BROWN v. HARTLAGE

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ORAL ARGUMENT OF FRED M. GOLDBERG, ESQ., ON BEHALF OF THE PETITIONER

Chief Justice Burger: We will hear arguments first this morning in Brown against Hartlage.

Mr. Goldberg, you may proceed whenever you're ready.

Mr. Goldberg: Mr. Chief Justice, and may it please the Court:

This matter is before the Court this morning on a writ of certiorari of the Court of Appeals of Kentucky.

The issues raised involve issues of First Amendment rights of political speech, and specifically whether this speech has been infracted by Kentucky Revised Statute, which I may refer to as KRS, 121055.

The Court will find that in the statutory appendix to the brief on the merits at page 11.

That statute has been interpreted, in our opinion, in such manner as to encroach upon the Petitioner's rights under the First Amendment.

The specific issues before the Court this morning will be vagueness and overbreadth, will be the creation of artificial distinctions based on content or speaker, and the threshold issue of clear and present danger and whether that doctrine was applied by the courts of Kentucky appropriately in this case or at all indeed.

As applied in the facts at bar, this case or this statute would prohibit a candidate from promising in an election campaign the pro tanto reduction of taxes.

Generally speaking, the proceedings below were that the trial court found that the statute had been violated, but on interesting findings which I will discuss with the Court in a minute found that the election should not be voided.

To the contrary, he found that the Petitioner here was fairly elected.

The matter was appealed to the Court of Appeals of Kentucky, and it found a violation of the statute as interpreted and found that the statute should be strictly applied and the election voided.

On a petition for rehearing to the Court of Appeals of Kentucky... and the Court of Appeals of Kentucky is now our intermediate appellate court.

At some points the cases will have come from the Court of Appeals of Kentucky, and at another point the case will come from the Supreme Court of Kentucky.

I'll attempt to distinguish the two as we move through.

The Court of Appeals on its petition for rehearing then reconsidered, found that the statute was still violated, but on the other hand expressed some reservation in regard to the constitutionality and the overbreadth of the statute, and nonetheless overruled the lower court.

A petition was then filed or motion for discretionary review to the Supreme Court of Kentucky, our now highest appellate court, and that was summarily overruled.

This Court granted certiorari and we're here on the following facts.

Carl Brown, the Petitioner in this matter, sought the office of county commissioner of Jefferson County, Kentucky.

Jefferson County, Kentucky contains the only city of the first class in Kentucky, and in that regard in the Joint Appendix you will find some statutes that refers to city of the first class.

That is only in Jefferson County, Kentucky, if the Court will.

But in any event, Carl Brown sought a seat on the Fiscal Court, which is our legislative body which along with the county judge executive forms the executive branch of government of the county, although it has legislative functions as well, pass ordinances, et cetera.

This was in the election of 1979.

Brown and a Dr. Bill Creech were running mates on a joint platform as the Republican candidates and ran against the Respondent, Earl Hartlage, as the Democratic incumbent.

Now, the Petitioner and Creech campaigned on issues of governmental economy and the usual issues that one would expect of an election of that nature.

Specifically, they zeroed in on some of Hartlage's spending and primarily in at least one press release that is available to you-all commented very unfavorably in regard to the salary which Mr. Hartlage had voted himself since he had been in office.

In all events the election heated, and by August 15th, 1979 Creech and Brown issued a joint press release.

That may be found at the Joint Appendix, page 2.

And in that statement they attacked the frivolity of spending of Hartlage and almost in a manner as I perceive the statement and as it appears, almost in a manner of put up or shut up vein said to prove the strength of our convictions, we will reduce our salaries by the sum of $3,000 a year each.

The statement was made, and within the next day or two a friend of Brown's contacted him and advised him that it may be arguable whether there was some problem legally with that statement or with that comment.

Brown's a young lawyer, and he went to his office and indeed did some research and found that certainly someone had articulated an arguable question under the law of Kentucky, that there were some Kentucky cases that may look like they make that an illegal promise, that it is inconceivable that his election could have been voided.

In all events on Monday, I believe, but the 19th day of August 1979, four days after the comment was made, Brown and Creech in a joint press conference, which received the same publicity and the same coverage as the original statement, retracted that statement.

They acknowledged that the statement was perhaps arguably in error.

They retracted the promise, said that they would not abide by the concept of that reduction.

Now, the election was held on November the 6th, 1979, 78 days after the retraction.

There had been no retreat from the retraction from the time it was made until the time of the election.

The results of the election, of the 177,501 ballots cast, Brown received approximately 53 percent of the vote.

He beat Hartlage by 10,151 ballots.

And Dr. Creech was defeated.

He was not elected, though having made the same commitment as Brown had made or the same promise.

Seasonably, an election contest was filed in early December of 1979.

An answer was appropriately filed and issues joined.

In that answer the fifth affirmative defense raises the constitutional issues before this Court.

