Amicus Brief — Republican National Committee v. Federal Election Commission

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MAR 2 1980

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BUURAEL ROU; ty R., CLERK

IN THE _

Supreme Court of the United Sta

OCTOBER TERM, 1979

No. 79-

>

REPUBLICAN NATIONAL COMMITTEE, et. al.,

Appellants,

We

FEDERAL ELECTION COMMISSION, et al.,

Appellees.

ON APPEAL FROM THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF OF THE AMERICAN CIVIL LIBERTIES UNION,

AMICUS CURIAE, IN SUPPORT OF THE

JURISDICTIONAL STATEMENT

JOEL M. GORA

BRUCE J. ENNIS

clo American Civil Liberties Union

22 East 40th Street

New York, New York 10016

Attorneys for Amicus Curiae

Table of Contents

wee OE BOE LeIes .« « ck te et tél

Interest of Amicus Curiae ......

Pade

ii

ARGUMENT

1. Compelled Adherence to Expendi-

BS Oe So rere

2. Restrictions on Grass Roots

Activi ty . oa ee 7 o _ o - = _ .

3. Prohibition on Small Contri-

butions ° - ca a * a o a — _ J

4, Impact on Pending Legislative

PE ag eo me: Bee ee 8

5. The Unconstitutional Conditions

ee

CONC LUS I ON e 2 e e . o e e a e e - o .

Ag

15

ot Lie

Table of Authorities

Cases Page

American Civil Liberties Union v.

Jennings, 366 F. Supp. 1041

io 7 OL ge ) Bo One eee Fae 2 |

Bantam Books, Inc. v. Sullivan,

Pm eee See ee ral rs 6 ws 11

Buckley v. Valeo, 424 U.S. 1 (1976) passim

Corbitt v. New Jersey, 439 U.S.

En: SAPP nb ee 2 eee 14

Elrod v. Burns, 427 U.S. 347 (1963) 13

Federal Election Commission v.

Central Long Island Tax Reform

Immediately Committee, __ F.2d

(2d Cir., Feb. 4, 1980) ook 2

Keyishian v. Board of Regents, 385

ees Dee (ASO se koe 6 ae eR SS 14

McCulloch v. Maryland, 4 Wheat. 316

(1819) ° » * = * o e a oe * - = om e 7

Mills v. Alabama, 384 U.S. 214

(1966) . * * _ J s - = o - . J a e Ae 9

Monitor Fatriot Co. v. Roy, 401 U.S.

265 (1971) e . 3 2 ° e e e * * . ° Le 9

Mott v. Federal Election Commission,

Civil Action No. 79-3375 (D.D.C.) 3

New York Civil Liberties Union v.

Acito, 459 F. Supp 75 (S.D.N.Y.

1978) © e o ° - . ° * 7 e os ” » . + 2

“1ii-

Cases

New York Times Co. v. Sullivan,

376. G8. gee tee, « «6.2 e

Oklahoma v. Civil Service Commission,

330 U.S. 127 (1947) 7 - . . ° . .

Perry v. Sindermann, 408 U.S. 593

(1972) * ° . . + . 7 o . ° . . °

Sherbert v. "erner, 374 U.S. 398

(1963) . o ° ° ° o . . * . ° . *

Snepp v. United States, U.S. ’

48 U.S.L.W. 3527 (Feb. 19, 1980)

Socialist Workers Campaign Committee

v. Jennings, 567 F.2d 1133 (D.C.

Cir. 1977) . 2 ° ° * 2 © - . - .

Staats v. ACLU, 422 U.S. 1030 (1975)

United States v. National Committee

for Impeachment, 469 F.2d 1135

(2d. Cis 1972) . 7 © . 7 © a 7 .

Vanesco v. Schwartz, 401 F. Supp. 87

(E.D.N.Y. 1975) aff'd 423 U.S.

1041 a a os * ec o + . e . - 7 +

Whitney v. California 274 U.S. 357

(1927) e > e ° ° . 7 * © ° - *

Wyman v. James, 400 U.S. 309 (1971)

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In The

Statutes Page SUPREME COURT OF THE UNITED STATES

Federal Election Campaign Act of October Term, 1979

1971 As Amended ........ . passim

‘ No. 79-

as Oita eee ee whe te ee ee |

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26. U.8.6; SOOG3 TI ta). 6k Ca 8 REPUBLICAN NATIONAL COMMITTEE,

et. al.,

Appellants,

Vv.

