Buckley v. Valeo

BAZELON, Chief Judge

(concurring in part and dissenting in part):

This case involves the agonizing process of weighing competing values of the most fundamental importance in a democratic society: a statute designed to effectuate the one person one vote principle and to safeguard the integrity of elections against first amendment guarantees for candidates and voters. In general, I agree with the necessarily difficult accommodations reached by the court on all issues except for its holding that the disclosure requirements of § 434, when applied to minor parties, 1 are constitutional. 2

*259 It is common ground that the First Amendment protects the privacy of one’s associations and beliefs. 3 Privacy is safeguarded first for its own sake, as a fundamental value of any society that respects the dignity of the individual. 4 But privacy is also protected as a means of achieving the “uninhibited, robust and wide-open” debate to which the First Amendment commits us. 5 The First Amendment, after all, rests on the principle “that the best test of truth is the power of the thought to get itself accepted in the competition of the market.” 6 And privacy is essential to the proper functioning of that market because dissidents and heretics, fearing harassment, may decline to speak if they must first publicly identify themselves. 7 As the Supreme Court has observed, “Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all.” 8

Associational privacy is of particular importance to minor parties. Members of mainstream organizations such as the major parties have little to fear from being so identified. 9 But to be publicly labeled e. g., Socialist, Communist, or Nazi is to invite social ostracism, loss of business or employment, verbal or physical abuse, or worse. Fearing these consequences, many minor party adherents likely will be deterred from acting on their convictions. And given the fragile nature of many minor parties, 10 the loss of even a small portion of their support may well be fatal. 11

*260 The death of a significant number of minor parties would threaten the effective functioning of the two-party system. At an irreducible minimum, minor parties ensure a multitude of tongues in what should be the most democratic of all forums, the election. As the Supreme Court declared in Williams v. Rhodes, “There . . is no reason why two parties should retain a permanent monopoly on the right to have people vote for or against them. Competition in ideas and governmental policies is at the core of our electoral process and of the First Amendment freedoms.” 12 The American experience with minor parties has confirmed the value of that competition. In the oft-quoted words of Chief Justice Warren, “History has amply proved the virtue of political activity by minority, dissident groups who innumerable times have been in the vanguard of democratic thought and whose programs were ultimately accepted.” 13

When law intrudes on contributors’ right to the privacy of their beliefs, and threatens to drastically affect dissident speakers, the command of the Constitution is clear: absent compelling governmental interests that can be furthered in no less restrictive manner, the law cannot stand. 14 The court today agrees in principle, and it purports to find such interests to sustain the disclosure requirements of § 434. 15 But the court concedes that these interests might not be deemed “compelling” were proof of harassment of contributors offered. 16 Implicitly, then, because of the state of the record the court applies less than the exacting scrutiny the Constitution demands.

Admittedly, the record of harassment and chill in this case is insubstantial, although representatives of the Committee for a Constitutional Presidency — -McCarthy ’76, 17 New York Conservative Party, 18 New York Libertarian Party, 19 National Libertarian Party, 20 and Mississippi Republican Party 21 all testified to knowing of at least one or two persons who refused to contribute because of disclosure requirements. But the weakness of the record did not prevent the court from invalidating the requirement that “issue-discussion groups” — which play much the same role as minor parties— identify their contributors. 22 Similarly, the absence of strong evidence with respect to minor parties should not vitiate the force of the compelling interest test.

One evil of disclosure — the invasion of the privacy of belief — requires no proof. The other evils — chill and harassment— are largely incapable of formal proof. Pre-existing minor parties might be able to link disclosure with a chill by demonstrating a sudden drop in contributions, but only if they could negate all other *261 possible causes. New parties would not even have this option available, and would have to find a group of most unlikely witnesses: persons unwilling to publicize their contributions but nevertheless willing to publicize the reasons for their fears. Similarly, disclosure can be shown to produce reprisals only if (1) minor party members are willing to publicly announce their contributions; (2) those members suffer palpable injury; and (3) no other explanation for such injury is plausible. Even assuming that the causal links could eventually be established, many minor parties would wither and die on the vine awaiting the evidence required. The spectre of reputations blotted and lives ruined by the release of membership lists is still too vivid to claim ignorance of the danger disclosure poses. “All others can see and understand this. How can we properly shut our minds to it? ” 23

