Brief for Appellee — Buckley v. Valeo

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Supreme Coun, U, $.

CORRECTED 4 Eerie

my re if NW 8 1915

| y

| / ; oo MICRAEL RODAK, J2.,cLE2¥

Nos. 75-436 anp 75-437 ae

Gn the Supreme Gourt of the United States

| OctToBerR TERM, 1975

JAMES L. BUCKLEY, ET AL., APPELLANTS

Francis R. VALEO, ET AL.

ON APPEALS FROM THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT AND THE UNITHD STATES

DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BRIEF FOR THE ATTORNEY GENERAL AND THE FEDERAL

ELECTION COMMISSION

EDWARD H. LEVI,

Attorney General,

ROBERT H. BORK,

Solicitor General,

DANIEL M. FRIEDMAN,

Deputy Solicitor General,

LOUIS F. CLAIBORNE,

Special Assistant to the Solicitor General,

Department of Justice,

Washington, D.C. 20530.

INDEX

Page

I dciiddecheuekeasecmeadacememen 1

So ibe ale aa achideincn hckatamemnn a mame ee 2

es noe phweceeeeemaninn 2

i cn aia eee ee wees 4

I nc ntinniea eer heen eeneened-aabeiirn 5

A. The challenged legislation_____--_---_-_- 5

1. Recordkeeping and disclosure___ _- 5

2. Limitations on contributions_____- 6

3. Expenditure ceilings-___________- 7

4. Public financing of Presidential

ee ee a eae 9

B. The proceedings below_____--_-----_--- 11

Riker dabetcctitcddwevcocsucseuvendues 13

Introduction and summary__-__------------- 13

I. The legislation is responsive to legitimate

and compelling governmental concerns. 17

A. Legitimacy of the objectives_ _ _- 18

1. Money corruption of can-

didates and elected of-

| aes ee 18

2. Public confidence’ in

elected government___- 21

3. More democratic elec-

SiS ORR Ue AT aoe 23

B. The appropriateness of the

RE rn 27

1. Recordkeeping and dis-

closure requirements -_ - 29

2. Ceiling on contributions. 32

3. Ceiling on expenditures _- 35

4. Public financing of Presi-

dential elections __ ____ 36

(I)

595-040—75——-1

Argument—Continued

Introduction and summary—Continued

II. The legislation does not impermissibly

trench on First Amendment rights_. _-

A. The disclosure requirements____-

1. The right to speak or

write anonymously __ __

2. The right of associational

GU ccccdecacwncs

2. Overall limitations on

candidate expenditures

3. The ceiling on independ-

ent expenditures______

C. Appellants’ other First Amend-

ment challenges. ____________

1. Preliminary comments. __-

2. Contribution ceilings and

freedom of speech-_-____

3. Public financing and the

lirst Amendment-_- - _-

D. tctuctunccnne

III. The legislation does not invidiously dis-

criminate against challengers or candi-

dates of minor or new parties_-_-___-_-

A. The contribution and expendi-

ture ceilings. ............_--

1. Challengers. ___...____-

2. Minor party and inde-

pendent candidates____

B. Public funding of Presidential

ibe cceeesuacsaeecas

1. Eligibility provisions- -_ _.

2. Allocation formulae_ ___-

i caliciad sisi eee ee

Page

-—

CITATIONS

Cases: Page

American Civil Liberties Union v. Jennings,

366 F. Supp. 1041, vacated as moot sub

nom. Staats v. American Civil Lnberties

J ae 6 ee ere ee 35

American Party of Texas v. White, 415 U.S.

ERLE SRE RE A ERIN REE Be 65, 77, 79, 80

Anderson v. United States, 417 U.S. 211____-

Associated Press v. United States, 326 U.S. 1_- 60

Bates v. Little Rock, 361 U.S. 516_______- 38, 44, 61

Bigelow v. Virginia, No. 73-1309, decided June

Fe ae eer eh eee reer ae 50, 51

Branzburg v. Hayes, 408 U.S. 665__________- 41

Broadrick v. Oklahoma, 413 U.S. 601_______- 51, 59

Bullock v. Carter, 405 U.S. 134______- 23, 65, 76, 77

Burroughs and Cannon v. United States, 299

SN: Mi Nihiovesna:a seh o-asecnianen-ecmpdboaa 19, 27, 30, 39

Cipriano v. City of Houma, 395 U.S. 701____- 23

Citizen Publishing Co. v. United States, 394

i a oe et ee 60

Civil Service Commission v. Letter Carriers,

3: YF Seen 22, 28, 51, 56, 59, 68, 69

Columbia Broadcasting v. Democratic Comm..,

eS airs Sind bine alee acndins 50-51, 58-59, 60

Communist Party v. Control Board, 367 U.S.1_. =39-

40, 41, 43

Cousins v. Wigoda, 419 U.S. 477___________- 43

Federal Trade Commission v. Colgate-Palm-

olive Co., 380 U.S. 374_........-_--__--- 68

Ferguson v. Skrupa, 372 U.S. 726__________- 24

Gibson v. Florida Legislative Comm., 372 U.S.

RR ee ae uaa 38, 44

Golden v. Zwickler, 394 U.S. 103______-_____- 41

Gravel v. United States, 408 U.S. 606_—____- o 51

Gray v. Sanders, 372 U.S. 368_____________- 24

Causes —Continued Page

Grayned vy. City of Rockford, 408 U.S. 104___- 49

Grosjean v. American Press Co., 297 U.S. 233- 58

Harper v. Virginia Bd. of Elections, 383 U.S.

PETER ee teen a Page Se ean ter gaa 23

Hill v. Printing Industries of the Gulf Coast,

No. 74-456, decided June 30, 1975________- 41

Jenness v. Fortson, 403 U.S. 431._____-_-- 77, 82, 83

Kleindienst v. Mandel, 408 U.S. 753__.-_-_-- 51

Kramer vy. Union School District, 395 U.S. 621- 20

Kusper v. Pontikes, 414 U.S. 51_---------.~- 43, 61

Lathrop v. Donohue, 367 U.S. 820____--- ae 65

Lehman v. City of Shaker Heights, 418 U.S. 298_ 51, 58

Lewis Publishing Co. v. Morgan, 229 U.S. 288_ 39

Lochner v. New York, 198 U.S. 45_______-_- 24

Louisiana v. N.A.A.C.P., 366 U.S. 293__ ____- 38

Lubin v. Panish, 415 U.S. 709___..._.--_- 20, 23, 77

McCulloch v. Maryland, 4 Wheat. 316. ___-_- 17

Machinists vy. Street, 367 U.S. 740__--------- 65

Miami Herald Publishing Co. v. Tornillo, 418

2 ae Eee aoa 50, 51, 58

Mills v. Alabama, 384 U.S. 214____---_-_--_- 49,57

Moore v. Ogilvie, 394 U.S. 814___-----_----- 8]

N.AA.C.P. v. Alabama, 357 U.S. 449___ 38, 43-44, 61

N.A.A.C.P. v. Button, 371 U.S. 415______- 38, 44, 61

Nat. Broadcasting Co. v. United States, 319

Beis Gh dcucaseaiusaoneaaede ches neunun 51

Near v. Minnesota, 283 U.S. 697_....-.-___- 57

New York ex rel. Bryant vy. Zimmerman, 278

SI Aaa: ieee meds adit tice asectaek cede acl na ae 39

New York Times Co. v. Sullivan, 376 U.S.

Sn. ant creer is lel a ccheeeleenates aaedaneiataar ale 50, 58, 60

New York Times Co. v. United States, 403 U.S.

hs «a qcnaca mane aad ane aaa andes 50, 51

O’Brien v. Skinner, 414 U.S. 524... --____- 67

Oregon v. Mitchell, 400 U.S. 112__-- ~~~. 19, 24

Phoenix v. Kolodziejski, 399 U.S. 204__ _____ 23

Cases—Continued pene

Pipefitters v. United States, 407 U.S. 385____ 20-21

Pittsburgh Press Co. v. Human Rel. Comm’n.,

ES Se icaiseca ericsson dchucatinaiiiaaiaaatane 50, 57

Police Jury of Vermillion v. Herbet, 404 U.S.

ik se cic nukuca eNotes emdcaatael abana tedtatensinn 23

Procunier v. Martinez, 416 U.S. 396________- 41

Rabinowitz v. Kennedy, 376 U.S. 605_______- 39

Red Lion Broadcasting Co. v. Federal Com-

munications Commission, 395 U.S. 367_._ 52, 58, 60

Reynolds v. Sims, 377 U.S. 5383__----------- 20, 24

Roudebush v. Hartke, 405 U.S. 15__--------- 19

Shelton v. Tucker, 364 U.S. 479_______-_----- 38, 40

Sheppard v. Maxwell, 384 U.S. 333___------- 51

Shuttlesworth v. Birmingham, 394 U.S. 1417_- 67

Smiley v. Holm, 285 U.S. 355__..----------- 19, 20

South Carolina v. Katzenbach, 383 U.S. 301__- 29

Stoner v. Fortson, 379 ¥. Supp. 704__-------- 31

Storer v. Brown, 415 U.S. 724__..__-------- 77

Sweezy v. New Hampshire, 354 U.S. 234--— -- 44

Tally v. California, 362 U.S. 60_--___- 38, 40, 41, 49

United States v. Auto Workers, 352 U.S. 567_. —.20,

21, 22, 25, 26, 29, 31, 35, 60, 61

United States v. Butler, 297 U.S. 1___------- 65

United States v. Classic, 313 U.S. 299_____--- 19

United States v. C.I.O., 335 U.S. 106__-_- 20, 26, 35

United States vy. Darby, 312 U.S. 100______-- 24

United States v. Finance Committee to Re-

elect President, 507 I’. 2d 1194___________- 31

United States v. Harriss, 347 U.S. 612_____-- 30, 39

United States vy. Nixon, 418 U.S. 683___-__-- 41

United States vy. O’ Brien, 391 U.S. 367____--- 18

United States v. Raines, 362 U.S. 17___----- 15

Viereck v. United States, 318 U.S. 236___- .-- 39

Wesberry v. Sanders, 376 U.S. 1_-_-_----- 19-20, 24

vil

Cases—Continued sin U.S. Constitutien—Continued

West Coast Hotel Co. v. Parrish, 300 U.S. 379- 24 Federal Election Campaign Act—Continued page

Williams v. Rhodes, 393 U.S. 23........- 20,77, 82 3 USL. GBG)G@). ......------------- 5

Yarbrough, Ex parte, 110 U.S. 651__--.------ 19, 20 2 USC. 494(e)-(6)-..--..------------- 5

Yick Wo v. Hopkins, 118 U.S. 356. --_-_-_- 19 2 U.S.C. 434(a)(1)(A)(i)-------------- 5-6, 30

U.S. Constitution: ER 6

Article I, Section 4__.._.------------------ 19 Fy SEE ccsccccscesesessvesses 5, 30

Article I, Section 8, clause 1_...._.--__--_-- 4, 65 Of) ere 3, 12, 13

Article I, Section 8, clause 18__.......__---- 19 ee 69

EL passim A Oe 4) ere 36

| eosneeecses 3 3 USA. Geen) ..-.--------.------ 56

Fifth Amendment___._____--------- 3, 4, 63, 67, 79 Pts En eccccccccscwescccosens 2,11

Ninth Amendment... ............---.--.--. 3,4 Oe ere 6

Communications Act of 1934, 48 Stat. 1064, 3 USC. 4B{a)(10). .........--------- 68

as amended, 47 U.S.C. 151 et segq.: 2 U.S.C. 439b_--- - -- recerswevacececes 71

47 U.S.C. 201-223._...____- Oe 64 a ee 6, 34

ee 59 ee 63

Ne cc ceeee 58 18 U.S.C. 591(e)(5)(A) - --------------- 6

| 40 | 18 U.S.C. 591(e)(5)(B)-(D) - - ---------- 6

0 67 18 U.S.C. 591(f)(4)------------------- 63

evar Sea tiiti..........~ 64 18 U.S.C. 591(f)(4)(A) - - -------------- 57

0 67 | 18 U.S.C. 591(f)(4)(H) ---------------- 7

47 U.S.C. (Supp. IIT) 399(a)___-___-__- 51, 58 18 UBC. SBG).........---.--------- 78

Federal Election Campaign Act of 1971, P.L. 18 U.S.C. 608(a).-.-.--------------- 8, 36, 52

92-225, 86 Stat. 3,2 U.S.C. (Supp. IIL) 431 18 U.S.C. 608(b)(1).-..--------------- 6, 34

et seq., as amended by the Federal Election 18 U.S.C. 608(b)(2).-...-.---------- 6, 34, 62

Campaign Act Amendments of 1974, P.L. BD U BA. GG)... 22222220 - oe 6, 34

93-443, 88 Stat. 1263_..____._________- 4, 31, 35 18 U.S.C. 608(b)(4)(A)---------------- 34

2 U.S.C. 481(e)(1)(A)____--___-______-- 45 1S USL. GBS)... ........-.-2---- 6

2 U.S.C. 431(f)(4)(A)._......----.---- 57 18 USB.C. G68(b)(@)................--- 34

Nc ewwcecce 78 5B UBL. GI) .20202020200020002000- 52

ES See 5 18 U.S.C. 608(c)(1)(A)-(B)- - ---------- 7

CE 5

Re 5

Vill IX

U.S. Constitution—Continued U.S. Constitution—Continued

Federal Election Campaign Act—Continued pay. Internal Revenue Code of 1954—Continued

18 U.S.C. 608(¢)(1)(C)-(D)_-_-_---_-___- 7 Presidential Election Campaign—Cont. page

18 U.S.C. 608(c)(1)(B)_--------- 7 26 U.S.C. 9008(b)(1).-_...--.----- Ss

Dy ns I laa has oe are 7 26 U.S.C. 9008(b)(2)___.._...__---- S

18 U.S.C. 60B(e).............- 8, 35, 55, 59, 63 ey Se Sass dé cininidicwcdmons )

gf eee eh 8 26 U.S.C. 9008(d)_._...........--- 8

ff a ree 52, 63 26 U.S.C. 9008(d)(1)_..._..__----- 8

18 U.S.C, 608(f)(2).........--.--_.-_- 8 26 U.S.C. 9008(d)(2)__.....------- 8

18 U.S.C. 608(f)(3)(A)__.--.--_--_--___- 8 26 U.S.C. 9008(d)(3)_._......----- 8

18 U.S.C. 608(f)(3)(B).............--.. 8 | Se Was Ws és a Secncaccences 9

Oe We ee 40 26 U.S.C. 9011(b)(2)_..........--- 2

Hatch Act, 5 U.S.C. 7324(a)____._________- 28, 67 | Presidential Primary Matching Payment

Internal Revenue Code of 1954 (Subtitle H): Account Act, as added by 88 Stat. 1297

Presidential Election Campaign Fund et seq.:

Act, P.L. 92-178, 85 Stat. 562, 26 Be Gs Se ncucam wencenenees 79

U.S.C. (Supp. Ill) 9001 et seg., as Sp Ws WE Pecnnés scncenceses 79

amended by 88 Stat. 1291 ef seq.: 36 U.S.C. 90BB(b). . .........--..- 9, 10

26 U.S.C. 9002(2)(B)__...._______- 10, 81 26 U.S.C. 9033(b)(2)_........----- 78

BD Wie Gee ccdccd<cdoscéocce 8, 80 26 U.S.C. 9084(a)_...._..... ...--- 10

26 U.S.C. 9008(7).............. 8, 79, 8O 26 U.S.C. 9084(b)_.........-.-- 9, 10, 77

26 U.S.C. 9003(b)-(c)_._.---____-- 8) ) 26 U.S.C. 9087(a)..............-.-- 77

Be ie ke 10 4 fe ee 77

26 U.S.C. 9004(a)(1)_........----- SO 26 U.S.C. 9037(@)_.............:-.- i)

26 U.S.C. 9004(a)(1)-(2)_...______- 10 26 U.S.C. 9088(b)_...-.......---- ve)

26 U.S.C. 9004(a)(2)(A)__._-- SO 26 U.S.C. 9040-9041 _____._______- 2

26 U.S.C. 9004(a)(2)(B)__..___-_-- 4, 80 a ee einineeenanea 20

26 U.S.C. 9004(a)(3).............- 10, 8O BE iccanccccncencnsecesccuceoosss 20

26 U.S.C. 9004(b)-(e)_-_-----____- 8) eee nasa 20

Se 9 ee 20

26 U.S.C. 9006(d)__...--.._--.--- i) 8 Tn 20

26 U.S.C. 9007(b)_..__..._______- 9 57 Stat. 163_..........___________________ 20

BD Dae Se occccccasecoccees 8) ee ee 20

33 US.C. GOGR). ........------- 79 BS UE. BUR —-EGOS. . . cc ccccccccccccce 64

26 U.S.C. 9008(b)-(e). 10 26 U.S.C. 6096__________._-________-- 9

BD UO BBA. Biv ceccccccccccccccecceccescs 2

Miscellaneous: —

Ee Se en 64

120 Cong. Rec. H10330 (daily ed., Oct. 10,

ER EE ESE eR ee ee a7

Developments in the Law—Elections, 88 Harv.

