Petition — National Chamber Alliance for Politics v. Federal Election Commission
Supreme Court brief1980
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Supreme Court, U.S.
80-349 ! FILED
i SEP4 1999
No. 80- |
ee ee
IN THE
Supreme Court of the Gnited States
OCTOBER TERM, 1980
NATIONAL CHAMBER ALLIANCE FOR POLITICS, ET AL.,
Petitioners,
FEDERAL ELECTION COMMISSION, ET AL.,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT
STANLEY T. KALECZYC
STEPHEN A. BOKAT
NATIONAL CHAMBER
LITIGATION CENTER
1615 H Street, N.W.
Washington, D.C. 20062
(202) 659-3180
Counsel of Record
PRESS OF BYRON S. ADAMS PRINTING, INC., WASHINGTON, D.C.
QUESTIONS PRESENTED*
1. Whether persons aggrieved by certain unambiguous and
mandatory provisions of the Federal Election Campaign Act, as
amended, may maintain an action to obtain judicial review of
the constitutionality of those provisions without first exposing
themselves to the risk of civil and criminal prosecution for viola-
tions of those provisions?
2. Whether persons aggrieved by certain unambiguous and
mandatory provisions of the Federal Election Campaign Act, as
amended, may maintain an action to obtain judicial review of
the constitutionality of those provisions without first seeking an
advisory opinion concerning explicit speech which is clearly pro-
scribed?
3. Whether the special judicial review provisions contained
in the Federal Election Campaign Act, as amended, and the
prudential policies which they subserve, must be considered in
determining whether persons aggrieved by unambiguous and
mandatory provisions of the Act may maintain an action to ob-
tain judicial review of the constitutionality of those provisions?
*Parties to the proceedings below were:
Plaintiffs-Appellants (Petitioners here): National Chamber Alliance
for Politics, Chamber of Commerce of the United States of America,
Richard L. Lesher, John A. Kochevar, Fred Radewagen, and Robert
A. Roland.
Defendants-Appellees (Respondents here): Federal Election Com-
mission, and each of its six Commissioners named in their official
capacities.
TABLE OF CONTENTS
PAGE
TU inv cc cb ercacnenss beeen akeetenn i
a ee re re iv
CS EPC CLE TCE RTC TET ET ee
eee eee Tere TE rr ey 2
CONSTITUTIONAL, STATUTORY AND REGULATORY PROVI-
as cg sk pack pigateeai nnd bs Wk pa 2
SO Ce en sand use RANED hawkers 2
REASONS FoR GRANTING THE WRIT ...........0000 ee eee 6
I. The Explicit Speech In Which Petitioners
Would Engage, But For The Civil And
Criminal Penalties Contained In The Act, Is
Protected By The First Amendment. .......... 7
II. The Decisions Of The Courts Below Conflict
With The Teachings Of This Court, And Other
Federal Courts, Which Support A Determina-
tion That A Justiciable Case Is Present Here... 10
A. Petitioners need not expose themselves to
substantial civil and criminal penalties in
order to vindicate important constitutional
rights, nor should they be required to do
RE A ey ee Mn eC Ney me 10
B. Petitioners need not undertake the useless
task of seeking an advisory opinion when
the statute, regulations and the commission
charged with enforcing the Act have
already explicitly prohibited the activity in
which petitioners desire to engage ........ 14
Ill. The Express Language And The Congressional
Intent Underlying The Enactment Of 2 U.S.C.
§ 437h Are Frustrated By The Decisions Of The
Br err pire py pe 17
i re ott Re ere 19
iil
Table of Contents Continued
APPENDICES
A.
Unpublished Opinion Of The United States
Court Of Appeals For The District Of Colum-
bia Circuit (Dated May 8, 1980)..............
Unpublished Order Of The United States Court
Of Appeals For The District Of Columbia Cir-
cuit Denying Petition For Rehearing (Dated
PS Te Cs no 33 aio se bee ee es
Unpublished Order Of The United States Court
Of Appeals For The District Of Columbia Cir-
cuit Denying Petition For Rehearing En Banc
Eee Ue OU, SU 5.00 e4 ks creek ip eeenees
Memorandum And Order Of The United States
District Court For The District Of Columbia
ce erie rer re ere ee
First Amended Complaint For Declaratory And
Injunctive Relief (Filed Nov. 28, 1978) ........
Undated Letter From Richard L. Lesher, Chair-
man, National Chamber Alliance For Politics . .
Constitutional, Statutory And Regulatory Pro-
SE SEE bs Gy ak oa een bar acaney CkOes
PAGE
la
38a
iv
TABLE OF AUTHORITIES
CASES: PAGE
Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) ee 7
Adler v. Bd. of Education, 342 U.S. 485 (1952) ........ 12
Bates v. State Bar of Arizona, 433 U.S. 350 (1977) ..... 15
Bread Political Action Committee v. FEC, 591 F.2d 29
SE UN cs ik cody Ceeene eee ee chat anew’ 7, 17, 18
Brooklyn Life Insurance Co. v. Dutcher, 95 U.S. (Otto)
TE ae ea Cea et eedk eke cewheetesens es 16
Buckley v. Valeo, 519 F.2d 817 (D.C. Cir. 1975) ....... 10
Buckley v. Valeo, 424 U.S. 1 (1976) .............. 6, 10, 17
Epperson v. Arkansas, 393 U.S. 97 (1968) ............4. 12
Espinoza v. Farah Mfg. Co. 393 U.S. 97 (1968) ....... 16
FEC v. AFSCME, 471 F.Supp. 315 (D.D.C. 1979) ..... 13
FEC v. CLITRIM, No. 79-3014 (2d Cir., Feb. 5, 1980).. 13
FEC vy. Nat’l Right to Work Comm., Civ. Nos. 77-2175,
Peete Chet. PTTL BO, TIGR oo cies fica: vc eceus 13
General Electric Co. v. Gilbert, 429 U.S. 125 (1976) .... lo
International Society for Krishna Consciousness v.
Eaves, 601 F.2d 809 (Sth Cir. 1979)........... 6, 12, 14
International Society for Krishna Consciousness Vv.
Rockford, 425 F. Supp. 734 (N.D.IIl. 1977), aff’d in
part, rev’d in part, 595 F. 2d 263 (7th Cir. 1978) .. 6, 12
Joseph v. U.S. Civil Service Commission, 554 F.2d 1140
HIE accra oe eel nu cake Rh chon +e Re 6
Linmark Ass’n, Inc. v. Willingboro, 575 F.2d 786 (3rd
Che, S97, Pev'e 431 U.S. GS CITT) ww wc weccceass 12
Mills v. Alabama, 384 U.S. 214 (1966) ................ 9
Regional Rail Reorganization Act Cases, 419 U.S. 102
EN Tawny Waa oe ese wea AN Kk BA ake 16
Table of Authorities Continued
CASES: PAGE
United Housing Authority Foundation, Inc. v. Forman,
ee Slay ONT s oss caeud babe ckkbeekeueeese 16
Village of Schaumberg v. Citizens for a Better Environ-
ment, US. , 63 L.Ed.2d 73 (1980) ... 9, 15
Warth v. Seldin, 422 U.S. 490 (1975) ............0005. 11
UNITED STATES CONSTITUTION:
Ss es ais ods 0d can kb ee eee passim
STATUTES:
i ac oc sane s0d0 b> ond waseeahis ge ceAneens 7
SIG TEs v6-0'6s > 04 nsws-s aman uuwsaleekn eee 14, 16
in: SURE «bic bok. 00 oss Ons eed Wee eb oe eae 18
IIE Gi was ns eS ow ow a Rar ack orale a Mee 17
ees GE 9 4 ces ck cuaueneanbuneeeeee 7
eas Pcs va vcos bas bsececbanseueh edaesee passim
ee I os cay anad Saenctue can eeaneees 7,8
REGULATIONS:
OO as en a odo hi bend eecknsadebawceeees Cau 7, 8
MISCELLANEOUS:
19 Cong. Rec. H. 10330 (daily ed. Oct. 10, 1974)....... 18
Federal Election Regulations, Communication from the
Chairman, Federal Election Commission, H. Doc.
No. 94-573 (94th Cong., 2d Sess.) ..........cec00- &
IN THE
Supreme Court of the Gnited States
OCTOBER TERM, 1980
—___
No. 80-____
NATIONAL CHAMBER ALLIANCE FoR POLITICS, ET AL.,
Petitioners,
V.
FEDERAL ELECTION COMMISSION, ET AL.,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT
OPINIONS BELOW
The opinion of the United States Court of Appeals
for the District of Columbia Circuit, dated May 8, 1980,
is as yet unreported, and is reproduced herein as Appen-
dix A. The orders of the court denying a petition for
rehearing and rehearing en banc are reproduced herein
as Appendices B and C. The memorandum opinion and
order of the United States District Court for the District
of Columbia, rendered on November 22, 1978, are un-
published and appear herein as Appendix D.
JURISDICTION
The Court of Appeals for the District of Columbia
Circuit issued its judgment on May 8, 1980. On June 10,
1980, the court denied Petitioners’ timely filed petition
for rehearing and rehearing en banc. This Court has
jurisdiction pursuant to 28 U.S.C. § §1254 and 2101(c).
CONSTITUTIONAL, STATUTORY AND
REGULATORY PROVISIONS INVOLVED
U.S. Constitution, Article II]
2 U.S.C. §437f
2 U.S.C. §437g
2 U.S.C. §437h
2 U.S.C. §441b
11 C.F.R. §114.7(j)
STATEMENT OF THE CASE
The Petitioners in this action, the National
Chamber Alliance for Politics (the ‘‘Alliance’’), the
Chamber of Commerce of the United States of America
(the ‘‘Chamber’’), and four individuals eligible tc vote
for the Office of President cf the United States, in-
stituted this litigation on July 20, 1978, alleging that cer-
tain provisions of the Federal Election Campaign Act,
as amended, 2 U.S.C. §431 ef seq., (the ‘‘Act’’), both
facially and as applied to them, limit their ability to par-
ticipate fully in the political process. Specifically, they
are aggrieved because the Act limits their ability to
‘*solicit’’ voluntary contributions to the Alliance, an ac-
tivity which is intimately and inextricably intertwined
with the dissemination of their ideas, opinions, and
political beliefs about matters of national concern.
The gravamen of their complaint! is that 2 U.S.C.
§441b prohibits them from ‘‘soliciting’’ voluntary con-
tributions from separate segregated funds (also referred
to as ‘‘political action committees’’) for the Alliance,
the Chamber’s political action committee, although the
Act specifically permits such contributions and does not
prohibit certain other individuals and organizations
from soliciting contributions from political committees.
And, the Petitioners made part of the record below a
solicitation letter (reproduced as Appendix F) whose
contents typifies the communication through which Peti-
tioners would communicate with political action com-
mittees, but for the civil and criminal penalties contain-
ed in the Act. Hence, the Petitioners’ complaint alleged
that §441b abridges the First Amendment guarantees of
freedom of speech and assembly and also denies them
equal protection of the laws in contravention of the
Fifth Amendment
The complaint sought injunctive and declaratory
relief pursuant to 28 U.S.C. § §2201 and 2202, and re-
quested expedited review of the substantial constitu-
tional issues raised therein pursuant to 2 U.S.C. §437h,
the expedited judicial review provision of the Act.’
' Petitioners’ First Amended Complaint is reproduced at Appendix
E
2 §437h. Judicial review
(a) The Commission, the national committee of any political party,
or any individual eligible to vote in any election for the office of Presi-
dent of the United States may institute such actions in the appropriate
district court of the United States, including actions for declaratory
judgment, as may be appropriate to construe the constitutionality of
any provision of this Act. The district court immediately shall certify
all questions of constitutionality of this Act to the United States court
of appeals for the circuit involved, which shall hear the matter sitting
en banc. (cont.)
4
On November 22, 1978 the district judge dismissed
the Petitioners’ complaint, citing two grounds. First, the
judge determined that the expedited judicial review pro-
visions of 2 U.S.C. §437h were inapplicable to the plain-
tiffs since the literal words of §437h(a) refer specifically
to the Federal Election Commission, the national com-
mittee of any political party, or any individual eligible
to vote for the Office of President. The court reasoned
that the expedited review provisions were not on their
face applicable to the Alliance or to the Chamber, nor
were they applicable to the individual plaintiffs since,
‘“‘{t}hey sue not in their individual capacities but rather
to vindicate the rights of the corporate entities.’’ (App.
D at 41a).
Second, the district court determined that Peti-
tioners presented ‘‘no case or controversy sufficiently
ripe for decision by a federal court’’ since the Federal
Election Commission had not explicitly threatened to en-
force the statutory prohibition (with its attendant civil
and criminal sanctions) contained in §441b against the
Petitioners. (App. D at 4la).
On November 29, 1978, Petitioners noticed their
appeal to the United States Court of Appeals for the
District of Columbia Circuit. For purposes of briefing
and argument, Petitioners’ case was consolidated with a
separate action brought by the Martin Tractor Company
(b) Nothwithstanding any other provision of law, any decision on a
matter certified under subsection (a) shall be reviewable by appeal
directly to the Supreme Court of the United States. Such appeal shall
be brought no later than 20 days after the decision of the court of ap-
peals.
(c) It shall be the duty of the court of appeals and of the Supreme
Court of the United States to advance on the docket and to expedite to
the greatest possible extent the disposition of any matter certified
under subsection (a).
and others which challenged other substantive provisions
of §441b, alleging, inter alia, violations of the First and
Fifth Amendments not brought in issue by Petitioners
here. Significantly, the plaintiffs in Martin Tractor,
unlike the Petitioners here, also alleged that §441b failed
to define the term ‘‘solicitation’’ and thus was un-
constitutionally vague.
In an opinion dated May 8, 1980, a two judge panel
of the court of appeals affirmed the district court’s fin-
ding with respect to ripeness, and thus determined that
it was unnecessary to reach the issue of the applicability
of 2 U.S.C. §437h. (App. A at 37a).
The court grounded its ripeness decision on three
factors: first, that the Petitioners did not threaten to
commit a statutory violation; second, that the Peti-
tioners did not seek an advisory opinion’ to determine
the legality of the conduct in which they would other-
wise engage; and, third, that the Commission has taken
no action to enforce the statute against the Petitioners.
(App. A at 34a-35a). In so holding, the court expressed
its view that the statute contained 2 ‘‘crucial ambiguity”’
which ‘‘inheres in the word ‘solicit’ ’’ (App. A at 34a
n.59), thus militating in favor of Petitioners’ seeking
some further interpretation of the statute and regula-
tions from the Federal Election Commission.
Believing that the court both misapprehended the
nature of Petitioners’ case and misread the applicable
law, Petitioners sought a rehearing and suggested a
rehearing en banc. On June 10, 1980, the court of ap-
peals denied Petitioners’ motion, thereby necessitating
the instant petition.
> See 2 U.S.C. §437f.
6
REASONS FOR GRANTING THE WRIT
Petitioners respectfully submit that there are three
compelling reasons why this Court should grant their
Petition.
First, the decisions below conflict with the recent
teachings of this Court, and the lower federal courts,
that a person need not expose himself to prosecution in
order to vindicate important constitutional rights.
Buckley v. Valeo, 424 U.S. 1 (1976); Steffel v. Thomp-
son, 415 U.S. 452 (1974); International Society for
Krishna Consciousness v. Eaves, 601 F.2d 809 (Sth Cir.
1979); International Society for Krishna Consciousness
v. Rockford, 425 F. Supp. 734 (N.D.IIl. 1977), aff’d in
part, rev’d in part, 595 F.2d 263 (7th Cir. 1978). In so
doing, the decisions below effectively reverse almost 30
years of ‘‘modern case law. . . which reflects a greater
judicial willingness to aid litigants faced with the
necessity of risking substantial harm in order to
challenge the validity of governmental action.’’ Joseph
v. U.S. Civil Service Commission, 554 F.2d 1140, 1152
(D.C. Cir. 1977). See Abbott Laboratories v. Gardner,
387 U.S. 136 (1967). And uniquely in this case, Peti-
tioners should not be required to violate a law whose
manifest purpose is to preserve the integrity of the elec-
toral process as a means of testing the boundaries of the
First Amendment. C/f., Buckley, supra at 14.
