Federal Election Commission v. Florida for Kennedy Committee

CLARK, Circuit Judge,

dissenting:

The majority in holding that “draft committees” are outside the jurisdiction of the Federal Election Commission fails to consider the plain intent of Congress in enacting the statute, misapplies Buckley v. Valeo, 424 U.S. 1 , 96 S.Ct. 612 , 46 S.Ct. 659 (1976), and imagines dangers to first amendment associational rights which have no basis in reality. Therefore, I must dissent.

The Federal Election Commission was established by Congress to act as a watchdog to forestall certain misconduct in the federal election process. 2 U.S.C. § 437c. It has eight members, six of whom have the power to vote on matters before it (there are two ex officio members, the Secretary of the Senate and the Clerk of the House of Representatives). These six are appointed by the President by and with the consent of the Senate for six-year terms. In furtherance of the Congressional mandate that political contributions be limited and sources identified, the Federal Election Commission has the power to, inter alia, conduct the following activities:

(a) The Commission has the power—

(1) to require, by special or general orders, any person to submit in writing such reports and answers to questions as the Commission may prescribe; and such submission shall be made within such a reasonable period of time and under oath or otherwise as the Commission may determine;

(2) to administer oaths or affirmations;

(3) to require by subpena [sic], signed by the chairman or the vice chairman, the attendance and testimony of witnesses and the production of all documentary evidence relating to the execution of its duties;

(4) in any proceeding or investigation, to order testimony to be taken by deposition before any person who is designated by the Commission and has the power to administer oaths and, in *1289 such instances, to compel testimony and the production of evidence in the same manner as authorized under paragraph

(3) of this subsection;

2 U.S.C. § 437d.

The instant dispute involves an attempt to investigate the Florida for Kennedy Committee. Prior to any activity, the committee registered with the Federal Election Commission as a political committee pursuant to 2 U.S.C. § 431 without any reservations about being subject to the Federal Election Campaign Act. This committee received contributions and made expenditures in excess of a quarter million dollars. The Machinists “Non-Partisan” Political League, the political action arm of the International Association of Machinists, was a substantial donor to the various “draft Kennedy” movements around the country. If these movements were affiliated, this contributor would have been limited to one $5,000 donation under the provisions of 2 U.S.C. § 441a(a)(l)(c). The subpoena issued by the Commission in the present case was issued in order to further its investigation of the possible illegality of these contributions and their receipt by various committees.

The Florida for Kennedy Committee is a political committee within the FEC’s jurisdiction. Under the former 1 2 U.S.C. § 431 (d), a political committee was defined as a committee which receives contributions or makes expenditures in excess of $1,000 per year. Former 2 U.S.C. §§ 431 (e) and (f) in pertinent part state:

(e) “contribution”—

(1) means a gift, subscription, loan, advance, or deposit of money or anything of value made for the purpose of—

(A) influencing the nomination for election, or election, of any person to Federal office or for the purpose of influencing the results of a primary held for the selection of delegates to a national nominating convention of a political party, or

(B) influencing the result of an election held for the expression of a preference for the nomination of persons for election to the office of President of the United States;

(f) “expenditure”—

(1) means a purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value, made for the purpose of—

(A) influencing the nomination for election, or the election, of any persons to Federal office, or to the office of presidential and vice-presidential elector; or

(B) influencing the results of a primary election held for the selection of delegates to a national nominating convention of a political party or for the expression of a preference for the nomination of persons for election to the office of President of the United States;

(emphasis supplied). In the instant case, Florida for Kennedy undertook activities aimed at obtaining the Democrat presidential nomination for Senator Kennedy.

During 1979, the Carter-Mondale Committee filed a complaint with the Federal Election Commission against the Florida for Kennedy Committee. Thus, the pertinent enforcement provisions of 2 U.S.C. § 437 were triggered:

(a)(1) Any person who believes a violation of this Act or of chapter 95 or chapter 96 of Title 26 has occurred may file a complaint with the Commission. Such complaint shall be in writing, shall be signed and sworn to by the person filing such complaint, and shall be notarized. Any person filing such a complaint shall be subject to the provisions of section 1001 of Title 18. The Commission may not conduct any investigation under this section, or take any other action under this section, solely on the basis of a com *1290 plaint of a person whose identity is not disclosed to the Commission.