Nothing in the Supreme Court precedents supports the majority’s “wait-and-see” approach. 24 The Court has never varied the rigor of its scrutiny depending on the presence or absence of a record of harassment and chill. 25 Rather, whenever a disclosure requirement 26 — or any other law 27 - — -has posed a reasonable danger of chilling the exercise of First Amendment rights, the Court has applied its most exacting review.

When measured against the rigors of the compelling interest test, the application of § 434 to minor parties cannot be sustained. The court concludes that requiring disclosure is justified by the interests in “informing the electorate and preventing the corruption of the political process.” 28 This interest assumes that *262 the press will invest their scarce investigative resources and paper space (or air time) on the generally small lists of small contributors to minor parties. In truth, most minor parties probably are too small to attract press scrutiny in the heat of a campaign. 29 Furthermore, minor parties generally receive too little money 30 — and too few large contributions 31 — for their contributor lists to provide significant information. Finally, unlike the major parties, the views of minor party candidates are clearly defined, and their supporters share a basic ideological commitment. 32 Thus, information about the sources of support of minor parties is of minimal importance to those voters who would seriously consider voting for them.

The primary information the court suggests might be uncovered by requiring (jisclosure of minor party contributors — and the primary evil it suggests thereby might be deterred — is “stalking horses.” 33 Although major party adherents may have always had an interest in diverting support from their principal rival, not a scintilla of evidence is offered to demonstrate that the stalking horse threat is a substantial one. Moreover, the stalking horse danger is only real if one assumes either that minor parties will accept large contributions without inquiring about the donors 34 or that they will knowingly allow themselves to be used to further the ends of a conspiracy of major party members. 35 To the extent the threat is serious and a proper concern of Congress, a less restrictive remedy for the objectionable acts would be to impose criminal sanctions.

In the end, the court requires minor parties to prove what is obvious but unprovable, while permitting the government to hypothesize interests which are little more than plausible. This approach stands First Amendment jurisprudence on its head. To justify infringing freedom of speech, a danger must be “present” or “imminent,” not hypothetical. 36 The crucial issues at stake in this *263 case call for strengthening, not relaxing, that requirement.

I respectfully dissent.

. For present purposes, I accept the FECA’s definition of “minor party” but would not distinguish between minor parties and new parties. Thus, by minor party I mean parties receiving less than 25% of the vote in the past election. See 26 U.S.C. § 9002 (7), (8). For elections of Representatives, the determination could be made on a district or statewide basis.

I do not mean to intimate, however, that the FECA’s definition is constitutionally required. Congress might, for example, define as minor those parties not qualifying for automatic ballot access under state law, thereby incorporating the lower thresholds employed by the states. See Developments in the Law — Elec tions, 88 Harv.L.Rev. 1111, 1124 n.ll (1975). Alternatively, criteria such as present popularity, age or degree of organization might be used in some combination. The important point is that a line can be drawn separating major and minor parties so that small, controversial parties are not required to identify their contributors. See id. at 1250-51 & n.103.

. I agree that the lesser threat of a chill or harassment, 171 U.S.App.D.C. p. 259, 519 F.2d p. 908 infra, and the greater interests in disclosure, see id. at 910-912 , justify requiring major parties to identify *259 their contributors. By excising the unconstitutional applications, § 434 can be upheld. Cf. United States v. Harriss, 347 U.S. 612, 617-25 , 74 S.ct. 808, 98 L.Ed. 989 (1954); United States v. National Comm. for Impeachment, 469 F.2d 1135 (2d Cir. 1972).