Si, i i nd «eneedecnccecesece 31. 40

40 Fed. Reg. 26660-26666. ______________-- 69

40 Fed. Reg. 28044-28045. _______________- 69

40 Fed. Reg. 28944-28945________________- 69

40 Fed. Reg. 29792-29794. ______- ohaeaneeae 69

40 Fed. Reg. 29793-29794. ___.__.-_------- 45

40 Fed. Reg. 30258-30259. _________--_---- 69

40 Fed. Reg. 31315-31317___________-_---- 69

40 Fed. Reg. 34084-34085______________-__- 69

40 Fed. Reg. 36092-36094. _____________- aa 69

40 Fed. Reg. 36242-36243. _________._____- 69

40 Fed. Reg. 36746-36747____________- ad Si 69

40 Fed. Reg. 40673-40675. ____________-- fe 69

40 Fed. Reg. 42838-42840. _______________- 69

daa 69

40 Ved. Reg. 45292-45293, 45295-45296 _ __- 69

Ne a seeeniiod 69

Feliz Frankfurter Reminisces (Anchor 1962) _- 61

H.R. Rep. No. 93-1239, 93d Cong., 2d Sess.

a ae ad 21, 57

S. Rep. No. 93-689, 93d Cong., 2d Sess.

RRR AB aan «pA Re OS By ae 21

Gu the Supreme Court of the Gnited States

OcToOBER TERM, 1975

Nos. 75-436 anp 75-437

JAMES L. BUCKLEY, ET AL., APPELLANTS

Francis R. VALEO, ET AL.

ON APPEALS FROM THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT AND THE UNITED STATES

DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BRIEF FOR THE ATTORNEY GENERAL AND THE FEDERAL

ELECTION COMMISSION '

OPINION BELOW

The opinions of the court of appeals (J.S. App.

1505-1623 *), adopted in relevant part by the three-

judge court (J.S. App. No. 75-437, la), is reported

at 519 F.2d 821.

‘The Attorney General joins this brief as a party. The At-

torney General has also joined as a party in the separate brief

for the United States to the extent that brief discusses the law

enforcement and interpretive rule-making powers of the Federal

Election Commission. The Attorney General is participating as

counsel on both this brief and the separate brief for the United

States.

* Unless otherwise noted, “J.S.° refers to the jurisdictional

statement in No, 75-436.

(1)

JURISDICTION

The judgment of the court of appeals with respect

to the whole case (J.S. App. 1582-1586) and the

judgment of the three-judge district court with re-

respect to the issues arising under Chapters 95 and 96

of the Internal Revenue Code (J.S. App. No. 75-437,

la—5a) were both entered on August 15, 1975. Notices

of appeal to this Court were filed on August 21, 1975.

Probable jurisdiction was noted on October 6, 1975.

The jurisdiction of this Court to entertain the appeal

from the judgment of the court of appeals rests on 2

U.S.C, 487h(b). The jurisdiction of this Court to en-

tertain the appeal from the judgment of the three-

judge district court rests on 26 U.S.C. 9011(b) (2) and

28 U.S.C. 1253. Civil Service Commission v. Letter

Curriers, 413 U.S, 548.

QUESTIONS PRESENTED

In accordance with 2 U.S.C. 487h and the order of

the court of appeals (J. App. 74-75), the district court

certified 28 constitutional questions to the court of ap-

* Because it is not clear whether the reference in 2 U.S.C.

437 to “this Act” includes new Chapters 95 and 96 of the In-

ternal Revenue Code, a three-judge district court was con-

vened to consider the constitutional challenge to these provi-

sions. That procedure seems to be mandated by 26 U.S.C. 9011

(b)(2) with respect to Chapter 95. Although there is no com-

parable provision in Chapter 96 (see 26 U.S.C, 9040-9041), the

same course would be required by 28 U.S.C. 2282. Out of

abundance of caution, the court of appeals also ruled on the

constitutional questions arising under Chapters 95 and 96. Since

hoth courts reached identical results and this Court has juris-

diction on appeal from both judgments, we submit it is wnnec-

essary to decide which court had jurisdiction.

peals (J.S. App. 1582-1586). The questions before this

Court may be summarized as follows: *

1. Whether the particular requirements in the chal-

lenged statutes providing for recording and disclo-

sure of the source and amount of contributions to

candidates for federal elective office and expenditures

by or on behalf of such candidates violate the rights of

one or more of the plaintiffs under the First, Fourth,

or Ninth Amendment or the Due Process Clause of

the Fifth Amendment.’

2. Whether any statutory limitation, or the particu-

lar limitations in the challenged statutes, on the

amounts that individuals or organizations may con-

tribute in connection with elections for federal oftice

violate the rights of ene or more of the plaintiffs

under the First, Fifth, or Ninth Amendment or the

Due Process Clause of the Fifth Amendment of the

Constitution of the United States.

3. Whether any statutory limitation, or the partic-

ular limitations in the challenged statutes, on the

amounts that candidates for elected federal office may

expend in their campaigns, or on the amounts that may

* This brief does not address any of the issues arising out of

the law enforcement powers of the Commission. With respect to

those questions, the Commission is separately represented by Spe-

cial Counsel, who have filed a further brief on behalf of the Fed-

eral Election Commission. The Attorney General has filed a

separate brief, which is combined with the amicus brief of the

United States (see note 1, supra), discussing those questions.

*Insofar as this question involves a challenge to 2 U.S.C.

437a, that issue has been eliminated by the decision of all ce-

fendants not to appeal the ruling below striking down that sec-

tion as unconstitutional.

be expended by other persons or organizations for their

henefit, violate the rights of one or more of the plaintiffs

under the First or Ninth Amendment or the Due Proc-

ess Clause of the Fifth Amendment.

4. Whether any statutory provision for the public

financing of political conventions or campaigns for

nomination or election to the Presidency or Vice Pres-

idency, or the particular provisions for public finane-

ing in the challenged statutes, violates the rights of

one or more of the plaintiffs under the First or Ninth

Amendment, the Due Process Clause of the Fifth

Amendment, or Article I, Section 8, clause 1, of the

Constitution of the United States.

STATUTES INVOLVED

The statutes involved are the Federal Election Cam-

paign Act of 1971, P.L. 92-225, 86 Stat. 3, 2 U.S.C.

(Supp. IIL) 431 et seq.; Subtitle H of the Internal

Revenue Code (Chapters 95 and 96, also known re-

spectively as the Presidential Election Campaign

Fund Act and the Presidential Primary Matching

Payment Account Act), P.L. 92-178, 85 Stat. 562, as

amended, 26 U.S.C. (Supp. If1) 9001 et seq.; and the

Federal Election Campaign Act Amendments of 1974,

P.L. 93-443, 88 Stat. 1263. The full text of those

statutes (together with other related provisions not at

issue in these proceedings) is reproduced in a gov-

ernment pamphlet entitled “Federal Election Cam-

paign Laws,’’ which is reprinted in Vol. IIT of the

joint appendix.’

i We note one obvious misprint in the pamphlet: in the fourth

line of 26 U.S.C. 9004(a) (2)(B), the word “received” should

be substituted for “required” (p. 64).

STATEMENT

A. THE CHALLENGED LEGISLATION

Putting aside provisions concerning the enforce-

ment and interpetive rule-making powers of the Fed-

eral Election Commission, the legislation in suit has

four principal features: (1) it requires recordkeeping

and disclosure of campaign contributions and expendi-

tures; (2) it limits the size of contributions from in-

dividuals and groups; (3) it places ceilings on expend-

itures by, or for the benefit of, candidates for elective

federal office; and (4) it provides public financing for

Presidential campaigns. We describe each of these as-

pects briefly, subject to further elaboration of certain

points in the Argument.

1. RECORDKEEPING AND DISCLOSURE

The initial requirement is that political committees

supporting candidates for federal office record, with

the name of the donor, every contribution received in

excess of $10 and every expenditure made, regardless

of amount. 2 U.S.C. 432(¢) ; see, also, 2 U.S.C. 482(b).

Additionally, periodic reports must be filed, directly

or indirectly with the Commission, which, among other

things, disclose the source of every contribution ex-

ceeding $100 and the recipient and purpose of every

expenditure over the same amount. 2 U.S.C. 432(f)

(2)-(3), 434(a)-(e). That obligation is imposed on

individuals as well as committees. 2 U.S.C. 434(e).

The last pre-election reports must be complete as of

two weeks before the election and must be filed not

later than 10 days before the event. 2 U.S.C. 434(a) (1)

(A) (i). But any last-minute contribution of $1,000 or

more must be reported within 48 hours. 2 U.S.C. 434

(a)(1). Finally, such reports are promptly made

available for public inspection and copying. 2 U.S.C.

38 (a) (4).

2, LIMITATIONS ON CONTRIBUTIONS

Contributions are broadly defined to include any

eift or loan of money or anything else of value. 18

U.S.C. 591(e). But volunteered personal services are

not included (18 U.S.C. 591(e)(5(A)); nor are cer-

tain advantages volunteered by a supporter up to a

value of $500. 18 U.S.C. 591(e)(5)(B)-(D). The

amount of contributions is limited as follows:

(a) A multi-candidate political committee

that satisfies certain conditions may contribute

up to $5,000 to any single candidate in any given

primary or election; there is, however, no limit

on the number of candidates who may receive

such a contribution from the committee and

therefore no total ceiling on the contributions

of such a committee. 18 U.S.C. 608(b) (2); see

also, 18 U.S.C. 608(b) (5).

(b) Other political committees or groups are

limited to $1,000 in contributions per election

(or primary) with respect to any particular

candidate; but, again, there is no overall limit

on contributions. 18 U.S.C. 608(b) (1).

$1,000 per election (or primary) to any particu-

lar candidate (ibid.); they are, moreover, re-

stricted to an aggregate limit of $25,000 with

respect to any election period. 18 U.S.C. 608

(b) (3).

3. EXPENDITURE CEILINGS

The new law imposes limitations on spending in

political campaigns. First and foremost, there are

ceilings on what the candidate himself (or his princi-

pal canipaign committee or other authorized repre-

sentative) may spend. These are:

(a) In the case of a candidate for the Presi-

dency, $10 million in the primary and $20 mil-

lion in the general election campaign. 18 U.S.C.

608(c)(1)(A)-(B).

(b) In the case of a candidate for the

Senate, or for the House of Representatives

in a state which is entitled to only one Repre-

sentative, the greater of $100,000 or 8 cents

per voting age resident at the primary and

the greater of $150,000 or 12 cents per voting

age resident at the general election. 18 U.S.C.

608(¢)(1)(C)-(D).

House of Representatives, $70,000 at the pri-

mary and the same amount at the general elec-

tion. 18 U.S.C. 608(¢)(1)(E).

These ceilings are subject to upward adjustment on

two bases. First, up to 20 per cent, the cost of collect-

ing contributions, is exempted from the expenditure

limits. 18 U.S.C. 591(f) (4) (1). Second, the ceilings

themselves are increased each year to reflect the in-

creased costs of living. 18 U.S.C. 608(d).

There are restrictions on what a candidate may

expend from his personal or family funds: $50,000

for a Presidential candidate; $35,000 for a Sena-

torial candidate or House candidate in a single Rep-

595-404—75——_2

resentative State; $25,000 for all other House candi-

dates. 18 U.S.C. 608(a).

Ceilings also apply with respect to the expendi-

tures of individuals or groups acting independently

and national or State political party committees in

support of a candidate—none of which is counted

against his allowance. 18 U.S.C. 608(e )-(f). For

individuals and groups, the ceiling is $1,000 per can-

didate per election, with no overall limit. 18 U.S.C.

608(e). For political party committees, the limits

are:

(a) For a Presidential candidate, 2 cents

multiplied by the voting age population of the

country. 18 U.S.C. 608(f) (2).

(b) For a candidate for the Senate, or for

the House in a single Representative State, the

greater of $20,000 or 2 cents per voting age

resident of the State. 18 U.S.C. 608(f) (3) (A).

18 U.S.C. 608(f) (3) (B).

Finally, a ceiling is imposed on party expenditures

with respect to Presidential nominating conventions.

26 U.S.C. 9008(d). The limit is $2 million for a

‘major party” (one whose candidate received 25 per-

cent or more of the votes cast at the previous Presi-

dential election, 26 U.S.C. 9002(6)). 26 U.S.C. 9008

(b)(1) and (d)(1). For a “minor party” (one whose

candidate received between 5 and 25 percent of the

votes cast at the last election, 26 U.S.C. 9002(7)),

the limit is such portion of $2 million as the votes

received by that party’s candidate at the previous

election bear to the average votes received by the

major party candidates at the same previous election.

26 U.S.C. 9008(b) (2) and (d)(2). In “extraordinary

and unforeseen circumstances,’’ however, the Federal

Election Commission is authorized to increase these

ceilings. 26 U.S.C. 9008(d) (3).

4. PUBLIC FINANCING OF PRESIDENTIAL ELECTIONS

The legislation provides that taxpayers may desig-

nate $1 of their taxes to be contributed to the Presi-

dential Election Campaign Fund. 26 U.S.C. 6096.

Three accounts are established within the Fund, one

for Presidential nominating conventions (26 U.S.C.

9008(a)), one to finance the general election cam-

paign of eligible candidates (26 U.S.C. 9006), and

one out of which matching payments are made to

eligible candidates during the Presidential primaries

(26 U.S.C. 9037(g)). Provision is made for an equi-

table distribution of moneys should the Fund be in-

sufficient to satisfy all claims. 26 U.S.C. 9006(d),

9007(b). In all cases, the subsidy must actually be

spent and does not increase the applicable contribu-

tions and expenditure ceilings. 26 U.S.C. 9003 (b)-(c),

9034(b), 9038(b).

Briefly, the scheme is as follows:

(a) Any person who seeks nomination as the

Presidential candidate of a political party who

has received private contributions exceeding

$5,000 (counting only the first $250 of each con-

tribution) in each of 20 States is eligible for

matching payments to defray his “primary”

campaign expenses. 26 U.S.C. 9033(b). Pay-

ments from the Fund match only a maxinuun of

$250 from any private contributor. 26 U.S.C.

9034(a). The total subsidy to any candidate

may not exceed $5 million. 26 U.S.C. 9034(b).

(b) The national committee of a_ political

party whose candidate has received at least »

percent of the votes cast at the previous Presi-

dential election is entitled to public funds to

defray the expenses of its Presidential nominat-

ing convention, up to the total spending ccil-

ings already noted, supra. 26 U.S.C. 9008(h)-

(c).

(ec) Every candidate of a political party who

has qualified for the Presidential ballot in 10

States and who, at the current election or

the previous election, or whose party at the

previous election, has received 5 percent of the

total vote cast, is entitled to public moneys

toward his general election campaign expenses.

26 U.S.C. 9002(2)(B), 9004(a).

With respect to the general election, the amount

of the payment, subject to the availability of sufficient

moneys in the Fund, is $20 million for a major party

candidate and such portion thereof for any other eligi-

ble candidate as the votes he or his predecessor re-

ceived represents when measured against the average

votes for the major party candidates. 26 U.S.C. 9004

(a)(1)-(2). Minor and new party candidates eligi-

ble for a grant on the basis of past performance are

entitled to a further payment if they achieve a higher

vote in the current election. 26 U.S.C. 9004(a) (3).

These payments, like those to candidates eligible only

on the basis of current performance, are necessarily

made after the election.

B. THE PROCEEDINGS BELOW

These proceedings were begun in the district court

on January 2, 1975. The plaintiffs are a United States

Senator (James L. Buckley), a former Senator and

announced candidate for the Presidency (Eugene J.