Second, requiring Petitioners to first seek an ad-
visory Opinion from the Commission as to whether a
clearly defined course of conduct is permissible under
the Act, when the Commission, by interpretative com-
mentary, has already proscribed such conduct, violates a
clearly established exception to the doctrine of the ex-
haustion of administrative remedies and frustrates the
congressional intent underlying 2 U.S.C. §437h.
Third, insofar as the decisions below are predicated
upon prudential considerations, the failure of the lower
courts to consider the import of 2 U.S.C. §437h, which
specifically provides for expedited judicial review of
challenges to the constitutionality of the Act, frustrates
both the express intent of Congress and the significant
policy considerations which underlie the enactment of
that provisions. o..ad Political Action Committee v.
FEC, 591 F.2d 29 (7th Cir. 1979).
I. The Explicit Speech in Which Petitioners
Would Engage, But For the Civil and Criminal
Penalties Contained in the Act, Is Protected by
the First Amendment.
Petitioners seek to vindicate their fundamental con-
stitutional right to engage in political speech and debate,
a right which they would exercise in the context of a
specific request for voluntary contributions to be used
for political purposes as permitted by the Federal Elec-
tion Campaign Act, as amended. These solicitations
would be directed to separate segregated funds, all of
which are subject to the contribution limitations* and
disclosure requirements’ of the Act. Such solicitations,
he vever, are unequivocally prohibited by the Act itself,°
the regulations promulgated by the Federa! Election
Commission pursuant to the Act,’ and the interpretative
*2 U.S.C. §441a(a)(2)(C).
*2 U.S.C. §434.
*2 U.S.C. §441b(b)(4).
7 11 C.F.R. §114.7(4))(1979) provides:
A membership organization, including a trade association,
cooperative, or corporation without capital stock or a separate
segregated fund established by such organization may not solicit con-
tributions from the separate segregated funds established by its
members. The separate segregated fund established by a membership
commentary which the Commission published contem-
poraneously with the regulations.'
The speech in which Petitioners desire to engage,
and in which they would engage, but for the civil and
criminal penalties contained in the Act, was clearly and
precisely set forth for the courts below. Petitioners made
part of the record below a sample solicitation letter
(App.F) which is presently being used to solicit volun-
tary contributions from individuals, subject to the pro-
hibitions and limitations contained in the Act,’ and
which they would use in a solicitation directed to
political action committees. In this letter the Petitioners
speak of the value of ‘‘economic freedom’’ and express
their belief that ‘‘the government is applying additional
restrictions’? which have eroded ‘‘essential freedom,”’
organization, including a trade association, coGperative, or corpora-
tion without capital stock, may, however, accept unsolicited contribu-
tions from the separate segregated funds established by its
members.(Emphasis supplied.)
* The explanatory text prepared by the FEC at the time the regula-
tions were proposed, and which accompanied the regulations when
they were transmitted to Congress pursuant to 2 U.S.C. §438(c),
specifically states:
Subsection (j) prohibits a membership organization, cooperative,
or corporation without capital stock or a separate segregated
fund established by such organizations from soliciting contribu-
tions from separate segregated funds established by its members.
This subsection is based on the statute which extended the
solicitation right to members or to the stockholders and executive
or administrative personnel of corporate members only. This pro-
hibition applies equally to membership organizations which are
trade associations and would prevent a trade association or its
separate segregated fund from soliciting contributions from
separate segregated funds (political committees) established by its
corporate or noncorporate members.
Federal Election Regulations, Communication from the Chairman,
Federal Election Commission, H. Doc. No. 94-573 (94th Cong., 2d
Sess.) at 110 (Emphasis supplied).
*2 U.S.C. §441b(b)(4)(D).
9
and conclude that support for the Alliance by voluntary
contributions provides a means for ensuring that this
freedom will be protected. (App. F at 56a-58a.)
That such a discussion of socio-economic and
political philosophy is inextricably intertwined with a
solicitation for funds was recently reaffirmed in Village
of Schaumberg v. Citizens for a Better Environment,
U.S. , 63 L. Ed. 2d 73 (1980). In striking
down a licensing requirement which would have pro-
hibited a not-for-profit corporation organized for the
purpose of protecting, maintaining, and enhancing the
enviroment, id., at 80, from soliciting contributions, this
Court noted:
. . sOlicitation is characteristically intertwined with
informative and perhaps persuasive speech seeking
support for particular causes or for particular views
on economic, political or social issues,
and. . . without solicitation that flow of such infor-
mation and advocacy would likely cease.
Id. at 84."°
Nowhere is the free flow of this exchange of infor-
mation and beliefs more important than in the political
arena. Indeed, ‘‘[w]hatever differences may exist about
interpretations of the First Amendment, there is prac-
tically universal agreement that a major purpose of that
Amendment was to protect free discussion of govern-
mental affairs. This, of course, includes discussion of
candidates, structures and forms of government, the
manner in which government is operated, and all such
matters relating to the political processes.’’ Mills v.
Alabama, 384 U.S. 214, 218-219 (1966)
'° Thus, the Court simplv reaffirmed ‘‘{[oJur cases long have pro-
tected speech even though it is in the form of . . . a solici‘ation to pay
or contribute money, New York Times Co. v. Sullivan.’’ Village of
Schaumberg, supra, 63 L. Ed. 2d at 85 ‘citations omitted).
10
Petitioners respectfully suggest that the issue in this
case touches upon the core meaning of First Amend-
ment principles and values, and presents an ‘‘extraor-
dinary case’’'' which meets both the judicial and
prudential considerations embodied in Article III.
Il. The Decisions of the Courts Below Conflict
with the Teachings of This Court, and Other
Federal Courts, which Support a Determination
that A Justiciable Case Is Present Here.
A. Petitioners need not expose themselves to
substantial civil and criminal penalties in
order to vindicate important constitutional
rights, nor should they be required to do
so.
This Court need look no further than its holding in
Buckley v. Valeo, 424 U.S.1(1976), to determine that the
courts below have undermined the fundamental constitu-
tional principles of justiciability embodied in that opi-
nion. In Buckley, individuals and organizations, the
plaintiffs and intervenor-plaintiffs, sought both
declaratory and injunctive relief in their broad-sweeping
challenge to the Federal Election Campaign Act, as
amended in 1974. In finding that a justiciable controver-
sy within the meaning of Article III was present, this
Court stated that, ‘‘at least some of the appellants have
a sufficient ‘personal stake’ in a determination of the
constitutional validity of each of the challenged provi-
sions to present ‘a real and substantial controversy ad-
mitting of specific relief...” ’’ 424 U.S. at 11-12.
'' Buckley v. Valeo, 519 F.2d 817, 833, aff'd in part, rev’d in part,
424 U.S. 1 (1976)
11
Thus, the Court looked directly to the substantial
constitutional issues raised by the plaintiffs in determin-
ing that the requirements of Article II] were met. And,
significantly, the Court made no reference either to
whether any of the plaintiffs or intervenors had violated
or threatened to violate the Act or to whether the super-
visory officers charged with enforcement of the Act had
in fact threatened enforcement against the specific plain-
tiffs.
Petitioners respectfully submit that they stand in an
identical posture to the plaintiffs in Buckley. As
demonstrated above, substantial constitutional issues are
at stake in the instant case. Indeed, Petitioners have
described their desired conduct with specificity, the con-
duct is expressly prohibited by statute, regulation, and
the Commission’s own interpretation, and the Commis-
sion has not disputed these contentions.
Moreover, Petitioners, a trade association, its
political action committee and individuals who support
and desire to act in concert with those organizations are
uniquely situated to press the claims affecting the ability
of such persons to engage in solicitations. As a constitu-
tional matter, then, no one other than the Petitioners,
Or someone similarly situated, would have the requisite
stake in the controversy to permit judicial review. See
Warth v. Seldin, 422 U.S. 490, 498-501 (1975).
Furthermore, this Court’s disposition of the Article
III question in Buckley is consistent with other holdings
of this Court and the lower federal courts—and the
holdings of the courts below conflict with these
precedents.
First, it is well established that, ‘‘[iJt is not
necessary that [a party] first expose himself to actual ar-
12
rest or prosecution to be entitled to challenge a statute
that he claims deters the exercise of his constitutional
rights.’ Steffel v. Thompson, 415 U.S. 452 (1974)."?
And, as the Fifth Circuit recently noted, ‘‘there is clear
Supreme Court authority that the probability of enforce-
ment is not relevant to a court’s jurisdiction over an an-
ticipatory challenge.’’ /nternational Society for Krishna
Consciousness v. Eaves, 601 F.2d 809, 818 (Sth Cir.
1979). See International Society for Krishna Con-
sciousness v. Rockford, 425 F. Supp. 734 (N.D. IIl.
1977), aff’d in part, rev’d in part, 595 F.2d 263 (7th
Cir. 1978.)
Second, the notion that an action for pre-
enforcement r2view is not ripe until agency enforcement
has taken place simply has not been the law since Ab-
bott Laboratories v. Gardner, 387 U.S. 136 (1967). The
two-fold test enunciated in Abbott, fitness of the issues
for judicial review and hardship to the parties of
withholding consideration, id. at 151, is patently met
here.
As previously noted, the speech in which Petitioners
would engage, but for the civil and criminal penalties
contained in the Act, is clearly set forth, and, there is
no need for any judicial fact-finding of the type con-
templated by the appellate court below'’ concerning the
nature of these ‘‘solicitations.’’ Thus, the first test of
Abbott is met.
'? Accord: Linmark Ass’n, Inc. v. Willingboro, 575 F.2d 786 (3rd
Cir. 1976), rev’d 431 U.S. 85 (1977)(No claim that the ordinance had
1 2sulted in any actual or specific loss and no claim of threatened en-
‘orcement. 535 F.2d 792); Epperson v. Arkansas, 393 U.S. 97 (1968)
There is no record of any prosecutions in Arkansas under the statute
it issue. /d. at 101-102.); Adler v. Bd. of Education, 342 U.S. 485
(1952)(No claim that plaintiffs had engaged or intended to engage in
prescribed activity).
'’ See App. A at 34a n.59.
13
In addition, withholding judicial review works a
special hardship on Petitioners and all other persons,
who, although they believe that their constitutional
freedoms are being infringed, are unwilling to risk
serious civil and criminal penalties for testing their con-
stitutional rights, as well as risking the loss of public
confidence both in them and the electoral process. See
Abbott, supra at 152-153. Thus, what the courts below
have effectively done is frustrate this Court’s holding in
Abbott and its progeny.
Third, Petitioners submit that they do _ have
reasonable grounds to believe that the Commission
would enforce the Act against them if they conducted
solicitations in violation of the Act. This belief is
predicated upon past enforcement actions of the Com-
mission itself.
Most notably, in FEC v. Nat’l Right to Work
Comm., Civ. Nos. 77-2175, 78-0315 (D.D.C. April 24,
1980), the Commission instituted enforcement actions
against a not-for-profit corporation for soliciting in-
dividuals whom the Commission alleged were outside
the corporation’s permissible group of solicitees. C/.,
App. A at 36a, n.62.
In FEC v. CLITRIM, No. 79-3014 (2d Cir. Feb. 5,
1980), the commission brought an enforcement action
against an unincorporated association which allegedly
spent a mere $135.00 to publicize the voting record of
an incumbent Member of Congress. And in FEC v.
AFSCME, 471 F.Supp. 315 (D.D.C. 1979), the Commis-
sion attempted to prosecute a labor organization for
publishing a cartoon related to the pardon of Richard
Nixon by former President Ford.
Petitioners respectfully suggest that with such a
track record of enforcement, they can reasonably be ap-
14
prehensive that the Commission would enforce the Act
against them. And, of course, the Commission has
never, in the course of this litigation, represented that it
would not prosecute, or even that prosecution would be
unlikely.
Thus, Petitioners suggest that, ‘‘[t]o insist that a
person must break the law in order to test its constitu-
tionality is to risk punishing him for conduct which he
may have honestly thought was constitutionally pro-
tected. Not only is this prima facie unfair, but it
discourages people from engaging in protected activity
and enforcing constitutional rights.’’ Jnternational
Society for Krishna Consciousness, supra, 601 F.2d at
821.
B. Petitioners need not undertake the useless
task of seeking an advisory opinion when
the statute, regulations, and the Commis-
sion charged with enforcing the Act have
already explicitly prohibited the activity in
which Petitioners desire to engage.
As the court of appeals itself noted (App. A at
27a), the Advisory Opinion mechanism, contained at 2
U.S.C. §437f, was designed to offer a means of resolv-
ing doubts as to interpretations of the Act. With respect
to the Petitioners, however, there simply is no doubt
that they want to engage in political speech directed to
political action committees and their representatives
which is inextricably intertwined with a solicitation for
funds to be used to further Petitioners’ and con-
tributors’ mutual political beliefs. And, there simply is
no doubt that the statute, the regulations, and the inter-
pretative commentary of the Commission all specifically
and unequivocally prohibit such speech. (See notes 6-8,
15
supra, and accompanying text.) Significantly, not once
has the Commission even remotely suggested that the
Petitioners might be in error on this point of law.'*
The fundamental error of the court of appeals lies
in its insistent application to the Petitioners here of its
determination that the term ‘‘solicitation’’ is subject to
varying interpretations, so that persons subject to the
Act might not know whether particular conduct con-
stitutes a prohibited solicitation.'’ Whatever gloss the
Commission or a court may apply to the word ‘‘solicit”’
in other contexts, when that word is considered in the
context of a statute whose unique purpose is to impose
limitations upon the amount of political contributions
and require the disclosure of the monetary value of
political contributions and expenditures, it is axiomatic
that the word ‘‘solicit’’ necessarily encompasses a direct
request for funds.
In light of the foregoing, it would be an utterly
useless task for the Petitioners to seek an advisory opi-
'* The Commission’s only response, that the Petitioners may engage
in this speech outside the context of a specific request for funds (See
App. A. at 35a n.60), begs the question. First, it flies in the face of
Schaumberg, supra; and second, except in the most exceptional cases,
this Court has never permitted such a prior restraint upon speech. Cf,
Bates v. State Bar of Arizona, 433 U.S. 350, 363 (1977) and cases cited
therein.
'S Petitioners here did nos allege in their Complaint that the ap-
plicable provisions of the Act were void for vagueness because of a
failure to define the term ‘‘solicitation.’’ However, as noted above,
this case was consolidated with Martin Tractor Co. v. FEC for pur-
poses of argument. The Martin Tractor plaintiffs did make such
allegations of vagueness in their complaint with respect to the course
of conduct in which they would engage but for the civil and criminal
penalties contained in the Act. Without commenting upon the merits
of their claim, Petitioners here simply reiterate that the vice of
vagueness is not applicable to the conduct in which they would
engage.
16
nion from the Commission, since the answer has been
foreordained. Thus, apart from the fact that ‘‘the law
never requires an idle thing to be done’’, Brooklyn Life
Insurance Co., v. Dutcher, 95 U.S. (Otto) 269, 272
(1877), requiring the Petitioners here to exhaust this ad-
ministrative remedy as a precondition io judicial review
would place the court ‘‘in no better position later than
[it is} now to decide the case.’’ Regional Rail
Reorganization Act Cases, 419 U.S. 102, 145 (1974).
That requiring the Petitioners to seek an advisory
opinion is to require a_ useless task is further
demonstrated by reference to §437f. This provision pro-
hibits the Commission from issuing an opinion unlesss
the applicable rule of law is stated either in the statute
or by regulation. As previously noted, both the statute
and the regulations unequivocally set forth the prohibi-
tion complained of here, and the Commission simply
cannot, even if it were so inclined, contradict its own
organic statute and its own regulations in an advisory
opinion.
Furthermore, even if these impediments did not ex-
ist, the interpretative commentary issued by the Com-
mission when the regulations were promulgated provides
the Petitioners with an unfavorable answer to any ques-
tion which they might otherwise pose in an advisory opi-
nion request. And, it is well established that courts
‘*have declined to follow administrative guidelines in the
past where they conflicted with earlier pronouncements
of the agency.’’ General Electric Co. v. Gilbert, 429
U.S. 125, 143 (1976), quoting United Housing Authority
Foundation, Inc. v. Forman, 421 U.S. 837, 858-859 n.
25 (1975); Espinoza v. Farah Mfg. Co., 414 U.S. 86,
92-96 (1973).