I am also troubled by the application of uniform contribution limits and expenditure ceilings to minor parties (or to unpopular or unknown candidates). Experience may demonstrate that greater latitude must be provided the minor parties if they are to function according to the constitutional scheme. There is not yet adequate evidence to decide this question. What evidence is available suggests that unlike disclosure of minor party contributors, see 171 U.S.App.D.C. pp. 258-259, 519 F.2d pp. 908-909 infra, contribution limits and expenditure ceilings pose no imminent threat to minor parties, see nn.30-31 infra. I am therefore prepared to postpone resolving the issues raised by limits and ceilings until more data is available.

.In re Stolar, 401 U.S. 23 , 91 S.Ct. 713 , 27 L.Ed.2d 657 (1971); Baird v. State Bar, 401 U.S. 1 , 91 S.ct. 702, 27 L.Ed.2d 639 (1971); DeCregory v. New Hampshire Attorney General, 383 U.S. 825 , 86 S.Ct. 1148 , 16 L.Ed.2d 292 (1966); Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539 , 83 S.Ct. 889 , 9 L.Ed.2d 929 (1963); Shelton v. Tucker, 364 U.S. 479 , 81 S.Ct. 247 , 5 L.Ed.2d 231 (1960); Talley v. California, 362 U.S. 60 , 80 S.Ct. 536 , 4 L.Ed.2d 559 (1960); Bates v. Little Rock, 361 U.S. 516 , 80 S.Ct. 412 , 4 L.Ed.2d 480 (1960); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 , 78 S.Ct. 1163 , 2 L.Ed.2d 1488 (1958); Sweezy v. New Hampshire, 354 U.S. 234 , 77 S.Ct. 1203 , 1 L.Ed.2d 1311 (1957).

. See Griswold v. Connecticut, 381 U.S. 479, 483 , 85 S.ct. 1678, 14 L.Ed.2d 510 (1965); Sweezy v. New Hampshire, supra note 3, 354 U.S. at 250 , 77 S.Ct. 1203 (1957). See also T. Emerson, The System of Freedom of Expression 31 (1970).

. New York Times Co. v. Sullivan, 376 U.S. 254, 270 , 84 S.Ct. 710 , 11 L.Ed.2d 686 (1964).

. Abrams v. United States, 250 U.S. 616, 630 , 40 S.ct. 17, 22, 63 L.Ed. 1173 (1919) (Holmes, J., dissenting).

. See cases cited note 3 supra. See also Robison, Protection of Associations from Compulsory Disclosure of Membership, 58 Colum.L. Rev. 614 (1958); Note, The Constitutional Right to Anonymity: Free Speech, Disclosure and the Devil, 70 Yale L.J. 1084 (1961).

. Talley v. California, supra note 3 , 362 U.S. at 64 , 80 S.Ct. 536 .

. This is all that is established by the experience of the State of Washington with disclosure, discussed in note 116 of the court’s opinion.

. See nn.29-31 infra.

. Developments, supra note 1, at 1247; see Fleishman, Freedom of Speech and Equality of Political Opportunity: The Constitutionality of the Federal Election Campaign Act of 1971, 5l N.C.L.Rev. 389, 424 (1973); Redish, Campaign Spending Laws and the First Amendment, 46 N.Y.U.L.Rev. 900, 932 (1971). The court ignores the fragility of minor parties in suggesting that they could survive on contributions of under $100. At the very least, limiting minor parties to $100 contributions would impair their ability to compete, and would disadvantage them relative to major parties.

. 393 U.S. 23, 32 , 89 S.Ct. 5, 11 , 21 L.Ed.2d 24 (1968).

. Sweezy v. New Hampshire, supra note 3, 354 U.S. at 251 , 77 S.Ct. at 1212 . Even when minor parties have no effect on public policy, they still play a number of vital roles:

[A]s an outlet for frustration, often as a creative force and a sort of conscience, as an ideological governor to keep major parties from speeding off into an abyss of mindlessness, and even just as a technique for strengthening a group’s bargaining position for the future, the minor party would have to be invented if it did not come into existence regularly enough. It is an indispensable part of the system .

A. Bickel, Reform and Continuity 80 (1971).

. See cases cited note 3 supra. Disclosure laws are especially suspect because they discriminate according to the content of speakers’ views, burdening only unpopular positions. Cf. Chicago Police Dept. v. Mosley, 408 U.S. 92 , 92 S.Ct. 2286 , 33 L.Ed.2d 212 (1972).