McCarthy), a Member of the House of Representa-

tives (William A. Steiger), a substantial contributor

to candidates for federal elective office (Stewart

Rawlings Mott), Senator McCarthy’s campaign com-

mittee (Committee for a Constitutional Presidency—

McCarthy °76), three minor political parties (the Con-

servative Party of the State of New York, the Mis-

sissippl Republican Party, and the Libertarian

Party), one chapter of a national civil liberties orga-

nization (New York Civil Liberties Union, Inc.), two

political action organizations (American Conservative

Union and Conservative Victory Fund), and one pub-

lication (Human Events, Ine.). All sought to enjoin

the implementation of the legislation in suit as uncon-

stitutional. J.S. App. 1508-1509.

Initially, the district judge certified the case to the

court of appeals, as required by 2 U.S.C. 437h. J.S.

App. 1509-1510, However, on April 14, the court of

appeals, sitting en banc, remanded the matter to the

district court with instructions to develop a record

and particularize the constitutional questions pre-

sented, J.S. App. 1510, 1587. On remand, the district

judge received and adopted certain proposed findings

submitted by the parties. J.S. App. 1588. These are

referred to hereinafter as “Findings I, { —,” or

“Findings IT, { —.” J. App. 1-698. There were, in

addition, a number of depositions and affidavits,

which the district court summarized, ‘‘Findings ITI.”

J. App. 699-753. Finally, the court certified 28 consti-

tutional questions. J. App. 754-760. By memorandum

and order of May 19, the case was returned to the

court of appeals. J. App. 1.

Pursuant to the order of the court of appeals, a

three-judge district court was convened (consisting

of District Judge Corcoran and two circuit judges).

That court and the court of appeals en bane, sitting

together, received briefs and heard oral argument. On

August 15, 1975, both courts rendered judgments (J.S.

App. 1582-1586; J.S. App. No. 75-437, la-5a), sup-

ported by a lengthy per curiam opinion of the court

of appeals (J.S. App. 1505-1593), which the district

court adopted in relevant part (J.S. App. No. 75-

437, 1a). In effect, both courts rejected the challenges

to the legislation, except with respect to 2 U.S.C. 437a,

which requires disclosure by certain organizations

which expend funds or do acts directed to the public

for the purpose of influencing the election or advo-

cating election or defeat of candidates, which was de-

clared unconstitutional and its enforcement enjoined.

Several questions relating to the composition and pow-

ers of the Federal Election Commission were left

undecided as ‘‘not presently ripe for adjudication”

(J.S. App. 1572).’

*Chief Judge Bazelon dissented only from the majority de-

cision upholding the disclosure requirements as applied to minor

parties. J.S. App. 1593-1597. Judge Tamm, joined by Judge

None of the defendants or intervening defendants

having appealed from the ruling invalidating 2 U.S.C.

437a, the case is now before this Court on the plain-

tiffs’ appeal from the judgments sustaining the leg-

islation in all other respects.

ARGUMENT

INTRODUCTION AND SUMMARY

1. Several preliminary remarks are appropriate in

this unusual case. Appellants’ lengthy brief challenges

on innumerable grounds the constitutionality of vir-

tually every provision of the Federal Election Cam-

paign Act Amendments. In order to keep our submis-

sion within reasonable length, we have focused upon

the major issues and have dealt only briefly or not at

all with many of appellants’ minor points which we

deem insubstantial.

To a considerable extent, appellants’ arguments are

directed to the wisdom of the legislation rather than

its constitutionality. Again and again they contend

that the statute will not accomplish the objectives that

Congress sought to achieve, and that other methods of

Wilkey, would have invalidated the provisions establishing

ceilings On contributions and expenditures as well as those pro-

viding for public financing of Presidential elections; his opin-

ion also condemns the method of appointment of the Federal

Election Commission. J.S. App. 1598-1609. Judge MacKinnon,

while otherwise joining in the majority’s decision, would have

invalidated several provisions relating to the powers and com-

position of the Commission, most of which the majority of

the court of appeals deemed not ripe for adjudication. J.S.

App. 1609-1623.

dealing with the problem of excessive campaign spend-

ing would be preferable. A recurring theme through-

out their brief is that disclosure statutes would be

more appropriate than the present limitations upon

contributions and expenditures, the requirements for

record-keeping and disclosure, and the public financ-

ing of Presidential elections.

For example, appellants state (Br. 126-127) that

“disclosure of large contributions with a potential for

influence * * * rather than the restriction of political

communication, is the remedy that should be relied

upon in a democratic nation which trusts its voters.”

They also state that ‘‘[t]he best solution’’ to the prob-

lem of contributions “is disclosure of large contribu-

tions” (Br. 144) and that “appellants believe that nar-

rowly drawn disclosure requirements are the proper

solution to virtually all the evils Congress sought to

remedy by passing the challenged statutes” (Br.

171).

Appellants’ brief thus in large measure consists of

policy arguments why Congress should not have en-

acted this legislation. Many of the arguments have

considerable support in the writings of political com-

mentators and experts on government, and presum-

ably they were vigorously and effectively made to

Congress when this legislation was under considera-

tion. Congress, however, found the arguments uncon-

vineing, and instead adopted the procedures and tech-

niques contained in the Federal Election Campaign

Act Amendments. The constitutionality of those

Amendments is the sole question before the Court,

and their validity is not undermined by the fact that

there is a substantial body of opinion which believes

that Congress should have utilized other methods of

dealing with the problem.

The claim is that the legislation is unconstitutional

on its face. Many of the specific challenges, however,

are based upon speculation about the effects of the

statute as applied to various situations which have not

securred and may not arise. Although the implication

of First Amendment rights may justify examination

of the facial validity of legislation which allegedly has

a chilling effect upon the exercise of those rights, not

every claim of facial invalidity need be resolved mere-

ly because it is made within the rubric of protecting

First Amendment rights. ‘‘The delicate power of pro-

nouncing an Act of Congress unconstitutional is not to

be exercised with reference to hypothetical cases thus

imagined”’ (United States v. Raines, 362 U.S. 17, 22).

As the court of appeals correctly ruled in this case

and as we argue in this brief, many of appellants’

attacks upon the constitutionality of the Federal Elec-

tion Campaign Act are essentially premature. Since

it is impossible at this time to predict how the statute

will operate in numerous respects when it is actually

applied to the nominating and electoral processes, a

large part of appellants’ constitutional attacks on the

legislation is not now meet for judicial resolution.

2. With these introductory comments, we turn to a

very abbreviated summary of our submission. It would

unduly burden an already long brief to attempt more.

Our discussion begins (Point I, infra, pp. 17-37)

with a consideration of the objectives which underlay

the legislation. We identify three: (1) reducing elec-

toral corruption, in the form of undue influence by

financial supporters on candidates; (2) partially re-

storing publie confidence in representative govern-

ment by allaying popular suspicions that large mon-

eyed interests control too many elected officials; and,

finally, (3) increasing democracy in federal elections

hy widening the meaningful participation of ordinary

citizens in electoral campaigns. We conclude that each

of these ends is legitimate, indeed compelling. And

we submit that they are furthered by the several fea-

tures of the campaign reform statutes: strict record-

keeping and disclosure requirements; limits on money

contributions to candidates; ceilings on campaign ex-

peditures, whether made directly by the candidate and

his agents or indirectly by others for his benefit; and

optional public financing of Presidential primaries,

conventions and general elections.

We next examine (Point II, infra, pp. 37-69) the

First Amendment objections interposed against the

legislation. We focus primarily on the two issues that,

in our view, are the major First Amendment ques-

tions presented: (1) whether the disclosure require-

ments impermissibly inhibit free association, and (2)

whether the expenditure ceilings “cut off” free speech

in violation of the Amendment. After full examina-

tion of the relevant precedents, we conclude that

the impact of the legislation on the exercise of these

rights is minimal and that, at all events, the impor-

oe 2 ete ee

tance of the governmental objectives (including the

promotion of First Amendment values) outweighs any

incidental adverse effect on free association and politi-

cal speech.

Finally (Point III, infra, pp. 69-83), we address

the claim that the new law discriminates against chal-

lengers and the candidates of minor and new parties.

We consider first the effect of the contribution and

expenditure ceilings and then the public financing

scheme for Presidential elections. In both cases, we

show that the attack is speculative in the absence of

actual experience under the new provisions. Although

the challenged legislation will not eliminate all the

present advantages enjoyed by incumbents and by the

candidates of established major parties, its probable

effect will be to reduce, rather than enhance, those

disparities. Accordingly, we conclude that the charge

of discrimination is without foundation.

THE LEGISLATION IS RESPONSIVE TO LEGITIMATE AND

COMPELLING GOVERNMENTAL CONCERNS

The threshold question whenever legislation is

challenged on constitutional grounds is always

whether, in the words of Chief Justice Marshall, “the

end [is] legitimate’’ and the “means * * * are appro-

priate * * * [and] plainly adapted to that end.”’

McCulloch v. Maryland, 4 Wheat. 316, 421. We turn

first, therefore, to the congressional objectives and

the mechanisms selected to implement them—leaving

for later consideration the objection that the means

“are * * * prohibited.”’ Ibid. While we do not now

address the First Amendment claims, our discussion

of the legitimacy of the congressional objectives and

the appropriateness of the means selected must take

into account that the legislation significantly affects

First Amendment interests; we accordingly show that

the legislation is responsive to a “compelling’’ govern-

mental interest. See United States v. O’Brien, 391

U.S. 367, 376-377.

A. LEGITIMACY OF THE OBJECTIVES

The challenged federal election campaign laws were

intended to serve at least three objectives: (1) to les-

sen the danger of money corruption in electoral cam-

paigns; (2) to restore public confidence in representa-

tive government; and (3) to democratize elections by

diminishing the power of wealthy interests and en-

couraging wider citizen participation. Each of these

goals is a proper predicate for congressional action

and any one is sufficient to justify the legislation. We

consider them seriatim.

1. Money corruption of candidates and elected officials

The principal, and the most vocalized, objective of

the legislation was to remove, or diminish, the risk

that certain individuals or groups will “buy” or play

an inordinate role in the election of selected candi-

dates for federal office and that, once elected, these

officials will be corrupted by a tie with large campaign

contributions.

a. That congressionzl power exists to combat such

an evil is not debatable... As long ago as Ex parte Yar-

brough, 110 U.S. 651, 687, the Court expressly recog-

nized authority to deal with “the free use of money in

elections,” and that dictum was confirmed in Bur-

roughs and Cannon v. United States, 290 U.S. 534,

sustaining the constitutionality of the Federal Cor-

rupt Practices Act of 1925 as applied to Presidential

elections. See, also, Smiley v. Holm, 285 U.S. 355, 366-

367; Roudebush v. Hartke, 405 U.S. 15, 24-25. Whether

the power is “implied” or “inherent” in the con-

stitutional scheme, or derives frem Article I, Sec-

tion 4, of the Constitution or from the Necessary and

Proper Clause of the Same Article (Section 8, clause

18), may be unclear. Compare Ex parte Yarbrough,

supra, 110 U.S. at 658, and Burroughs and Cannon v.

United States, supra, 290 U.S. at 545, with Smiley v.

Holm, supra, 285 U.S. at 366-367, and United States v.

Classic, 313 U.S. 299, 314-321. And see Oregon v.

Mitchell, 400 U.S. 112, 119-124 (Opinion of Black,

J.). But there is no doubt that Congress may legislate

to this end.

Nor can it be disputed that the goal of freeing elec-

tions from the corrupting influence of money is not

only a legitimate subject of legislation, but a com-

pelling, indeed, a vital governmental concern. The im-

portance of voting, the ‘‘fundamental political right,

hecause preservative of all rights” (Yick Wo v. Hop-

kins, 118 U.S. 356, 370), has been too often restated by

this Court to require elaboration here. See, e.g., Wes-

berry v. Sanders, 376 U.S. 1, 17; Reynolds v. Sims,

377 U.S. 533, 562; Williams v. Rhodes, 393 U.S. 23, 31;

Kramer v. Union School District, 395 U.S. 621, 626;

Lubin v. Panish, 415 U.S. 709, 714. So has the corol-

lary, that there is a compelling governmental interest

in keeping elections free from the corrupting influ-

ence of “big money.” Ex parte Yarbrough, supra;

Smiley v. Holm, supra; United States vy. Auto Work-

ers, 302 U.S. 567, 570-589.

b. So much is, we assume, unchallenged. But, say

the appellants, however legitimate it might be (First

Amendment objections aside) for Congress to address

such an evil if it were real, there is no present danger

of money corruption in federal elections, and, even

if there were, the legislation is not appropriate to deal

with it.

The assertion that the corrupting influence of

wealthy interests is not a real threat to the electoral

process and representative government insults the in-

telligence, and the integrity, of successive Congresses

who for three quarters of a century have been

wrestling with the problem. That history, which in-

cludes statutes enacted in 1907 (34 Stat. 864), 1910

(36 Stat. 822), 1911 (37 Stat. 25), 1925 (43 Stat.

1070), 1940 (54 Stat. 767), 1943 (57 Stat. 163, 167)

and 1947 (61 Stat. 136, 159), is fully recited in the

opinion below (J.S. App. 1511-1513, 1589-1593) and

in United States vy. Auto Workers, supra, 352 U.S.

at 570-583. See, also, United States y. C.I.0., 335 U.S.

106, 113-115; Pipefitters v. United States, 407 U.S.

385, 402-412. What is revealed is a continuing legis-

lative concern with “the corroding effect of money

employed in elections by aggregated power.” United

States v. Auto Workers, supra, 352 U.S. at 582. The

Federal Election Campaign Act of 1971 and the 1974

Amendments challenged here represent merely the

culmination of that long effort.

Against this background and the ample legislative

history recounted in the opinion below and in Auto

Workers, supra, it would be pointless to indulge in

a debate over what informed the congressional mind

when it enacted the statutes in suit. It is hardly sur-

prising that the record is not replete with confessions

of corrupt influence. There is, however, quite enough

to require acceptance of the legislative judgment that,

absent regulation, there would be a real risk that large

contributions would corrupt both the electoral process

and some of our elected officials. See, e.g., H.R. Rep.

No. 93-1239, 93d Cong., 2d Sess. 3 (1974) ; 8S. Rep. No.

93-689, 93d Cong., 2d Sess. 4 (1974); Findings I,

"{ 105, 108, 110-127, 146, 156-165; J. App. 147, 148-

156, 203, 253-255. See, also, Findings I, {1 101-103;

J. App. 54-146.

2. Public confidence in elected government

Appellants correctly note (Br. 63) that congres-

sional speakers often expressed a concern about public

suspicion of the improper influence of “big money,”

rather than actual corruption. What is demonstrated,

however, is no more than that this was an additional

consideration behind the enactment. And that is en-

tirely natural. From the beginning, statutory restric-

tions on the unlimited use of money in political cam-

paigns have responded, in part, to public suspicions

and a concern to avoid the appearance of evil. Thus,

this Court described the 1907 law banning most cor-

porate political contributions as ultimately provoked

by ‘‘popular feeling that aggregated capital unduly

influenced politics, an influence not stopping short of

corruption.”” United States v. Auto Workers, supra,

352 U.S. at 570. Surely, no one doubts that the elec-

torate of today shares those views. See Findings [,

209, 214-253, 257.

Nor is there anything improper in legislating to re-

store public confidence in elected government. On the

contrary, that is a wholly legitimate objective, and,

indeed, a critical one in times of deep public suspicion

and apathy grounded in the citizens’ belief that

‘their’? representatives are often “captives’’ of

wealthy special interests. If authority is needed to

support so self-evident a proposition, we cite Civil

Service Commission Vv. Letter Carriers, 413 U.S. 548,

565, expressly invoking congressional concern for ap-

pearances in support of the Hatch Act ban on active

electioneering by government employees:

There is another consideration in this judg-

ment: it is not only important that the Govern-

ment and its employees in fact avoid practicing

political justice, but it is also critical that they

appear to the public to be avoiding it, if con-

fidence in the system of representative Govern-

ment is not to be eroded to a disastrous extent.

3. Move democratic elections

Congress was also attempting, by limiting the in-

fluence of wealthy supporters, placing a ceiling on ex-

penditures and providing public funds, to democratize

federal elections. Fears of corruption aside, the ob-

jective was to lessen the disproportionate advantage,

the distorting effect, of wealthy special interest groups,

and to increase opportunities for meaningful partici-

pation by ordinary citizens, as voters, supporters

and candidates. Appellants, it seems, both question

the propriety of such a goal and doubt whether the

legislation will accomplish it.

a. Assuming the congressional objective was not to

‘‘freeze” the status quo, but, rather, to open up fed-

eral elections to wider participation, is that a legiti-

mate goal? The question would seem to answer itself.