17
Ill. The Express Language and the Congressional
Intent Underlying the Enactment of 2 U.S.C.
§437h Are Frustrated by the Decisions of the
Courts Below.
By imposing upon the Petitioners the Hobson’s
Choice of either knowingly violating a statute with civil
and criminal penalties or undertaking a useless ad-
ministrative act, the courts below have failed to come to
grips with the fundamental procedural question which
underlies the manner in which Petitioners’ case should
be litigated.
Petitioners sought certification of this case pursuant
to 2 U.S.C. §437h, the expedited review provisions of
the Act. As the Seventh Circuit has recently stated, the
manifest intent of that provision is ‘‘to allow speedy
judicial review of all possible constitutional challenges to
any provision of the Act and to make certain that such
challenges would be decided by the Supreme Court.”’
Bread Political Action Committee v. FEC, 591 F.2d 29,
33 (7th Cir. 1979).'°
'6 That Petitioners here are entitled to invoke 2 U.S.C. §437h is
beyond dispute. In Buckley, supra, this Court first utilized §437h pro-
cedures and made them applicable to all the plaintiffs and intervenor-
plaintiffs there, both individual and institutional. In so doing, the
Court stated: ‘‘It is clear that Congress, in enacting 2 U.S.C. §437h,
intended to provide judicial review to the extent permitted by Art.
Ill.’ 424 U.S. at 11-12. See also, ibid., n.10. Thus, to the extent any
person, individual or institutional, presents a justiciable case or con-
troversy within the meaning of Article III, that person may invoke
§437h procedures. ~~ *
Furthermore, in Bread Political Action Committee, supra, the
Court of Appeals for the Seventh Circuit laid the matter to rest when
it concluded: ‘‘Based on the language of §437h and the overall scheme
of judicial review provided in the Act, we hold that §437h applies to
those plaintiffs’ [trade associations and their political committees]
constitutional challenge to certain provisions of the Act and that they
may invoke the expedited review provisions. . . . Thus three Congres-
18
Thus, on the one hand, to require Petitioners to
break the law and await an enforcement action under 2
U.S.C. §437g would frustrate the very purposes of both
the Declaratory Judgment Act and §437h. For, not only
does such a suggestion fly in the face of the considera-
tions which underlie Article III (see discussion supra at
10-14), but it also undermines the very purpose of
§437h, which is to place such constitutional adjudication
ahead of all other challenges to the Act, including both
constitutional and non-constitutional defenses to an en-
forcement proceeding. Bread Political Action Commit-
tee, supra at 32-33.
On the other hand, by requiring Petitioners to in-
voke the prudential doctrine of exhaustion of ad-
ministrative remedies in the context of an advisory opi-
nion request, the congressional intent underlying §437h
is likewise frustrated. For, the legislative history of
§437h makes it clear that, ‘‘under [§437] persons
challenging the constitutionality of any provisions of the
Act retain their right to do so without exhausting ad-
ministrative remedies,’’"’
Thus, the courts below erred in failing to address
the §437h issues raised by the Petitioners. For, had the
courts below considered the import of §437h to the
sional purposes [underlying §437h] are clear: comprehensive review,
speedy review, and ultimate review by our highest court of constitu-
tional challenges to the Act. The district court’s construction that
Congress intended to restrict standing to invoke §437h to the specified
plaintiffs is inconsistent with these expressed purposes.’’ 591 F.2d at
33. See also 591 F.2d at 36 (‘‘In sum, the decisions in Buckley fully
support our construction of §437h(a) and our holding that the plain-
tiffs in this case have standing to invoke its expedited review pro-
cedure.’’), and concurring opinion of Judge Tone, ibid.
'7 119 Cong. Rec. H. 10330 (daily ed. Oct. 10, 1974) (remarks of
Cong. Hays) (emphasis supplied).
19
issues raised in this case, then, and only then, would the
full limits of the prudential concerns which come to bear
upon Petitioners’ case—and all cases raising such basic
constitutional challenges to provisions of this Act—have
been explored.
CONCLUSION
For the foregoing reasons, Petitioners respectfully
request that the Petition for Writ of Certiorari be
granted,
Respectfully submitted,
STANLEY T. KALECZYC
STEPHEN A. BOKAT
NATIONAL CHAMBER
LITIGATION CENTER
1615 H Street, N.W.
Washington, D.C.
20062
(202) 659-3180
September 1980
APPENDIX
Notice: This opinion is subject to formal revision before publication
in the Federal Reporter or U.S.App.).C, Reports. Users are requested
to notify the Clerk of any formal errors in order that corrections may be
made before the bound volumes go to press.
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 78-2080
MARTIN TRACTOR COMPANY, et al., APPELLANTS
Vv.
FEDERAL ELECTION COMMISSION, et al.
No. 79-1027
NATIONAL CHAMBER ALLIANCE FOR POLITICS, et al.,
APPELLANTS
V.
FEDERAL ELECTION COMMISSION, et al.
Appeals from the United States District Court
for the District of. Columbia
(D.C. Civil Action Nos. 78-1259 and 78-1333)
Argued September 19, 1979
Decided May 8, 1980 |
Judgvent
2 this date
Bills of costs must be filed within 14 days after entry of judgment. The
court looks with disfavor upon motions td file bills of costs out of time.
2a
Stanley T. Kaleczyc with whom Stephen A. Bokat was
on the brief, for appellants in No. 79-1027.
Mark Sullivan, II], with whom Edward A. McCabe,
John G. Degooyer and Louise A. Sunderland were on the
brief, for appellants in No. 78-2080.
Kathleen Imig Perkins, Attorney, Federal Election
Commission with whom William C. Oldaker, General
Counsel and Charles N. Steele, Associate General Coun-
sel, Federal Election Commission were on the brief, for
appellees.
Before: MCGOWAN, LEVENTHAL,” and WALD, Circuit
Judges
Opinion for the Court filed by Circuit Judge WALD.
WALD, Circuit Judge:
Appellants in these consolidated appeals brought ac-
tions in district court seeking declaratory and injunctive
relief from certain of the provisions of section 321 of
the Federal Election Campaign Act of 1971, as amended,
2 U.S.C. § 441b,’ (“FECA” or the “Act”). Their com-
* Circuit Judge Leventhal, a member of the panel which
heard ora] argument in this case, died before the case was
decided.
1 Appellants in No. 78-2080, Martin Tractor Company v.
FEC [hereinafter Martin Tractor], challenge those provisions
of this section which effectively restrict the times, manner
and place of “solicitation” of contributions by corporate
“political action committees” (“PACs” or “separate segre-
gated funds”, see note 2, infra) of non-management employ-
ees. The core provisions challenged are contained in 2 U.S.C.
§ 441b(b) (4) (A) and (B) (1976):
(4) (A) Except as provided in subparagraphs (B),
(C), and (D), it shall be unlawful—
(i) for a corporation, or a separate segregated
fund established by a corporation, to solicit contribu-
tions to such a fund from any person other than its
3a
plaints alleged that these provisions violate rights guar-
anteed them by the first and fifth amendments of the
United States Constitution, insofar as they restrict
“solicitation” of contributions to, and by, certain cor-
stockholders and their families and its executive or
administrative personnel and their families... .
(B) it shall not be unlawful under this section for
a corporation, a labor organization, or a separate
segregated fund established by such corporation or
such labor organization, to make 2 written solici-
tations for contributions during the calendar year
from any stockholder, executive or administrative
personnel, or employee of a corporation or the fam-
ilies of such persons. A solicitation under this sub-
paragraph may be made only by mail addressed to
stockholders, executive or administrative personnel,
or employees at their residence and shall be so de-
signed that the corporation, labor organization, or
separate segregated fund conducting such solicitation
cannot determine who makes a contribution of $50
or less as a result of such solicitation and who does
not make such a contribution.
Appellants in No. 79-1027, National Chamber Alliance for
Politics v. FEC [hereinafter National Chamber], challenge
all those provisions of the section that purport to restrict or
may restrict the solicitation of contributions by trade associa-
tion PACs. This includes subparagraph 4(A) already quoted
and the following additional subparagraphs:
(C) This paragraph shall not prevent a member-
ship organization, cooperative, or corporation with-
out capital stock, or a separate segregated fund estab-
lished by a membership organization, cooperative, or
corporation without capital stock, from soliciting con-
tributions to such a fund from members of such
organization, cooperative, or corporation without
capital stock.
(D) This paragraph shal] not prevent a trade
association or a separate segregated fund established
by a trade association from soliciting contributions
from the stockholders and executive or administra-
4a
porate and trade association political action committees
(“PACs” or “separate segregated funds”).* Appellants
sought to have these claims determined under the special
expedited judicial review provision of the FECA, 2
U.S.C. $ 487h (1976), which requires en banc considera-
tion by the circuit courts of those questions of the Act’s
constitutionality which are certified by the district court
where the complaint is filed.
The district court here certified no questions. Instead,
on motion of appellees, the complaints were dismissed,*
tive personnel of the member corporations of such
trade association and the families of such stock-
holders or personnel to the extent that such solicita-
tion of such stockholders and personnel, and their
families, has been separately and specifically ap-
proved by the member corporation involved, and such
member corporation does not approve any such
solicitation by more than one such trade association
in any calendar year.
2 U.S.C. § 441b(b) (4) (C) and (D) (1976).
* The challenged section of the Act speaks not of political
action committees but of “separate segregated funds.” For
our purposes the two terms are used synonymously.
’ The section provides as follows:
The Commission, the national committee of any politi-
cal party, or any individual eligible to vote in any elec-
tion for the office of President of the United States may
institute such actions in the appropriate district court
of the United States, including actions for declaratory
judgment, as may be appropriate to construe the constitu-
tionality of any provision of this Act. The district court
immediately shall certify all questions of constitutionality
of this Act to the United States court of appeals for the
circuit involved, which shall hear the matter sitting en
banc.
* Martin Tractor Co. v. FEC, 460 F. Supp. 1017 (D.D.C.
1978); Nat’l Chamber Alliance for Politics v. FEC, Civ.
No. 78-1883 (D.D.C. Nov. 22, 1978), National Chamber
Appendix (App.) 97-98.
5a
the court holding that the facts of neither case presented
a “ease or controversy sufficiently ripe for declaratory
action.”” The court also concluded that appellants were
not among the individuals eligible to seek review under
$ 437h. Several were deemed not eligible because they
did not fall into any of the statutorily-specified categories
of eligible complainants; and others because the merits
of their claims bore little or no relation to the charac-
teristic which rendered them arguably eligible to proceed
under § 437h.
For reasons that vary only slightly from those given
by the district court, we find the cases nonjusticiable as
a constitutional matter and inappropriate for adjudica-
tion as a prudential matter.6 We therefore affirm the
* Since we hold that these appellants present no justiciable
“case or controversy” we need not decide or consider the cir-
cumstances under which a court might decline for prudential
reasons alone to reach the merits of a constitutional challenge
to the FECA. This court has indicated that even when a com-
plaint is governed by the specia! FECA review provisions, a
live “ease or controversy” might be dismissed for prudential
reasons. Clark v. Valeo, 559 F.2d 642, 650 n.11 (D.C. Cir.)
(en bene). aff'd mem. sub nom. Clark v. Kimmit, 431 U.S. 950
(1977). Judge Leventhal, concurring in Clark, would have
rested his dismissal of that case entirely on prudential
grounds. 7d. at 657. Judge Robinson, dissenting, disagreed,
id, at 669, arguing that Congress in the FECA and the
Supreme Court in Buckley v. Valeo, 424 U.S. 1 (1976), had
eliminated from adjudication under §4387h the _ extra-
constitutional aspects of ‘“‘justiciability.” The majority took
issue with Judge Robinson’s dissen_:
To the extent [Judge Robinson’s] language may be read
as suggesting a view that Congress may “command” the
judiciary to act contrary to the rules relative to ripeness
the Supreme Court has developed “for its own govern-
ance in the cases confessedly within its jurisdiction,”
Ashwandcer Vv. Tennessee Valley Authority, 297 U.S. 288
... (Brandeis, J., concurring), we respectfully disagree.
[Continued]
6a
dismissals of the complaints and in view of this disposi-
tion we do not confront the issue of the scope or applica-
bility to this case of § 437h.°
5 [Continued }
Id. at 650, n.11. We take note of the majority’s position in
Clark but since we find it unnecessary to decide the cases now
before us on prudential grounds alone, we do not employ their
understanding here, even assuming, arguendo, the judicial
review provisions of § 437h applied.
‘With respect to §437h, the questions presented are:
(1) whether the availability of judicial review under § 437h
is limited to the classes of individuals or groups expressly
mentioned as eligible to seek review under its terms; and
(2) whether the capacity in which or the reasons for which
an individual or group seeks review should determine the
availability of the procedure provided in § 487h. By its own
terms § 487h is available to “the Commission, the nationa!
committee of any political party, or any individual eligible
to vote in any election for the office of President of the
United States.”
The district court concluded that § 437h was not open to
any of these appellants. In Martin Tractor the court rea-
soned that the appellants were not ‘‘the Commission”’ or, the
“national committee of any political party” and that the indi-
vidual plaintiffs put at issue “. .. not their rights as voters,
but rather the constitutionality of the Act’s provisions relat-
ing to communications between a corporation and its em-
vloyees about voluntary contributions.” 460 F. Supp. at
1019. In National Chamber the court concluded:
The same factors which required dismissal of the
action in Martin Tractor prove fatal to plaintiff’s case
here. The special standing provision of 2 U.S.C. § 437h(a)
is inapplicable to the Chamber and its PAC as they are
not among the entities enumerated in that provision. The
Court’s reasoning in Martin Tractor as to the standing
of the corporate executives and hourly employees under
§ 437h (a) applies equally to the individual plaintiffs here.
They sue not in their individual capacities but rather to
vindicate the rights of the corporate entities. That deriva-
tive right was not the constitutional right of an ‘“‘individ-
ual eligible to vote’”’ which Congress considered ‘“appro-
Ta
I. SOME GENERAL PRINCIPLES
A. Principles of Justiciability
The congeries of doctrines which together comprise the
requirements of justiciability interpose an obstacle in
each case between the complainant and any decision on
the merits of his or her complaint. Although the “case
or controversy” requirements of Article III are the foun-
dation of the body of law from which the criteria of
justiciability have been fashioned, the prudent exercise
of the judicial function, especially in reviewing the con-
stitutionality of legislative acts, has been responsible for
the development of much of the edifice of the doctrine.’
To establish a justiciable claim under Article III, a
plaintiff must allege “such a personal stake in the out-
come of the controversy as to assure... concrete ad-
verseness ....” Baker v. Carr, 369 U.S. 186, 204
(1962). Further, the plaintiff must allege an actual in-
priate” for vindication in a declaratory judgment action
under this section.
National Chamber App. at 97-98.
The district court’s conclusion conflicts with the conclusion
of the only other court to have faced this question squarely.
In Bread Political Action Comm. v. FEC, 591 F.2d 29 (7th
Cir. 1979), the seventh circuit decided that judicial review
under § 437h should not be confined to suits Lrought by the
plaintiffs designated in the statute. We intimate no view as
to the correctness of that ruling.
*See Duke Power Co. vy. Carolina Environmental Study
Group, Inc., 438 U.S. 59, 81-82 (1978) (delineating both
constitutional and prudential components of ripeness). The
constitutional requirements for ripeness were stated to be
equivalent to those for standing—injury in fact and redress
of the injury by the relief requested. For prudential purposes
the critical question was stated to be whether deferring deci-
sion would better prepare the court by providing additional
facts.
8a
jury * or the certainty of future injury. “A hypothetical
threat is not enough.” United Public Workers v. Mitchell,
330 U.S. 75, 90 (1947). If the injury be a future one,
the occurrence of the injury must be reasonably certain
and clearly describable for the action to be deemed “ripe”’
for adjudication. The mere possibility of prosecution or
the possibility that sanctions authorized under a general
regulatory regime may be imposed when the regulatory
agency is confronted with specific facts developed in some
future agency proceeding is insufficient.”
Ripeness enters the Article III ‘case or controversy”
picture in the determination whether the requisite injury
is in sharp enough focus and the adverseness of the
parties concrete enough to permit a court to decide a real
controversy and not a set of hypothetical possibilities.
