article VIII, section 5 of the Washington State Constitution provides that "[t]he credit of the state shall not, in any manner be given or loaned to, or in aid of, any individual, association, company or corporation." The purpose of this provision is to "`prevent state funds from being used to benefit private interests where the public interest is not primarily served.'" CLEAN, 130 Wash.2d at 797, 928 P.2d 1054 (quoting Japan Line, Ltd. v. McCaffree, 88 Wash.2d 93, 98, 558 P.2d 211 (1977)). The first step in deciding whether a gift or loan of public funds has been made is to determine if the funds have been expended to carry out a fundamental purpose of government. CLEAN, 130 Wash.2d at 797, 928 P.2d 1054. If so, no gift or loan of public credit has occurred.
As Respondents contend, there can be no doubt that a special election on a referendum measure is a governmental purpose. If there was any "lending" of credit, it was for a governmental purpose. However, it is difficult to agree that any lending of credit occurred, because the government generally bears the costs of special elections on referenda. RCW 29.13.045, .047. Here, a private entity agreed to reimburse the state and local governments for their costs. For these reasons, we hold that no lending of state credit occurred.
Equal Protection; Ballot Access on Basis of Wealth
Brower argues that the Act violates equal protection principles of the state and federal constitutions because it allows ballot access to be based upon wealth. Mr. Brower does not argue that a different analysis applies under the state privileges and immunities clause than applies under the Equal Protection Clause.
There is no question that this case is unusual because a private entity funded a vote on a matter from which, if the voters approved, the private entity stood to benefit. Troubling questions may arise, such as whether any wealthy entity could persuade the Legislature to place a measure on the ballot provided the costs of the election were paid, and whether by declining to take a position on the measure and requiring that election costs be reimbursed the Legislature abdicated its role as a representative body. Those, however, are different considerations than whether the Act provides unconstitutional ballot access based upon wealth.
Brower relies upon cases concerning poll taxes and fees required of candidates in order to appear on the ballot. In Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966), the Court invalidated a poll tax on equal protection grounds. Here, however, no person was denied the right to vote based upon ability to pay. In Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972), the Court invalidated Texas law providing that candidates had to pay fees in order to appear on the ballot. In Lubin v. Panish, 415 U.S. 709, 94 S.Ct. 1315, 39 L.Ed.2d 702 (1974), the Court invalidated a California statute requiring a ballot access fee based upon the salary for the office sought. Both Bullock and Lubin *54 involve a candidate's right to participate in an election, not a ballot measure as in this case. Brower cites no authority which directly supports his claim that the Act unconstitutionally allows ballot access to be based on wealth in violation of equal protection.
The State reasons that the referendum and initiative rights in art. II, § 1 are available without regard to wealth, and therefore there is no classification depriving the voters of direct legislation rights because they lack the ability to pay election costs. Voters can propose an initiative to the people or to the Legislature, and may petition for a vote on legislation enacted by the Legislature. Respondents note that in addition to the people's right to petition to place a measure on ballot, the Legislature also has the constitutional right to place a referendum measure on the ballot. The Legislature could have enacted legislation providing for a public stadium and exhibition center without ordering a referendum (as it did for a baseball stadium in King County). The Legislature also could have ordered a referendum without requiring a reimbursement agreement. Accordingly, placement of a measure on the ballot does not depend upon wealth. Respondent's arguments are sound.
Finally, we note that even if there were a legitimate reason for concluding that access to the ballot had been granted on the basis of wealth, no equal protection violation would be found because even if the team affiliate gained ballot access based upon wealth, the people have an alternative means to place a measure on the ballot through the petition process. See Lubin, 415 U.S. at 718, 94 S.Ct. 1315 (candidate's access to ballot based upon wealth not violative of equal protection where the state provides a reasonable alternative means for ballot access).
We do not agree that the Legislature has unconstitutionally provided ballot access on the basis of wealth.
Right to Political Speech
Mr. Brower argues that his First Amendment political speech and equal protection rights were violated because the Legislature scheduled the special election on Referendum 48 to take place less than 60 days after the Act was enacted by the Legislature. He claims, without support, that one of the purposes of the Act was to make it possible for moneyed interests to "drown out the voices of the less affluent." Br. of Appellant at 26-27. He points out that the proponent of the measure spent millions of dollars in campaigning on its behalf. He evidently believes that he should have been permitted more time to raise funds. Although not stated, his argument might also suggest that expenditures on behalf of Referendum 48 should have been limited.
Initially, the validity of the emergency clause which permitted the election to occur less than 90 days after the 1997 legislative session is discussed below. The issue here is whether the short timetable unconstitutionally deprived Brower of an opportunity to raise funds to oppose the referendum in violation of the First Amendment, or whether the disparity in funding otherwise violated his political speech rights or equal protection.
The influence of money in politics has been the subject of much attention. Many commentators have noted the power of private wealth to shape the nature and outcome of elections. E.g., Jamin Raskin & John Bonifaz, Equal Protection and the Wealth Primary, 11 Yale L. & Pol'y Rev. 273 (1993). The concerns about the influence of wealth in politics has been noted in connection with ballot propositions as well as in connection with candidates for public office. E.g., Richard Briffault, Ballot Propositions and Campaign Finance Reform, 1996 Ann. Surv. Am. L. 413 (1996). Despite the commentary, and the controversy, it is clear that rather than mandating equality in spending on a ballot measure, the First Amendment prohibits a state from limiting contributions for and against ballot measures.
In Buckley v. Valeo, 424 U.S. 1, 48-49, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), the United States Supreme Court said that "the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment." Governmental regulation of campaign money must be subjected to the exacting scrutiny *55 applicable to core First Amendment rights of political speech. Id. at 44, 96 S.Ct. 612. In effect, money is central to effective communication of information concerning candidates and issues. Where a political candidate's campaign is concerned, the prevention of corruption and the appearance of corruption are sufficient governmental interests justifying limitations on individual and political action committee contributions to a campaign. However, the Court found no such corrupting influence attributable to overall campaign expenditures or from personal or family resources, and no other governmental interest sufficient to justify restrictions on overall campaign expenditures or expenditures by a candidate from personal or family resources. Id. at 51-58, 96 S.Ct. 612. Thus, the total amount spent on a campaign, and the amount from personal and family sources, could not be limited by the state.
In the area of ballot measures, as opposed to candidates for office, the danger of corrupting officeholders through campaign contributions is generally absent. "[D]onations to initiative campaigns, or direct expenditures in connection with ballot propositi