They have consistently been argued and raised from the trial court through the Court of Appeals to this Court.

Pardon me, please.

The matter was tried in a bench trial on January 29th and 30th, 1980, and the evidence, among the rest of the evidence appears a stipulation by the Petitioner and by the Respondent that the retraction received as broad a coverage publicity-wise as the original statement.

The trial court then rendered its decision and found that there was a technical, if you will... and that's my own characterization... a technical violation of KRS 121055, the statute which prohibited the promise to the electorate, but that the election was fair.

And the trial judge found as a fact in his determination of the fairness of the election, he found five elements.

He found that there was an almost immediate retraction.

He found that there was no retreat from the retraction from the day it was made to the day of the election, and commented even though Mr. Brown had been challenged by Mr. Hartlage at some political conclave, Brown remained adamant in his retraction and did not deviate from that.

The judge balanced the disenfranchisement of thousands of voters, as he put it, and the presumption of the will of the people and Creech's defeat, and found that the election was fair and that Brown should receive his office.

Now, the Court of Appeals of Kentucky in its original opinion rendered August the 8th, 1980 followed an old decision in Kentucky that harks back to 1960, Sparks against Boggs.

And it may be appropriate for me to digress for a moment and advise the Court as to the ramifications of Sparks against Boggs and a prior opinion that harks to 1925, Owsley against Hill.

These two cases, in my judgment, are probably interpretive of some phases of the statute and require some comment.

In the Owsley matter the county attorney offered to serve for a salary of $400 less than the previous attorney had received.

His salary had not been sent by the county commissioner.

His election was challenged.

He won, and his election was challenged.

In any event, upon challenge the then Court of Appeals of Kentucky... and it was our highest court in 1925... held that the reduction of salary was a legal possibility in the context of the fact that it had not been set, and also said in its opinion that a promise that is made to the entire electorate is not a bribe and not to be conceived as a bribe, but it differentiated that from a promise made to a smaller group of the electorate.

In that case then it was held that the county attorney would be seated.

In 1960 in the matter of Sparks against Boggs, which itself was the election of a group of city commissioners of the city of Hazard, Kentucky who ran as platform.

The salary in that instance had been previously set by statute at $500 each per year.

The commissioners promised as a plank of their platform that they would forego all but a dollar of that sum and contribute it to various charitable, some civic, Little League, and organizations of that sort.

It was not a commitment to the entire electorate but to a select group in the electorate.

The Court of Appeals of Kentucky in that case distinguished Owsley... again, that was our highest court at the time... distinguished Owsley and in effect said that the promise to serve for less was a bribe and as such should be barred.

Now, in that light we find that the Court of Appeals of Kentucky in the Carl Brown case, the case before you this morning, in the Carl Brown case held that Brown could not legally do the act, he could not legally reduce his salary; and in that regard there was no exception in the statute for a retraction; in that regard that the other considerations of the trial court were inapplicable and not to be considered; and that the statement was not constitutionally protected under the aegis of the Constitution of the United States.

Now, on the--

Unidentified Justice: Mr. Goldberg?

Mr. Goldberg: --Yes, ma'am.

Unidentified Justice: Do you interpret these cases in the law of Kentucky to provide then that the statute forbids only campaign promises to perform illegal acts?

Mr. Goldberg: Justice O'Connor, I perceive... yes.

My answer to your question would be yes.

However, the problem will arise in a moment in my argument as to how in the world we determine what's illegal or legal.

But I perceive that interpretively speaking the statute prohibits illegal acts--

Unidentified Justice: Promising to do an illegal act.

Mr. Goldberg: --I promise to do an illegal act, or perhaps better stated, if I may, an act incapable of legal accomplishment.

There is some nuance of difference that's sort of fuzzy in my mind, I must tell you; but I think that's what it says.

Now, in that regard then... I'm sorry.

Did that answer your question?

Unidentified Justice: Yes.

Do you take the position that what was stated by the candidates in this case was something that was not capable of legal accomplishment then?

Mr. Goldberg: I do not necessarily take that position, but I think that I would have to take that position for the purposes of this case.

Unidentified Justice: Okay.

Mr. Goldberg: Now, on the petition for rehearing rendered on October 29th, 1980, the Court of Appeals of Kentucky perceived that the Petitioner's position was not without logic or appeal, but suggested that if you want the relief that you request of us, we perceive your argument to be that one of overbreadth on a federal constitutional basis.

But if you want that relief, go to the Court of Appeals... Supreme Court of Kentucky and they are the court that can grant you the relief that you seek.

It would be judicial anarchy for us to overrule Sparks against Boggs.

Now, on that state of facts obviously we petitioned the Supreme Court of Kentucky, and we were summarily turned down.

This Court has granted us the writ.

Now, at the outset of argument I would suggest to the Court that I concede that the Commonwealth of Kentucky has an interest in the electoral process.

It would be foolish for me to say otherwise.