As a prudential doctrine, ripeness is in part an expres-
sion of the court’s inherent discretion when declaratory
or injunctive relief is sought. The Court has noted the
importance of this discretion when called upon to make a
declaration of right, repeating its caution “against de-
‘In Laird v. Tatum, 408 U.S. 1, 13 (1972), the Court applied
the established principle that to entitle a private individ-
ual to invoke the judicial power to determine the validity
of executive or legislative action he must show that he
has sustained or is immediately in danger of sustaining
a direct injury as the result of that action....
Quoting Ex parte Levitt, 302 U.S. 633, 634 (1937).
"In Nat'l Student Ass’n v. Hershey, 412 F.2d 1103, 1110
(D.C. Cir. 1969), this court noted that:
the mere existence of a statute, regulation, or articulated
policy is ordinarily not enough to sustain a judicial chal-
lenge, even by one who reasonably believes that the law
applies to him and will be enforced against him accord-
ing to its terms.
See also Lion Mfg. Corp. v. Kennedy, 330 F.2d 833 (D.C. Cir.
1964).
9a
claratory judgments on issues of public moment, even
falling short of constitutionality, in speculative situa-
tions.” '”
Because of the “ ‘great gravity and delicacy’ of |the
courts’| function in passing upon the validity of an act
of Congress,” '’ the need is manifest for a ‘full-bodied
record” '* in such adjudication. United States v. UAW,
352 U.S. 567 (1957), a case which involved an alleged
violation of the statutory predecessor of the provisions
at issue here, emphasized the importance of a detailed
factual record upon which a court might limit, frame and
perhaps avoid a constitutional decision. In that case, the
Court upheld the indictment of a labor organization ac-
cused of using union dues to sponsor television broadcasts
supporting Congressional candidates. Finding the indict-
ment consistent with the terms of the statute, a majority
of the Court declined to consider the statute’s constitu-
tionality, observing that sucli challenges shouid not be
considered ‘‘unless absolutely necessary to a decision of
the case.” Jd. at 590, quoting Burton v. United States,
196 U.S. 283, 295 (1905). The indictment was remanded
for trial so that “fan adjudication on the merits [would]
10 Pub. Affairs Assoc., Inc. v. Rickover, 369 U.S. 111, 112
(1962). Accord, Pub. Serv. Comm’n v. Wycoff Co., 344 U.S.
237, 243 (1952) (“the propriety of declaratory relief in a
particular case will depend upon a circumspect sense of its
fitness informed by the teachings and experience concerning
the functions and extent of federal] judicial power’’) ; Samuels
v. Mackell, 401 U.S. 66, 73 (1971) (error to declare rights
with respect to pending state criminal prosecution) (princi-
ples which guide injunctive relief will also guide grantiny of
declaratory judgment) ; Lampkin v. Connor, 360 F.2d 505,
508-09 (D.C. Cir. 1966) (broad discretion to decline to issue
declaratory judgments).
'' Ashwander v. TVA, 297 U.S. 288, 345 (1936) (Brandeis,
J., concurring).
12 Pub. Affairs Assoc., Inc. v. Rickover, 369 U.S. at 113.
10a
provide the concrete factual setting that sharpens the
deliberative process especially demanded for constitu-
tional decision.” Jd. at 591. Indeed, counse! for the
National Chamber appellants concede that “[cJentral to
the Supreme Court’s exegesis of the ripeness doctrine is
the insistance [sic] on a sufficiently defined record to
insure informed and appropriately narrow adjudication.”
Brief for National Chamber Appellants at 47.
B. Principles of Facial Adjudication
Since the constitutional challenges pressed upon us
here involve assertions of first amendment freedoms in
conflict with the FECA, we briefly review the special
status of facial first amendment attacks on the constitu-
tionality of statutes or regulations.
Within the first amendment arena the jurisprudential
criteria for constitutional adjudication are sometimes re-
laxed when a facial attack is launched. In some cases
reaching the merits of facial challenges, standing has been
broadened. For example, in Gooding v. Wilson, 405 U.S.
518, 520 (1972), the chill found by the Court to have been
suffered by reason of the challenged ordinance was not
limited to the injury experienced by the complaining in-
dividual. Thus, it has been suggested, the assertion of
vicarious rights, otherwise not countenanced, may be
permitted when a facial first amendment challenge is
made.’* In addition, in such cases the ripeness doctrine
has been more loosely applied. Reasonable predictability
of enforcement or threats of enforcement, without more,
have sometimes been enough to ripen a claim. In one
such case, National Student Association v. Hershey, 412
F.2d 1103 (D.C. Cir. 1969), this court held that the
'§ See Note, Standing to Assert Constitutional Jus Tertii,
88 HARV. L. REV. 423, 438-40 (1974); See also NAACP v.
Button, 371 U.S. 415, 432-33 (1963) ; United States v. Raines,
362 U.S. 17, 21-22 (1960).
lla
chill upon first amendment freedoms induced by a se-
lective service directive concerning participation in “il-
legal” antiwar protests was a sufficiently concrete harm
to permit pre-enforcement examination of the merits of
a constitutional challenge to the directive.”
On the other hand, decisions reaching the merits of
facial constitutional challenges—first amendment and
otherwise—are the exception and not the rule. In his
opinion for the Court in Younger v. Harris, Mr. Jus-
tice Black noted:
Procedures for testing the constitutionality of a
statute ‘“‘on its face’ in the manner apparently con-
templated by Dombrowski,''"! and for then enjoining
all action to enforce the statute until the State can
obtain court approval for a modified version, are
fundamentally at odds with the function of the fed-
eral courts in our constitutional plan. ... [T]he
task of analyzing a proposed statute, pinpointing its
deficiencies, and requiring correction of these defi-
ciencies before the statute is put into effect, is
rarely if ever an appropriate task for the judiciary.
The combination of the relative remoteness of the
controversy, the impact on the legislative process
of the relief sought, and above all the speculative
and amorphous nature of the required line-by-line
analysis of detailed statutes, . . . ordinarily results
14 Cf. Police Dep’t v. Mosley, 408 U.S. 92 (1972) (specific
interpretation of anti-picketing ordinance had been given by
police department). See also Baggett v. Bullitt, 377 U.S. 360
(1964) (enforcement of oath requirement had been threat-
ened).
15401 U.S. 37 (1971) (refusal on equitable grounds to en-
join pending state “criminal syndicalism” prosecution chal-
lenged under first amendment).
16 Dombrowski v. Pfister, 380 U.S. 479 (1965) (holding
abstention inappropriate in challenge by civil rights group to
criminal] aspects of subversive contro] laws).
12a
in a kind of case that is wholly unsatisfactory for
deciding constitutional questions, whichever way they
might be decided. In light of this fundamental con-
ception of the Framers as to the proper place of the
federal courts in the governmental processes of pas-
sing and enforcing laws, it can seldom be appro-
priate for these courts to exercise any such power of
prior approval or veto over the legislative process.
401 U.S. at 52-53."
With these not-easily-reconcilable principles in mind,
we turn to the particular arguments made in, and the
facts presented by, the appeals now before us.
Il. Tue Martin Tractor CASE, No, 78-2080
A. Factual and Procedural History
In 1975, the Martin Tractor Company established the
Kansas Economic Education Political Club (‘Keep
Club’), a PAC.'* At that time the right of a corpora-
tion or union to establish, administer and solicit volun-
tary contributions to a PAC was generally acknowledged,
and the only restrictions upon PAC operations were that
corporate or union monies be kept separate from PAC
monies and that all contributions to PACs be entirely
voluntary. A corporation and its management were free
17 See also Bates v. State Bar, 483 U.S. 350, 381 (1977),
quoting Broadrick v. Oklohoma, 413 U.S. 601, 613 (1978)
(facial overbreadth review “strong medicine” to be ‘‘em-
ployed ... sparingly and only as a last resort’) ; Nat'l Stu-
dent Ass'n v. Hershey, 412 F.2d at 1113-15 (“we are not
persuaded that every plaintiff who alleges a First Amend-
ment chilling effect and shivers in court has thereby estab-
lished a case or controversy”’).
*® Martin Tractor App. 5-7.
13a
to communicate with all employees and shareholders con-
cerning its PAC and to solicit contributions to the PAC
on a regular basis."
The Martin Tractor Company administered the Keep
Club in accordance with the above rights and restrict-
tions until May 11, 1976, the effective date of the FECA
Amendments of 1976.°° Prior to that date, appellants
Keep Club, Martin Tractor Company, Martin and Little-
john (members of the Company’s “executive or ad-
ministrative personnel” group and persons responsible for
supervising the Keep Club) communicated with all mem-
bers of the company’s corporate community, including
appellant Bramlage (a Martin Tractor hourly employee),
concerning the PAC and contributions to it. They did
so orally and in writing, on and off the company premi-
ses, and more than twice a year."!
The 1976 Amendments impose restrictions upon the
type, quantity and extent of “solicitation” permitted the
appellants. Section 441b divides a corporation and those
persons having a community of interest with it into two
classes: ‘1) a corporation’s stockholders and “execu-
tive or adiministrative personnel,” defined as those em-
plovees who are “paid on a salary, rather than hourly,
basis and who have policymaking, managerial, profes-
sional, or supervisory responsibilities;” ** and (2) all
other emplovees not defined as executive or administra-
tive personnel.“' A corporation and its PAC may com-
municate without restriction concerning contributions to
the PAC oniv with the corporation’s stockholders and
See Buckley v. Valeo, 424 U.S. at 28 n.81.
*’ Pub. L. No. 94-283, 90 Stat. 475, 502 (1976).
" Martin Tractor App. 7-9.
"2 U.S.C. § 441b(b) (7) (1976).
*°2 U.S.C. § 441b(b) (4) (B) (1976).
l4a
executive or administrative personnel.*' Solicitation of
i corporation’s hourly employees, however, is limited to
twice in one year, and must be in writing and addressed
to those emplevees at their residences.** The terms “so-
licit” and “solicitation” are not defined by the FECA.
As a result of the FECA Amendments of 1976, and
the sanctions imposed for violations of their provisions,“
“2 U.S.C. § 441b(b) (4) (A) (i) (1976).
%2 U.S.C. §$441b(4)(B) (1976). The Federal Election
Commission (“FEC” or “Commission”) has adopted regula-
tions which implement the statutory provisions complained
of by these appellants. 11 C.F.R. Part 114 (1979). The
reyulations divide the corporate community into two classes
and restrict communication between them in exactly the same
manner as § 441b, 11 C.F.R. §§ 114.6, 114.7 (1979).
*“ The FECA imposes substantial civil and criminal penal-
ties for violations of its provisions and contains claborate
enforcement mechanisms leading to their imposition. The
FEC is first required to endeavor to correct or prevent viola-
tions through informal methods leading to a conciliation
agreement. 2 U.S.C. §$ 487g(a) (5) (A) (1976). As part of a
conciliation agreement, the FEC may require payment of
penalties equivalent to those available in a civil suit for en-
forcement. Jd. §§ 487g¢(a) (6) (A)-(B). If conciliation fails,
the FEC may bring a civil action with penalties of $5,000 or
an amount equal to the expenditure or contribution involved
in the violation. 7d. § 487g(a)(5)(B). In the event of a
knowing and willful violation, the penalties may be doubled.
Id. §§ 487g (a) (6) (A), (a) (7). Without regard to any pend-
ing conciliation proceedings, the FEC may refer knowing and
willful violations to the Attorney General of the United States
for criminal prosecution. 7d. § 487¢(a)(5)(D). Criminal
penalties for violations of the FECA include imprisonment
and fines of $25,000 or treble the amount involved. /d.
§ 441}(a). The civil enforcement provisions were amended
in 1980, but the nature and severity of the penalties that may
be imposed were not changed. FECA Amendments of 1979,
Pub. L. No. 96-187, § 108, 98 Stat. 1889, 1858-62 (1980).
15a
these appecunts confurmed their political communications
to the § 441b prohibitions. The Martin Tractor Comm-
pany, iis PAC, and its executive and administrative per-
sonnel no longer communicate freely with hourly employ-
ees about the PAC, and solicitations are made only twice
a year, in writing at the residences of hovrly employees.”
According to the appellants’ complaint, but for the § 441b
restrictions and the threat of sanctions, they would re-
sume the extent and manner of communication they en-
gaged in previously.
Other appellants in the Martin Tractor case include
Alton Box Poard Company and its PAC, and Texas Stee]
Company. its PAC, and its president. The PACs of both
these companies were not established until! 1976" and
neither had solicited hourly employees prior to the 1976
amendments. Their alleged injury is that they would
commence communications with hourly employees more
than the prescribed twice a year, and ai places other
than empleyecs’ residences, were it not for the FECA
and its sanctions.*"
Appellants in the Martin Tractor case allege that their
behavior has thus far conformed to the statutory man-
date. They make no allegation of an _ intention—im-
minent or otherwise—to violate the statute, and the Fed-
eral Election Commission (“FEC” or “Commission”),
charged by the statute with enforcement of its terms,”
has no cause to commence enforcement, nor even to
threaten enforcement, of the challenged statutory pro-
2° Martin Tractor App. 7-9.
°8 Martin Tractor App. 10, 12.
2° Martin Tractor App. 10-14.
“2 U.S.C. § 487e(b) (1976).
16a
visions against them." Insofar as appears from their
complaint, appellants did not communicate in any way
with the FEC before this action was commenced.
Like the court below, we find that the case in its pres-
ent posture is not ripe for decision. We ground our hold-
ing in the constitutional as well as the prudential aspects
of the ripeness doctrine. We differ with the district court
only slightly in our separate analysis of the doctrine as
applied to first amendment challenges to statutes “on their
face.”
B. The Statute on Its Face
Neither the Act * nor the FEC’s implementing regula-
tions “ define the prohibited solicitations. ‘Solicit’ can,
*\ The most appellants in Martin Tractor are able to argue
is that
[t]he FEC has never indicated to Appellants that it would
permit an intentional violation of the statute to create a
test case or agree not to initiate any civil or criminal
proceedings in connection therewith.
Brief for Martin Tractor Appellants at 25 n.11. Because all
appellants are conforming to and not violating the challenged
section, there would be no reason for the Commission to initi-
ate an investigation, 2 U.S.C. §437g(a) (2) (1976), or to .
enter into a “conciliation agreement” with appellants, /d.
§ 487¢(a) (5) (A), or to institute a civil action in federal
district court to enforce the section against them. /d.
§ 487g (a) (5) (B).
32 See, e.g., 122 ConG. REC. 12477 (1976) (remarks of Sen.
Domenici) (commenting on the FECA Amendments of
1976): “The conference report fails to adequately define
‘solicit’ or ‘solicitation’ thereby raising additional questions of
what is possible and what is not.” But see 122 Conc. REc.
12200 (1976) (remarks of Rep. Hays): “any action [that]
could fairly be considered a request for a contribution should
be treated as a solicitation.”
811 C.F.R. §§ 114.5, 114.6 (1979) (solicitation by corpora-
tions); 11 C.F.R. § 114.7 (1979) (solicitation by member-
ship organizations or cooperatives) ; 11 C.F.R. § 114.8 (1979)
(solicitation by trade associations).
17a
of course, mean a variety of things.”
Although the context differs, the Supreme Court has
recently addressed the meaning of “solicitation” and the
constitutional implications of proscribing behavior so de-
scribed.’ In doing so, it has upheld against constitu-
tional attack application of a state-imposed ban on solici-
tation by lawyers, Olralick v. Ohio State Bar Association,
436 U.S. 447 (1978), but has also invalidated under the
first amendment a ban on such solicitation as applied in a
non-remunerative context, Jn re Primus, 486 U.S. 412
(1978). Since the Court had earlier announced that it
would not entertain facial attacks upon limitations to
“commercial speech,” Bates v. State Bar, 488 U.S. 350,
379-81 (1977), these ‘solicitation’? cases were decided in
a fairly complete factual context and upon a_ well-
developed record. Despite the differences between “‘com-
mercial” and “non-commercial” speech, we think it is not
insignificant that details about the kind, manner and
purpose of the “solicitation” were crucial to the Court’s
decisions in Ohralick and Primus—the very kind of de-
tails which are absent here.