Indeed, First Amendment objections aside {see Point

II, infra), what can be wrong under our constitutional

system with an attempt to assure that access to fed-

eral elective office is made available to a greater num-

ber and the influence of supporters and contributors

is made more equal? The consistent jurisprudence of

the Court has approved that trend, expressly con-

demning restrictive rules for political participation

that discriminate against the poor. Lubin v. Panish,

supra; Bullock v. Carter, 405 U.S. 134; Harper v.

Virginia Bd. of Elections, 383 U.S. 663. See, also,

Cipriano Vv. City of Houma, 395 U.S. 701; Phoeniz v.

Kolodziejski, 399 U.S. 204; Police Jury of Vermillion

v. Herbet, 404 U.S. 807.

595-040-—75—-—-3

To be sure, as in most things, enlarging the oppor-

tunities of the many diminishes the prerogatives of

the few. But, in a constitutional system involving the

egalitarian principle of “one person, one vote” (Gray Vv.

Sanders, 372 U.S. 368, 381; Wesberry v. Sanders, supra,

376 U.S. at 7-8, 18: Reynolds vy. Sims, supra, 377 U.S.

at 561-568), that is no objection, so long as no one is

excluded from participation. The inflated voice of

large contributors, the head-start of wealthy candi-

dates, the entrenched position of the major political

parties, are not vested rights which enjoy constitu-

tional immunity from legislative efforts to open the

political arena more widely. One might as well argue

that it was unconstitutional to deprive those who

satisfied property or literacy qualifications for voting

of their monopoly when the Constitution itself did

not mandate it. Cf. Oregon v. Mitchell, supra.

At one time it would have been said that there ts

a difference between withdrawing an “artificial’’ pre-

rogative or advantage which the state itself has

conferred and interfering with the “natural’’ advan-

tage that wealth carries. But that argument has bec!

foreclosed at least since the 300th volume of the

Court’s Reports. See, e.g., West Coast Hotel Co. v.

Parvish, 300 U.S. 3879; United States v. Darby, 312

U.S. 100; Ferguson v. Skrupa, 372 U.S. 726. To

paraphrase Mr. Justice Holmes (Lochner v. New

York, 198 U.S. 45, 75), the Constitution does hot

enact the “laissez faire” philosophy that exalts “‘rug-

eed individualism’? and the “free market’’ over

every other value and forbids all governmental inter-

ference to redress gross imbalance or to protect the

consumer against deceit. If it were so, the antitrust

laws, the pure food and drug laws, the minimum wave

laws, the social security laws, the fair employncut

Jaws, and a myriad of other regulatory statutes, state

and federal, not to mention the progressive income

tax, would be invalid.

It will be said that cases dealing with economic

regulation have nothing to do with our subject-matter.

But that is, at best, only a half-truth. One of the

major concerns of the present law is the influence of

undue economic power upon the electoral processes.

It is not irrelevant that the Court’s recitation of the

history of restrictions on political contributions hy

ageregated wealth in United States y. Auto Workers,

supra, 352 U.S, at 570, begins with the antitrust laws

and the progressive income tax. There are, to be sure,

First Amendment inhibitions here. But, as we shall

argue in Point IT, infra, the Amendment does not

preclude government action to deal with the problem

that large contributors may be able to monopolize

or grossly distort the political process, even absent

any danger of actual corruption.

Nor is this a radical new idea. Two decades aco,

this Court noted, with apparent approval, that the

first federal law restricting campaign contributions

(the Act of 1907) was aimed “not merely to prevent

the subversion of the integrity of the electoral proc-

ess’? but that its “underlying philosophy was to sis-

tain the active, alert responsibility of the individual

citizen in a democracy for the wise conduct of

government.’’ United States v. Auto Workers, supra,

352 U.S. at 575. See, also, id. at 570. Even the staunch-

est guardians of the First Amendment on this Court

have recognized that it may be ‘‘an evil for organized

eroups to have unrestricted freedom to make expendi-

tures for directly and openly publicizing their political

views and information supporting them”; such unre-

stricted freedom is “subject to some curtailment, in

the interest of preventing grossly unbalanced presen-

tations.” United States v. C.I.O., supra, 335 U.S. at

145, 146 (Rutledge, J., concurring). More recently,

Mr. Chief Justice Warren, Mr. Justice Black and

Mr. Justice Douglas have said that ‘*[i]f Congress is

of the opinion that large contributions by labor unions

to candidates for office and to political parties have

had an undue influence upon the conduct of elections,

it ean prohibit such contributions.” United States v.

Auto Workers, supra, 352 U.S. at 598, n. 2 (Douglas,

J., dissenting).

The need for regulatory action to ensure that fed-

eral elections are not unduly influenced by wealthy in-

terests has increased with the years. With the shift

from old-fashioned face-to-face electioneering to radio

and television appearances, the extended duration of

campaigns, the massively increased size of political

organizations, and the spiralling costs of all ingredi-

ents of the campaign process, the importance of finan-

cial support has multiplied and with it the power of

wealthy interests. See Findings I, {1 12, 88, 89, 93-95,

G8, 100; J. App. 9-10, 49-51, 53, 54. Those realities of

today fully justify governmental intervention to pre-

serve democracy in national elections.

B. THE APPROPRIATENESS OF THE MEANS

What has been said sufficiently demonstrates that

there were compelling needs that Congress might ad-

dress. It remains to show that the challenged legis-

lation was in fact tailored to meet those needs.

One ean object that, however prevalent is the un-

due influence—or the appearance of undue influence—

of big money in federal elections and however sincere

the congressional intention to deal with that prob-

lem and to democratize the electoral process, the pres-

ent legislation is unresponsive to the stated objectives.

Indeed, after denying the existence of the evil, ap-

pellants say as much.

The claim is extravagant. Of course, one can argue

about the particular dollar figures selected to trigger

recordkeeping or disclosure requirements or which

establish ceilings on contributions or expenditures,

and about the specific formulae used to determine

eligibility for public funds. But, absent a compelling

demonstration that the mechanisms chosen are gross-

ly disproportionate to the problems addressed, it is

no part of the judicial function to second-guess the

legislative judgment.

In Burroughs and Cannon vy. United States, supra,

290 U.S. at 547-548, the Court said:

The power of Congress to protect the election

of President and Vice President from cor-

ruption being clear, the choice of means to that

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end presents a question primarily addressed to

the judgment of Congress. If it can be seen that

the means adopted are really calculated to at-

tain the end, the degree of their necessity, tlie

extent to which they conduce to the end, the

closeness of the relationship between the means

adopted and the end to be attained, are matters

for congressional determination alone.

It may be that the test is somewhat stricter today,

especially in the face of a First Amendment challenge.

But no decision of this Court remotely suggests that

constitutionality depends on a perfect scheme or a

choice of what judges believe would be the best for-

mula. On the contrary, in sustaining the Hatch Act,

the Court only recently rejected the argument that

Congress should have selected a different remedy in

these words (Civil Service Commission vy. Letter Car-

riers, supra, 413 U.S. at 567):

Perhaps Congress at some time will come to

a different view of the realities of political life

and Government service; but that is its current

view of the matter, and we are not now in any

position to dispute it.

Congress was not writing on a clean slate. As we

have noted, for almost three-quarters of a century

there had been piecemeal efforts to deal with the prob-

lem of the undue influence of money in federal elec-

tions. But, as the court of appeals remarked (J.S.

App. 1512), “[t]he achievements of the statutes were

overmatched by what proved to be wholesale circum-

vention.” “‘{T]he failure of piecemeal regulations to

preserve the integrity of federal elections’’ (J.S. App.

1593)—a fact hardly debatable in view of what the

court below characterized as “[t]he excesses revealed

by this record”’ (J.S8. App. 1581)—prompted Congress

to act more vigorously and more comprehensively.

That is, of course, a relevant consideration in assess-

ing the appropriateness of the means now selected,

each feature of which must be seen as an integral

part of a comprehensive attempt, after long forbear-

ance, to correct a perceived blight on our democratic

processes. Cf. South Carolina v. Katzenbach, 383

U.S. 301, 308-315, 328, 337.

With this preface, we turn to the legislation to de-

scribe how its several features are calculated to con-

tribute to the announced goals—reserving for later

discussion specific constitutional objections to partic-

ular provisions.

1. Recordkeeping and disclosure requirements

The virtue of public disclosure in this area is too

obvious te require extended discussion. Indeed, ap-

pellants do not challenge the requirement that cam-

paign expenditures be disclosed (see Br. 170). They

do, however, object to compulsory disclosure of all

contributions over $100. Yet, that has been a require-

ment of federal law since 1910. See United States v.

Auto Workers, supra, 352 U.S. at 575-576, The im-

portance of such a rule to deter corrupt givers and

discourage receivers from being corrupted by contri-

butions is self-evident. As this Court concluded with

respect to the lke requirement in the Federal Cor-

rupt Practices Act of 1925, “[t]he verity of this con-

clusion reasonably cannot be denied.’’ Burroughs and

Cannon v. United States, supra, 290 U.S. at 548.

Nor is that all. Fears of an improper tie between

contributor and candidate aside, disclosure serves an

informing function: the knowledge of who is backing

which candidate aids the voter in appraising the con-

testants and determining what each really stands for.

a. The suggestion that only successful candidates

be required to disclose their contributions (Appel-

lants’ Br. n. 8, p. 182) ignores the importance of the

‘bought’? or ‘‘stalking horse” candidate who, though

unsuccessful, may deflect votes from others whom the

electorate might prefer if they knew the facts. Wisely,

the law requires disclosure in primaries as well as

general elections, and before the voting day. See 2

U.S.C. 434(a)(1)(A) (i); 2 U.S.C. 434(e). Drawing

on the analogy the Court itself made in United States

v. Harriss, 347 U.S. 612, 625, it is important “to main-

tain the integrity of a basic governmental process”

that the voters know, with respect to every candidate,

“who is putting up the money, and how much,”’ so that

they may better evaluate him.

These considerations apply to all candidates—suc-

cessful or unsuccessful—including those that are en-

tirely legitimate. As the court of appeals noted, com-

menting on the “angels’’ who often support minor

party candidates, ‘‘the voting population has an in-

terest in knowing the composition of the angels’ wings

and what makes them fly.”’ J.S. App. 1545, n. 114.

Not surprisingly, besides the Congress, the legisla-

tures of 34 States have also reached that conclusion

and require disclosure of campaign contributions. See

Developments in the Law—Elections, 88 Harv. L. Rev.

1111, 1241-1242 (1975).

b. Appellants’ further objection that the $100 limit

for undisclosed contributions is unrealistically low

(Br. 170, 174-175, 184-189) invites impermissible

speculation. See United States vy. Finance Commit-

tee to Re-elect President, 507 F. 2d 1194, 1200

(C.A.D.C.). It is the same ceiling selected by Congress

in the 1925 Federal Corrupt Practices Act* and the

Federal Election Campaign Act of 1971 and equal

to or greater than that adopted by some 20 States.

See Developments in the Law—Elections, supra, 88

Hary. L. Rev. at 1241-1242, A $100 contribution may

well be sufficient to “attract the attention of the can-

didate.’’ Stoner v. Fortson, 379 F. Supp. 704, 713

(N.D. Ga.). At all events, the $100 level serves to

uncover the common situation in which many people

associated with a single enterprise, or occupation,

pool their contributions to make an impact.

c. Like considerations underlie the requirement that

contributions exceeding $10 be recorded with the name

of the donor. If this were not done, it would be pos-

sible to evade the disclosure requirement—and, indeed,

the maximum contribution limitation—by successively

contributing many small unidentified amounts.

*In the 1910 statute reporting was required of contributions

which aggregated $50 per year. See United States vy. Auto Work-

ers, supra, 352 U.S. at 575-576.

2. Ceiling on contributions

Despite their challenge to disclosure of any or most

contributions, appellants argue (Br. 117-118, 126-

127) that disclosure is the only appropriate remedy

for corruption through large donations. That is, how-

ever, an overly optimistic, if not naive, notion. It

contradicts the consistent congressional judgment

since the turn of the century that disclosure, alone,

cannot deter the improper influence of aggregated

wealth. Beginning with the outright ban on corporate

campaign contributions in 1907, there have been re-

peated attempts to limit the size of contributions or

the total expenditure of candidates, or both. Unfortu-

nately, prior statutes contained so many loopholes

that they had little effect. See Findings I, {/] 130, 131,

137, 139-145; J. App. 156-158, 190-203. And so, in

the light of recent experience, Congress determined

to deal with the problem more comprehensively.

a. Setting a ceiling on contributions from any sin-

gle source is the most direct way of preventing the

visk of electoral corruption by big money. The ob-

jection cannot be that such an approach is ineffective:

the argument must be that the weapon is unnecessarily

lethal. But is it?

If the object is to reduce the risk that candidates,

successful and unsuccessful, will be too closely tied—

or appear to be—to large moneyed interests, how else

is that goal to be accomplished? Certainly, the pros-

pect of exposure will often deter the corrupt trans-

action and exposure after the fact may appreciably

weaken a corrupt link. As we have seen, those are

good reasons for disclosure provisions. But experience

convinced Congress that publicity is not a cure-all.

Too often, revelations of undue influence by rich spon-

sors are simply shrugged off or produce a cynical in-

difference in a citizenry that despairs of reforming

its politicians. What is more, reporting laws are not

always obeyed. The risk of corruption is manifestly

reduced when both parties, contributor and recipient,

are subject to eriminal penalty for exceeding the

limitation. .

There is, of course, a more radical alternative:

exclusive public financing of political campaigns for

federal office. Indeed, the optional scheme of the pres-

ent law, as we shall see, serves that end by freeing

Presidential candidates from total dependence on pri-

vate contributions. But, unless public financing is com-

bined with a prohibition, or a limitation, on private

financing of campaigns, it cannot eliminate the temp-

tation of wealthy interests to finance candidates who

they believe will be sympathetic to their interests and

perhaps provide reciprocal favors. Appellants cannot

have it both ways: so long as private contributions to-

ward the election of federal officials are permitted, it

is necessary to restrict the amount from any single

source.

b. What is more, ceilings on contributions impor-

tantly serve the distinct objective of widening active

participation in the electoral process. They operate in

several ways to make elections more democratic. The

candidate, no longer able to rely on a few wealthy sup-

porters, must now invite the ordinary citizen to take

an active part in the campaign. The citizen, now as-

sured that every candidate is anxious for his help, will

be more inclined to take a real interest, selecting more

carefully and contributing more freely, in the knowl-

edge that his support matters. And, finally, eliminat-

ing the huge advantage of those who could depend on

an established list of large contributors will allow

new challengers to enter the lists with a fair chance of

successfully appealing to the electorate at large.

ce. Once the principle of limiting the size of cam-

paign contributions is conceded, the task is to devise

rules which are fair and effective. That is the special

achievement of the present legislation, which plugged

most of the notorious loopholes of prior law. See Find-

ings I, £137; J. App. 190. Now a ceiling of $1,000 is

placed on individual contributions to, or earmarked

for, a single candidate, 18 U.S.C. 608(b) (1), (4) (A)

and (6), and an overall contribution limit of $25,000

is imposed with respect to any election period. 18

U.S.C. 608(b)(3). These provisions, combined with

the $5,000 ceiling on contributions to a particular

candidate by subsidiary political committees, 18 U.S.C.

608(b)(2), and the broad definition of what consti-

tutes a contribution, 18 U.S.C. 591(e), are carefully

designed to prevent, so far as possible, any undue fi-

nancial link between candidate and contributors. Each

of these ceilings complements the others and each is

necessary to implement the objective.

3. Ceiling on expenditures

a. One provision of the new law, the $1,000 limita-

tion on independent expenditures in support of a

particular candidate, 18 U.S.C. 608(e), has attracted

special criticism. Yet, it is a necessary ceiling if the

restriction on large contributions is not to be evaded.

Indeed, but for such a provision an individual or

organization could massively support a favored can-

didate by spending directly on his behalf, rather

than giving a money contribution to the candidate for

him to spend. Cf. United States v. C.I.0O., supra, 335

U.S. at 115; United States vy. Auto Workers, supra,

352 U.S. at 579-587. And see Findings I, © 136; J.

App. 190.

A different approach to the problem was attempted

in the Federal Election Campaign Act of 1971. See

American Civil Liberties Union v. Jennings, 366 F,

Supp. 1041 (D. D.C.), vacated as moot sub nom. Staats

v. American Civil Liberties Union, 422 U.S. 1030.