However, I argue and urge that that is not an uninhibited interest, that is not uninhibited as to political speech particularly, but that that interest must be balanced against the intrusions on the First Amendment right.

I don't think that your amicus or I disagree that this was political speech.

The problem that we disagree on is where the interpreted statute impacts the rights of Carl Brown and where it crosses the bounds of propriety circumscribed around the First Amendment by this Court.

Unidentified Justice: Mr. Goldberg, do you think that under Kentucky law a campaign promise to try to cut government expenditures and reduce taxes would be legal or illegal?

Mr. Goldberg: I'm inclined that the promise to cut taxes would be illegal, and that's part of the vagueness argument, Justice O'Connor; and it runs something like this.

If we posit that the Owsley and Sparks decision prohibit the making of a promise that would to the benefit of all the public and it is incapable of being legally performed, I'd suggest to you that a candidate any office... in the Senate, in the legislature, or in executive branch of government... couldn't make that promise.

The vagueness is inherent in the that no single member of any body of government without the cooperation of a majority of his house or a majority of his group and without the imprimatur of the chief executive can ever make such a promise.

So I have a difficult time with that situation.

Unidentified Justice: What would be the situation, counsel, if he carefully phrased his remarks to say if elected I will advocate a program of reduction of salaries generally?

Mr. Goldberg: Mr. Chief Justice, I think that the question or the problem presented by the phrasing of the hypothetical "if" prior may defeat the whole impact of what I perceive the First Amendment to award.

This is an advocacy situation.

It is projected in a political arena.

I don't feel that the First Amendment or this Court has ever required that a man use the precision of words in political speech that would require him to wonder should I say this or not.

To do that, Mr. Chief Justice, in my judgment would make me awful antsy if I were a candidate, because it would chill my speech.

It would remove my thought processes from my head, and in the last analysis the interchange of ideas, sir, is the fundamental of the First Amendment.

Unidentified Justice: Well, supposing your candidate is speaking before a group of Little League people and says a elected I'm going to promise to get $5,000 for the Little League that they don't presently have coming out of the county treasury.

Now, I take it that would violate the statute, wouldn't it?

Mr. Goldberg: Mr. Justice Rehnquist, I believe it would.

Unidentified Justice: Now, do you say that's protected by the First Amendment?

Mr. Goldberg: Now, sir, I do not.

Unidentified Justice: How do you distinguish that from--

Mr. Goldberg: I distinguish that in this way, sir.

Here we offer to the electorate as a whole to reduce taxes.

The Little League question is a special interest group.

I'm sorry.

I may have given you all erroneous answer.

It probably would because it singles out under Owsley... I'm sorry, sir; I wasn't quick enough for the question.

Under the Owsley case in Kentucky it is a select group, and it would.

My answer to your question would change, sir.

Unidentified Justice: --Well, in a sense taxpayers are a select group, too, aren't they?

All of the people in the electorate are not necessarily taxpayers.

Mr. Goldberg: I would agree with that, sir.

I would suggest to you that in Kentucky the presumption of the electorate and the taxpayers, apparently from the Owsley case are one and the same.

I would point out to the Court or to you, sir, that, for instance, a commitment, I shall aid the elderly, is a select group in my judgment.

There are many select groups to which politicians appeal, and in that regard that's the problem I have with this statute in terms of vagueness.

It really doesn't say that you could get out and run a rip-roaring political campaign, make legitimate promises... I'm not advocating any promise that is not usual, if you will, sir; but on the other hand, I feel that the inhibitive factors of this statute place a pall over political speech, and that's where I think that it's vague.

There is no means by which a candidate of common intelligence in my judgment can ascertain exactly where do I cross that line.

Unidentified Justice: But your client did ascertain, and apparently as a result of his retraction felt that he may well have crossed the line at any rate and--

Mr. Goldberg: He felt... pardon me, sir.

Unidentified Justice: --And made the retraction.

Mr. Goldberg: Yes, sir.

I concede that point.

It's evident in the facts.

But I am suggesting to you that he had to go research, as a young lawyer, he had to go research that problem out.

And it is not without debate.

Your amicus curiae and I both have argued both sides of the issue in this matter; and it occurs to me that the argument itself, Mr. Justice Rehnquist is dispositive of the vagueness of this statute; that there is no clear line of political speech that Carl Brown could have relied upon.

In that regard then with the no notice concept in this statute, we have to look at another concept that these facts give rise to and which have been briefed; and that is that in Kentucky a county commissioner in a county containing a city of the first class has a benchmark salary and he has an escalated salary by what we Kentuckians call the rubber dollar concept to make up for the inflationary action on all salaries.

The base salary for a county commissioner in a county containing a city of the first class is found in KRS 6530 sub 6, and that appears in the Appendix to the brief, and it sets that benchmark salary at $9,600.

That is the legal salary, I don't know, except that I do know that it is permissible in Kentucky, the Fiscal Court may... it's written in the permissive... may escalate those salaries up to an administrative sum determined by the State Finance Department.