FEDERAL ELECTION COMMISSION,

et. al., |

Appellees.

On Appeal from the United States

Court of Appeals for the Second Circuit

Brief. of the American Civil Liberties

Union, Amicus Curiae, in Support

of the Jurisdictional Statement

This brief is submitted to urge the Court

to note probable jurisdiction and to accord

plenary review to the important constitutional

issues the case raises.

Interest of Amicus Curiae*

The American Civil Liberties Union is a

nationwide, non-partisan organization of over

200,000 members, dedicated to defending the

principles contained in the Bill of Rights to

the Constitution. Primary among those guar-

antees are the First Amendment protections of

freedom of speech and association. The ACLU

agrees with this Court that rights of speech

and association have their "fullest and most

urgent application precisely to the conduct

of campaigns for public office," Monitor Pa-

triot Co. v. Roy, 401 U.S. 265, 272 (1971).

Except perhaps in erecting a barrier to prior

restraints, the First Amendment's most impor-

tant office is to insure that political speech

in general - and campaign speech in particular -

will be as uninhibited and unrestricted as pos-

sible. New York Times Co. v. Sullivan, 376

U.S. 254 (1964); Mills v. Alabama, 384 U.S.

214 (1966); Buckley v. Valeo, 424 U.S. 1 (1976).

* Letters of consent from all parties to the

filing of this amicus curiae brief are being

lodged with the Clerk of the Court.

“Because of the importance of political

speech as the critical safeguard for a host

of civil liberties values, the ACLU has view-

ed with deep concern the effect on First Amend-

ment interests of the various campaign "reform"

laws enacted in the last decade. Although we

shared the concerns about political corruption

that prompted passage of those laws - particu-

larly the Federal Election Campaign Act of 1971

and the various amendments thereto (hereafter

"FECA") - we came to the considered organiza-

tional conclusion that such laws did more harm

than good to First Amendment interests.

The ACLU has vigorouly supported and parti-

cipated in litigation to test the validity of

campaign reform legislation that is in our view

inconsistent with First Amendment values. See

United States v. National Committee For Impeach-

ment, 469 F.2d 1135 (2d Cir. 1972); American

Civil Liberties Union v. Jennings, 366 F. Supp.

1041 (D.D.C. 1973) (three-judge court), vaca-

ted as moot sub. nom., Staats v. ACLU, 422 U.S.

1030 (1975); Vanasco v. Schwartz, 401 F. Supp.

87 (E.D.N.Y. 1975) (three-judge court), aff'd,

423 U.S. 1041 (1976); Buckley v. Valeo, 424

U.S. 1 (1976); Socialist Workers Campaign Com-

mittee v. Jennings, 567 F.2d 1133 (D.C. Cir.

1977); New York Civil Liberties Union v. Acito,

459 F. Supp. 75 (S.D.N.Y. 1978); Federal Elec-

tion Commission v. Central Long Island Tax

Reform Immediately Committee, Psa os.

(2a Cir., Feb. 4, 1980) (en banc); Mott v.

Federal Election Commission, Civil Action No.

79-3375 (D.D.C.). Because of these cases, we

have been forced to grapple with the seemingly

inherent tension between campaign reform ef-

forts and First Amendment principles, and we

have tried to be receptive to methods that

could reconcile the clash between reform and

free speech.

The issues in this case present the same

clash of values. In our governing bodies,

the ACLU has debated long and hard the very

issues posed by this case. We do not assert

that public funding is, per se, inconsistent

with the First Amendment and civil liberties

principles. We do assert that certain restric-

tions that are imposed as a condition of ob-

taining public funding are inconsistent with

the First Amendment and civil liberties prin-

ciples. We have concluded that the values of

public funding can be preserved without abridg-

ing free speech or civil liberties principles

by using public subsidies to provide a floor

for funding campaign activities without impos-

ing a ceiling that limits such activities.