. 171 U.S.App.D.C. at 217, 519 F.2d at 866, 868 supra.

. Id., 171 U.S.App.D.C. at 219, 519 F.2d at 868. See also United States v. Finance Comm. to Re-elect the President, 165 U.S.App.D.C. 371 , 507 F.2d 1194 (1974); Pichler v. Jennings, 347 F.Supp. 1061 (S.D.N.Y.1972).

. McCarthy Dep. at 17-18, 67-70.

. Buckley Dep. at 31.

. Wertheimer Dep. at 31-33.

. Crane Dep. at 38.

. Reed Dep. at 16-17, 31-34, 69-70.

. 2 U.S.C. § 437a, discussed at 171 U.S.App. D.C. at 220-229, 519 F.2d at 869-878, supra.

. Child Labor Tax Case, 259 U.S. 20, 37 , 42 S.Ct. 449, 450 , 66 L.Ed. 817 (1922).

. The. Court has held that a party seeking relief must establish that disclosure is being compelled; the mere possibility that it will be required in the future is insufficient to create a case or controversy. See California Bankers Ass’n v. Shultz, 416 U.S. 21, 55-57, 75-76 , 94 S.Ct. 1494 , 39 L.Ed.2d 812 (1974); Laird v. Tatum, 408 U.S. 1 , 92 S.Ct. 2318 , 33 L.Ed.2d 154 (1972); cf. United States v. Harriss, supra note 2, 347 U.S. at 626 , 74 S.Ct. 808 (possibility of persons remaining silent because of fear they will be deemed lobbyists and prosecuted for failure to disclose is insufficient to invalidate disclosure requirement). For this reason I agree with the court that the challenge to the record keeping and audit provisions of the FECA, 2 U.S.C. §§ 432 (b), (c), (d), 438(a)(8), is not yet ripe for review. See 171 U.S.App.D.C. at 215-216, 519 F.2d at 864-865 supra.

. Compare, e. g., Bates v. Little Rock, supra note 3, and NAACP v. Alabama ex rel. Patterson, supra note 3, with, e. g., Gibson v. Florida Legislative Investigation Comm., supra note 3, and Shelton v. Tucker, supra note 3. See also Pollard v. Roberts, 283 F.Supp. 248 (E.D.Ark.), aff'd mem. 393 U.S. 14 , 89 S.Ct. 47 , 21 L.Ed.2d 14 (1968).

. See cases cited note 3 supra. Even when upholding disclosure requirements, the Court has never relied on the state of the record, but has always looked to the strength of the governmental interests. See Communist Party v. Subversive Activities Control Board, 367 U.S. 1 , 81 S.Ct. 1357 , 6 L.Ed.2d 625 (1961); Konigsberg v. State Bar, 366 U.S. 36 , 81 S.Ct. 997 , 6 L.Ed.2d 105 (1961); Barenblatt v. United States, 360 U.S. 109 , 79 S.Ct. 1081 , 3 L.Ed.2d 1115 (1959); Uphaus v. Wyman, 360 U.S. 72 , 79 S.Ct. 1040 , 3 L.Ed.2d 1090 (1959). See also Stoner v. Fortson, 379 F.Supp. 704 (N.D.Ga. 1974).