Now, we get to the very interesting question in my judgment.

Carl Brown offered to serve at the time for what amounts to $17,000.

The rubber dollar concept had been applied to his situation or to the office which he sought.

He in effect said I will serve for $17,000, not the $20,000 that Mr. Hartlage is getting.

Does that create a legal impediment?

The legal salary, if we are going to saddle Brown with determining that which is legal, then the legal salary would have to be brought down.

The question would then arise does Brown have a right to give up that which is not part of the legal salary, the $9,600, or does he have a right to give up his rubber dollar theory or his rubber dollars.

And there is a prohibition in the rubber dollar statute that reads to the effect that you shall not change your salary or you shouldn't change your salary during the term in which you're elected.

Now, in that regard then I would suggest also that a threshold question to the restraint on advocacy has to have been announced by this Court long ago, and in Landmark Communications against Virginia we find the clear and present danger test used.

In this instance and in the matter at hand, Brown retracted 78 days prior to the election.

He never retreated from that retraction.

His running mate who made the same comment and the same promise to the electorate was defeated.

Brown won by a resounding number of votes.

And in this regard I submit to this Court that there cannot possibly have been any threat to the compelling interest of the Commonwealth in regard to the Brown statement.

It simply was not the reason the electorate chose him.

Unidentified Justice: Mr. Goldberg, does the state have to show that each such election promise constitutes a clear and present danger to the electoral integrity, or is it enough, do you think, that the state simply shows that the promises as a class tend to mislead the electorate?

Mr. Goldberg: Justice O'Connor, I would suggest that I read Landmark Communication... and I'm not going to presume to tell this Court how to read it... but I read it to say that there should be a balancing mechanism whenever the issue arises.

In that regard it was not used in this instance.

It was ignored.

To the contrary, our Court of Appeals said that a retraction and the other items, which really were a balancing mechanism used by the trial judge, are to no avail.

Our statute stands as written, and if you cross or transgress that line, if those words cross our lips, I would pose the rhetorical question that suppose I use the word "not" or in my response to Justice Rehnquist a moment ago I corrected myself.

Were Justice Rehnquist operating under the statute as I perceive it in Kentucky now, it would have been too late for me to correct myself; it had passed my lips.

I'll reserve my remaining time, sir.

Chief Justice Burger: Mr. Chauvin.

ORAL ARGUMENT OF L. STANLEY CHAUVIN, JR. AS AMICUS CURIAE

Mr. Chauvin: Mr. Chief Justice, and may it please the Court:

It is not particularly pleasant to become involved in an electoral dispute.

Courts have historically restrained themselves from involvement unless there is clear, convincing, glaring and measurable regularity which cries out for judicial intervention.

The sanctity of the freedom of voters choosing their new leaders or retaining incumbents is indelibly etched in the history of our nation.

One of the attractions of our system of government is the assurance of meaningful, participatory and effective suffrage.

But Congress and state legislatures have set minimum standards for participating both as candidates and as voters.

Education, experience, or social standing are not legitimate criteria.

With some obvious exceptions such as years of admission to the bar before seeking a judgeship, legislative bodies and constitutions have required no greater qualification for those who seek election than for those who vote for them.

Normally a length of residency requirement for state candidates but not even this for federal.

Age is usually a requirement.

So who may seek office and who may hold office is proscribed and encumbered minimally.

As sure as restraint has been shown, response has been the key when the process has been corrupted or to avoid the appearance of corruption.

It took a lot of years and effort to remove the government itself as a corrupting factor when citizens otherwise qualified were excluded strictly because of race from the electoral process by outright abuse and government legislation.

This Court through its intercession and interpretation removed this cancer.

This Court has repeatedly said that the minimal requirements are the only ones, and artificial, unreasonable, unscrupulous or unconscionable barriers will not be tolerated.

The Court has promptly responded to criminal acts which corrupt the process.

Bribing voters always, both state and federal, has been forbidden.

As an aside, just as paying for votes is prescribed, likewise paying to vote by the means of a poll tax has been extinguished.

It would trifle with this Court to review further the strong interest, both legislatively and judicially, which has been shown to forbid outright, overt, and damnably cruel acts to tamper with the electoral process.

Another area, and difficult to administer, has been the regulating of acts which are neither constitutionally repulsive nor criminally measurable.

It is with such an act the case at bar is concerned.

The purity, honesty and fairness of the electoral process are compelling state interests.

It is not difficult to recognize and punish bribery, but criminal acts such as bribery are not the only method of corrupting the process.

It is easy and required to define a criminal act.

It is, however, not so easy to define non-criminal corrupting acts if their existence is known and the putrefaction is recognized.

In an attempt to keep pure the electoral process in Kentucky the constitution in 1895 set certain standards... this is in the constitution... set certain standards to be addressed by legislation.

The statutes as enacted, interpreted and applied apply even-handed regulation.