(2) The Commission, upon receiving a complaint under paragraph (1), and if it has reason to believe that any person has committed a violation of this Act or of chapter 95 or chapter 96 of Title 26, or, if the Commission, on the basis of information ascertained in the normal course of carrying out its supervisory responsibilities, has reason to believe that such a violation has occurred, shall notify the person involved of such alleged violation and shall make an investigation of such alleged violation in accordance with the provisions of this section.

(3) (A) Any investigation under paragraph (2) shall be conducted expeditiously and shall include an investigation, conducted in accordance with the provisions of this section, of reports and statements filed by any complainant under this sub-chapter, if such complainant is a candidate.

2 U.S.C. § 437g. Soon afterward, the Federal Election Commission found that it had reason to believe that the Florida for Kennedy Committee and the International Association of Machinists had violated the Federal Election Campaign Act, a prerequisite to investigation under 2 U.S.C. § 437g(a)(2). Therefore, the Federal Election Commission was operating under procedures mandated by statute. It was investigating the contributions received by a political committee seeking to influence the election of a person to federal office. It had begun this investigation solely upon a signed complaint, as required by statute. The Federal Election Commission did not initiate the investigation on its own.

The language of the statute is quite clear. In 2 U.S.C. § 431 , Congress first defines the term “candidate”:

(b) “candidate” means an individual who seeks nomination for election, or election, to Federal office, whether or not such individual is elected, and, for purposes of this paragraph, an individual shall be deemed to seek nomination for election, or election, if he has (1) taken the action necessary under the law of a State to qualify himself for nomination for election, or election, to Federal office, or (2) received contributions or made expenditures, or has given his consent for any other person to receive contributions or make expenditures, with a view to bringing about his nomination for election, or election, to such office;

2 U.S.C. § 431 (b). Shortly thereafter, the term “person” is defined:

(h) “person” means an individual, partnership, committee, association, corporation, labor organization, and any other organization or group of persons;

2 U.S.C. § 431 (h). Throughout this and related statutes, the terms “candidate” and “person” are frequently used. However, in its definition of the terms “expenditure” and “contribution” (which are the key elements in determining the function of “political committee”), Congress did not use the term “candidate.” Rather, as noted above, both “contribution” and “expenditure” are defined in terms of influencing the nomination “of any person.” 2 U.S.C. §§ 431 (e), (f). It is undisputed that the Florida for Kennedy Committee had as its purpose “influencing the nomination for election” of Senator Kennedy “to Federal office” and that it thus fits squarely within 2 U.S.C. § 431 (e). Congress clearly chose to use the broader term “person” rather than the technical “candidate.” By doing so, Congress intended 2 to give the FEC broad authority *1291 in this area. One of the Senate reports on the Federal Election Campaign Act indicates the spirit in which the law was passed: “Disclosure, if it is to be effective must mean total disclosure, and therefore the Committee has sought to reach every kind of political activity.” S.Rep.No.92-229 (1971), reprinted in [1972] U.S.Code Cong. & Ad.News, 1773, 1821, 1823. 3 Although “draft committees” were unheard of at the time of the passage of the Act, see Federal Election Commission v. Machinists Non-Partisan League, 655 F.2d 380 , 394 n.27 (D.C.Cir.1981), it is reasonable to assume that Congress used this broad language in anticipation of attempts springing from the fertile minds of politicians to circumvent the Act. “Draft committees” fall within the authority Congress delegated to the Federal Election Commission, as such groups make expenditures and accept contributions with the purpose of influencing the nomination of a person to Federal office.

This is the only reasonable interpretation that may be given to the statute. In enacting this federal elections law, Congress sought to open to inspection by the public the sources of funds used to influence the nomination of persons to public office. To leave in the dark free from public view a device such as a “draft committee” is anomalous. It is clearly prone to abuse. The face of the statute and its underlying policy considerations make clear that Congress intended “draft committees” to fall within FEC jurisdiction.

