# Amicus Brief — Republican National Committee v. Federal Election Commission

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1801%3A5

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Brief
- **Published:** January 1, 1980
- **Citation:** 445 U.S. 955

## Text

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MAR 2 1980
~————
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)

14

14

14

14

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-iv-
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 |
= Vices -eeetee tlh « « &.w SS mus 8
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.

~

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

= _

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
-12- 1

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.

-14-

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

~i Go

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1801%3A5. Public record. Not legal advice.