The criminal is obvious and addressed by the indictment process.

Other, non-criminal matters are regulated by administrative agencies who monitor, not direct, conduct, compile information, and take steps to correct both civil and criminal violation.

This is the state at work.

This is state action directly involved in the electoral process.

It directs reports to be filed, grants authorities to agencies, sets spending limits, requires listing of contributors, creates codes of conduct, holds hearings, assesses fines and penalties, initiates both civil and criminal action, issues guidelines and directives seeking the voiding of elections and other similar acts.

Unidentified Justice: Mr. Chauvin.

Mr. Chauvin: Yes, ma'am.

Unidentified Justice: The literal language of the statute seems to say that no candidate shall promise to vote for or support any individual, thing or measure.

Mr. Chauvin: Yes, ma'am.

Unidentified Justice: Does that mean that under Kentucky law a candidate couldn't promise to support some particular proposal for legislative action?

Mr. Chauvin: Justice O'Connor, under Kentucky law it's my interpretation of the statute that a candidate can promise to do or not do anything which is not illegal or constitutionally forbidden.

In this case--

Unidentified Justice: Has any Kentucky case affirmatively stated that proposition?

Mr. Chauvin: --Yes, ma'am.

Unidentified Justice: Or do we rely only on the two older cases that were cited?

Mr. Chauvin: The original case where the salary had not been set, that's the key to this case.

The statute provides for the setting of the salary in May of the election year.

The statute and the constitution of Kentucky say that a salary may not be scaled up or scaled down during the term.

After May of the year of the election it is after that impossible and impermissible and constitutionally not permitted in Kentucky to change the salary; and that's the distinction.

Does that answer it?

Unidentified Justice: What if he had promised here to refund the amount, $3,000, to the state treasury?

Mr. Chauvin: That is a practice for some people, to accept the funds and then give it away.

Unidentified Justice: Well, give it to the state now.

I'm talking about giving it back.

The state treasury would benefit.

It would be the same.

Mr. Chauvin: I don't think there'd be any problem with him giving it back.

I think it was the promise to not accept it.

The treasurer of Jefferson County, Kentucky was compelled to cut a check.

Unidentified Justice: That's a pretty thin line, don't you... that distinction.

Mr. Chauvin: Well, the line is not as thin as it sounds because there are acts which can be performed and those which can't be performed.

This was an act which could not be performed under Kentucky law.

Unidentified Justice: So that your statute goes to the impossible as well as to the illegal.

Mr. Chauvin: Yes, sir.

Unidentified Justice: There are those who say that President Reagan's promise to balance the budget is impossible.

Would that be a violation of your Kentucky statute?

Mr. Chauvin: No, sir.

Unidentified Justice: Why not?

Mr. Chauvin: No, sir.

I think he said he'd give it his best shot, and at that time the budget was not set.

There's nothing in the Constitution of the United States that says in May of the election year the budget is set, so he would not have crossed the line.

Unidentified Justice: So, of course, none of your decisions have come right out and said that this statute is limited to barring promises to do something that's illegal or that are impossible.

You extrapolate that from the two old cases, don't you?

Mr. Chauvin: Yes, sir.

They said it by implication, I think, when they talk about the salary has been set, and the constitution says it can't be changed.

Unidentified Justice: Of course, if the statute would purport to forbid a candidate from promising to support a reduction in taxes or I will support a measure limiting the real property taxes, or I will support a measure to increase state aid to local schools, and he's speaking to a group of local school boards.

Mr. Chauvin: First Amendment.

That's fully protected.

Unidentified Justice: Well, if the statute purported to prevent that, that certainly is literally within the language of the statute.

Mr. Chauvin: It would go too far.

Unidentified Justice: And the whole statute then would be overbroad.

Mr. Chauvin: No, sir.

I don't think the whole statute rises or falls on this.

Unidentified Justice: In a state court maybe it wouldn't but--

Mr. Chauvin: The problem being that--

Unidentified Justice: --How about the overbreadth argument under the First Amendment?

Mr. Chauvin: --There's probably more merit to the overbreadth argument than to the First Amendment restraint.

Unidentified Justice: Well, the overbreadth argument is a First Amendment argument.

Mr. Chauvin: Well, I don't see where the overbreadth argument is... the threshold is the promising of an act impossible of legal fulfillment.

Unidentified Justice: Well, I know.

If you take that construction of the statute, why, that's another matter.

So we have to make up our mind whether the Kentucky courts have construed the statute and put some limits to it.

Mr. Chauvin: It has another value... I'm sorry.

Unidentified Justice: No, no.

Go ahead.

Mr. Chauvin: It has another value in that the penalty for the violation of this statute deserves some attention.

It merely requires the rerunning of the election.

This is a statute--

Unidentified Justice: How much does that cost in Jefferson County?

Mr. Chauvin: --It could be expensive, but the purity of the electoral process is worth it.