The majority, quoting from EEOC v. Southwestern Baptist Theological Seminary, 651 F.2d 277, 285 (5th Cir. 1981), states that if “the interpretation [of a statute] complained of ‘presents a significant risk that the First Amendment will be infringed,’ any ambiguity in the statute is construed in a manner to avoid such constitutional problems.” But there is no ambiguity and further there is no threat to first amendment rights as will be later discussed. The plain truth is that the Congressional intent is extremely clear. Congress intended to regulate “draft committees” and the court today ignores its intentions. Where the face of a statute is clear, we are bound to interpret it as Congress wrote it. See Tennessee Valley Authority v. Hill, 437 U.S. 153 , 98 S.Ct. 2279 , 57 L.Ed.2d 117 (1978). 4

*1292 There is no significance to the fact that “draft committees” are not mentioned in the statute. The District of Columbia Circuit apparently attributed some importance to this fact in Machinists Non-Partisan Political League:

Indeed not even a whisper about limiting contributions to “draft” groups has ever been heard in the legislative history of the FECA. It is therefore clear that Congress has never acted expressly to bring “draft” groups within the coverage of contribution limitations.

655 F.2d at 395 . It should be noted that Congress could not have considered the issue because no significant draft groups existed at the time when these provisions were made law. Id. at 394, n.27 .

Gemsco v. Walling, 324 U.S. 244 , 65 S.Ct. 605 , 89 L.Ed. 921 (1945), sheds some further light upon this point. Gemsco involved a challenge to the authority of the Department of Labor to regulate certain practices under section 8(f) of the Fair Labor Standards Act, 29 U.S.C. § 208 (f). This Act established a minimum wage of forty cents an hour. This statute also gave the Administrator of the Labor Department’s Wage and Hour Division the power to enter orders and enforce them in order to carry out the purposes of the Act. Certain manufacturers attempted to circumvent this law by giving employees “industrial homework” at less than the minimum wage. The Administrator prohibited the practice, even though the statute made no reference to “industrial homework.” The Court upheld this action. It gave no weight to the omission of “industrial homework” from the statute, when the purpose of the statute and its language were clearly designed to prevent such artful circumventions. 324 U.S. at 259-63 , 65 S.Ct. at 614-16 . The Gemsco analysis is precisely applicable in the instant case;, as I have noted above, the Congressional purpose as shown by the plain language of the FECA is to prevent loopholes such as that opened today.

The majority cites Buckley in support of its decision. This reliance upon Buckley is misplaced. The Supreme Court in Buckley construed the statute so as to avoid constitutional problems while at the same time enforcing those parts of the statute “within the core area sought to be addressed by Congress.” 424 U.S. at 80 , 96 S.Ct. at 663 . The word “candidate” was not used in Buckley in the technical sense of the term as provided in the FECA. The term “candidate” in Buckley was intended by that Court to be read in a broader light. Otherwise, a significant portion of the “core area” of Congressional concern would be outside the coverage of the Act, a construction which the Supreme Court rejected.

Giving a slightly broader construction to the term “candidate,” in other words the meaning used in everyday parlance, it is clear that the regulation of draft committees by the FEC would be constitutional. Indeed, there is a good deal of support within Buckley for the proposition that when the Supreme Court used the term “candidate,” it meant the everyday meaning of the word. For example, the Court stated:

To insure that the reach of § 434(e) is not impermissibly broad, we construe “expenditure” for purposes of that section in the same way we construed the terms of § 608(e) — -to reach only funds used for communications that expressly advocate the election or defeat of a clearly identified candidate. This reading is directed precisely to that spending that is unambiguously related to the campaign of a particular federal candidate.