’4 Addressing the Securities Exchange Act’s prohibition of
the solicitation of certain proxies, one circuit court has con-
cluded that solicitation ‘is a question of fact dependent upon
the nature of the communication and the circumstances under
which it is transmitted.” Sargent v. Genesco, Inc., 492 F.2d
750, 767 (5th Cir. 1974).
35 On earlier occasions the Court has reviewed determina-
tions made by the NLRB concerning the lawfulness under the
National Labor Relations Act of employer-imposed bans on
membership “solicitation” by unions. NLRB v. Baptist Hosp.,
442 U.S. 773 (1979) ; Republic Aviation Corp. v. NLRB, 324
U.S. 793 (1945). Although these cases did not discuss first
amendment rights (but see NLRB v. Gissel Packing Cv., 395
U.S. 575 (1969)), it is apparent that the lawfulness of the
Board’s determinations in those cases depended in large
measure on the care with which the respective rights of em-
ployees and management had been balanced with reference
to the time. place and manner of “solicitation” prohibited.
18a
‘
The inherent vagueness of the term “solicit,” coupled
with the Commission’s failure to define the term by regu-
lation, might at first glance be thought to militate in
favor of reaching the merits of appellants’ claims. The
decided cases demonstrate that the extent of the chill
upon first amendment rights induced by vague or over-
broad statutes is the most significant factor in deter-
mining whether an otherwise premature or abstract fa-
cia) attack such as we have here is ripe for decision.*®
Hence, we examine the nature and extent of the po-
tential chi!! to determine whether there is in fact a
rine case or controversy in the absence of any enforce-
ment threat or even certainty that the appellants and
the FEC will ever be at odds about the interpretation
of the Act’s prohibition of “solicitation” activities. We
find the extent of the chill induced by the statutory
provision at issue here a very limited one.
First, to the extent that it offers a prompt means of
resolving doubts with respect to the statute’s reach, the
advisory opinion !AQO) mechanism written into the
6 Bates v. State Bar, 433 U.S. at 380-81; Laird v. Tatum,
408 U.S. at 11 (citing cases) ; Walker v. City of Birmingham,
388 U.S. 3807, 344-45 (1967) (Brennan, J., dissenting)
“{Supreme] Court has modified traditional rules of standing
and prematurity” in order to “insulate all individuals from
the ‘chilling effect’ upon exercise of First Amendment free-
doms generated by . . . overbreadth’’); Davis v. Ichord, 442
F.2d 1207, 1214-15 (D.C. Cir. 1970); Nat’l Student Ass’n
v. Hershey, 412 F.2d at 1115 (‘“‘filn determining whether
a given chilling effect is sufficient, it would seem relevant
to consider, inter alia: . .. the severity and scope of the
alleged chilling effect on first amendment freedoms .. .’’);
Reed Enterprises v. Corcoran, 354 F.2d 519, 523 (D.C. Cir.
1965). See Note, The First Amendment Overbreadth Doctrine,
83 HARV. L. REV. 844, 853 (1970) ; Note, Overbreadth Review
and the Burger Court, 49 N.Y.U. L. REv. 582 (1974).
19a
FECA," under which the Commission is authorized to
give advice concerning the Act’s application to specific
factual situations,” mitigates whatever chill may be
"7 As amended in 1976, the FECA provided:
The Commission sha]! render an advisory opinion, in
writing, within a reasonable time in response to a written
request by any individual holding Federal office, any can-
didate for Federal office, any political committee. or the
national committee of any political party concerning the
application of a general rule of law stated in the Act or
chapter 95 or chapter 96 of title 26, or a general rule of
law prescribed as a rule or regulation by the Commission,
to a specific factual situation.
2 U.S.C. $487f (1976). This section was amended by the
FECA Amendments of 1979, Pub. L. No. 96-187, § 107, 93
Stat. 1857-58 (1980). The Act now provides:
Not later than 60 days after the Commission receives
from a person a complete written request concerning the
application of this Act, chapter 95 or chapter 96 of the
Internal Revenue Code of 1954, or a rule or regulation
prescribed by the Commission, with respect to a specific
transaction or activity by the person, the Commission
shall render a written advisory opinion relating to such
transaction or activity to the person.
Td.
‘$Tronically, the restrictions on solicitations from hourly
employees challenged here were added in reaction to a broad
“advisory opinion” under which such solicitations were gen-
erally permitted. See 122 Conc. REc. 8863-66 (remarks of
Reps. Frenzel, Hays, Wiggins), 8881 (remarks of Rep. Thomp-
son) (1976).
Dissatisfied with the FEC’s position, the House passed a
bill which would have required all advisory opinions stating
rules of general applicability to be submitted to Congress for
review. That requirement was deleted in Conference, see
H.R. ConF. REP. No. 94-1057, 94th Cong., 2d Sess. 48-45 |
(1976), but the Conference substituted a requirement that
advisory opinions be issued only with respect to “specific fact
situations,” and prohibited the Commission from issuing any
advisory opinions except those which “relate to the applica-
20a
induced by the statute and argues against constitutional
adjudication on a barren record.”
At the time this case was argued, only specified indi-
viduals and groups—but including ‘political [action]
99
committees” “’—were eligible to seek advisory opinions.
tion of a general rule of law which is stated in the Act... or
which already has been prescribed by a rule or regulation.” /d.
at 44.
As can be seen from comparing the advisory opinion pro-
visions before and after the 1980 amendments, the language
which tied the issuance of advisory opinions to “specific
factual situations’ has been revised. Advisory opinions are
now tied to “a specific transaction or activtiy by the person
[requesting advice].” Pub. L. No. 96-187, § 107, 93 Stat. 1358
(1980).
‘* Cf. W.E.B. DuBois Clubs v. Clark, 889 U.S. 309, 312
(1967) (per curiam) (declining to reach merits of first
amendment claim in view of administrative mechanism
required by statute to be followed before compliance with
challenged registration provisions might have been com-
pelled). See Eccles v. Peopies Bank, 333 U.S. 426, 484
(1948) (equitable relief inappropriate where administrative
intent has not come to fruition or is unknown); Nat’l Con-
servative Political Action Comm. v. FEC, No. 78-1548, slip
op. at 7-8 (D.C. Cir. Mar. 11, 1980) (case ripe where perti-
nent regulations and AO have been issued).
Appellants cite that portion of the legislative history of the
Act which suggests that the expedited review procedures of
§ 437h, invoked here, were designed to allow plaintiffs to
raise constitutional issues “in court without exhausting ad-
ministrative remedies to the extent the courts have jurisdic-
tion under established principles.” 120 Conc. Rec. 35134
(1974) (Rep. Havs). See also 120 Conc. REC. 35140 (1974)
(Rep. Frenzel). But even if §437h applied, “established
principles” which confine adjudication to concrete and de-
veloped fact situations would require the same conclusion.
‘As amended in 1974, the FECA defined a “political com-
mittee” as follows:
any committee, club, association, or other group of per-
sons which receives contributions or makes expenditures
2la
The FECA Amendments of 1979 have broadened the
class of those eligible to seek such opinions to include any
“yerson.” '' AQOs are binding in the sense that reliance
on un AO was and is a defense to criminal prosecution
or civil suit.” In addition, AOs must be issued promptly.
during a calendar year in an aggregate amount exceed-
ing $1,000.
2 U.S.C. $ 431(d) (1976). Advisory opinions, first authorized
in 1974, have routinely been requested by and issued to cor-
porate and trade association political action committees or
separate segregated funds. E.g., AO 1979-38 (Jul. 31, 1979),
reprinted in FEDERAL ELECTION CAMPAIGN FINANCING GUIDE
(CCH) ‘* 5422 (solicitation of administrative personnel of
franchisees) (corporate political action committee) ; AO 1978-
83 (Dec. 18, 1978), reprinted in FEDERAL ELECTION CAMPAIGN
FINANCING GUIDE (CCH) £ 5382 (convention booth for seek-
ing solicitation approvals) (trade association political action
committee). The Act’s definition of “political committee” has
been clarified and revised; it now expressly includes ‘‘separate
segregated fund[s].” (In addition, separate segregated funds
now constitute “political committees” irrespective of the
amount of contributions received or expenditures made.) See
H.R. Rep. No. 96-422, 96th Cong., Ist Sess. 5 (1979). FECA
Amendments of 1979, Pub. L. No. 96-187, § 101, 93 Stat.
1339 (1980). But see 125 CONG. REc. S19099 (daily ed.
Dec. 18, 1979) (remarks of Sen. Bumpers) (amendment to be
read in light of purpose to regulate federal elections; funds
established to engage in state and local election activities not
required to register or report); 125 Conc. REc. H12365
(daily ed. Dec. 20, 1979) (remarks of Reps. Frenzel and
Thompson) (same).
‘1 Pub. L. No. 96-187, § 107, 93 Stat. 1358 (1980).
‘2 As amended in 1976, the Act provided as follows:
(1) Notwithstanding any other provisions of law, any
person who relies upon any provision or finding of an
advisory opinion in accordance with the provisions of
paragraph (2) and who acts in good faith in accordance
with the provisions and findings of such advisory opinion
shall not, as a result of any such act, be subject to any
22a
The Act now requires that the Commission act within
sixty days of the request for advice.*”
When a means like this one is available to reduce
uncertainty or narrow the statute’s reach and that
means can be pursued at little risk to the rights as-
serted, the chill induced by facial vagueness or over-
breadth is pro tanto reduced.“
sanction provided by this Act or by chapter 95 or chapter
96 of title 26.
(2) Any advisory opinion rendered by the Commis-
sion... may be relied upon by (A) any person involved
in the specific transaction or activity with respect to which
such advisory opinion is rendered; and (B) any person
involved in any specific transaction or activity which is
indistinguishable in all its material aspects from the
transaction or activity with respect to which such ad-
visory opinion is rendered.
2 U.S.C. §$ 437f(b) (1976). The Act now provides:
(c)(1) Any advisory opinion rendered by the Com-
mission ... may be relied upon by—
(A) any person involved in the specific transac-
tion or activity with respect to which such advisory
opinion is rendered; and
(B) any person involved in any specific transac-
tion or activity which is indistinguishable in all its
material aspects from the transaction or activity with
respect to which such advisory opinion is rendered.
FECA Amendments of 1979, Pub. L. No. 96-187, § 107, 93
Stat. 1358 (1980).
‘8 See note 37, supra. The FECA formerly required only
that AOs be issued “within a reasonable time.” 2 U.S.C.
$ 437f (1976).
** In Buckley v. Valeo, 424 U.S. 1 (1976), the advisory opin-
ion mechanism was argued as a means of saving the Act’s ex-
penditure limitations from unconstitutional vagueness, but
the Supreme Court rejected the argument, noting that ad-
visory opinions were available only to a few specified individ-
23a
A second reason for skepticism about the extent of
the chill suffered ii, these cisces is the uncertain seope
or nature of the legal rights alleged to have been in-
vaded. The statutory provision at issue in the Martin
Tractor case restricts “solicitation” of contributions by
corporations and corporate PACs of the corporation’s
own employees. The Supreme Court has recently warned
that corporations and their representatives may not be
denied at least some of the first amendment rights ac-
corded individuals or other sorts of organizations, First
National Bank vy. Bellotti, 485 U.S. 765 (1978), but
earlier cases have suggested that the first amendment
rights of corporations with respect to communications
with their own employees may not be as strong or as
extensive as their first amendment rights to communica-
tions with the public at large. See NLRB v. Gissel Pack-
ing Co,. 395 U.S. 575, 617 11969). The chill suffered
cannot be deeper or broader than the rights enjoyed and
precedent here suggests a thin laver of potential chill.
At any rate, few decisions reaching the merits of
facial first amendment attacks have involved the first
amendment rights of for-profit corporations *® and fur-
thermore, most cases reaching the merits of facial first
amendment challenges have shown indicia of ripeness
absent here.
uals and groups and that they were not required to be issued
except within a reasonable time. /d. at 40 n.47. Both these
aspects of the AO mechanism have been amended and the
susceptibility of the FECA to challenge on the grounds of
vagueness has consequently been reduced.
"See, e.g., Bellotti, supra, 485 U.S. 765; Linmark Assoc.,
Inc. v. Township of Willingboro, 431 U.S. 85 (1977) (town-
ship’s prohibition of “for sale” signs to prevent “white
flight”); Doran v. Salem Inn, Inc., 422 U.S. 922 (1975)
(town’s prohibition of topless entertainment).
24a
The most recent such case considered by the Supreme
Court, Village of Schaumbery v. Citizens for a Belter
Environment, 100 S.Ct. 826 (1980), is an apt illustra-
tion. At issue there was the Village’s prohibition of cer-
tain “solicitation” activities by charitable organizations
who are not able to show that at least 75 percent of the
solicitation proceeds are used for “charitable purposes.”
In finding the ordinance facially invalid, the Court ex-
pressly disclaimed reliance on uncontroverted ‘‘facts”
presented by the charitable organization showing that
less than 75 percent of their solicitation proceeds were
used for “charitable purposes.”” Thus, the factual con-
text was incomplete. It was not, however, completely
lacking. The types of activity in which the organiza-
tion had engaged and planned to engage were alleged
with some particularity, id. at 830, and the Village’s
intention to enforce the ordinance against the complain-
ing organization was clear. /d.**
Similarly, in Bellotti, supra, 485 U.S. 765, the Massa-
chusetts attorney general had specifically threatened en-
forcement of the challenged statutory provision against
the three corporations who sought declaratory relief. Jd.
at 769. In addition, the case was submitted upon ‘66
paragraphs of stipulated facts and 70 pages of support-
ing documents relevant to those stipulations,” 359 N.E.
2d 1262, 1268 (Mass. 1977), a record which the Massa-
chusetts Supreme Judicial Court characterized as “suffi-
cient to support this adjudication.” Jd. at 1268.%
46 The Village had denied the organization a required permit.
17 See 435 U.S. at 769.
Finally, the decision to reach the merits was initially made
by a state and not a federal court, a circumstance under
which some aspects of the ripeness doctrine may not play as
large a role in the Court’s own decision. See Adler v. Bd.
Educ., 342 U.S. 485 (1952) (majority reached merits of case
decided on merits by state court; Frankfurter, J., dissented
on ripeness grounds).
25a
Other cases teach a similar lesson." In all these cases,
either the activities in which the complainants wished
to (or had) engaged or the enforcing authority’s par-
ticular intent to enforce the statute, or both, were clear
enough to show the adversarial posture assumed by the
parties and the contours of their dispute. Not so here.
The lack of specificity of plaintiffs’ alleged intentions
has already been described. The Commission, for its
part, has said or done nothing to our knowledge to indi-
cate how it construes the term “solicit.” The Commis-
sion’s regulations simply parrot the statutory language
4® Broadrick v. Oklahoma, 413 U.S. at 609 (complainants
were charged by state authority with violation of statute) ;
Gooding v. Wilson, 405 U.S. at 520 (complainant was crim-
inally convicted for speech prohibited by statute) ; Keyishian
v. Bd. of Regents, 385 U.S. 589, 592 (1967) (complainants’
employment had been terminated or threatened because they
refused to make required “loyalty” statements) : Spelton v.
Tucker, 364 U.S. 479, 484 (1960) (teachers’ contracts were
not renewed when they refused to file state-required affi-
davits) ; Herndon v. Lowry, 301 U.S. 242, 243 (19387) (com-
plainant was criminally convicted for activities prohibited by
statute). Cf. Police Dep’t v. Mosley, 408 U.S. at 93 (equal
protection analysis) (complainant who had repeatedly pick-
eted in certain manner ceased picketing after seeking and
receiving interpretation of new ordinance) ; Coates v. City of
Cincinnati, 402 U.S. 611, 612 (1971) (due process analysis)
(complainants had been criminally convicted for conduct pro-
hibited by the challenged ordinance) ; Baggett v. Bullitt, 377
U.S. at 363-64 (state authority had issued memorandum of
intention to enforce oath requirement against university
teachers). See Note, The First Amendment Overbreadth
Doctrine, 838 HARV. L. REv. 844, 848 (1970) (arguing ripeness
of overbreadth challenges may inhere in actual enforcement
of statute against challenger). Compare Zwickler v. Koota,
389 U.S. 241 (1967) (holding abstention improper in light
of possible chiil to plaintiff’s first amendment rights) with
Golden v. Zwickler, 394 U.S. 103 (1969) (same case, holding
declaratory relief inappropriate where change in events
altered imminence of plaintiff’s prohibited behavior).