Unidentified Justice: Mr. Chauvin, you've gone a little past my point, but is there any law in Kentucky that says you must take your salary?

Mr. Chauvin: Yes, sir.

The statute... I would say, Mr. Justice, there is no--

Unidentified Justice: You mean that if I'm an officer of Kentucky I can't just take the check and throw it away?

Mr. Chauvin: --Well, you could do that or you could contribute it to a charity.

Unidentified Justice: Well, can I promise to do that?

Mr. Chauvin: No, sir.

Unidentified Justice: Why not?

Mr. Chauvin: Because--

Unidentified Justice: It's not illegal.

Mr. Chauvin: --It--

Unidentified Justice: You said it's not illegal.

Mr. Chauvin: --It's not illegal.

You could promise that.

Unidentified Justice: Pardon?

Mr. Chauvin: You could promise that.

Unidentified Justice: You could promise that.

Mr. Chauvin: But you could not promise to serve for nothing.

Unidentified Justice: Well, if I promise to take the check and throw it in the wastecan, am I not serving for nothing?

Mr. Chauvin: Pretty close.

Unidentified Justice: Pretty close?

That's about even, isn't it?

Mr. Chauvin: But you did not violate the statute.

It is possible for you to do that, Mr. Justice.

Unidentified Justice: Does not some of this colloquy suggest that, using the language out of the Connally case that men of common intelligence must necessarily guess at its meaning, the meaning of this statute, does that have something to do with its vagueness?

Mr. Chauvin: It has something to do with the vagueness potential, but it has the same as the 434(e) of the Election Act of 1971 when this Court had a problem over who was required to report.

The statute merely said all of those who spend money on behalf of a candidate shall report it.

In 434(e) there was a great problem for vagueness, but the Court looked at the overall purpose of the statute and interpreted the two classes required to report and narrowed it.

Yes, sir.

Unidentified Justice: This illegal, did you know there's considerable controversy whether the extension of the time within which to ratify the Equal Rights Amendment is legal or not.

Indeed, a court said it is not.

Could a candidate for the legislature in Kentucky... I don't know whether Kentucky has ratified or not... suppose not, could he run and promise that if elected he'd vote to ratify the ERA?

Mr. Chauvin: To answer your first question, Kentucky's done it both ways, passed it and repeated it.

But I think that there is--

Unidentified Justice: Well, would he have to guess whether the extension was legal or illegal?

Mr. Chauvin: --I don't think it would reach him.

I think we're talking about something much narrower here.

Unidentified Justice: Well, how narrow?

Mr. Chauvin: Narrow to the point that if it is a constitutional infirmative or impossibility in Kentucky, then that's the line.

I don't think it would be constitutionally impossible in Kentucky.

In fact, it happened that it was passed and then the approval was set aside.

Unidentified Justice: Was this during the extended period?

Mr. Chauvin: Yes, sir.

Unidentified Justice: Counsel?

Mr. Chauvin: Yes, sir.

Unidentified Justice: You've stated that it would be perfectly appropriate under Kentucky law to receive the salary and then give it away.

Wasn't that precisely the question before the Supreme Court of Kentucky in Boggs: the people who ran there promised to give it to the Little League and religious purposes?

Mr. Chauvin: The issue would be whether or not it had been set at that point.

I think that was it in that case.

They were making pronouncements of what they would do with it before they got it.

Unidentified Justice: But if they received it, I understood you to say that that would meet that objection.

Mr. Chauvin: The disposition of funds is a right for anybody to do with as he or she chooses.

Unidentified Justice: But did the Kentucky court say that in Bogg?

It said you couldn't receive money and give it away?

Mr. Chauvin: The Kentucky court said I believe in that case, Mr. Justice, that the salary had already been set.

Unidentified Justice: The salary had been set but--

Mr. Chauvin: That was a violation of it.

Unidentified Justice: --So that's the distinction.

If a salary's been set, you can give it away.

Mr. Chauvin: Yes, sir.

It happens.

The present Governor gives his salary away.

Unidentified Justice: So you not only can't receive it, but you can't give it away if the salary has been set.

Mr. Chauvin: It presents a situation that injects into the political process the opportunity for someone to say I will serve for nothing; and they ask the other candidate will you serve for nothing, and he says no, I can't serve for nothing; I need the money.

The implication is there that Candidate 2 isn't as interested in the job as Candidate 1 because he just wants the money.

Unidentified Justice: But are you still saying that in some circumstances a candidate may give his entire salary away?

Mr. Chauvin: Yes, sir.

I think at one time Senator Kerr and Senator Green used to distribute their salary among their staffs.

Unidentified Justice: But they didn't come from Kentucky.

Mr. Chauvin: No, sir.

But I say that practice is familiar, to give it to an assistant or give it to someone else.

Unidentified Justice: May I ask you a question kind of from a different angle?

Is it rather clear on this record that this person could not have been convicted of a crime because he didn't realize at the time that his statement was inaccurate.