424 U.S. at 80 , 96 S.Ct. at 664 (emphasis supplied). Had the Supreme Court meant to give the word “candidate” its technical definition, the use of adjectives such as “clearly identified” and “particular federal” would have been unnecessary. Additionally *1293 throughout the opinion, “expenditure,” “political committee,” “contribution” and other similar terms used in the statute are put in quotation marks; the term “candidate” never appears in such a form. This is another indication that the everyday definition of “candidate” was intended by the Supreme Court.

The Supreme Court in Buckley sought to limit the intrusion of the federal government into areas protected by the first amendment. It was especially concerned that the Act might be construed “to reach groups engaged purely in issue discussion.” Id. 424 U.S. at 80 , 96 S.Ct. at 663 . Congress sought to regulate federal elections “to insure both the reality and the appearance of the parity and openness of the federal election process.” Id. 424 U.S. at 79 , 96 S.Ct. at 663 . The Supreme Court concluded:

To fulfill the purposes of the Act they need only encompass organizations that are under the control of a candidate or the major purpose of which is the nomination or election of a candidate. Expenditures of candidates and of “political committees” so construed can be assumed to fall within the core area sought to be addressed by Congress. They are, by definition, campaign related.

424 U.S. at 80 , 96 S.Ct. at 663 (emphasis added). Giving the everyday meaning to the term “candidate,” it cannot be seriously disputed that the actions of the Florida for Kennedy Committee fall within the area which the Federal Election Commission has the power to regulate as modified by the Court. The purpose of the Act is quite simply not fulfilled if “draft committees” are allowed to slip through the cracks unregulated. Surely, the majority opinion opens the floodgates for contributions in unlimited amounts from sources never to be known to the public. By the use of such a technique, a person seeking election can have a sizable financial war chest (along with a host of unidentified political obli-gees) at the time he makes public his decision to become a candidate.

Thus, I believe that the majority’s reliance upon Buckley is misplaced. In no way does Buckley mandate the result reached today.

It should also be noted that the Supreme Court in Buckley was not faced with the “draft committee” issue. Even if the majority does not accept my view as to the constitutionality of the Act as it relates to “draft committees,” it still must address the issue as mandated by Buckley. In Buckley, as I have noted, the Supreme Court sought to place general parameters on the construction of the Act. In doing so, the Supreme Court stated that it was still giving force to the “core area” addressed by Congress, while trimming away some of the vague, fringe areas of the statute. The Buckley Court did not confront, as we are here, part of the core area of the statute being seriously in conflict (assuming ar-guendo the position of the majority) with the first amendment. I believe we must forthrightly confront this issue, even if the resolution of the point results in the quashing of the subpoena on constitutional grounds.

It is therefore our duty to reach the constitutional question presented. The majority asserts: “suffice to say that substantial constitutional questions would arise were we to adopt the FEC’s position and hold that draft groups such as FKC were covered by the Act.” I do not believe that serious constitutional questions are raised. I would hold that no associational rights are at issue in the instant case.

The Supreme Court has recognized that the compelled disclosure of certain associations may have a chilling effect upon activity protected by the first amendment. E.g., Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539 , 83 S.Ct. 889 , 9 L.Ed.2d 929 (1963); NAACP v. Button, 371 U.S. 415 , 83 S.Ct. 328 , 9 L.Ed.2d 405 (1963); Bates v. City of Little Rock, 361 U.S. 516 , 80 S.Ct. 412 , 4 L.Ed.2d 480 (1960); NAACP v. Alabama, 357 U.S. 449 , 78 S.Ct. 1163 , 2 L.Ed.2d 1488 (1958). These cases all involved governmental investigation into the NAACP, the goal of which was to obtain membership or contributor lists. Given the political climate of those times, the infor *1294 mation would probably have been used to “chill” membership in the organization.