The new law has avoided the charge of “censorship”’

levelled at the repealed provision. Publications and

broadcasters are no longer required to obtain the

candidate's agreement to have the cost of a “commer-

cial” counted against his expenditure limit: under

present law, the sponsor’s expenditure, though limited,

is subject to no veto and the candidate is not penalized.

One can readily appreciate the congressional pref-

erence for the present solution. But some restriction

on independent campaign expenditures in support of a

particular candidate is necessary if the limitations

on campaign contributions are to work.

b. The rationale of the other ceilings on campaign

expenditures is perhaps less self-evident. It is arguable

that the risk of undue influence by aggregated wealth

is fully met by ceilings on contributions and inde-

pendent expenditures. The fact, however, is that when

campaign spending is unlimited, the pressures for

filling the void with large donations becomes irre-

sistible.

The expenditure ceilings importantly contribute

to lessening the opportunities and the temptations for

money corruption. That has been the congressional

judgment since 1911.

c. What is more, limiting the amount each candidate

may spend tends to curb the exaggerated role of

money in our elections. It also is likely to encourage

participation as candidates by many who in the past

remained inactive on the ground that, inevitably, they

could not compete against the established fund-raiser.

The limit placed on a candidate’s expenditure from

his personal or family funds (18 U.S.C. 608(a)) con-

tributes to the same end, by decreasing the advantage

a wealthy candidate would otherwise enjoy—especially

under a regime of strict contribution ceilings—and

thereby widening the opportunities for successful can-

didacy. The combined effect of these provisions also

must be substantially to democratize federal elections.

4. Public financing of Presidential elections

Many of the foregoing considerations support the

provision of public funds—within the ceilings already

established—in Presidential elections. We need not

. ———=_

belabor the point that the availability of public money

lessens the candidate’s dependence on contributions

from wealthy groups and individuals. To be sure,

federal funds are not given to a candidate who does

not prove himself a serious contender. We later dis-

cuss the claim that the scheme is discriminatory. But,

for present purposes, it is enough that the public

funding provisions obviously further the objective

of diminishing the danger of corruption through

dependence on large campaign contributions, and,

equaliy important, they widen the opportunities of

ordinary citizens to participate actively in electoral

campaigns, both as candidates and as supporters.

THE LEGISLATION DOES NOT IMPERMISSIBLY TRENCH ON

FIRST AMENDMENT RIGHTS

We have shown that the challenged legislation re-

sponds to legitimate and compelling governmental con-

cerns and that it implements powers reserved to the

national Congress by the Constitution. That would be

the end of the inquiry were it not for the claim that

the new law impermissibly discriminates (see Point

III, infra) and trenches on First Amendment rights.

We now discuss the latter objection.

A. THE DISCLOSURE REQUIREMENTS

We have already discussed the compelling objec-

tives served by disclosure of political contributions

and expenditures, and explained why it is necessary

to fix the disclosure limit low and to insist that con-

tributions be revealed by all candidates before the

voting occurs (supra, pp. 29-31). We now discuss

the arguments that the disclosure requirements vio-

late the First Amendment.

While the arguments overlap, it will be useful to

distinguish two propositions: (1) the claim that indi-

viduals have an unconditional right to anonymous

speech, regardless of any association with others for

a common purpose; and (2) the dishaket claim of

associational privacy, independent of any connection

with speaking or writing. The first argument pri-

marily rests on Talley v. California, 362 U.S. 60;

the second largely relics on the N.A.A.C.P. cases,

N.A.A.C.P. vy. Alabama, 357 U.S. 449; Bates v. Little

Rock, 361 U.S. 516; Shelton v. Tucker, 364 U.S. 479;

Louisiana v. N.A.A.C.P., 366 U.S. 293; N.A.A.C-.P.

v. Button, 371 U.S. 415; Gibson v. Florida Legislative

Comm., 372 U.S. 539. We deal with the claims in that

order.

1. The right to speak or write anonymously

a. It is far from clear how the right to speak freely

came to include a right to speak anonymously. As Mr.

Justice Clark has noted, “[t]he Constitution says

nothing about freedom of anonymous speech.”’ Talley

v. California, supra, 362 U.S. at 70 (dissenting opin-

ion). Presumably, the only rationale for recognizing

such a right is a concern that requiring disclosure of

the true identity of the speaker or writer may expose

him to reprisal and thereby deter him from expressing

his views. But one may well question whether that

consideration justifies First Amendment insulation for

all speech which is unlabelled or mislabelled as to

source, regardless of any showing that the author is

truly in danger of retaliation. As Mr. Justice Black

himself wrote in support of a requirement that for-

eign agents disclose their political propaganda activi-

ties (Viereck v. United States, 318 U.S. 236, 251 (dis-

senting opinion) ):

Resting on the fundamental constitutional

principle that our people, adequately informed,

may be trusted to distinguish between the true

and the false, the bill is intended to label infor-

mation of foreign origin so that hearers and

readers may not be deceived by the belief that

the information comes from a disinterested

source. Such legislation implements rather than

detracts from the prized freedoms guaranteed

by the First Amendment.

That has been the predominant view: absent very

unusual circumstances, a mere requirement that the

speaker or sponsor be identified has been sustained,

whether its purpose was to inform the readers of a

newspaper (Lewis Publishing Co. v. Morgan, 229 U.S.

288), local governmental authorities (New York ex

rel. Bryant v. Zimmerman, 278 U.S. 63), the voters

(Buroughs and Cannon v. United States, supra), the

Members of Congress (United States v. Harriss,

supra), or the public at large (Communist Party v.

Control Board, 367 U.S. 1). See, also, Rabinowitz y.

Kennedy, 376 U.S. 605. That principle is the predicate

of many State and federal statutes (see Communist

595—-040—75——-4

Party v. Control Board, supra, 367 U.S. at 97-101),

including provisions in the United States Code (18

U.S.C, 612 and 47 U.S.C. 317) and in the laws of 43

States (see Developments in the Law—Electtons,

supra, 88 Harv. L. Rev. at 1286-1287, and Talley v.

California, supra, 362 U.S. at 70, n. 2 (Clark, J., dis-

senting)) requiring disclosure of the sponsors of

political campaign literature.

b. Against all this, appellants invoke (Br. 190-191)

this Court’s decision in Talley v. California, supra,

striking down a city ordinance that banned the dis-

tribution of anonymous handbills as violating the

First Amendment. Because that ruling, at first blush,

seems at odds with all that went before, we must con-

sider it with special care.

Some passages of the Talley opinion do, indeed,

suggest an absolute and wholly individual right of

anonymous speech. But that is not the actual holding

of the case, which involved an ordinance prohibiting

“all handbills under all circumstances anywhere that

do not have the names and addresses printed on them.”

362 U.S. at 64. Indeed, the Court’s opinion expressly

reserved the question of “the validity of an ordinance

jumited to prevent [fraud, false advertising and libel]

or any other supposed evils.” Ibid. See, also, 362 U.S.

at 66-67 (Harlan, J., concurring). And, in citing

Talley in later cases, the Court has characterized it

as condemning a regulation of speech that was “over-

broad” in that it swept unnecessarily widely to deal

with the particular problem addressed. See, e.g., Shel-

ton v. Tucker, supra, 364 U.S. at 489.

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In sum, what Talley establishes is this, and nothing

more: that the First Amendment protects anonymous

writings against governmental insistence on disclosure

when the purpose is insufficiently important or the

means are not carefully tailored to achieve only legiti-

mate purposes.

At all events, the proposition that anonymity is

an absolute right is foreclosed by later decisions of

the Court. We need only cite Communist Party v.

Control Board, supra, and Branzburg v. Hayes, 408

U.S. 665. See, also, United States v. Nixon, 418 U.S.

683; Procunier v. Martinez, 416 U.S. 396, 413-414.

Nor is there any basis in the Court’s cases for a claim

that anonymous political speech in particular enjoys

First Amendment immunity. On the contrary, the

Court has been reluctant to apply Talley so as to con-

demn laws which require the sponsors of campaign

literature to reveal themselves. See Golden v. Zwick-

ler, 394 U.S. 103; cf. Hal v. Printing Industries of the

Gulf Coast, No. 74-456, decided June 30, 1975. That

hesitation presumably reflects recognition of the un-

usually compelling interest in assuring that voters

know who is backing which candidate—so that they

may better appraise the candidate and not be misled

by a false assumption as to the interests he represents.

c. But the present case does not even involve a re-

quirement that all who speak or write in support of

a particular candidate identify themselves. Because

the focus of the challenged legislation is the undue

influence of money, disciosure is confined to paid com-

mercials. What is more, the Federal Election Cam-

paign Act imposes no immediate identification re-

quirement with respect to spoken or written adver-

tisements. No doubt, in some instances it will be pos-

sible to determine from the reports on expenditures

filed after the fact what group or individual sponsored

a particular commercial. But, even then, all that can

be discovered is the identity of the payor, normally

the candidate himself or his campaign committee.

This is a much lesser interference with anonymous

speech than a contemporaneous labelling requirement.

To be sure, disclosure of the identity of contributors

to a particular candidate connects them indirectly

with his campaign speeches and commercials. But

the link is far too tenuous to justify any claim that

the contributor’s speech is involved.

The upshot is that the challenged jaw only remotely

and incidentally affects anonymous speech. Its

objective is not to prevent pseudenymous political

writing. Indeed, nothing in the new legislation would

require the authors of a modern series of Federalist

Papers to reveal their identities. What is aimed at is

secret money, not anonymous writing. The law is

narrowly drawn to accomplish that objective. In those

circumstances, it is not a sound objection that, una-

voidably, there is an incidental, albeit very limited,

effect on anonymity.

2. The right of associational privacy

Appellants also charge (Br. 171-184) that the

challenged legislation, by requiring disclosure of polit-

ical contributions and expenditures, impinges on the

A NED SONS ee

- EO ee TE

right of free association. The First Amendment pro-

tects political association as an aspect of freedom of

assembly—whether or not speech, spoken or written,

is directly involved. See Cousins v. Wigoda, 419 U.S.

477, 487-488, and cases there cited. Not only flat pro-

hibitions on such association, but also ‘“‘significant

encroachment[s],” implicate the First Amendment and

will not be sustained if there is “a less drastic way

of satisfying * * * legitimate [governmental] inter-

ests.”’ Kusper vy. Pontikes, 414 U.S. 51, 58-59. Our

submission is that the present law has no such “‘signifi-

cant”’ effect and that, if it does, compelling needs justify

that incidental consequence.

a. The Court has never suggested that secret mem-

bership in any organization is always an absolute con-

stitutional right. On the contrary, in Communist

Party vy. Control Board, supra, compelled disclosure

of membership was upheld, and no Member of the

Court in dissent objected to the requirement that the

Party register and list its members if membership

were neither stigmatized nor made potentially crim-

inal. See 367: U.S. at 136-137 (Warren, C.J., dis-

senting), 138 (Black, J., dissenting), 190 (Douglas,

J., dissenting), 191 (Brennan, J., joined by Warren,

C.J., dissenting). Nor has the Court ever held that

compelled disclosure of membership is always, or usu-

ally, an “encroachment’’ on freedom of association

which calls for special justification. Indeed, the deci-

sions suggest the opposite: that the First Amendment

shields secret membership only when there is a real

danger of exposure to reprisal. See N.A.A.C.P. y. Ala-

bama, supra, 357 U.S. at 462-463; Bates vy. Little

Rock, supra, 361 U.S. at 523-524; N.A.A.C.P. v.

Button, supra, 371 U.S. at 485-436; Gibson vy. Florida

Legislative Comm., supra, 372 U.S. at 556-557.

b. But, even assuming that all restrictions on pri-

vacy of association implicate the First Amendment,

sufficiently compelling governmental interests will

vindicate some intrusions. The test of constitutionality

must take into account both the importance of the

legislative objective and the degree of the invasion

of privacy, bearing in mind that only the least in-

trusion necessary to accomplish a legitimate end is

permissible. We consider the challenged legislation in

that light.

We have already noted the important congressional

concerns Which underlie the disclosure requirements

of the Federal Election Campaign Act Amendments

and the care taken to select mechanisms that would

be effective without sweeping too broadly. See supra,

pp. 29-31, 41-42. It remains only to emphasize how

little these provisions trench on associational rights.

First, anonymous membership in groups, even pure-

ly political associations, is not prevented. The chial-

lenged law requires no one to say (or have said about

him) whether he belongs to the Republican Party, the

Democratic Party, the Conservative Party, the Pro-

gressive Party, or indeed, the Communist Party. Com-

pare Sweezy v. New Hampshire, 354 U.S. 234. Indeed,

so long as membership involves no greater annual

contribution than $100, it may remain secret, what-

ever the organization. That is because the Campaign

Act is concerned with money, not membership.

But it does not follow that by contributing more

than $100 to an organization, the donor exposes his

membership. The law reaches only contributions

‘‘made for the purpose of influencing the nomina-

tion for election, or election, of any person to Federal

office * * *.”? 2 U.S.C. 431(e)(1)(A). Obviously ex-

cluded are gifts, dues or subscriptions paid to non-

political associations, as well as to non-partisan polit-

ical organizations. What is more, contributions to less

neutral political groups need be disclosed only if they

are earmarked (expressly or impliedly) for one or

more specific candidates. The challenged statute ¢x-

poses only contributions which the giver intends shall

be used for a particular candidate or slate of candi-

dates.’

A disclosure requirement so confined has only a

marginal effect on membership in existing organiza-

tions and associations. While it is arguable that those

who support a particular candidate are thereby jour

ing in a new “association,” that is a strained concept.

Especially when contributions are limited as to

amount and the number of givers is increased, it is

almost as unreal to characterize all contributors, for

the most part unknown to each other and in no way

organized together, as an “asociation’’ as it would

®The Commission has rendered an interim ruling that con-

tributions to an established political party which intends to

field candidates in the upcoming election are subject to the

limitations, even though the identity of those candidates is

not yet determined. FEC AO 1975-4, in 40 Fed. Reg. 29793-29794.

so view those who eventually vote for the candidate.

Nor is the relationship between most contributors

and the candidate, although more meaningful than the

abstract link among contributors themselves, the kind

of association traditionally embraced by the constitu-

tional concept of ‘‘free association.’’ Although the can-

didate will have his close campaign associates who

may also be contributors, their identity is no secret

and their direct association with the candidate will

not be affected by a disclosure requirement. So, also,

large contributions may create a close tie, corrupt or

otherwise, between giver and receiver; but that special

relationship, based on financial dependence, is now

eliminated. The bulk of supporters, on the other hand,

will have no real contact with their candidate, and he

himself will not even know their names. It does not

deprecate the practical importance of mass support, or

the national interest in more democratic electoral c¢am-

paigns, to recognize that the “association’’ between the

individual supporter and the candidate is very distant

kin to the right of assembly which the First Amend-

ment protects.

ce. But, even viewing the supporter’s choice of a

particular candidate as in some sense an exercise of

the right of free association, the challenged law cre-

ates only the mildest deterrent, if any, to that exer-

cise. In the climate of today, in which extreme views

are regularly uttered, without restraint, it is doubt-

ful that many are significantly discouraged from con-

tributing because the gift may become known. What

— ee ee ee

is more, disclosure is not contemporaneous with the

gift, and it will be a rare case where an individual

contribution of $1,000 or less will be deemed worth re-

porting by the press.

There is no substantial showing that the limited

disclosure requirements of the challenged statute will

deter any speech or any association. The court of ap-

peals correctly characterized the evidence on this score

as “scant,” ‘“‘skimpy” and “thin.’’ J.S. App. 1546 and

n. 115. The truth of the matter is that the disclosure

provisions of the new law touch only tangentially

upon contributors’ rights of free speech or free asso-

ciation. At all events, the intrusion is so slight that it

provides no basis for invalidating an important part

of the regulatory scheme.

B. CEILINGS ON EXPENDITURES

Appellants contend (Br. 79, 107) that the expendi-

ture ceilings are particularly offensive to the First

Amendment because they directly and intentionally

“eut off’? speech, ‘‘flatly prohibiting’ further speech

after the allowance is spent. We examine that charge,

first in its most extreme form: that any spending

limit is unconstitutional. We then consider the par-

ticular expenditure ceilings the Act imposes.

1. The principle of spending ceilings

a. We cannot too often stress that the legislation

in suit is concerned with money, not speech. That is

not the same thing, even today. Many campaign ex-

penditures are unrelated to speech and there are still

ways of communicating that do not involve spending.

