# Brief for Appellee — Buckley v. Valeo

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1070%3A09

## Record

- **Collection:** Supreme Court brief
- **Document type:** Brief for Appellee
- **Published:** January 1, 1976
- **Citation:** 424 U.S. 1

## Text

a
T

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
v.

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

Il

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

-—

Il

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

IV

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

VI
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
v.

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)

2
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.

3

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.

4

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).

5
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)

6

(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).

(c) Individuals are likewise restricted to
$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).

7

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).

(c) In the case of any other candidate for the
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

8

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).

(c) For any other House candidate, $10,000.
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

9

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”

10

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

1]

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

ae

12

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

13

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.

14

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

15

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.

16

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

17

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.

I

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

18

“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.

19

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-

20

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.

21

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-

22

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 [,
© 133, 144-151, 153-155, 171: J. App. 159-189, 192-
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.

23
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

24

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

25

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

26

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

27

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

Sis + oe : | re
os =. +?*) 2ebs —bee ob med Ore ——

28

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.

29

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-

30

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-

31

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.

32

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

33

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

34

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.

35
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.

36

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

. ———=_
.

37

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.

II

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

38

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

39

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

40

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.

ee OER ee EE ES. | ES one ee

A TE

Cee ee Ee ee

ee re

41
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-

42

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

43

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-

44

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-

45
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.

46

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

47

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.

48

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,

os

49

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.

50

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,

51

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

52

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—

53

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

54

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,

55

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

56

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-

57

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.

58

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.,

59

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.

60

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

ee

61

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

62

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

63

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

64

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

65

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-

66

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-

67

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

68

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

69

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1070%3A09. Public record. Not legal advice.