Whether such an approach is good public policy

is for others to decide. What commends it to

us is that it embodies the sound civil liber-

ties principle that where speech activity is

asserted to pose societal evils, the First

Amendment response should not be to restrict

or condition the speech itself, but rather to

Supply the remedy of "more speech." Whitney

v. California, 274 U.S. 357, 377 (1927) (Bran-

deis, J., dissenting).

Regrettably, that is not the premise of

the public funding provisions of the FECA at

issue in this case. With respect to presi-

dential candidates, those provisions combine

to impose severe restrictions on the receipt

of public funding. With respect to supporters

of publicly-funded candidates, the effect on

Spontaneous grass-roots activity has been crip-

pling, and the prohibition on even the most

modest campaign contributions is total. The

statute at issue affects political speech by

and about presidential candidates, and thus

cuts close to the core of the interests pro-

tected by the First Amendment. The resolu-

tion of this case will also bear critically

on proposals to provide public funding for

all federal political campaigns. We think

the court below failed to appreciate the grav-

ity of those issues and the magnitude and na-

ture of the restrictions on campaign speech

imposed by the challenged provisions of the

Act. For the following reasons, the issues

raised by this case require plenary consid-

eration by this Court.

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ARGUMENT

Our purpose at this point is a limited

one; it is to suggest to the Court why plen-

ary consideration of the issues raised by

this case is warranted. In the area of cam-

paign controls, many challenges to StASETOET

or regulatory restrictions are rooted in First

Amendment concerns, because many of those re~

strictions burden or prohibit campaign speech.

Perhaps that is one reason why the Congress,

in enacting the FECA, established the extra~

ordinary judicial review procedures contained

in 2 U.S.C. §437h, which require expedited con-

sideration and disposition by this Court of the

issues involved in this case. Although §437h

does not mandate plenary consideration of those

issues, we submit that plenary sqnaideretign: i

imperative in this case. The statutory ibid

sions at issue systematically affect the rais~-

ing and spending of money in presidential cam-

paigns. These laws have a profound impact on

presidential candidates and the parties they

represent. But even more importantly, from

our perspective, public funding provisions

seriously cripple or totally prohibit politi-

cal activity at the grass roots level and by

small contributors. Given these consequences,

the issues surely warrant careful and full re-

view by this court.

Ai Compelled Adherence to Expenditure

Limitations

The major 1974 Amendments to the FECA had

two basic substantive purposes that were in

our view at odds with First Amendment values.

The first was to place severe restrictions on

the amount that any individual could contri-

bute to a political candidate, ostensibly to

eliminate the corrupting influence of large

campaign contributors. In Buckley, this Court

upheld such contribution limits, and candi-

dates and campaigns have struggled under those

limitations ever since. The other purpose of

the 1974 law was to impose overall spending

limitations on all federal political campaigns,

ostensibly because there was "too much" cam-

paign speech, campaigns had become "Romanesque

political extravagances," Buckley v. Valeo,

519 F.2d 821, 897, and equality principles

justified regulating the quantity of speech

in which candidates should engage. These lat-

ter purposes, however, cut too deeply at the

core of First Amendment values, and Buckley

ruled direct expenditure limitations uncon-

stitutional.

7

SS,

In our view, the public funding provi-

Sions attempt to achieve indirectly the same

result this Court held unconstitutional when

Sought to be secured directly, namely, limi-

tations on the quantity - and thereby the

quality and nature - of campaign speech. Al-

though other justifications for the funding

conditions have been suggested - freeing can-

didates from the burdens of private fund-

raising and the obligations which might en-

sue - the continued existence of contribution

limits, not challenged here, secure the latter

goal, while the burdens of private fund-rais-

ing have been replaced by the burdens of ac~

counting for and struggling under the spending

limitations attached to the public subsidy.

In addition, on an almost daily basis, news-

paper accounts indicate the difficulties the

current presidential campaigns are experienc-

ing in effectively communicating their views

to the public within the subsidies available

to them. In short, we believe the various

rationales advanced to support the statute

are a pretext, masking the true congressional

motivation of compelling presidential candi-

dates to adhere to prescribed spending limits.