. The Court has shaped both procedural and substantive rules to guard against anticipated but unproven chills. See, e. g., Bigelow v. Virginia, 421 U.S. 809 , 95 S.Ct. 2222, 2230 , 44 L.Ed.2d 600 (1975); Erznoznik v. Jacksonville, 422 U.S. 205 , 95 S.Ct. 2268, 2277 , 45 L.Ed.2d 125 (1975); Keyishian v. Board of Regents, 385 U.S. 589, 601 , 87 S.Ct. 675 , 17 L.Ed.2d 629 (1967); Lamont v. Postmaster General, 381 U.S. 301, 307 , 85 S.Ct. 1493 , 14 L.Ed.2d 398 (1965); Freedman v. Maryland, 380 U.S. 51 , 85 S.Ct. 734 , 13 L.Ed.2d 649 (1965); Dombrowski v. Pfister, 380 U.S. 479 , 85 S.Ct. 1116 , 14 L.Ed.2d 22 (1965); New York Times Co. v. Sullivan, 376 U.S. 254, 277 , 84 S.Ct. 710 , 11 L.Ed.2d 686 (1964); NAACP v. Button, 371 U.S. 415 , 83 S.Ct. 328 , 9 L.Ed.2d 405 (1963); Smith v. California, 361 U.S. 147, 153 , 80 S.Ct. 215 , 4 L.Ed.2d 205 (1959); Speiser v. Randall, 357 U.S. 513, 526 , 78 S.Ct. 1332 , 2 L.Ed.2d 1460 (1958).

. 171 U.S.App.D.C. at 218, 519 F.2d at 867 supra. The court’s reliance on Stoner v. Fortson, 379 F.Supp. 704 (N.D.Ga.1974) is misplaced. Stoner involved the entirely separate problem of disclosure by “controversial” candidates in major party primaries. The Stoner court’s refusal to exempt such candidates from disclosure can be justi *262 fied because of the great difficulties in distinguishing “controversial” from noncontroversial candidates. Those same difficulties do not arise, however, in distinguishing major and minor parties. See note 1 supra. See also Developments, supra note 1, at 1250-51.

. In this century only 4 non-major party candidates for President have received over 5% of the vote. Finding I, 11 85. Since 1932 non-major party candidates have never received more than 5% of the total vote cast for Congressmen. Id. In 1974, of the 286 minor party and independent candidates running for Congress, only 46 received more than 5% of the vote and none were elected. Findings II A, ¶ 7.

. Minor parties seldom account for more than 2% of the funds expended in a race. See id. fifi 12, 35, 51. Only 20 of the 286 non-major party Congressional candidates in 1974, and 21 of the 241 such candidates in 1972 spent over $10,000. Id. Till 19, 29, 41, 48.

. Only 6% of the contributions to minor parties are in amounts over $1,000. See id. ¶¶ 56, 73. In contrast, President Nixon raised 55% and Senator McGovern 34% of their budgets through contributions of over $1,000. Id. ¶ 73.

. See A. Bickel, supra note 13, at 70-71; H. Bone, American Politics and the Party System 300-04 (1955); C. Ewing, Presidential Elections 108-09 (1940). See generally W. Hesseltine, The Rise and Fall of Third Parties (1948);' D. Mazmanian, Third Parties in Presidential Elections (1974).

. See 171 U.S.App.D.C. at 218, 519 F.2d at 867 supra. The court alludes to two other evils disclosure might uncover or deter: illegal contributions and undue influence. Id. 171 U.S.App.D.C. at 216 n.14, 519 F.2d at 865 n.114. Disclosure can affect illegal contributions, however, only in the unlikely event that a party would disclose its own illegalities. The undue influence concern, while more substantial, arises only if a minor party candidate wins an election. A less restrictive alternative, which would leave unaffected contributors to unpopular, unsuccessful parties, would be to require disclosure only of winning minor party candidates.

. Because 18 U.S.C. § 614 prohibits contributions in the name of another, minor parties will be able to know the source of their donations unless one posits massive lawlessness.

. The limits on contributions imposed by 18 U.S.C. § 608 (b)(1) make necessary conspiracies if stalking horses are to be launched.

. See, e. g., Whitney v. California, 274 U.S. 357 , 47 S.Ct. 641 , 71 L.Ed. 1095 (1927) (Brandéis, J., concurring) (“Fear of serious injury cannot alone justify suppression of free speech and assembly”); Schenck v. United States. 249 *263 U.S. 47 , 39 S.Ct. 247 , 63 L.Ed. 470 (1919). Cf. Brandenburg v. Ohio, 395 U.S. 444 , 89 S.Ct. 1827 , 23 L.Ed.2d 430 (1969) (only advocacy of “imminent lawless action” can be proscribed).