26a
in this respect and although numerous advisory opinions
have been issued, none cited by the parties shed much
light on the Commission’s interpretation of “solicitation”
activities. Appellants may thus be left without substan-
tial guidance to regulate their conduct, but we are ais
left without substantial guidance to decide this case or
even to frame the constitutional issues at stake.
The statute specifically allows some solicitation, limited
in the case of hourly employees to written communica-
tions, twice a year, addressed to the employee’s home.
Given the ambiguity of the word ‘‘solicit,’”’ we are essen-
tially being asked to decide that Congress may not dele-
gate to the FEC-—as it has to the NLRB **—the task
of deciding in the first instance what should be per-
mitted and what forbidden in the inherently coercive con-
text of employer-employee relationships. We are hesitant
so to rule.
Finally, appellants contend that their claims are no
less ripe than those of the plaintiffs in Buckley v. Valeo,
424 U.S. 1 (1976), who obtained a decision on the merits
without first violating the statute or pursuing adminis-
trative relief or clarification through an advisory opinion.
Addressing this court’s determination that the issue re-
lating to the Commission’s method of appointment was
not ripe for decision, the Supreme Court there acknow-
ledged that “‘[p]roblems of prematurity and abstract-
tion’. . . may prevent adjudication in all but the excep-
tional case,” 424 U.S. at 114, quoting Socialist Labor
Party Vv. Gilligan, 406 U.S. 583, 588 (1972), but went
on to declare, quoting from Regional Rail Reorganization
Act Cases, 419 U.S. 102. 140 (1974), that “ripeness is
veculiarly a question of timing.” Noting that since the
time of the Court of Appeals judgment the Commission
** NLRB v. Gissel Packing Co., 395 U.S. 575, 620 (1969),
citing NLRB v. Virginia Power Co., 314 U.S. 469, 479 (1941).
27a
had begun to issue regulations and as to the Commis-
sion’s powers not yet exercised, that “the date of their
all but certain exercise is now closer by several months
than it was at the time the Court of Appeals ruled,” id.
at 116-17, the Court held the issue to be ripe for decision.
The “question of timing” before the Supreme Court in
the Buckley case can hardly be likened to the one before
us now. The Court there was faced with a broad range
of fundamental challenges to the nation’s election laws
at a time when any further delay in adjudicaticn—to the
period during or after the 1976 Presidential campaign—
would have been enormously troublesome. We see no
similar urgency of decision in this case that outweighs
the inadvisability of premature constitutional adjudica-
tion and note again the comparative speed with which
an advisory opinion on specific conduct can be secured.*°
C. The Statute “As Applied”
Insofar as appeliants can be understood to attack the
constitutionality of £ 441b “as applied,” our decision with
respect to the facial claims presented is a fortiori.
The chill-reducing advisory opinion mechanism is also
a relatively riskless controversy-ripening tool, requiring
‘” Appellants argue the facial unconstitutionality of § 441b
under the fifth amendment as well as under the first. As we
perceive them, these arguments are not separable. A determi-
nation of the arbitrariness under the fifth amendment of the
lines drawn by Congress will turn on the incidental effect of
those particular lines on first amendment rights. See Police
Dep’t v. Mosley, 408 U.S. at 101 (equal protection analysis
of ordinance drawing distinction between labor and nonlabor
picketing). In the final analysis, the first and fifth amend-
ment arguments will rise or fall together and consequently
should be considered together, if possible. We thus decline
now to reach the merits of appellants’ fifth amendment claims.
28a
the Commission to state its position with respect to the
specific facts for which advice is sought. It is true that
appellants seeking an advisory opinion will be required
to propose to the Commission “a specific transaction or
activity,” 93 Stat. 1358, something which they were ap-
parently unwilling to do in this court; but the issues
should be crystallized in some fashion before we rule and
the AO mechanism affords a relatively riskless way of
doing this.*' We note that many “political committees”
similar to the PACs here have followed the advisory
opinion route to obtain clarification of the Act as it re-
lates to specific intended conduct, and although the Com-
mission has not much illuminated the meaning of “‘so-
licit,”"* it has issued numerous AOs defining the reach
‘t As noted earlier, text at note 41. all the anpellants here
are now eligible to seek advisory opinions. Fven if the statis
quo ante had prevailed, our decision would not have been dif-
ferent, because those appellants (the PACs) who were eligible
to seek AOs share a commonality of interest with those that
are not and there is no reason to suppose that the eligible
appellants here would have been less motivated to seek advice
than those not eligible to do so.
*2 But see AO 1979-50 (Oct. 19, 1979) reprinted in FEDERAL
ELECTION CAMPAIGN FINANCING GUIDE (CCH) {% 5434 (solici-
tation of union employees) (request for contributions may not
be printed in union newspaper, even with caveat that contribu-
tions from union non-members will be returned, when 15 per-
cent of newspaper circulation is to union non-members) ;
AO 1978-83 (Dec. 18, 1978), reprinted in FEDERAL ELECTION
CAMPAIGN FINANCING GUIDE (CCH) £ 5382 (convention booth
for seeking solicitation approvals) (suggesting that use of
conspicuous identifying sign or sale of promotional material
may constitute unlawful “solicitation”) (Aikens, Chm., dis-
senting, inter alia, on grounds of Commission’s failure to
address meaning of ‘“‘solicit’’).
29a
of § 441b with respect to specific factual patterns.™
Se, €.9.,
AO 1979-38
AO 1979-31
AO 1979-27
AO 1978-97
AO 1978-83
AO 1978-39
AO 1978-75
AO 1978-61
AO 1978-52
AO 1977-67
AO 1978-26
AO 1978-27
AO 1976-79
AO 1977-70
(Jul. 31, 1979) (solicitation of administra-
tive personnel of franchisees) ;
(Sept. 15, 1979) (contributions given to
unaffiliated PAC) ;
(Jun. 19, 1979) (payment of PAC admin-
istrative expenses) ;
(Jan. 16, 1979)
magazine) ;
(Dec. 18, 1978) (trade association's con-
vention booth may seek approval for cor-
porate solicitations) ;
(Nov. 20, 1978) (corporate PAC and trade
association PAC affiliated)
(Oct. 30, 1978) (corporate PAC may solicit
stockholders of parent corporations) ;
(Oct. 10,1978) (franchisor PAC may solicit
executives of franchisees)
(Sept. 5, 1978) (corporation may distribute
information about Congressmen to its stock-
holders) ;
(Jun. 28, 1978) (non-stock corporate PAC
may solicit dues-paying “members” who in-
dicate a desire to be members) ;
(Jun. 15, 1978) (beneficial owners of stock
may be solicited) ;
(Jun. 9, 1978) (managers of a corporation’s
cafeterias and motels are executives for
solicitation purposes) ;
(Apr. 14, 1978) (solicitations by organiza-
tions without members) ;
(Mar. 29, 1978) (PAC of a seat cor-
poration may solicit the executives of
franchisees) ;
(solicitation in union
[Continued]
30a
It does not take great deal of imagination to conjure
up a variety of quite different sorts of communications
between the corporate plaintiffs, their PACs, their man-
53 [Continued]
AO 1977-71 (Mar. 17, 1978) (trade association may
solicit executives of a management cor-
poration) ;
AO 1977-44 (Jun. 11, 1978) (trade association may
solicit members of affikated trade associa-
tions) ;
AO 1977-32 (Dec. 20, 1977) (trade association may not
solicit executives of member municipal cor-
porations without permission of corpora-
tions) ;
AO 3977-56 (Dec. 19. 1977) (proper method of han-
dling employee contributions to PAC) ;
AO 1977-18 (Nov. 18, 1977) (limitation on trade asso-
ciation PAC’s solicitation of board mem-
bers who are also officers of member cor-
porations) ;
AO 1977-17 (May 27, 1977) (commodity exchange PAC
may not solicit representatives who are not
full members) ;
AO 1976-96 (Nov. 11, 1976) (trade assuciation PACs
may not solicit executives of non-consenting
corporations) ;
AO 1976-18 (Sept. 20,1976) (soliciting contributions by
selling tee-shirts is prohibited) ;
AO 1976-27 (Sept. 2, 1976) (solicitation of trade as-
sociation members approved under certain
circumstances).
The Commission’s Advisory Opinions are reported in
FEDERAL ELECTION CAMPAIGN FINANCING GUIDE (CCH).
See also our recent ruling in Nat’l Conservative Political
Action Comm. v. FEC, No. 78-1548 (D.C. Cir. Mar. 11, 1980),
involving the validity of an advisory opinion concerning the
lawfulness of a contribution solicitation proposed by the
Democratic National Committee. In that case we held that
3la
agement representatives and their employees which
could be characterized as “solicitations” for some pur-
poses, pretermitting the questions whether they would be
prohibited for purposes of the FECA or protected by the
first amendment. A few examples will suffice: (1) a
printed notice of the existence of the PAC with an ad-
dress where to send money, (a) posted on the employees’
bulletin boards, or (b) enclosed with their paychecks;
(2) a similar notice similarly disseminated but contain-
ing an explicit exhortation or job-related inducement for
contributions; (8) a meeting of employees called by
corporate or PAC officials solely (a) to tell employees
about the PAC and its purposes or (b) to ask employees
to contribute anonymously, or identifiably; (4) an-
nouncement and implementation of a system of paycheck
deductions on request; (5) advertisements in company
newspapers; (6) on-the-job requests for contributions; or
(7) personal home visits to request contributions. We
are left to speculate both on the conduct of the appel-
lants and on the enforcement posture the Commission
would assume with respect to that conduct. The careful
examination required for first amendment analysis “as
applied” "* deserves more of a record than that presented
here.
the procedural issue there raised was ripe for adjudication
when “the Commission passed upon the legality of a concrete
solicitation proposed in some detail by DNC.”
54 Kovacs v. Cooper, 386 U.S. 77 (1949) (ordinance forbid-
ding “sound trucks” on public streets upheld as applied).
Cf. Sherbert v. Verner, 374 U.S. 398 (1963) (eligibility re-
quirement for unemployment compensation as applied to Sev-
enth Day Adventist violates free exercise clause). See Lehman
v. City of Shaker Heights, 418 U.S. 298, 302-03 (1973) ; Int’l
Soc’v for Krishna Consciousness v. Bowen, 600 F.2d 667 (7th
Cir. 1979), cert. denied, 100 S. Ct. 448 (1979).
32a
Because the advisory opinion mechanism is available,
we do not here decide whether in some other case these
appellants or other individuals, groups or corporations
must choose between total inaction and action that may
invoke FEC disfavor.** Nor are we suggesting that re-
sort to the advisory opinion mechanism of the FEC is
required in all cases of constitutional challenge before
they become ripe for adjudication.
III. THE National Chamber CASE, No. 79-1027
The National Chamber case raises the question of
the constitutionality of the FECA’s restrictions on solici-
tation by separate segregated funds, 2 U.S.C. $$ 441b(b)
(4) (A) (i), 441b(b) (4) (C), 441b(b) (4) (D) (1976).°°
The statutory language challenged in National Chambers
is in some ways broader and less clearly focused than
that challenged in Martin Tractor.
The emphasis in National Chamber is on the FECA’s
blanket prohibition of solicitations rather than on the
specific language of the Act’s narrow statutory excep-
tions.” Sinee the provisions challenged in National
55 See United Pub. Workers v. Mitchell, 330 U.S. 75, 88-90
(1947) ; Joseph v. United States Civil Serv. Comm’n, 554 F.2d
1140, 1150 n. 17 (D.C. Cir. 1977) (questioning the continuing
validity of Mitchell to challenges under the Hatch Act).
5° See note 1, supra, for the text of these provisions.
‘The design of the statute is one which states a general
prohibition and follows this by narrowly drawn exceptions.
Thus the Act prohibits all solicitations except those expressly
permitted. Appellants in Martin Tractor devote their energies
to the narrowness of the particular exception created for non-
management employees and to the greater breadth of the man-
agement employees exception. Appellants in National Chamber
concentrate their attention on the implications of the general
prohibition rather than on the narrowness of the particular
exceptions, although they also object to the special emphasis
given by the regulations, infra, note 59, to solicitations of
parties with a specified relationship to the solicitor.
33a
Chamber restrict more than an employer's activities with
respect to its own employees, the cases suggesting nar-
row first amendment rights with respect to communica-
tions to employees and a correspondingly lean layer of
potential chill do not contribute much insight into analy-
sis of the claims made here.
On the other hand, the National Chamber case pre-
sents an even more elusive factual context than that
presented in Martin Jractor. Appellants here—the
Chamber of Commerce of the United States, its PAC and
officials—allege nothing more than a “desire to com-
municate with political action committees” or, in the case
of individual appellant Roland that he “would under-
take . . . communications to political action commit-
tees.” "* Nowhere do these appellants define with any
58 National Chamber App. at 11. Paragraphs 14 and 15 of
their complaint explain the types of ‘‘communications” in
which they wish to engage and the basis for their grievance:
14. The “solicitation” activities of the Plaintiffs are
non-partisan in nature and consist not merely of a re-
quest for contributions, but more importantly consist of
and are directed to the dissemination of ideas, opinions,
and political information about matters of vita] national
concern. Through these “solicitation” activities, by both
the written and spoken word, the Plaintiffs discuss those
political, social and economic forces, events and decisions
which have significant implications for the private enter-
prise system and those who share or believe in the benefits
of this economic philosophy. Through their “solicitation”
activities, the Plaintiffs discuss the programs of the
Alliance as a means of affecting and helping to shape the
process of decision-making on such matters. In short,
through their “solicitation” activities, Plaintiffs state the
rationale for making voluntary contributions to the Alli-
ance as a means of voluntarily associating with persons
of similar social and political beliefs and of furthering
the common goals and objectives shared by the Plaintiffs
and those who read or hear the Plaintiffs’ views. The
activities of the Plaintiffs described above are protected
34a
precision the form, content, method, place or frequency
of that communication except in the broadest of terms—
terms that merely parallel the general language of the
FECA and the Commission’s regulations.
In this case, as in the Martin Tractor case, appellants
do not so much as threaten a statutory violation; they
have not communicated with the FEC concerning the
activity they would like to undertake, and the FEC has
taken no action to enforce the statute or its regulations
by the First Amendment guarantees of freedom of speech
and freedom of association.
15. The voluntary contributions to the Alliance made
by those to whom the Plaintiffs’ “solicitation” activities
are directed manifest their agreement with and support
for the philosophy espoused by the Plaintiffs and make
possible the conduct of the programs of the Alliance
through which this philosophy may be communicated to
the electorate. The ability of the Plaintiffs to communi-
cate their words, thoughts and ideas to a broadly based
audience for the purpose of “soliciting” their financial
assistance as an expression of their support for the
Plaintiffs’ announced political philosophy and goals is
significantly circumscribed by certain provisions of the
Act, which limit the Plaintiffs’ “solicitation” activites
only to those few categories of solicitees enumerated in
the Act. This unlawful restriction on Plaintiffs’ ‘“solici-
tation” activities likewise abridges the right and ability
of those potential solicitees not enumerated in the Act to
associate with the Plaintiffs by making voluntary con-
tributions to the Alliance.
Td. at 5-6.
5? One regulation adopted by the FEC is addressed more
specifically than the underlying statute to the prohibition of
solicitation by trade association PACs of the PACs of their
corporate members. 11 C.F.R. § 114.7(j) (1979). In urging
the case is “ripe” for adjudication, appellants in National
Chamber emphasize the adoption of this regulation. Brief for
National Chamber Appellants at 44-49. But as we read the
statute a crucial ambiguity inheres in the word “solicit,” re-
35a
against them, nor has it threatened to do so.”
The district court’s dismissal of the National Chamber
complaint followed by two weeks its dismissal of the
complaints in Martin Tractor. Noting in its memoran-
dum opinion that the two cases raised “nearly identical”
issues,"' the district court rested its dismissal in National
Chamber on ripeness grounds and referred to its decision
in Martin Tractor for a fuller explanation of reasons.