And in a way he loses the election because of the inaccuracy, an unintended inaccuracy in his statement.

Would it be appropriate to judge the First Amendment question by the New York Times standard of when he did not know it was unlawful or inaccurate and was not in reckless disregard for the truth, it's somehow wrong to punish him for an innocent falsehood.

Mr. Chauvin: I would say that if the statute... that is a valid distinction with this concern.

This particular statute which is before the Court reserves to a candidate the right to bring this action, and if a candidate made--

Unidentified Justice: There's always an interested candidate on the other--

Mr. Chauvin: --But not the state.

Unidentified Justice: --Pardon me?

Mr. Chauvin: Not the state.

Unidentified Justice: I mean it's almost as though he had slandered his opponent.

That's really what gave me the thought, that there's really quite an analogy to a libel or slander case because the one person who's hurt by this innocent false statement is his opposing candidate.

And if this were treated as slander under your law, it clearly would not be permissible as a matter of First Amendment law.

And is it not correct that really the heart of the wrong here is the inaccuracy in the statement?

Mr. Chauvin: The inaccuracy and the impossibility of the performance.

Unidentified Justice: Well, but he didn't realize it at the at the time, and as soon as he did he made a public disclaimer of any--

Mr. Chauvin: I had problems... I wasn't in the case at the trial level.

Unidentified Justice: --I understand.

Mr. Chauvin: I had problems with this being called a retraction.

If you read that second statement, I'm not sure at all that that was a retraction.

I pointed that out in my brief.

It was a restatement, but no one could object to the second because there was nothing in it other than to say I... 32--

Unidentified Justice: But whether the retraction was effective or not, the record is clear that he did not intentionally mislead or--

Mr. Chauvin: --Well, I think that's right.

Unidentified Justice: --I think that's a fair--

Mr. Chauvin: I think that's true.

Unidentified Justice: --Well, if it was a retraction, you'd be making the same argument, wouldn't you?

Mr. Chauvin: Sir?

Unidentified Justice: If it had been a class A-1 retraction, you still would be making your same argument.

Mr. Chauvin: I would not be--

Unidentified Justice: Wouldn't you?

Mr. Chauvin: --Sir?

Unidentified Justice: Wouldn't you?

Mr. Chauvin: No, sir.

I wouldn't be.

The problem that bothers me--

Unidentified Justice: So you think a retraction would correct this.

Mr. Chauvin: --The state statute does not give retraction as a defense, just as in Arnett v. Kennedy, the case where the non-probationary federal employee could be fired

"for the good of the Service."

And the person who did the firing could sit as a hearing officer.

And this Court said that it might well have been better if Congress had done it some other way, but the fact is it didn't.

And since it didn't, it was a matter which addressed itself to congressional correction.

This statute could perhaps be more tolerable if the defenses which were available of retraction and not retreating from it, those five reasons the trial judge gave, if the legislature of Kentucky were to make these defenses in this type action.

Unidentified Justice: You don't think that's a little overbroad, a little, just a little?

Mr. Chauvin: Got a shot at it.

Unidentified Justice: Pardon?

Mr. Chauvin: The overbreadth question has concerned me as I did this brief more than the First Amendment, because I think the First Amendment, there's no question under given circumstances such as these that the First Amendment would be regulating.

The question is whether or not it could include legal as well as illegal and thus chill the statement.

That's the question.

Unidentified Justice: Going back to this matter I raised before, I have I think correctly observed that in each argument, your friend's argument and yours, you each, with respect to questions, changed your... after reflection changed your response.

Now, I don't suggest that as a criticism because at that lectern I have changed my responses to the Court at times, sometimes change my mind here; but going back to this matter of the standard, whether men of reasonable... and they'd better change that... men and women of common intelligence must necessarily guess at the meaning, doesn't this colloquy and the matter of changing responses suggest that no reasonable person would know whether he or she was in violation of this Kentucky statute?

Mr. Chauvin: Mr. Chief Justice, that is a valid observation on many statutes, this one not the least of which.

But what malice aforethought, wanton reckless disregard.

The problem of this, as I have viewed this case, the problem of this case is that there are, as the Court said in Arnett v. Kennedy, limitations on what you can do to define acts in a statute.

And I submit to the Court this morning in all candor and all honesty that not only the English language but Spanish, German, French, Italian, Chinese, Japanese and Korean together are incapable of describing the possible acts of an election in Kentucky.

It just can't be done, to make a list of the possible violations which people can come up with.

And the highest court of Kentucky has limited and given candidates all the rights in the world... and I subscribe to it in my brief and this morning... to a full, free, rancorous, acrimonious debate, limited only, however, to acts which are legally impossible to perform.

Unidentified Justice: Mr. Chauvin.

Mr. Chauvin: Yes, ma'am.

Unidentified Justice: Would a promise by a candidate to vote for a reduction in taxes pro tanto be an illegal promise under the Kentucky statute?