However, the assertion by Florida for Kennedy of a danger to associational rights is not a magical incantation which carries the day for the appellants. 5 Rather, NAACP v. Alabama, supra, and subsequent cases interpreting it have indicated that there must be a threshold showing that there exists a “chilling effect” upon the organization as a result of the governmental inquiry. In that case, the Court noted:

We think that the production order, in the respects here drawn in question, must be regarded as entailing the likelihood of a substantial restraint upon the exercise by petitioner’s members of their right to freedom of association. Petitioner has made an uncontroverted showing that on past occasions revelation of the identity of its rank-and-file members has exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility. Under these circumstances, we think it apparent that compelled disclosure of petitioner’s Alabama membership is likely to affect adversely the ability of petitioner and its members to pursue their collective effort to foster beliefs which they admittedly have the right to advocate, in that it may induce members to withdraw from the Association and dissuade others from joining it because of fear of exposure of their beliefs shown through their associations and of the consequences of this exposure.

357 U.S. at 462-63 , 78 S.Ct. at 1172 . 6 This sort of reasoning has been recently reaffirmed by the Supreme Court in Buckley v. Valeo, 424 U.S. at 69-71 , 96 S.Ct. at 658-59 .

The appellant has not raised even a color-able associational freedom claim. It was supporting the candidacy of an individual who narrowly lost the presidential nomination of one of the two major parties. No stigma could be attached to such efforts. Fear of a “chilling effect” upon such committees is simply so wild as to be baseless. The appellant has brought forth no facts or reasons which demonstrate how a “chilling effect” would come about. Thus, the threshold requirements of an associational rights claim have not been met in the instant case, as no reasonable likelihood that political association will be discouraged has been established.

However, assuming arguendo that the appellant has made a colorable associational rights claim, it is apparent that there is a compelling state interest against which these rights must be balanced. 7 The government, as recognized in Buckley, has a substantial interest in “informing the electorate and preventing the corruption of the political process.” 8 Against this interest we have to balance the associational rights of those who were associated with the Florida for Kennedy Committee.

The potential for corruption in the instant situation, as discussed above, is great. Indeed, through “draft committees” it is possible to subvert the whole federal election regulatory process. There is no real threat to the associational rights of the supporters of the Florida for Kennedy Committee. They were supporters not of a fringe candidate, but rather they supported an individual who had widespread backing throughout the United States. 9 It is incon *1295 ceivable (and nowhere alleged) that any members of the committee had any fears with respect to intimidation or reprisals of the type which were the subject matter of the NAACP v. Alabama case and its progeny. The panel majority has been victimized into accepting an argument by appellant that is not only incredulous, but so ridiculous that the cheek of its protagonist must be permanently bent out of shape. 10

Thus, since there are no associational rights at stake here, and the statute clearly embraces the activities of the committee, I dissent.

. 2 U.S.C. § 431 was revised in 1980. These definitions were slightly changed and a renumbering of its provisions was made. However, the main thrust of the Act remains unchanged.

. The District of Columbia Circuit in Machinists Non-Partisan Political League, makes the simply incredible statement that:

Congress “has voiced its wishes in muted strains and left it to the Courts to discern the theme in the cacophony of political understanding.”

655 F.2d 380, 394 (D.C.Cir.1981). This is a chimerical distortion given the absolutely clear language of the statute itself. That court’s examination of the legislative history in that case is improper under such cases as Tennessee Valley Authority v. Hill, 437 U.S. 153, 184, n.29 , 98 S.Ct. 2279, 2296 , 57 L.Ed.2d 117 (1978), and Ex Parte Collett, 337 U.S. 55, 61 , 69 S.Ct. 944, 947 , 93 L.Ed. 1207 (1949). These cases stand for the proposition that when confronted with a statute that is clear on its face, the courts do *1291 not look to legislative history as a guide to its meaning, unless from the legislative history it is clear that Congress did not intend to employ the words it used.

Further, the District of Columbia Circuit states that the “legislative history of the term ‘political committee’ is, in a word, uninformative, at least prior to 1979.” 655 F.2d at 394 . The court goes on to concede that even the 1979 amendments are “not dispositive” of the issue. Id. The disregarding of the clear language of the statute on the basis of a concededly “uninformative” and “not dispositive” legislative history is directly counter to such recent Supreme Court opinions as Bread Political Action Committee v. Federal Election Commission, - U.S. -, -, 102 S.Ct. 1235, 1238 , 71 L.Ed.2d 432 (1982), and Consumer Products Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108 , 100 S.Ct. 2051, 2056 , 64 L.Ed.2d 766 (1980).