We follow suit. The joinder of issue (if such it can
be termed) in the National Chamber case, like the
joinder of issue in Martin Tractor, is not one ideally
postured for constitutional adjudication and, for all the
gardless of the identity of the parties of whom “‘solicitation”
is forbidden. We thus do not agree with the National
Chamber appellants that adoption of the regulation has
ripened their dispute sufficiently to render it justiciable.
‘ Indeed, appellants’ first amendment rights to ‘discuss
those political, social and economic forces, events and decisions
which have significant implications for the private enterprise
system” with ‘‘those who share or believe in the benefits of
this economic philosophy” are in fact not challenged by the
FEC, which insisted in the district court:
nothing in the Act prohibits any corporation or cor-
porate PAC from discussing those political, social and
economic forces, events and decisions which have signifi-
cant implications for the private enterprise system... .
Rather, the subsection challenged here states only that it
shall be unlawful for a corporation or corporate PAC to
use corporate funds to “solicit contributions” from other
than those enumerated for use in federal campaigns.
Plaintiffs are free from statutory restraints contained in
section 441b(b) (4) (A) (i) in the discussion of genera]
political issues and should not be heard to argue that the
provision so restricts them.
Points and Authorities in Support of Defendants’ Motion to
Dismiss, National Chamber App. at 35.
*! National Chamber App. at 97.
36a
reasons discussed above with respect to the Martin Trac-
tor case, we decline to reach the merits here.
IV. CONCLUSION
We therefore affirm the district court’s dismissal of
the complaints filed in these cases.’ Since the substantive
questions of the FECA’s constitutionality were not and
should not have been reached, the FECA’s en bane cer-
62 We note that Judge Parker of our own district court has
quite recently upheld the constitutionality of § 441b—as ap-
plied to a corporation without capital stock (the “NRWC’”’)
which had solicited contributions from persons other than its
“members.” FEC v. Nat’l Right to Work Comm., Civ. Nos.
77-2175, 78-0315 (D.D.C. Apr. 24, 1980). In that case an ad-
visory opinion had been requested, the request renewed, and
a draft opinion submitted by the staff to the Commission
before an investigation of the NRWC was begun. When subse-
quent conciliation efforts concerning the NRWC’s actual con-
duct proved unsuccessful, the NRWC brought an action for
declaratory and injunctive relief and the Commission a civil
enforcement action. The cases were submitted to the court on
cross-motions for summary judgment after the parties had
“conducted extensive discovery and agreed upon a compre-
hensive stipulation of facts supported by three volumes of
exhibits.” Slip op. at 8. Without suggesting any view of the
merits of that opinion, we note the highly developed record
on which th~ constitutionality of § 441b was there determined.
The district court in NRWC expressly addressed the am-
biguity of the Act and acknowledged that the “outward
boundaries of the word [solicitation] may be uncertain,” but
found, nevertheless, that the specific activities in which the
NRWC had engaged “lay at the heart” of the § 441b ban.
Id. at 12. We, on the other hand, have no way of determining
whether appellants’ activities do or do not lie “at the heart”
of the statutory prohibition. The district court found the
term “solicit” certain enough as applied to the NRWC to pre-
clude vagueness and overbreadth challenges. In the facial
challenges we address, we find the term “solicit” uncertain
enough to require a better-developed record where that can
be obtained without leaving the rights at stake in jeopardy.
37a
tification provision, ¢ 437h, need not have been applied ™
and the question whether these appellants may proceed
under that section “ need not now be answered.
63 See Clark v. Valeo, 559 F.2d at 645 n.2:
A District Judge requested to make certification under
§ 487h should be free to dismiss for want of jurisdiction,
_ or to permit that question be decided by this court en
banc, much as a single judge asked to seek convening of a
three-judge court under 28 U.S.C. § 2284 may determine
threshold jurisdictional questions himself or herself, or
call for such a court and allow that court to decide the
matter.
The Act provides that the district court shall certify to the
en bane circuit court “all questions of constitutionality of
this Act.” 2 U.S.C. §437h (1976) (emphasis supplied).
64 See notes 5 and 6, supra.
38a
APPENDIX B
No. 79-1027
UNitED STATES COURT OF APPEALS
For THe District Or CoLumBiA Circult
September Term, 1979
NATIONAL CHAMBER ALLIANCE FOR POLITICS, ET AL.,
Appellants
Vv.
FEDERAL ELECTION COMMISSION, ET AL.
AND CONSOLIDATED CASE No. 78-2080
Filed June 10, 1980
BEFORE: McGowan and Wald, Circuit Judges
ORDER
Upon consideration of appellants’ (National Chamber
Alliance for Politics, ef al.) petition for rehearing, it is
ORDERED, by the Court, that appellants’ aforesaid peti-
tion for rehearing is denied.
Per Curiam
For THE Court:
/s/ GEORGE A. FISHER
George A. Fisher
Clerk
Circuit Judge Leventhal was a member of the panel which
decided this case but died and did not participate in the
foregoing order.
39a
APPENDIX C
No. 79-1027
UNnireD STATES COURT OF APPEALS
For THe District Or CoLumBIA CIRCUIT
September Term, 1979
NATIONAL CHAMBER ALLIANCE FOR POLITICS, ET AL.,
Appellants
V.
FEDERAL ELECTION COMMISSION, ET AL.
And Consolidated Case No. 78-2080
Filed June 10, 1980
BEFORE: Wright, Chief Judge; McGowan, Tamm,
Robinson, MacKinnon, Robb, Wilkey, Wald, Mikva, and Ed-
wards, Circuit Judges
ORDER
The suggestion for rehearing en banc filed by appellants
(National Chamber Alliance for Politics, ef a/.) having been
transmitted to the full Court and no judge in regular active
service having requested a vote with respect thereto, it is
ORDERED, by the Court, en banc, that appellants’
aforesaid suggestion for rehearing en banc is denied.
Per Curiam
For THE Court:
/s/ GEORGE A. FISHER
George A. Fisher
Clerk
40a
APPENDIX D
Unirep States District Court
For THE District Or COLUMBIA
Civil Action No. 78-1333
NATIONAL CHAMBER ALLIANCE FOR
POLITICS, ET AL.,
Plaintiffs,
¥
FEDERAL ELECTION COMMISSION, ET AL.,
Defendants.
Filed November 23, 1978
MEMORANDUM
This case presents issues nearly identical to those dispos-
ed of by this Court’s earlier decision in Martin Tractor Co. v.
Federal Election Commission, — F. Supp. — (C.A. No.
78-1259, November 8, 1978). Only the granting of an exten-
sion in the briefing schedule at the request of one of the par-
ties prevented decision of these two cases in tandem.
Plaintifs here are the Chamber of Commerce, a not-for-
profit corporation, its associated political action committee
(PAC), the National Chamber Alliance for Politics, three ex-
ecutives of the two organizations, and one member of the
Board of Directors of the Chamber and the Advisory Com-
mitice of the Alliance. Plaintiffs challenge the constitutionali-
ty of the limitations upon corporate solicitation of contribu-
tions to political action committees as well as limitations upon
solicitations by corporations or PACs from other PACs, im-
posed by the Federal Election Campaign Act, 2 U.S.C. §431,
et. seg. (1977). Plaintiffs allege that these limitations impinge
upon rights to free speech and association guaranteed in the
First Amendment and create an invidious discrimination
against corporations and PACs in violation of the Fifth
Amendment.
4la
The same factors which required dismissal of the action
in Martin Tractor prove fatal to plaintiff’s case here. The
special standing provision of 2 U.S.C. §437h(a) is inapplicable
to the Chamber and its PAC as they are not among the en-
tities enumerated in that provision. The Court’s reasoning in
Martin Tractor as to the standing of the corporate executives
and hourly employees under §437h(a) applies equally to the
individual plaintiffs here. They sue not in their individual
capacities but rather to vindicate the rights of the corporate
entities. That derivative right was not the constitutional right
of an ‘‘individual eligible to vote’? which Congress considered
‘appropriate’ for vindication in a declaratory judgment ac-
tion under this section. Moreover, plaintiffs present no case
or controversy sufficiently ripe for decision by a federal
court. As in Martin Tractor, here ‘‘[njo threat of interference
. appears beyond that implied by the existence of the law
and the regulations.’’ United Public Workers v. Mitchell, 330
U.S. 75, 91 (1947). Accordingly, defendant’s motion to
dismiss must be granted.
/s/ Louis F. OBERDORFER
Unitec’ States District Judge
Dated: November 22, 1978
42a
Unirep Stares District Court
For THe District Or COLUMBIA
Civil Action No. 78-1333
NATIONAL CHAMBER ALLIANCE FoR POLITICS, ET AT.,
Plaintiffs,
Vv.
FEDERAL ELECTION COMMISSION, ET. AL.
Defendants.
Filed November 22, 1978
ORDER
Having considered the pleadings and briefs of the parties,
it is this 22d day of November, hereby
ADJUDGED, DECREED AND ORDERED that Defendants’
Motion to Dismiss is GRANTED.
/s/ Louis F. OBERDORFER
United States District Judge
43a
APPENDIX E
IN THe UNirepd States District Court
For THE Distaict OF CoLUMBIA
Civil Action No. 78-1333
NATIONAL CHAMBER ALLIANCE
For POLITICS, ET AL.
Plaintiffs,
Vv.
FEDERAL ELECTION COMMISSION, ET. AL.
Defendants.
Filed November 28, 1978
FIRST AMENDED COMPLAINT
FOR DECLARATORY AND INJUNCTIVE RELIEF
Jurisdiction
1. This action seeks a judgment declaring that certain
provisions of the Federal Election Campaign Act, as amend-
ed, (hereinafter ‘‘the Act’’), 2 U.S.C. §431 ef seq. (1977),
both facially and as applied to the Plaintiffs, constitute an
unconstitutional abridgment of the Plaintiffs’ rights to
freedom of speech and association and their rights to due
process of law in violation of the First and Fifth Amendments
to the Constitution of the United States.
2. This action also seeks a permanent injunction,
restraining enforcement of the offending provisions of the
Act.
3. The Plaintiffs in this case have and will continue to be
irreparably and immediately harmed by the offending provi-
sions of the Act, and a case or controversy exists between the
parties within the meaning of Article III of the Constitution
of the United States.
4. This Court has subject matter jurisdiction pursuant to
28 U.S.C. §§1331(a), 2201, and 2202 and 2 U.S.C. §437h.
44a
5. Pursuant to 2 U.S.C. §437, Plaintiffs respectfully re-
quest expedited consideration of the questions presented and
expedited certification of those questions to the United States
Court of Appeals for the District of Columbia Circuit (En
Banc).
Plaintiffs
6. Plaintiff, the Chamber of Commerce of the United
States of America (‘‘the Chamber’’), is a not-for-profit
organization, exempt from the payment of Federal income
taxes pursuant to 26 U.S.C. §§501(a), 501(c)(6)(1967) and is
incorporated under the laws of the District of Columbia.
The Chamber is a voluntary association of more than
75,000 enterprises and organizations, including chambers of
commerce and trade associations, representing businessmen
and businesswomen throughout the United States. Over
71,000 corporations, partnerships, sole proprietorships, and
professional people are members of the Chamber.
The members of the Chamber have voluntarily associated
together in and through the medium of the Chamber in order
to advance, promote and promulgate before the Legislative,
Executive and Judicial Branches of the Federal Government
the views of its members concerning the necessity for the
maintenance of a strong and healthy private enterprise system
in the United States. The Chamber also provides a forum for
the consideration of national and international subjects hav-
ing significant implications for its members and the private
enterprise system. And, through bringing to bear informed
judgment and opinion, the Chamber develops and seeks im-
plementation of policy recommendations to guide the process
of decision-making on such subject. To advance and achieve
these goals, the Chamber has established and administers, and
pays the costs of ‘‘solicitation’’ activities of voluntary con-
tributions to the National Chamber Alliance for Politics.
7. Plaintiff, the National Chamber Alliance for Politics
(the ‘‘Alliance’’), is a duly constituted separate segregated
45a
fund within the meaning of 2 U.S.C. §441(b)(2)(C) and is
registered with the Federal Election Commission pursuant to
2 U.S.C. §443.
8. The Alliance was established and is administered by
the Chamber to promote and facilitate the accumulation of
voluntarily contributed funds. The Alliance uses these funds,
which are contributed by widely disparate sources to under-
write the making of ‘‘in-kind’’ contributions (that is, con-
tributions of goods and services, not money) and independent
expenditures. These ‘‘in-kind’’ contributions and expenditures
are made with respect to election contests where there exist
opportunities to elect or re-elect to the United States Senate
or the United States House of Representatives individuals
who have demonstrated or who are deemed likely to
demonstrate support for the philosophy and positions espous-
ed by the Chamber and its members.
These ‘‘in-kind’’ contributions and independent expen-
ditures (hereinafter collectively referred to as the programs of
the Alliance) include, but are not limited to, communications
with the members of the electorate, for the purpose of in-
fluencing the nomination or election of persons to Federal of-
fice. Such communications may be verbal or written, and in-
clude, but are not limited to, letters, speeches, position
papers, and the organization and conduct of meetings
through which persons sharing similar philosophies are called
upon to take single or collective action in support of or in op-
position to candidates for Federal office.
9. Plaintiff, Richard L. Lesher, is President of the
Chamber and Chairman of the Alliance and is eligible to vote
for the Office of President of the United States. In fur-
therance of his obligations and responsibilities as Chairman
of the Alliance, he did and does coordinate and actively par-
ticipate in the process of ‘‘soliciting’’ contributions to the
Alliance to the extent such ‘‘solicitations’’ are permitted by 2
U.S.C. §441b.
46a
10. Plaintiff, John A. Kochevar, is Manager, Public Af-
fairs Department of the Chamber, is Treasurer of the Alliance
and is eligible to vote for the Office of President of the
United States. In furtherance of his obligations and respon-
sibilities as Treasurer of the Alliance, he did and does actively
participate in the process of ‘‘soliciting’’ contributions to the
Alliance to the extent such ‘‘solicitations’’ are permitted by 2
U.S.C. §441b. In addition, he has supervisory responsibility
for the development, preparation, and execution of the
‘*solicitation’’ program, for the conduct of the programs of
the Alliance through which ‘‘in-kind’’ contributions and in-
dependent expenditures are made, and for the coordination of
all these programs.
11. Plaintiff, Fred Radewagen, is Director, Governmen-
tal and Political Participation Programs of the Chamber and
is Executive Director of the Alliance and is eligible to vote for
the Office of President of the United States. In furtherance
of his responsibilities and obligations as Executive Director of
the Alliance, he did and does actively participate in the pro-
cess of ‘‘soliciting’’ contributions to the Alliance to the extent
such ‘‘solicitations’’ are permitted by 2 U.S.C. §441b, and is
directly responsible for the conduct of the programs of the
Alliance through which ‘‘in-kind’’ contributions and indepen-
dent expenditures are made. In addition, he has supervisory
responsibility for the development, preparation, and execu-
tion of the ‘‘solicitation’’ program and for the coordination
of all these programs.
12. Plaintiff, Robert A. Roland, is a member of the
Board of Directors of the Chamber and a member of the Ad-
visory Council of the Alliance, and is eligible to vote for the
Office of the President of the United States. He receives no
compensation for any of his activities undertaken on behalf
of the Chamber or the Alliance; he voluntarily participates in
the program of the Chamber and the Alliance because he per-
sonally believes in many, if not all, of the purposes, goals,
and philosophy espoused by the Chamber and the Alliance,
and chooses to be associated with them. In furtherance of his
47a
voluntarily assumed responsibilities as a member of the Ad-
visory Council of the Alliance, he did and does actively par-
ticipate in the process of ‘‘soliciting’’ contributions to the
Alliance to the extent such ‘‘solicitations’’ are permitted by 2
U.S.C. §441b.
13. In order to finance the Plaintiffs’ activities which
provide a focal point for political association, the Plaintiffs
‘*solicit”’ voluntary contributions from various sources. Funds
realized from this ‘‘solicitation’’ activity constitute the
primary source of revenue for the programs of the Alliance.
The ability and the extent to which the Plaintiffs can conduct
the programs of the Alliance are directly related to the extent
to which Plaintiffs can ‘‘solicit’’ contributions.