Mr. Chauvin: Justice O'Connor, if the rate had not been set, the candidate could well do that.

The violation in this case is that in August when this statement was made, the action which forbade it had already taken place.

Unidentified Justice: No.

Just a blanket promise that if elected I will vote for a pro tanto reduction in taxes.

Mr. Chauvin: No, ma'am, that's not a violation.

Unidentified Justice: Why then does the Kentucky court rely on that in its opinions as a justification for holding it invalid?

Mr. Chauvin: I read that in the case, but I did not think of that as an overriding reason the Kentucky court... I think it was one of the reasons, but not the overriding reason that that case held that.

Unidentified Justice: Because if that would not be invalid, then I wonder whether the Kentucky courts have limited the application of the statute as you have suggested.

Mr. Chauvin: In the first case the petition was dismissed, the highest court saying there's nothing wrong with what the candidate said because the salary hadn't been set.

It was not an impossibility.

Unidentified Justice: Mr. Chauvin, may I ask another question?

This is limited, as I understand it, to campaign promises that are legally impossible to perform.

Normally in the free speech area we rely somewhat on the free market idea that you combat falsehood by allowing the countervailing statement to be made and considered.

It seems to me that this would be the easiest sort of misstatement to refute.

Why can't the opponent simply say my opponent's promise is legally impossible to perform; this demonstrates he's not qualified for office; and so forth and so on?

Why isn't that an adequate remedy instead of saying he can't even make the statement in the first place?

Mr. Chauvin: I think the voters are entitled to more protection than that.

I would say that with all respect to the--

Unidentified Justice: The voters in Kentucky are not capable of evaluating these competing arguments?

Mr. Chauvin: --Well, in some places the salary is not the great attraction to the office.

Unidentified Justice: No, but the question whether the man knows the duties of the office sufficiently well to make reckless promises that are legally impossible to perform is something that ought to be relevant in the context.

Mr. Chauvin: I think that that could be pointed out, but I think also that--

Unidentified Justice: And you're suggesting that pointing it out isn't enough because the public might be deceived by it.

Mr. Chauvin: --I think that tends to corrupt the--

Unidentified Justice: And an addition, they're not worried about any place but Louisville, so all the other voters are smart, but the Louisville ones are not.

Mr. Chauvin: --No.

This is the first one that has come up in Louisville.

Unidentified Justice: Well, there's no other one that can come up.

Jefferson County's the only one.

Mr. Chauvin: But I say that cases have come up from other counties around the state.

Unidentified Justice: On this statute?

Mr. Chauvin: No, sir.

On this same statute, yes.

The candidates from up in northern Kentucky who said they'd pool the salary and hire a city manager.

They said you can't do that.

There's no provision in the law for a city manager, and besides that, you can't pull your salaries.

That was up in northern Kentucky.

Over in eastern Kentucky the tax assessor said... he'd been tax assessor before and said when I was tax assessor before you didn't pay taxes on certain things.

Remember that when you vote for me this time.

The Court of Appeals of Kentucky at that time said no, you can only exempt from taxation matters which the Constitution allows you to exempt, and it's impossible for you to do this.

Unidentified Justice: But don't you get in trouble if you try to enforce a rule that every politician must tell nothing but the truth?

[Laughter]

Mr. Chauvin: I'd say you sure had a big field out there to work on.

It's the impossibility, though, that makes it an interest, a compelling state interest.

Unidentified Justice: Well, I have yet to hear a politician who doesn't say I will do two things; I will cut taxes, and I will raise expenditures.

Well, that certainly is impossible.

Mr. Chauvin: Hopeful--

But I think this matter can be corrected, if it deserves correction, by the legislature of Kentucky.

The whole problem with this case was that defenses available in one statute were not available in this one.

It might have been better often if Congress or state legislatures had done things differently.

In this case it didn't happen.

This is a legitimate state interest to protect this compelling interest in which the Commonwealth of Ketucky has an important and measurable interest, and it can be and should be, if necessary, corrected by legislation.

I would be the last to limit anyone's First Amendment rights.

I do not think this statute as applied and narrowed by the courts of Kentucky puts any chill or any untold or untoward effect on any candidate in Kentucky.

It's seldom you can deal with a statute that says you can do everything but one.

That's basically what these cases have said, that nothing is proscribed except that which is illegal and constitutionally impossible.

I think that it is and would urge the Court, as the lower courts have, that this is a valid assertion by the state legislature of the interest of the Commonwealth of Kentucky and its electoral process.

This was not a statute which was hastily contrived to defeat some purpose that the legislature found distasteful.

The legislature passed this act almost word for word because the constitution commanded it to do it; and it is with that compelling purpose, that weighty, important reason, that the Kentucky court should be sustained.

Thank you.

Chief Justice Burger: Do you have anything further, Mr. Goldberg?

Mr. Goldberg: I'll waive any comment, if the 40 Court please.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.