But, more important, what is regulated is one of the

means for communication, not speech itself. There is

no censorship whatever: the candidate and his sup-

porters may say what they like. What is more, they

remain entirely free to choose their medium of com-

munication, The law does not limit the total number

of hours a candidate can speak or the number of

words that can be written on his behalf. The evil

aimed at is not prolixity, but the undue influence and

the gross disparities resulting from unlimited spend-

ing in electoral campaigns.

b. So saying, we do not blink the fact that the effect

of spending limits—at least limits low enough to have

a bite—must be to restrict some political speech. But

is that enough to invalidate the law? Let us examine

a few hypothetical examples.

Consider a regulation that restricts speakers in a

public park to a single “Speaker’s Corner’’ and then,

in the interest of fair access, limits any single speaker

to one two-hour speech a week. The soap-box orator

who has more to say is literally ‘‘cut-off’’? and, we

may assume, has no practical alternative forum. Is

such a reasonable rule good only for Hyde Park in

London but not for Lafayette Park in Washington?

And what of a regulation that bans door-to-door can-

Vassing after midnight or electioneering at the polls?

Is it permissible to close courthouses and government

offices to political campaigning ?

The answer has long since been given. As the Court

recently summarized its prior holdings, ‘‘reasonable

‘time, place and manner’ regulations may be neces-

sary to further significant governmental interests,

and are permitted.” Grayned vy. City of Rockford,

408 U.S. 104, 115 and eases cited at n. 30. Of course,

speech cannot be wholly suppressed in the guise of

“regulation.” But, almost necessarily, every restric-

tion of time and place in a finite world imposes a

quantitative limitation, it “cuts off’? some speech.

Given a sufficient governmental interest, such a neu-

tral (as to the content of speech) restriction does not

violate the First Amendment.

C, Appellants repeatedly cite (i.e., Br. 47, 53, 81, 83,

199, 119, 141) Mills v. Alabama, 384 U.S. 214, which

invalidated a state law as applied to a newspaper

editor who was prevented from publishing on election

day an editorial urging voters to cast their ballots in

a particular way. As with Talley v. California, supra,

the opinion perhaps sweeps more broadly than the

holding and we must examine the case with some care,

Mills can be read as saying that ‘‘no test of reason-

ableness’’ can justify a curb on press freedom, 384

U.S. at 220. No such ruling was necessary to the result,

since the Court also found a “fatal flaw”’ in the justi-

fication tendered by the State (cbid.): a sufficient

ground for reversal was that the statute was “wholly

ineffective’? in accomplishing its alleged objective.

In any event, the statement in Mills does not con-

trol here. The Federal Election Campaign Act—unlike

the Alabama statute—in no way restricts the freedom

of “a newspaper editor to * * * urge people to vote

one way or another in a publicly held election.” Ibid.

As we have already noted (supra, pp. 47-48), our case

has nothing to do with freedom of the press, which is

left wholly unfettered.

Under New York Times Co. v. Sullivan, 376 U.S.

254, 266, and Bigelow v. Virginia, No. 73-1309, de-

cided June 16, 1975, slip op., pp. 8-16, a paid edi-

torial or, indeed, any advertisement containing in-

formation of “public interest’? published in a news-

paper enjoys the same protection as the editor’s own

views printed on the editorial page. But nothing in

Sullivan or Bigelow, or in any other case, suggests.

that a restriction imposed on the sponsor of an ad-

vertisement, before publication, must be judged by the

same standard that governs attempted regulation of

the editor’s freedom to print what he chooses. On the

contrary, the Court has consistently viewed the press

as occupying a particularly protected position under

the First Amendment. See, e.g., Miami Herald Pub-

lishing Co. v. Tornillo, 418 U.S. 241; New York Times

Co. v. United States, 403 U.S. 713; Pittsburgh Press

Co. v. Human Rel. Comm’n, 413 U.S. 376, 381-382,

391. Indeed, Madison’s original draft of the First

Amendment singled out freedom of the press as alone

“inviolable.” See New York Times Co. v. United

States, supra, 403 U.S. at 716 (Black, J., concurring).

The sponsor of a paid political message (whether

candidate or independent supporter) can be denied

all access to the medium of his choice, not only by

private editors, Columbia Broadcasting v. Democratic

Comm., 412 U.S. 94; Miami Herald Publishing Co. v.

Tornillo, supra, but, at least in some circumstances, by

government itself, Lehman v. City of Shaker Heights,

418 U.S. 298; 47 U.S.C. (Supp. IIT) 399(a). Cf. Nat.

Broadcasting Co. v. United States, 319 U.S. 190, 226-

227. Other would-be sponsors of a partisan political

message are wholly excluded by law from every public

— Civil Service Commission vy. Letter Carriers,

supra; Broadrick v. Oklahoma, 413 U.S. 601. Simi-

larly, although the press ordinarily cannot be stopped

from publishing information which prejudices a crimi-

nal trial, the “sources” of that information can be

enjoined from supplying it. Sheppard v. Maxwell, 384

U.S. 333, 359, 361-363. And it would seem that in

some circumstances even a United States Senator can

be enjoined from delivering material to a private pub-

lisher that the latter probably could not be prevented

from printing. Compare Gravel vy. United States, 408

U.S. 606, with New York Times Co. v. United States,

supra. See, also, Klcindienst v. Mandel, 408 U.S. 753.

The most recent, and the clearest, statement of the

principle appears in Bigelow v. Virginia, supra. In

condemning the application to a newspaper editor of a

State statute prohibiting the publication of an adver-

tisement encouraging abortion, the Court expressly

noted (slip op. at 18):

The strength of appellant’s interest was aug-

mented by the fact that the statute was applied

against him as publisher and editor of a news-

paper, not against the advertiser or a referral

agency or a practitioner. The prosecution thus

incurred more serious First Amendment over-

tones.

d. We have already discussed the important con-

cerns that underlie both the overall limitation on cam-

paign spending and the ceiling on “unauthorized” or

‘‘independent”’ expenditures in support of a particu-

lar candidate (supra, pp. 35-36). Those reasons, we

submit, are sufficient to support the indirect restraint

on speech which the spending limitations impose. Un-

like the situation in Sullivan and Bigelow, where the

applicability of the restriction on speech depended on

the content of the message being delivered, the Act’s

restrictions apply neutrally to all excessive campaign

expenditures (regardless of the particular message

they seek to support and whether that message is

critical or laudatory of any individual). No message

is prohibited beeause of its content; all persons are

free under the Act to say what they wish, within the

limits of the Act’s monetary ceilings. The Act’s re-

strictions thus are more akin to limitations on the

time, place, and manner of speech (already discussed )

or to the similarly neutral regulation applied under

the “fairness doctrine” to the broadcast media. See

Red Lion Broadcasting Co. v. Federal Communica-

lions Commission, 395 U.S. 367. With these general

considerations in mind, we now turn to examine the

particular limitations in the light of the First Aimend-

ment.

2. Overall limitations on candidate cx pendilures

Having shown that the First Amendment does not

bar all limitations on campaign spending, we now coti-

sider the overall limitations imposed on a candidate's

campaign expenditures (15 U.S.C. 608(¢)), the hmita-

tion on his personal contribution to that total (18

U.S.C. 608(a)), and the limitation on additional ex-

penditures on behalf of a candidate by official political

party committees (18 U.S.C. 608(f)). |

Each of these provisions represents an accommoda-

tion between two competing sets of considerations. On

the one hand, the ceilings serve the objective of reduc-

ing the undue influence of money in elections and pre-

venting the exaggerated advantage that great wealth—

whether of the candidate, his party or his supporters—

presently enjoys. On the other hand, they recognize

the importance of allowing as much freedom as pos-

sible within the boundaries of effective regulation and

respect the reality that political campaigns cost money

and that the ability to raise funds is, in an important

degree, a reflection of the candidate’s public appea!

(when individual and group contributions are severely

limited). We submit that in these provisions Congress

struck a reasonable and justifiable balance which tlic

courts should accept.

We do not claim that each of the ceilings is fixed at

the only defensible level. Indeed, experience may sue-

gest alteration of one limitation or another, or even an

entirely new formula. But the Constitution does not

require perfection at the very inception of an experi-

ment. It is enough, at this stage, to know that the law

does not intentionally discriminate (see Point III,

infra) and does not shackle the existing electoral

system.

We stress two aspects. The first is that the expendi-

ture limitations are deliberately devised to avoid de-

stroying the party system. That is accomplished by

allowing national and state committees to make ex-

penditures which are not counted against the candi-

date’s allowance. Of course, it was necessary to im-

pose a limit on those party expenditures in support of

a particular candidate, but the ceilings are not

niggardly.

The other significant feature of the system is the

ample allowance fixed for spending by the candi-

date (or his campaign committee). An important ain

of the ceilings is to curb the continuously upward

spiralling cost of ecampaigns—which, experience

teaches, is inevitable when the sky is the limit—and

the candidates’ consequent dependence on wealthy

interests and practical elimination of the financially-

disadvantaged candidate. But the fact is that, in the

most recent elections, the overwhelming majority of

candidates for the House of Representatives and

the Senate did not spend more than the amounts now

allowed. See Findings ITA, 1118-19, 28-29, 40-41,

47-48; J. App. 442-445, 445, 448-449, 450. Every in-

dication thus is that the present limits will cut off no

dehate.

3. The ceiling on independent expenditures

Given the twin premises that there must he an

overall ceiling on what a candidate may spend to win

election and that there must be a limit on what any

individual or group may contribute to that end, the

question Congress faced was how to avoid cireumven-

tion of these ccilings by those who decide to help the

candidate by directly spending on his behalf—whether

by sponsoring printed or broadeasted commercials or

otherwise.

The problem is a difficult one. There is a triple

dilemma: if the candidate is allowed to screen the

inaterial he deems worthwhile because the expenditure

consumes a portion of his allowance, independent

supporters are subjected to censorship; if, on the other

hand, the candidate has no veto and unauthorized

commercials are counted against his expenditure ceil-

ing, he may lose control of his own election campaign ;

and, finally, if independent expenditures are unlimited

and unaccounted, the spending and giving limitations

are seriously compromised,

There is no perfect solution. But, on balance, Con-

wress has chosen a realistic compromise which, while

effective, trenches least on First Amendment values.

The scheme embodied in 18 U.S.C. 608(e) allows, but

limits, “independent” or “unauthorized’’ expendi-

tures in support of a particular candidate, exempting

them from the candidate’s spending ceiling and from

his control. It thus avoids any issues of censorship

or of the candidate’s freedom to spend his allowance

as he chooses. The only question remaining is whether

the limitation on individual and group expenditures

itself involves an impermissible curtailment of speech.

The answer is negative. As we have seen (supra, p.

22), the problem of the “indirect” contribution has

plagued all prior legislation and rendered it largely

ineffective. Unless no effort is to be made to reduce

the undue influence of big money in federal elections,

there must be some limit on independent expenditures.

And, because those expenditures are not counted

against the candidate’s spending ceiling, that limit

must be low.

Of course, an allegation of necessity does not auto-

matically establish constitutionality. Such an argu-

ment, for instance, would probably not sustain a re-

striction on the news media’s own editorializing in

favor of a candidate and the present law accordingly

exempts that kind of support. But, as we have just

shown, the immunity of sponsors of paid commercials

is not the same. Here we deal with a very limited re-

triction that is covered by the principle, articulated

above (supra, p. 44), that a sufficiently compelling

need will vindicate a partial restraint on a would-be

sponsor’s desire to promote his candidate.

595-040-755

If the risk of improper pressures on governmental

employees and the “unseemliness” of their electioneer-

ing to maintain their employers in power is enough

wholly to disable several million citizens from active

participation in electoral campaigns—as does the

Hatch Act which this Court upheld in the Civil Serv-

ice Commission Vv. Letter Carriers, supra—a concern

for preserving the integrity of the political process

and opening it up meaningfully to more people is a

sufficient predicate for merely limiting the money any

citizen can spend on behalf of a particular candidate.

C. APPELLANTS’ OTHER FIRST AMENDMENT CHALLENGES

1. Preliminary comments

Two preliminary comments are in order.

a. This case does not involve the doctrine barring

prior restraints on speech. The legislation makes no

attempt to censor; it is entirely neutral about the con-

tent of political advocacy. The same rules apply whether

the candidate or the supporter is a Republican

or Democrat or Liberal or Conservative or Inde-

pendent or Communist; whether what is said or writ-

ten is polite or rude, patriotic or seditious, true or

false; whether the cause espoused is deemed healthy

or subversive. That the law authorizes injunctive re-

lief (2 U.S.C. 487g(a)(5) and (7) is therefore

irrelevant.

Literally, of course, any bar to speech enforceable

by injunction is a “prior restraint.’’ But that is not

the point of the ‘‘prior restraint” doctrine. It reflects

an abhorrence of censorship, an attempt to control con-

tent. Near v. Minnesota, 283 U.S. 713-719; Pitts-

burgh Press Co. v. Human Rel. Comm’n., supra,

413 U.S. at 389-390. The doctrine has no appli-

cation to a clear-cut prohibition or limitation un-

related to content. The challenged statute no more im-

poses a forbidden “prior restraint” than would a law

authorizing injunctions to enforce a ban on the sale

and distribution of newspapers on throughways or,

indeed, a rule fixing the total time for television com-

mercials on any given channel at two hours per day—

whatever other First Amendment objections might

prevail against such restrictions.

b. There is likewise no issue of press freedom here.

The legislation is at pains to avoid any restrictton

whatever, qualitative or quantitative, or temporal (see

Mills v. Alabama, supra), on what publishers and

broadcasters may say about election issues or candi-

dates. Expressly excluded from the definition of “ex-

penditure” is “any news story, commentary, or edi-

torial distributed through the facilities of any broad-

casting station, newspaper, magazine, or other period-

ical publication.”’ 2 U.S.C. 431(£)(4)(A); 18 U.S.C.

591(£) (4) (A). Nor is what such a publisher or broad-

caster writes or says treated as a ‘‘contribution,” how-

ever openly he supports a particular candidate. See

120 Cong. Rec. H10330 (daily ed., Oct. 10, 1974) ; H.R.

Rep. No. 93-1239, 93d Cong., 2d Sess. 4 (1974) ; opin-

ion below, J.S. App. 1536-1537. No obligation of re-

porting or disclosure is imposed on the press or the

electronic media.

It may be that publishers and broadcasters are in-

directly affected by the ceilings on political giving and

spending in that the total volume of paid political com-

mercials will decrease. But any such injury is too in-

substantial and remote to have constitutional signifi-

cance. In its impact on the press, this statute bears no

resemblance to the direct tax struck down in Grosjean

v. American Press Co., 297 U.S. 233, on the ground

that it had “the plain purpose of penalizing the pub-

lishers and curtailing the circulation of a selected

group of newspapers.” Id. at 251.

The constitutional guarantee of freedom of the

press does not merely condemn governmental action

that “takes money from the pockets’’ of publishers

and broadcasters, but exists for the benefit of the citi-

zenry. Id. at 250; New York Times Co. v. Sullivan,

supra, 376 U.S. at 266; Red Lion Broadcasting Co.

vy. Federal Communications Commission, 395 U.S, 367,

390. But the interest of viewers and listeners and

readers, “paramount” as it is, does not require news-

papers or broadcasters to accept any paid politica!

message. Columbia Broadcasting v. Democratic

Comm., supra; 47 U.S.C. 315(a) ; Miami Herald Pub-

lishing Co. v. Tornillo, supra. Indeed, so long as they

do not discriminate, even governmentally-owned or

assisted channels of communication are constitution-

ally free, at least in some circumstances, to ban all

political advertisements. 47 U.S.C. (Supp. I11) 399

(a); Lehman v. City of Shaker Heights, supra; and

see Columbia Broadcasting vy. Democratic Comm.,

supra, 412 U.S. at 121-132 and 146-147 (White, J.,

concurring). Nor does the First Amendment’s concern

for the widest debate prevent a flat ban on active

electioneering—including the sponsoring of commer-

cials—by several millions of government employees.

Civil Service Commission v. Letter Carriers, supra;

Broadrick v. Oklahoma, 413 U.S. 601. There is,

therefore, no valid basis for complaint that the pres-

ent legislation “deprives” the public of some political

speech.