. It is clear under Buckley v. Valeo, supra, that not every kind of political activity may be reached by the Act and withstand constitutional muster. This does not, however, detract from the intent of Congress to make the Act as broad as possible.

. Both the majority today and the District of Columbia Circuit in Machinists Non-Partisan Political League are guilty of the most serious sort of judicial legislation. Justice Frankfurter once wrote:

[T]he courts are not at large.... They are under the constraints imposed by the judicial function in our democratic society. As a matter of verbal recognition certainly, no one will gainsay that the function in construing a statute is to ascertain the meaning of words used by the legislature. To go beyond it is to usurp a power which our democracy has lodged in its elected legislature.... A judge must not rewrite a statute, neither to enlarge nor to contract it.

Whatever temptations the statesmanship of policy-making might wisely suggest, construction must eschew interpolation and evisceration. He must not read in by way of creation. He must not read out except to avoid patent nonsense or internal contradiction .... [T]he only sure safeguard against crossing the line between adjudication and legislation is an alert recognition of the necessity not to cross it and instinctive, as well as trained, reluctance to do so.

Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum.L.Rev. 527, 533, 535 *1292 (1947). These sentiments in no way characterize the action of this court today nor those of the District of Columbia Circuit. The mandate of United States v. Wiltberger, 5 Wheat. (18 U.S.) 76, 95-96, 5 L.Ed. 37 (1820), one of the fundamental cornerstones of American jurisprudence, has been ignored: “The intention of the legislature is to be collected from the words they employ. Where there is no ambiguity in the words, there is no room for construction.”

. Cf. Ambassador College v. Geotzke, 675 F.2d 662, 665 (5th Cir. 1982) (church failed to establish that discovery against it would result in a “chilling effect” upon its membership).

. Similar findings were made in such cases as Shelton v. Tucker, 364 U.S. 479, 486 , 81 S.Ct. 247, 251 , 5 L.Ed.2d 231 (1960); Bates v. City of Little Rock, 361 U.S. 516, 521-24 , 80 S.Ct. 412, 415-17 , 4 L.Ed.2d 480 (1960); and Watkins v. United States, 354 U.S. 178, 197-99 , 77 S.Ct. 1173, 1184-85 , 1 L.Ed.2d 1273 (1957).

. In NAACP v. Alabama, supra, 357 U.S. at 460-61 , 78 S.Ct. at 1163 , the Supreme Court made clear that any state action infringing upon associational rights was subject to strict scrutiny.

. 424 U.S. at 69 , 96 S.Ct. at 659 .

. A different situation would be presented if supporters of a minor party candidate well outside the “mainstream” of American politics were involved. In such a case, there might well be a very real danger of a “chilling effect” *1295 upon associational rights. Such groups, being generally quite unpopular, run certain risks that more conventional groups, like the Florida for Kennedy Committee, do not. Perhaps, the Second Circuit, in a recent decision, correctly decided that the Communist Party was not obliged to comply with the Federal Election Campaign Act’s disclosure and recordkeeping requirements. Federal Election Commission v. Hall-Tyner Campaign Committee, 678 F.2d 416 (2d Cir. 1982). The Supreme Court in Buckley recognized that the Federal Election Campaign Act could, if applied to some groups which the vast majority of Americans view as odious, be an unconstitutional infringement upon associational rights. 424 U.S. at 71 , 96 S.Ct. at 659 . Of course, we are not faced with such a situation in the instant case.

. One other item is deserving of mention. This court has the power to narrow the subpoena in question. Assuming arguendo that portions of the subpoena are unnecessarily broad for the purposes of the Federal Election Commission’s investigation of the Florida for Kennedy Committee, certain items on the subpoena could be eliminated by this court, if such was its desire. I would be inclined to limit the first step in the discovery process. By doing so, any remote threat to associational rights could be avoided.