Cf. McCulloch v. Maryland, 4 Wheat. 316, 423

(1819). Such legislation should be subject

to the closest scrutiny by this Court.

2. Restrictions on Grass Roots Activity

The record in this case demonstrates how

the public funding/expenditure limitation

scheme has fundamentally altered the nature

and quality of presidential campaigns. The

funding scheme has had two major effects on

the quality and range of campaign activity.

First, the low ceilings on permissible expen-

ditures dictate a heavily-centralized, media-

oriented campaign. The consequence is that

few if any funds are available from the nation-

al campaigns to support the essentials of tra-

ditional grass roots political activity: local

storefronts, rallies, mailings, canvassings,

campaign literature, phone banks - all of the

indicia of citizen participation that used to

be the hallmark of American presidential cam-

paigns. The other effect on grass roots ac-

tivity is that once a presidential candidate

has accepted public funds, no one may make any

"contribution" to such a candidate. 26 U.S.C.

§9003(b) (2). “Contribution" is defined not

only as a donation made directly to a campaign,

but also as any expenditure of funds made "in

cooperation, consultation, or concert with" a

publicly-funded campaign. 2 U.S.C. §441(b) (7).

As a result, local grass roots supporters who

wish to expend their own funds to support a

presidential candidate must remain totally

isolated from and "uncoordinated" with that

campaign. Even a 10-cent phone call to the

state campaign headquarters to purchase a

supply of bumper strips is a prohibited "“coor-

dinated"expenditure and is unlawful under the

Act.

The combination of these two effects, pre-

dictably enough, has resulted in a virtual |

drying up of grass roots campaigning. The

vital, spontaneous local activity which for

so long characterized our presidential cam-

paigns has been removed from the political

landscape, leaving, in its place, arid and

sterile media-centered campaigns. The demo-

graphics of advertising have replaced the

politics of participation. Such a result is

not only bad public policy, it also flies in

the face of this Court's teaching that the

critical mission of the First Amendment is to

insure robust speech about candidates for pub-

lic office, see New York Times Co. v. Sullivan,

and that the importance of such speech is mag-

nified during the critical days and weeks pre-

ceding an election. Mills v. Alabama, 384 U.S.

214 (1966); Monitor Patriot Co. v. Roy, supra.

3. Prohibition on Small Contributions

Under the public funding scheme, a presi-

dential candidate who accepts funding for the

general election, whether "voluntarily" or not,

thereby prohibits anyone from making even the

most modest monetary contribution to his presi-

dential campaign. This Court in Buckley recog-

nized that making a contribution to the politi-

cal candidate of one's choice constitutes "the

symbolic expression of support" for a candidate,

~~

424 U.S. at 21, and involves important asso-

ciational rights: "making a contribution,

like joining a political party, serves to

affiliate a person with a candidate." Id.,

at 22. "The right to join together 'for the

advancement of beliefs and ideas' is diluted

if it does not include the right to pool money

through contributions, for funds are often

essential if ‘advocacy' is to be truly or op-

timally '‘effective.'" Id., at 65-66. Al-

though in Buckley this Court upheld the $1,000

contribution limit, it did so because it found

that contributions of more than that amount did

not significantly intensify the speech and asso-

ciational rights involved and did implicate

countervailing concerns with corruption or the

appearance thereof. Here, however, the scheme

does not just restrict the incremental speech

or associational values reflected by a contri-

bution in excess of $1,000; rather it precludes

the exercise of such symbolic and associational

rights at all, by completely prohibiting even

a $1.00 contribution to a publicly-funded can-

didate.

Apart from voting itself, making a small

contribution to the candidate of one's choice

is among the most fundamental acts of political

participation in which a citizen can engage.

At least the public funding matching grant

scheme at the primary election stage permits

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this important form of political speech and

association to occur. But the general elec-

tion funding seheme prohibits it completely.

The response of the court below was that

the infringement of the small contributor's

First Amendment interests was the product not

of government coercion, but of the candidate's

"choice" to forgo private financing and accept

public funding. Even accepting the premise -

which we do not - that the candidate's choice

is voluntary, and not the product of coercion

attributable to legal and practical inhibitions

imposed on a privately-financed campaign, it

remains highly questionable to permit the gov-

ernment to delegate to the candidate the au-

thority to impose a systematic veto on the sym-

bolic and associational rights of his suppor-

ters who wish to make contributions to him.