Moreover, no real risk exists that any speech will

go uncommunicated. To be sure, 18 U.S.C. 608(e)

prevents any independent individual or group from

placing a full-page advertisement supporting a single

candidate in a major daily newspaper or sponsoring

more than a modest television commercial. See Find-

ings I, £165, 86; J. App. 32, 49. But the provision

does not bar the expression of that support in other

ways, nor does it affect the freedom of the candidate

or his campaign committee from using contributions

to this end.

Whatever the impact of Section 608(e) on the spon-

sor’s right of free speech (see supra, pp. 47-52), it

does not work any measurable abridgement of the pub-

lice’s interest in a free press. Given the “equal time”’

provision of the Communications Act, 47 U.S.C. 315,

the Fairness Doctrine (including the “personal attack”

and “editorial-reply’’ rules), and the complementary

Cullman doctrine, there is no reason to anticipate that

the challenged legislation will deprive the audience of

any point of view. See Columbia Broadcasting v.

Democratic Comm., supra, 412 U.S. at 122-125; Red

Lion Broadcasting Co. v. Federal Communications

Commission, supra, 395 U.S. at 386-395, On the con-

trary, the object is to encourage more voices to be

heard by subduing—but not suppressing—the dis-

proportionate influence of the wealthy few. Cf. Citi-

zen Publishing Co. v. United States, 394 U.S. 131,

139-140; Associated Press v. United States, 326 U.S.

1, 20. That result serves, rather than defeats, the

premise of press freedom.

2. Contribution ceilings and freedom of speech

Limitations on direct political contributions—as op-

posed to expenditures—do net violate the First

Amendment. For this proposition, we need say little

more than that it has been endorsed by Mr. Chief

Justice Warren, Mr. Justice Black and Mr. Justice

Douglas. As already noted, the three Justices, dis-

senting in United States vy. Auto Workers, supra, 352

U.S. at 593-598, joined in an opinion holding the

total ban on union expenditures for a political broad-

cast offensive to the First Amendment but expressly

stated that Congress “can prohibit * * * large con-

tributions by labor unions to candidates for office and

to political parties.’’ Jd. at 598, n. 2.

a. To conclude otherwise is to equate money and

speech or money and political association. This would

turn the decision in New York Times Co. v. Sullivan,

supra, on its head. That case held that paid political

expression remains protected speech notwithstanding

SL — IS | A Cs te we

that it is paid for: it did not remotely suggest that

the giving—or indeed the spending—of money for po-

litical purposes is itself a First Amendment activity.

Nor does any decision of this Court hold that the

mere pooling of financial contributions for political

purposes is protected “assembly” or “association”.

The focus of the First Amendment is on the right of

citizens to join together in body or mind, in speech

or action, for a common political cause; meeting and

membership are protected, not the mingling of money.

See N.A.A.C.P. v. Alabama, supra, 357 U.S. at 460;

Bates v. Little Rock, supra, 361 U.S. at 522-523;

N.A.A.C.P. vy. Button, supra, 371 U.S. at 430-431;

Kusper v. Pontikes, supra, 414 U.S. at 56-57.

So saying, we do not ignore that “[i]t usually costs

money to communicate an idea to a large audience,”’

United States vy. Auto Workers, supra, 352 U.S. at 594

(Douglas, J., dissenting), and that political parties

and groups cannot be effective without substantial

funds. But we must be wary of equating contemporary

“reality’’ with constitutional necessity. Cf. Felia

Frankfurter Reminisces 339-340 (Anchor 1962).

The present importance of money in federal elections

is not a constitutional imperative: there are ways of

diminishing that dependence and, to a modest extent,

the new law works in that direction.

Nevertheless, it would presumably offend the First

Amendment rights of free expression and free asso-

ciation to prohibit all spending by individuals and

groups for political purposes. But expenditures and

contributions must be distinguished. The nexus be-

tween expression and expenditures for political ‘‘com-

mercials” is closer than it is with respect to contribu-

tions, which may or may not be used for written or

spoken statements supporting the candidate and, at

best, will not directly finance the contributor’s own

message. If adequate public funds were made avail-

able on a non-discriminatory basis to candidates, polit-

ical parties and other political organizations, there

would be no constitutional inhibition to a complete

ban on direct political contributions from private

sources, The fact is that private contributions are

not essential to freedom of expression or freedom of

association.

b. At all events, merely restricting the amount of

contributions to, or earmarked for, specified political

candidates does not violate the First Amendment, The

challenged provisions do not inhibit the freedom of

citizens to form a political group or to join an already

existing party. Indeed, as long as the organization is

not the express agent of a single candidate, any in-

dividual remains free to contribute up to $25,000, and,

if the organization is not actively committed to any’

particular candidate, no limit applies to contributions

made by committees that do not go to individual can-

didates. There can be no claim that political associa-

tions are starved of necessary funds. Nor are they

rendered impotent. While qualifying political com-

mittees are limited to a $5,000 direct contribution to

any single candidate (18 U.S.C. 608(b)(2)), their

total contributions are unrestricted, and official party

committees may, in addition, spend substantial sums

on behalf of any candidate (18 U.S.C. 608(f) ).

The citizen also retains his individual voice, He re-

mains free meaningfully to give support, in his own

name, to one or more candidates. A contribution of

$1,000—-especially when no one can make a larger

one—is not derisory. He may, moreover, spend an-

other $1,000 per candidate (with no total limit) in

—— support of his choices (18 U.S.C. 608(e), discussed

Demi pp. 47-52), plus $500 in incidental expenses (18

U.S.C, 591(e) (5), 591(1) (4) ). Only relatively few will

he affected by these limits and even they are far from

silenced.

As we have seen (supra, pp. 23-27), one objective of

the new law is to encourage more citizens to become

politically active by assuring the less affluent that their

donations will not be superfluous or so relatively in-

significant as to go unnoticed. The legislation, far from

stifiing the expression of any point of view, or dis-

couraging political association, tends to open political

campaigns to every opinion and thereby serves the

central goal of the First Amendment.

3, Public financing and the First Amendment

I:xcept insofar as the claim of invidious discrimi-

nation against challengers and new or minor parties

(with which we deal in Point III, infra) rests on the

First Amendment as well as the Fifth, publie finane-

ing of federal election campaigns involves no First

Amendment violation. The suggestion that the scheme

impermissibly “involves” the government in the area

of political expression is without substance.

a. The dispositive fact is that the First Amend-

ment includes no “Establishment Clause’’ with re-

spect to speech or press or assembly. The “‘church-

and-state” analogy (Appellants’ Br. 146-150) is there-

fore inapt. Government may not censor speech, but

it may subsidize or build or operate or allocate the

means of communication—activities prohibited with

respect to religion. One need only consider the United

States Postal Service, the licensing and regulation

of commercial broadcasting, the substantial grants to

educational radio and television stations (47 U.S.C.

390-399), the expenditures made by State and Federal

governments to conduct elections, the preferential

postal rates (39 C.F.R. 132.2) and antitrust exemp-

tions (15 U.S.C. 1801-1804) for newspapers, the

comprehensive regulation of telephone and telegraph

operations and charges (47 U.S.C. 201-223), and the

establishment and maintenance of public libraries,

halls and parks,

To be sure, one can argue, as a matter of policy or

political philosophy, that it is “dangerous”? to make

federal elections dependent on public money, because

the government—presumably the incumbent Admin-

istration—will then be in a position, albeit illegally,

to manipulate the outcome. We could retort that it is

safer to place that power of the purse in govern-

mental hands than in the hands of aggregated private

wealth. But, constitutionally, those considerations are

irrelevant. In the eye of the Constitution, there being

on at 8 Oe we eee

no prohibition, it is enough that public funds are

appropriated for objectives that Congress (as we

have seen) has power to further.

b. Given the ends served by public financing of

Presidential elections, the necessary moneys can be

raised by taxes levied in the promotion of the “gen-

eral Welfare of the United States.” Const., Art. I, -

Section 8, clause 1; see United States v. Butler, 297

U.S. 1, 66. As this Court recently observed, “it is dif-

ficult to single out any [governmental function sup-

ported from general revenues] of a higher order than

the conduct of elections at all levels to bring forth

those persons desired by their fellow citizens to gov-

ern.” Bullock y. Carter, supra, 405 U.S. at 148-149.

Nor is government limited to providing election ma-

chinery and supervisory staff: it may directly subsi-

dize or reimburse candidates or their political parties.

American Party of Texas vy. White, 415 U.S. 767, 791-

794.

In our view, there could be no objection if the

moneys needed were directly appropriated from the

Treasury without express taxpayer approval, so long

as the funds are not committed to a partisan cause or

to favor a particular group of candidates. Compare

Machinists v. Street, 367 U.S. 740; Lathrop v. Dono-

hue, 367 U.S. 820. That some of those whose money is

used disapprove of all the beneficiaries is no sounder

an objection than that some taxpayers disapprove of

a particular government spending objective. But, at all

events, there can be no infirmity in a scheme that em-

ploys only funds voluntarily contributed for the pur-

pose.

Of course, there were alternative solutions. It was

suggested that the taxpayer be allowed to designate

the party or candidate he wished to have receive his

contribution. That scheme has obvious deficiencies,

however: it excludes any independent candidate who

hecomes known only after the tax returns are filed;

it freezes the subsidy of each beneficiary at an early

date in the campaign; it compels voters to choose he-

fore they have heard much of the debate, and, under

present practice, before the nominees of the major

parties have been chosen; and it unnecessarily reveals

to the government the citizen’s political preference.

Nor is the “voucher” system advocated by Senator

Metcalf (see Senator Metcalf’s amicus brief, pp. 46-

51, and Appellants’ brief, pp. 151-152, 163) without its

dangers. The potential for abuse, through coercive

pressures on voucher holders and ‘‘black market”

purchases at cut-rate prices, is evident enough. Again,

unless the citizen is to hold back his voucher contribu-

tion until it is too late to help his candidate much,

he will have committed himself without benefit of the

campaign discussion,

But, at all events, the existence of other possible

schemes does not invalidate the present congres-

sional choice. The Constitution does not mandate a

single solution: it only forbids some.

c. There is, in our view, no other First Amendment

question with respect to the public financing provi-

sions of the challenged legislation. The suggestion that

substituting public money for private contributions

will estrange the Presidential candidate from his sup-

porters, or the elected President from the citizenry at

large, misses the mark. Of course, dependence on

campaign donations, especially from moneyed inter-

ests, will end. But that is no loss. Nor is the link be-

tween the candidate and his audience severed: he must

still win votes to gain election.

d. Of course, public funds cannot be allocated in

a way that is intended to favor one candidate or polit-

ical party or disadvantage any political aspirant.

Government must be neutral. That concern has led

to many provisions of law inhibiting “interference”

by the government or its agents in political activity.

See, e.g., the Hatch Act, 5 U.S.C. 7524(a); 47 U.S.C.

326; 47 U.S.C. 398. The First Amendment would con-

demn any scheme that grossly discriminated on its

face (e.g., O’Brien Vv. Skinner, 414 U.S. 524), or which

invited such discrimination. See e.g., Shuttlesworth v.

Birmingham, 394 U.S. 147. Because the charge of

discrimination is in essence the same one advanced

under the equal protection principle embodied in the

Due Process Clause of the Fifth Amendment, we dis-

cuss it below (see Point III, infra).

4. Vagueness

Appellants contend (Br. 113-114, 213-215, 220-221)

that certain provisions of the Federal Election Cam-

paign Act Amendments are so imprecise or ambiguous

as to require their invalidation for ‘‘vagueness,” a

doctrine of special application when First Amendment

rights are implicated.

The answer is supplied by Civil Service Commis-

sion v. Letter Carriers, supra, 413 U.S. at 568-581.

There the Court was confronting the argument that

the Hatch Act prohibition on government employees

taking “an active part in political management or in

political campaigns’’ was void for vagueness. To be

sure, that broad generality was given more concrete

content by congressional adoption in 1940 of prior

Civil Service Commission rulings. But the Court rec-

ognized that, even so, it was necessary to evolve “a

more refined definition of what conduct would or

would not violate the statutory prohibition” and that

it was entirely proper for Congress to leave that task

to the Commission by a process that would continue

“down through the years.” Id. at 575. The Court also

noted that ‘“‘the Commission has established a proce-

dure by which an employee in doubt about the valid-

ity of a proposed course of conduct may seek and ob-

tain advice from the Commission and thereby remove

any doubt there may be as to the meaning of the law,

at least insofar as the Commission itself is concerned.”

Id. at 580, footnote omitted; see, also, Federal Trade

Commission v. Colgate-Palmolive Co., 380 U.S. 374,

394.

Those principles govern here. Congress expressly

directed the Federal Election Commission to resolve

ambiguities in the Campaign Act Amendments

through rules and regulations (2 U.S.C. 438(a) (10) )

Re ene en oe Se

and advisory opinions at the request of any federal

office holder, candidate or political committee (2

U.S.C. 437f). There is thus no serious risk that any

provision will remain unclear, except only insofar as

“‘there are limitations in the English language with

respect to being both specific and manageably brief.”’

Letter Carriers, supra, 413 U.S. at 578-579.

Nor is there any cause to fear that clarifying inter-

pretations will be so long delayed as to produce a sub-

stantial ‘‘chilling” of activity protected by the First

Amendment in the meantime. An affected party can

obtain a prompt ruling for his case by requesting an

advisory opinion. Indeed, many requests for such

opinions have already been submitted. See 40 Fed.

Reg. 26660-26666, 28044-28045, 28944-28945, 30258-

30259, and as of October 14, 1975, the Commission has

issued more than 20 of them. See 40 Fed. Reg. 29792--

29794, 31315-31217, 34084-34085, 36092-36094, 36242-

36243, 36746-36747, 40673-40675, 42838-42840, 44040),

45292-45293, 45295-45296, 47691.

Itl

THE LEGISLATION DOES NOT INVIDIOUSLY DISCRIMINATE

AGAINST CHALLENGERS OR CANDIDATES OF MINOR OR

NEW PARTIES

Appellants contend (Br. 94-104, 127-138, 152-169)

that the Federal Election Campaign Act Amendments

invidiously discriminate against challengers to incum-

bents and against candidates of minor or new parties.

The first answer is that the challenge is essentially

premature. So saying, we invoke no jurisdictional doce-

trines of “ripeness” or “prematurity.” We mean only

that, until an electoral campaign is held under the new

rules, no one really knows precisely what their prac-

tical impact will be. It is impossible to predict with

assurance who will be helped and who will be hurt.

Accordingly, we urge that the Court should proceed

cautiously in assessing the claim of discrimination.

Of course, it would be proper to entertain any claim

that the new rules will inevitably grossly prejudic

one group or another. But, to prove such a charge,

appellants carry a heavy burden. Since the subject-

matter is one with respect to which the Members of

Congress are peculiarly knowledgeable, it is difficult

to say that the law works gross injustice without

thereby imputing improper motives to its framers.

What, then, are the main complaints? We can sum-

marize them under two heads: (1) that the contribu-

tion, and especially the expenditure, ceilings grossly

favor incumbents and major party candidates, and

(2) that the public financing provisions for Presi-

dential primaries and elections grossly favor the major

party candidates.

A. THE CONTRIBUTION AND EXPENDITURE CEILINGS

By imposing contribution and expenditure limits,

the Federal Election Campaign Act Amendments are

said to discriminate against two groups: challengers

and minor party or independent candidates. Although

the situations often coincide, it is appropriate to treat

the claims separately. We first look at the effect of the

“e

new law insofar as it is alleged to entrench incum-

bents against primary challengers (usually major

party candidates), and then consider the position of

minor party and independent candidates.

1. Challengers

It is a well-known fact of American political life

that, in most cases, the incumbent seeking reelection

enjoys a substantial advantage over a new challenger.

There are many reasons: the incumbent is usually

the better known figure; he can claim the benefit of

experience in the particular office; he has a longer

opportunity to know his constituency and his con-

stituents; he is in a better position to “make” news

and thereby win free publicity; without serious check,

he has the services of a staff paid with public funds;

and, finally, he can use the franking privilege to com-

municate with his constituents during the campaign

(but see 2 U.S.C. 439b).

If one looks at the history of the Presidency, the

“momentum’’ of ineumbency seems almost insur-

mountable. In this century, no sitting President who

wanted it has ever failed to gain renomination by his

party and, with only two very special exceptions,”

he has won reelection as well. Congressmen and Sen-

1° President Taft was defeated in 1912 when a faction of his

party supported former President Roosevelt and Woodrow Wil-

son was elected with only 42 percent of the popular vote.

indings I, 75; J. App. 40. President Hoover was defeated

by Franklin Roosevelt in 1932, the depth of the worst depres-

sion in the Nation’s history. Findings I, § 85; J. App. 41.

595-040 —75——_8

ators are somewhat less secur they can be defeated

by age, scandal, apparent estrangement from their

constituents, or simply by an irresistibly charismatic

challenger. But the tradition remains that here, too,

the incumbent is usually returned to office. Thus, only

a total of 57 incumbents were defeated in the 1972

and 1974 elections. Findings ITA, {| 3-6; J. App. 269-

394.

In the light of these realities (so much stressed by

appellants, Br. 94-104, 127-129), one may wonder

whether the new federal election campaign statutes

ean do any harm. The charge, however, is that the

law aggravates the plight of challengers by prevent-

ing them, henceforth, from attempting to overcome

their disadvantage by receiving larger contributions

and spending more than incumbents. To impose the

same ceilings on both incumbent and challenger, it is

said, is to ensure that the former, with a big head

start, will prevail.

The argument has a superficial logic. But there is

a fundamental flaw: what is ignored is that, among

the advantages incumbents usually enjoy, is a sub-

stantially greater ability to raise campaign funds,

especially large contributions. Thus, if there were

no limit on the size of contributions, and no ceiling

on total expenditures, one would expect the threat-

ened incumbent to be able to win the fund-raising

contest and to outspend the challenger. Not surpris-

ingly, that is precisely what actual experience shows.

Thus, in the two most recent congressional elections

of 1972 and 1974, incumbents on average outspent

their major party opponents by nearly two to one

(Findings ITA, 1114, 24, 37, 45; J. App. 442, 444,

447-448, 449), and more than twice as many incum-

bents as challengers spent more than would be allowed

by present law. Findings ITA, {{ 18, 28, 40, 47; J.

App. 442-443, 445, 448, 450. It is true that of the 57

races in 1972 in which incumbents were defeated, they

were outspent in 34 instances. Findings IIA, {1 3-6,

20, 30, 42, 49; J. App. 269-394, 443, 445, 449, 450.

But in all but 9 cases the successful challenger did not

exceed the present spending limits. Findings ITA, {1

19, 20, 29, 30, 41, 42, 48, 49; J. App. 443, 445, 448-

449, 450. The upshot is that the expenditure ceilings

would apparently hurt incumbents as a class more

than challengers as a class.

Nor is there any indication that the contribution

ceilings now imposed will disadvantage challengers.

In the 1974 congressional elections in which mafor _ “7

party candidates challenged incumbents, a $1,000 lim-

itation on individual contributions would have yielded

for major party challengers almost exactly the same

percentage (just over one-half) of the funds raised

by incumbents, the latter losing substantially more

dollars. See Findings ITA, 11 55, 57-58. J. App. 452,

453. With respect to the most recent Presidential

election, the major party challengers, it seems, would

have been relatively much better off. See Findings

ITA, £74; J. App. 458.

The claim (Appellants’ Br. 129-138) that chal-

lengers, unlike incumbents, have a special need to

74 ,

raise ‘‘seed money” through large contributions is

simply unproven. No doubt some challengers have

received large donations at the start of a campaign,

as have incumbents. But there is no evidence that this

is necessary to a viable contest. Indeed, the experience

of Ramsey Clark, who successfully raised more than

$850,000 in contributions limited to $100 (see Find-

ines I, {{ 182, 185-186; J. App. 260, 261), sug-

gests that a $1,000 limit will not seriously prejudice

challengers.”

2. Minor party and independent candidates

The claim that the giving and spending limits im-

posed by the new law discriminate against minor

party and independent candidates has even less foun-

dation than the attack made on behalf of major party

challengers. The bald fact is that only a single minor

party or independent candidate in the 1972 and 1974

congressional elections exceeded the present spend-

ing limit. Findings ITA, £! 7, 19, 29, 41, 48; J. App.

395-422, 443, 445, 448-449, 450. And, of course, none

came ¢lose to the ceiling in the most recent Presiden-

tial election. Finding ITA, £51; J. App. 451. When

this is contrasted with the showing that 77 major

party candidates for Congress in 1972 and 1974 spent

1 Also indicative is the fact that, in the 1972 Presidential

race, Senator McGovern accumulated some $24 million in con-

tributions not exceeding $1,000. Findings ITA, § 72; J. App.

457. And see the amounts raised as of the end of 1974 by 1976

Presidential candidates in contributions up to $1,000. Findings

more than the present law permits (Findings IIA,

“f18, 28, 40, 47; J. App. 442-443, 445, 448, 450) and

that both major-party candidates for the Presidency

did so in 1972 (Findings ITA, £71; J. App. 457),

it is evident that minor party and independent candi-

dates will be relatively better off under the expendi-

ture limits fixed by the Federal Election Campaign

Act Amendments.

Nor is there any indication that the new contribu-

tions limits will disadvantage those who do not rep-

resent a major party. On the contrary, it appears that

in the 1972 Presidential elections minor party and

independent candidates would have relatively bene-

fitted from the new contributions ceilings (Findings

ITA, £175; J. App. 458), and congressional candi-

dates in 1974 would not have suffered. See Findings

ITA, SS 59-60, 115; J. App. 453-454, 473-474.

Appellants have failed to demonstrate, as is their

burden, that the challenged contributions and expen-

diture ceilings will invidiously discriminate against

challengers or against minor party and independent

candidates. To the contrary, those provisions are likely

to reduce the present advantages enjoyed by incum-

bents and major party candidates by making it more

difficult for entrenched office holders to overcome any

serious challenge by raising more money and out-

spending their opponents. The net effect is to afford

outsiders a better chance, even if still very unequal.

That the balance is not fully redressed is no basis for

a charge of discrimination.

B. PUBLIC FUNDING OF PRESIDENTIAL ELECTIONS

The charge (Appellants’ Br. 152-169) that the pub-

lie funding provisions of the new law’ discriminate

against minor and new parties and independent can-

didates is entirely conjectural, if not a little unreal,

since no candidate not of a major party has remotely

approached the Presidency since Theodore Roosevelt’s

“Bull Moose” defection. Once again, it is no ground

for faulting the Campaign Act that it does not so radi-

cally change the status quo as fully to even the odds

for the candidate of an entirely new party as against

the nominees of the two traditional major parties. Our

submission is that the new law helps new challengers.

But, in answer to the appellants’ charge, it is enough

ae al

isting disparities. S

We examine first the eligibility conditions for en-

titlement to any public funds, leaving to later con-

sideration the allocation formulae.

1. Eligibility provisions

Although public funds are not made available to

every would-be candidate for the Presidency, no mat-

ter how frivolous, that is as it should be. The Court

has expressly approved various State election rules

that seek to restrict the number of candidates who

enter the lists, noting that “a State has an interest,

if not a duty, to protect the integrity of its political

processes from frivolous or fraudulent candidacies.”

Bullock vy. Carter, supra, 405 U.S. at 145. Beyond

that, it has been recognized as proper to take meas-

ures to discourage “splintered parties and unre-

‘toe oe

strained factionalism” (Storer v. Brown, 415 U.S.

724, 736), and “to prevent the clogging of [the] elec-

tion machinery, avoid voter confusion, and assure that

the winner is the choice of a majority, or at least a

strong plurality, of those voting.” Bullock v. Carter,

supra, 405 U.S. at 145.

If these interests may be served by denying a place

on a ballot to those who do not first demonstrate sub-

stantial popular support, as the Court has repeatedly

stated (Williams v. Rhodes, supra, 393 U.S. at 31-33;

Jenness Vv. Fortson, 403 U.S. 431, 442; Bullock vy.

Carter, supra, 405 U.S. at 145; Lubin v. Panish,

supra, 415 U.S. at 718-719; Storer v. Brown, supra,

415 U.S. at 736; American Party of Texas v. White,

supra, 415 U.S. at 781), it must follow, a fortiori, that

the same considerations will justify the lesser deter-

rent of withholding a public subsidy. Thus, the ques-

tion is not whether it is permissible to restrict eligi-

bility for public funds, but whether the mechanisms

selected are too restrictive.

a. We begin with the Presidential primary match-

ing fund scheme. Subject to the overall $10 million

spending limitation’ and to the availability of suffi-

cient moneys in the Presidential Election Campaign

Fund,” every eligible candidate who enters Presi-

* No candidate may receive public funds exceeding one-half

the Presidential primary spending ceiling. 26 U.S.C. 9034(b).

** Matching payments for primaries have the last claim on the

Fund (26 U.S.C. 9037(a)), and, in the event the Presidential

Primary Matching Account is insufficient to satisfy all demands,

the Secretary of the Treasury is directed to “seek to achieve

an equitable distribution,” taking into consideration the time

priority of claims. 26 U.S.C. 9037(b).

dential primaries is entitled to a matching payment

up to $250 for every private contribution he receives.

No distinction is made between candidates: all must

meet the same eligibility test and all receive funds

according to the same formula.

Nor is qualification unduly restrictive. To be eligi-

ble, the candidate must raise $5,000 (counting only

the first $250 of any contribution) in each of 20

States. That requires no more than 20 relatively

modest contributions of $250 in as many States and

a total campaign fund of $100,000. It is a test which

any serious Presidential contender should be able

to meet,

Matching payments are made only to those who are

engaged in ‘‘seeking nomination by a political party

for election to the office of President of the United

States.” 26 U.S.C. 9033(b)(2). But that is no more

than a recognition that it is the expense of winning

nomination that is being reimbursed in part out of

public funds. Those who incur no such costs are prop-

erly excluded. There is no discrimination between as-

pirants, whether the party whose nomination is sought

is established or new, major or minor. Nor is the term

‘‘nolitical party” restrictive: although not defined in

the Internal Revenue Code, it presumably embraces

any ‘‘association, committee or organization” that

sponsors a Presidential candidate, See 2 U.S.C. 431

(m); 18 U.S.C. 591(i), And it makes no difference by

what method the party nominee is chosen, whether by

primary election, by convention, or by caucus. See 26

U.S.C. 9032(7).*

In sum, the matching fund scheme is as all-cim-

bracing as possible, more so than the law upheld in

American Party of Texas v. White, supra, 415 U.S.

at 791-794. At all events, this financing law is no ‘‘ex-

clusionary mechanism.’’ Jd. at 794. It does not offend

the equal protection principle of the Fifth Amend-

ment.

b. The public financing of Presidential nominating

conventions likewise involves no impermissible dis-

crimination. Of course, only parties holding such con-

ventions are eligible for the grant, but the new law in

no way dictates which parties should follow that pro-

cedure. Compare American Party of Texas v. White,

supra.

In order to receive funding for its convention an

organization must be a party which has established a

footing in the political arena | y winning for its can-

didate in the previous Presidential election 5 percent

of the votes cast. See 26 U.S.C. 9008(b), 9002(7).

That, however, is well within the rule that public

funds may properly be reserved for serious candidacy.

As the Court has said, merely because government de-

frays some election expenses, it is not required also to

“finance the efforts of every nascent political group

** Despite the title of the Act (see 26 U.S.C. 9031), the opera-

tive provisions of the matching payment statute nowhere re-

quire that nomination be by “primary” election. But, even if

that be implied, the cited section defines “primary election”

comprehensively, as we have indicated above.

* ** American Party of Texas v. White, supra, 415

U.S. at 794.

c. The most important aspect of public financing in-

troduced by the new law is the provision for grants to

the candidates at the general election for the Presi-

dency. Appropriately, special efforts have been made

here to avoid excluding any serious contender, while

at the same guarding against encouragement of friv-

olous candidacy. A just compromise between those two

objectives has been achieved.

There are two basic eligibility requirements. The

first is that the candidate must show that he pre-

sumptively represents 5 percent of the voters. This

condition can be satisfied in several ways. It is enough

if the applicant is the nominee of a party whose can-

didate at the previous Presidential election received

that percentage of the popular vote. 26 U.S.C. 9002

(6) and (7), 9004(a)(1) and (2)(A). Or the candi-

date himself may have achieved such a past record, in

which event he qualifies notwithstanding that he may

now be sponsored by a new party. 26 U.S.C. 9004(a)

(2)(B). Or, finally, although neither the present can-

didate nor his party received the necessary votes at

the last election, he will still be entitled to the subsidy

if he now wins 5 percent of the popular vote. 26

U.S.C. 9004(a)(3). This is a fair attempt to afford

every serious aspirant a share in the scheme, imposing

only a reasonable test of past or current support.

There is a further requirement that the candidate

must have his name (or that of electors pledged to

him) on the Presidential ballot in 10 States. 26 U.S.C.

9002 (2) (B). This is to assure a national, and not mere-

ly local, appeal in those who receive public funds. Ex-

perience tells us that such a requirement will exclude

no aspirant with any real prospect of success, consid-

ering that victory in the electoral college requires the

votes of the 11 most populous Siaies or 40 of the least

populous. Findings I, £ 51; J. App. 26. Compare

Moore v. Ogilvie, 394 U.S. 814.

The public financing provisions of the new law ex-

clude no substantial Presidential contender. It remains

only to answer the charge that, among eligible candi-

dates, the apportionment of funds is discriminatory.

2. Allocation form ulae

We have already noted that the primary matching

payment scheme treats every eligible candidate iden-

tically. There are, however, different allocation for-

mulae applicable to grants for nominating conven-

tions and for the general election. Thus, ‘“‘major” par-

ties automatically receive a full subsidy for their con-

ventions, as do their nominees, whereas other parties

and candidates are only entitled to a pro rata share

based on their performance at the previc .s or cur-

rent election. This is said to be discriminatory.

It goes without saying that any demarcation line

between “major”, “minor’’ and “new” parties is neces-

sarily a matter of judgment. There is, however, no

present basis for faulting the particular percentage

figure. selected, assuming that some distinction is

proper. Our submission is that it was permissible to

take account of the “obvious differences in kind be-

tween the needs and potentials of a political party

with historically established broad support, on the one

hand, and a new or small political organization on the

other.’’ Jenness v. Fortson, supra, 403 U.S. at 441. Of

course, it would be improper to use public financing to

assure “a complete monopoly” to “two particular par-

ties’? (Williams v. Rhodes, supra, 393 U.S. at 32).

But, as long as the status quo is not frozen, there is no

objection to ‘‘encourag[ing] compromise and political

stability” (id. at 31-32) by incentives to relatively uni-

fied large political parties. See Jenness v. Fortson,

supra, 403 U.S. at 489-440. That is what the law does.

The public financing provisions are carefully de-

signed to enable any party to win ‘“‘major” party

status. First, the boundary line is fixed relatively

low—at 25 percent of the votes cast—and no distine-

tion is made above that level. Second, the formula

for grants to minor and new parties relates to the

average of the votes received by the major party

candidates—not those received by the winner—with

the effect of increasing financing for lesser candidates.

Third, the grants for minor candidates are strictly

proportional to votes received, thereby reflecting the

growth of those parties. Finally, while the initial allo-

cation of funds is made on the basis of past perform-

ance, changes in support are recognized by providing

additional grants (or first grants in the case of new

parties) on the basis of current performance. The

statutory scheme, without wasting public money and

unduly encouraging factionalism, effectively reflects

and respects the “‘potential fluidity of American polit-

ical life’? (Jenness v. Fortson, supra, 403 U.S. at

439).

Ideally, it would be preferable to give all candidates

their share of public funds before the election. That

is done with respect to the nominees of all parties

which have a proven record, as well as candidates who

have personally achieved the required vote in the

most recent election. But, unless every claimant, no

matter how frivolous, is to be given $20 million for

the asking, there must be a formula that tests the

seriousness of candidates, and, for those who have

not run before and who represent new parties, the

first available record is the current election.

It is a disadvantage for them to have to borrow

and receive reimbursement only if they demonstrate

their support at the election. Yet that is the best that

can be done, and the Constitution does not require

the impossible. It would not be reasonable to deny

everyone else, of proven record, his share during the

obviously appropriate pre-election period simply to

avoid this disparity. That would indeed be allowing

the tail to wag the dog.

The general election financing scheme is imperfect

only insofar as is unavoidable. On the whole, it

reaches a fair accommodation. There is no invidious

discrimination here.

CONCLUSION

The judgments of the court of appeals and of the

district court should be affirmed.

Respectfully submitted.

Epwarp H. Levt,

Attorney General.

Rogsert H. Bork,

Solicitor General.

DaNteEL M. FRIEDMAN,

Deputy Solicitor General.

Lovis F. CLarBorng,

Special Assistant to the

Solicitor General.

OctToBER 1975.

U.S. GOVERNMENT PRINTING OFFICE: 1978

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.