‘C£., Bantam Books, Inc. v. Sullivan, 372 U.S.

58 (1963); ACLU v. Jennings, supra, 366 F.

Supp. at 1048-1054 (invalidating FECA provi-

sion that, as part of a scheme to limit can-

didate expenditures for mass media advertising,

effectively permitted candidates to veto any

advertisement "on behalf of" any candidate).

at Feo

4. Impact on Pending Legislative Proponents of these various proposals will

Proposals surely point to the decision below as uphold-

ing the constitutionality of public funding

schemes that condition the receipt of funds

on the imposition of spending ceilings and

the prohibition of any private funding. Given

the ripple effect the decision below is likely

Plenary review of the decision below is

imperative for another reason. The issues

in this case directly affect communication

to the public by presidential campaigns.

That alone is sufficient to warrant full con-

sideration by this Court. But the decision to have on these various proposals, it is im-

portant for this Court fully to consider the

constitutional issues tendered in this case.

below, if summarily upheld, will have direct

ramifications on pending legislative propo-

Sals seeking to extend the public financing

5. The Unconstitutional Conditions

schemes at issue herein to House and Senate ’

Doctrine

elections as well as to state and local cam-

paigns. Although many of the constitutional Finally, this case raises important issues

that go beyond the area of campaign financing.

Those issues cluster around the problem of un-

issues raised by conditions imposed upon pub-

lic funding of these various campaigns would

be the same as the questions raised here, constitutional conditions. At the heart of

there are significant variations which might the decision below is the ruling that a anes

affect the resolution of those issues. Dif- dition otherwise unconstitutional - the limi-

ferent kinds of fund-raising problems might | tation on campaign expenditures and the pro-

alter the analysis of whether candidates are, hibition of private contributions, see Buckley

in fact, compelled to accept public funding v. Valeo, supra - can be imposed upon the re-

and spending or contribution limits attached ceipt of campaign subsidies, if not in general,

thereto. The advantages of incumbency in con- at least where compelling interests are thereby

gressional and state elections might have a served. This Court has generally held that

different impact on assessing the public fund- "the denial of a public benefit may not be used

ing scheme. Questions concerning the appear- by the government for the purpose of creating

ance of corruption or the problems of reliance an incentive enabling it to achieve what it may

on private financing might vary as well. . not command directly." Elrod v. Burns, 427 U.S.

eo

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347, 361 (1976); see also, Sherbert v. Verner,

374 U.S. 398 (1963); Keyishian v. Board of

Regents, 385 U.S. 589 (1976); Perry v. Sinder-

mann, 408 U.S. 593 (1972). To be sure, this

Court's application of the unconstitutional

conditions doctrine has been less than unwav-

ering. See Oklahoma v. Civil Service Commis-

sion, 330 U.S. 127 (1947); Wyman v. James,

400 U.S. 309 (1971); Corbitt v. New Jersey,

439 U.S. 212 (1978); and most recently, Snepp

v. United States, U.S. __, 48 U.S.L.W.

3527 (Feb. 19, 1980).

The ACLU has long been concerned with the

conditioning of public funds or benefits upon

the surrender or limitation of protected lib-

erties. This case clearly implicates such

issues, both in terms of campaign financing

and a host of other civil liberties areas as

well. We are concerned about whether the

decision below correctly applied the doctrine

to the scheme at issue. But we are no less

concerned about the implication of that ruling

for areas far removed from campaign financing.

Given those potential implications in a host

of constitutional areas, we think plenary

review by this Court is required.

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CONCLUSION

For these reasons, probable jurisdiction

should be noted, and the Court should give

plenary consideration to the issues in the

case.

Respectfully submitted,

JOEL M. GORA

BRUCE J. ENNIS

c/o American Civil

Liberties Union

22 8... 46th; St.

New York, N.Y. 10016

Attorneys for

_ Amicus Curiae

March 6, 1980

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