14. The ‘‘solicitation’’ activities of the Plaintiffs are non-
partisan in nature and consist not merely of a request for
contributions, but more importantly consist of and are
directed to the dissemination of ideas, opinions, and political
information about matters of vital national concern. Through
these ‘‘solicitation’’ activities, by both the written and spoken
word, the Plaintiffs discuss those political, social and
economic forces, events and decisions which have significant
implications for the private enterprise system and those who
share or believe in the benefits of this economic philosophy.
Through their ‘‘solicitation’’ activities, the Plaintiffs discuss
the programs of the Alliance as a means of affecting and
helping to shape the process of decision-making on such mat-
ters. In short, through their ‘‘solicitation’’ activities, Plain-
tiffs state the rationale for making voluntary contributions to
the Alliance as a means of voluntarily associating with per-
sons of similar social and political beliefs and of furthering
the common goals and objectives shared by the Plaintiffs and
those who read or hear the Plaintiffs’ views. The activities of
the Plainiiffs described above are protected by the First
Amendment guarantees of freedom of speech and freedom of
association.
15. The voluntary contributions to the Alliance made by
those to whom the Plaintiffs’ ‘‘solicitation’’ activities are
48a
directed manifest their agreement with and support for the
philosophy espoused by the Plaintiffs and make possible the
conduct of the programs of the Alliance through which this
philosophy may be communicated to the electorate. The abili-
ty of the Plaintiffs to communicate their words, thoughts and
ideas to a broadly based audience for the purpose of
‘‘soliciting’’ their financial assistance as an expression of their
support for the Plaintiffs’ announced political philosophy and
goals is significantly circumscribed by certain provisions of
the Act, which limit the Plaintiffs’ ‘‘solicitation’’ activities
only to those few categories of solicitees enumerated in the
Act. This unlawful restriction on Plaintiffs’ ‘‘solicitation’’ ac-
tivities likewise abridges the right and ability of those poten-
tial solicitees not enumerated in the Act to associate with the
Plaintiffs by making voluntary contributions to the Alliance.
The Federal Election Campaign Act, as amended.
16. Pursuant to 2 U.S.C. §441b(a) of the Act, no cor-
poration may make a contribution or expenditure in connec-
tion with Federal elections. Section 441b(b)(2), however, ex-
cludes certain activity from the definition of a contribution or
expenditure. Thus, pursuant to section 441b(b)(2)(C), a cor-
poration, membership organization, cooperative or corpora-
tion without capital stock may expend its own funds to
establish, administer, and solicit voluntary contributions to a
separate segregated fund (‘‘political action committee’’ or
‘*PAC’’). The funds of the PAC may be used for ‘‘political
purposes’’ including the making of ‘‘in-kind’’ contributions
to and independent expenditures on behalf of candidates for
Federal office.
17. However, the right to solicit voluntary contributions
is significantly and unconstitutionally circumscribed by the
Act, in that only such categories of persons who are
specifically enumerated may be solicited, to the exclusion of
all others. In particular, the Act forbids a corporation,
membership organization, cooperative, corporation without
capital stock, or a trade association — or a PAC established
by any of the foregoing — from soliciting funds from a PAC
vi
49a
established by any other individual, organization, or group of
individuals or organizations.
Accordingly, Section 441(b)(4)(A) states:
. it shall be unlawful —
(1) for a corporation, or a separate segregated fund
established by a corporation, to solicit contributions to
such a fund from any person other than its stockholders
and their families and its executive and administrative
personnel and their families .. .
Similarly, Section 441(b)(4)(C) states:
This paragraph shall not prevent a membership
organization, cooperative, or corporation without capital
stock, or a separate segregated fund established by a
membership organization, cooperative, or corporation
without capital stock, from soliciting contributions to
such a fund from members of such organization,
cooperative, or corporation without capital stock.
And, finally, Section 441b(b)(4)(D) states:
This paragraph shall not prevent a trade association or
a separate segregated fund established by a trade associa-
tion from soliciting contributions from the stockholders
and executive or administrative personnel of the member
corporations of such trade association and the families
of such stockholders or personnel to the extent that such
solicitation of such stockholders and personnel, and their
families, has been separately and specifically approved by
the member corporation involved, and such member cor-
poration does not approve any such solicitation by more
than one such trade association in any calendar year.
18. Notwithstanding the prohibitions against solicitation
detailed in paragraph 17, the Act specifically permits con-
tributions from one PAC to another PAC, irrespective of
who may have established the PAC, subject to a maximum
dollar limitation of $5,000 per calendar year. 2 U.S.C.
§441a(a)(2)(C).
50a
19. Contributions from one PAC to another made pur-
suant to 2'U.S.C. §441a(a)(2)(C) must be reported to the FEC
by both the contributor PAC and the recipient PAC pursuant
to the terms and conditions contained in 2 U.S.C. §434. Fur-
ther, the Act specifically prohibits any contribution made in
the name of another. 2 U.S.C. §44If.
20. Thus, the Act requires the disclosure of the source of
contributions to a PAC, permits a PAC on its own initiative
to contribute funds to any other PAC, but prohibits a cor-
poration, membership organization, cooperative, corporation
without capital stock, or trade association — or a PAC
established by any of the foregoing — from soliciting such
contributions.
Defendants
21. Defendant, the Federal Election Commission
(‘‘FEC’’ or ‘‘Commission’’), was established by the Federal
Election Campaign Act of 1971 (as amended in 1974 and
1976), 2 U.S.C. §437c, to administer, obtain compliance with,
and formulate policy with respect to the Act and Chapters 95
and 96 of the Internal Revenue Code of 1954. 2 U.S.C.
§437¢c(b)(1).
22. Defendant, Joan T. Aikens, is Chairman of the
FEC. The instant case is brought against Chairman Aikens
solely in her official capacity as a member of the Commis-
sion.
23. Defendant, Robert O. Tiernan, is Vice-Chairman of
the FEC. The instant case is brought against Vice-Chairman
Tiernan solely in his official capacity as a member of the
Commission.
24. Defendants, Thomas E. Harris, Neil Staebler,
Wiiliam L. Springer, and Vernon W. Thompson are Commis-
sioners of the FEC. The instant case is brought against these
Commissioners solely in their official capacities as members
of the Commission.
Sla
25. Defendant, J. Stanley Kimmitt, is the duly elected
Secretary of the United States Senate and is pursuant to the
Act, an ex officio member of the FEC. The instant case is
brought against Mr. Kimmit solely in his official capacity as a
member of the Commission.
26. Defendant, Edmund L. Henshaw, is the duly ap-
pointed Clerk of the United States House of Representatives
and is, pursuant to the Act, an ex officio member of the
FEC. The instant case is brought against Mr. Henshaw solely
in his official capacity as a member of the Commission.
COUNT I
1-26. As Paragraphs 1-26 of Count I, Plaintiffs reallege
and incorporate Paragraphs 1-26 of the Complaint.
27. The ability of Plaintiffs to engage in the ‘‘solicita-
tion’’ activities described above, thereby providing a focal
point for political association, is in large measure dependent
upon Plaintiffs’ ability to communicate information about
their philosophy, goals and the programs of the Alliance
with a broadly based audience. The corresponding ability of a
broadly based audience to associate with Plaintiffs by ine
making of voluntary contributions to the Alliance is depen-
dent upon their ability to rec_ive information from the Plain-
tiffs about the Plaintiffs’ philosophy, goals and the programs
of the Alliance.
28. By depriving Plaintiffs of the ability freely to com-
municate with political action committees established and/or
administered by corporations and other potential solicitees,
Section 441b abridges:
(i) Plaintiffs’ ability to communicate political thoughts
and information;
(ii) Plaintiffs’ ability to associate with those not
enumerated in the Act;
52a
(iii) The opportunity of those not enumerated in the Act
for political association with the Plaintiffs by mak-
ing voluntary contributions to the Alliance; and
(iv) The opportunity for political association between
those who have contributed to the Alliance and
those who have contributed to the political action
committees of persons or entities not enumerated in
the Act as permissible solicitees.
29. The harm wrought by Section 441b is actual and not
speculative or hypothetical. Fearing the imposition of the civil
and criminal sanctions contained in the Act, Plaintiffs have
limited and continue to limit their ‘‘solicitation’’ activities on-
ly to members of the Plaintiff Chamber pursuant to the
restrictions and limitations contained in Section 441b. Plain-
tiffs desire to communicate with political action committees in
the manner described above but have not done so because of
the prohibitions contained in Section 441b and their fear of
the imposition of the civil and criminal sanctions contained in
the Act.
30. Further, Plaintiff Roland, and other individuals who
have volunteered their assistance to the Alliance and the
Chamber have been specifically advised by Plaintiffs
Kochevar and Radewagen that they may not communicate
with political action committees in the manner described
above. But for Section 441b, and his fear of the imposition
of the civil and criminal penalties contained in the Act, Plain-
tiff Roland would undertake such communications to political
action committees.
31. Tithe 2 U.S.C. §441b is an unconstitutional abridg-
ment of Plaintiffs’ rights of freedom of speech and associa-
tion in that:
(a) Section 441b abridges Plaintiff’s ability to com-
municate political thoughts and information;
53a
(b) By impermissibly circumscribing Plaintiffs’ freedom
of speech and association, Section 441b abridges Plain-
tiffs’ ability to associate with those not enumerated in
the Act;
(c) By impermissibly circumscribing Plaintiffs’ freedom
of speech and association, Section 441b abridges the op-
portunity for those not enumerated in the Act for
political association with Plaintiffs by making voluntary
contributions to the Alliance;
(d) By impermissibly circumscribing Plaintiffs’ freedom
of speech and association, Section 441b deprives Plain-
tiffs of the right to associate freely with a substantial
number of persons who have or may have an affinity of
interest with Plaintiffs, and thereby abridges the rights of
those persons to associate with Plaintiffs toward common
political ends;
(e) By impermissibly circumscribing Plaintiffs freedom of
speech and association, Section 441b abridges the oppor-
tunity for political association between those who have
contributed to the Alliance and those who have con-
tributed to other political action committees; and,
(f) By impermissibly circumscribing Plaintiffs’ freedom
of speech and association, Section 441b abridges Plain-
tiffs’ ability to make statutorily permissible contributions
and expenditures on behalf of candidates of their choice.
WHEREFORE, Plaintiffs respectfully pray for entry of
judgment declaring 2 U.S.C. §441b unconstitutional, both
facially and as applied to the Plaintiffs, in violation of the
First Amendment to the Constitution of the United States in
that Section 441b impermissibly prohibits Plaintiffs from
‘soliciting’? contributions from separate segregated funds.
Plaintiffs also pray for entry of judgment permanently en-
joining the enforcement of 2 U.S.C. §441b with respect to the
aforedescribed ‘‘solicitation’’ activities, and for such other
relief as is just and proper. ;
54a
COUNT I
1-26. As paragraphs 1-26 of Count II, Plaintiffs reallege
and incorporate paragraphs 1-26 of the Complaint.
27. Neither Section 441b nor any other provision of the
Act directly restricts the ‘‘solicitation’’ activities of candidates
for Federal office or their authorized principal campaign
committees, as that term is defined in 2 U.S.C. §432(e).
28. Neither Section 441b nor any other provision of the
Act directly restricts the ‘‘solicitation’’ activities of ‘tindepen-
dent’’ political action committees; that is, political action
committees which are established and/or administered in-
dependently of any corporation, trade association, member-
ship organization, cooperative or corporation without capital
stock.
29. Plaintiffs are informed and believe that Plaintiffs
Kochevar and Radewagen have received in excess of thirty
(30) communications from candidates for Federal office or
their principal campaign committees ‘‘soliciting’’ contribu-
tions from the Alliance.
30. Plaintiffs are further informed and believe that ‘‘in-
dependent’ political action committees have ‘‘solicited’’ and
presently do ‘‘solicit’’ political contributions from separate
segregated funds,
31. But for the restrictions imposed by Section 441b, and
their fear of the imposition of the civil and criminal sanctions
contained in the Act, Plaintiffs would also ‘“‘solicit’’ contribu-
tions from separate segregated funds.
32. Section 441b arbitrarily, capriciously and invidiously
discriminates against Plaintiffs in violation of the Fifth
Amendment to the Constitution of the United States.
WHEREFORE, Plaintiffs respectfully pray for entry of
judgment declaring 2 U.S.C, §441b unconstitutional, both
facially and as applied to the Plaintiffs, in violation of the
Fifth Amendment to the Constitution of the United States in
55a
that Section 441b impermissibly prohibits Plaintiffs from
‘soliciting’ contributions from separate segregated funds.
Plaintiffs also pray for entry of judgment permanently en-
joining the enforcement of 2 U.S.C. §441b with respect to the
aforedescribed ‘‘solicitation’ activities, and for such other
relief as is just and proper.
Respectfully submitted,
/s/ STANLEY T. KALECZYC
/8/ FREDERICK J. KREBS
/8/ STEPHEN A. BOKAT
National Chamber
Litigation Center
1615 H Street, N.W.
Washington, D.C. 20062
(202) 659-6218
Of Counsel:
JEFFREY COLE
JEROME H. TORSHEN, LTD.
11 South LaSalle Street
Chicago, Illinois 60603
(312) 372-9282
National Chamber Litigation Center
1615 H Street, N.W.
Washington, D.C. 20062
(202) 659-6218
56a
APPENDIX F
NATIONAL CHAMBER ALLIANCE FOR POLITICS
P.O. Box 1728, Washington, D.C. 20013
Dr. Richard L. Lesher, Chairman
Dear Friend of American Enterprise:
How much longer can we hold out against the relentless
assault on our American economic system — a system which
has provided well for you and your family?
The fact is, a well organized and well funded coalition of
forces is determined to elect people to Congress who will fur-
ther restrict competitive enterprise.
How does this affect you?
Economic freedom is one of our fundamental freedoms,
inextricably linked to other cherished personal liberties. Yet,
bit-by-bit, we are losing that essential freedom. Even as you
read this, the government is applying additional restrictions to
your right to choose:
*What kind of job you have
*Where you work
*Who you hire
*Who you sell to
*What you invest in
What can you do?
THE MOST DIRECT WAY TO PROTECT YOURSELF
AND THE THINGS YOU BELIEVE IN IS TO
CHANGE THE MAKEUP OF THE CONGRESS,
You and | know this will be a big job and big jobs re-
quire big efforts. It is for this reason that I would like to tell
57a
you about a new organization that will help individuals like
you to make a difference in Congress.
What is this new organization?
As president of the Chamber of Commerce of the United
States, | am pleased to tell you that, in compliance with’ thé
Federal Election Law, we have formed a political action fund
called the National Chamber Alliance for Politics (NCAP).
This organization is sponsored by the Chamber of Com-
merce of the United States, but will operate separately with
strictly voluntary contributions from individuals. These volun-
tary contributions will be used for partisan activities in
federal elections.
What makes NCAP different?
You may be familiar with other political action funds
that give dollars to candidates and campaign committees.
NCAP will not provide direct monetary contributions to can-
didates or campaign committees.
Instead, your contribution to NCAP will provide services
and materials which will supplement dollar contributions and
complement the candidates’ campaign activities. This means
that through NCAP your dollars can provide a deserving can-
didate with the kind of political know-how and national sup-
port that he or she has never before been able to have.
The key to all of this is your contribution,
What kinds of services and materials will NCAP provide?
¢ A clearinghouse of candidate and election information
gleaned from nationwide research.
¢ Trained personnel to help organize and instruct cam-
paign leaders and workers in selected races.
* Experts to advise candidates on media relations techni-
ques.
58a
e Assistance in polling, speechwriting and advertising for
candidates.
¢ Research on issues, opposition candidate positions, in-
cumbent voting records.
¢ Economic forecasts for specific congressional districts.
ALL OF THESE ACTIVITIES MUST BE FINANCED
FROM VOLUNTARY FUNDS. YOU CAN BE PART
OF THE SUCCESS OF THIS EFFORT BY GIVING
YOUR CONTRIBUTION AND COMMITMENT NOW.
How can you join?
I urge you to complete the enclosed remittance form and
return it, along with your personal check, in the postage free
envelope provided. THE LAW FORBIDS CORPORATE
CHECKS.
Please send check and form to:
NCAP
P.O. Box 1728
Washington, D.C. 20013
Please take special note:
Your decision to make a donation is strictly yours. It will
not affect your position within your organization or your
relationship with the National Chamber in any way. Your
employer will never be informed of who has or has not con-
tributed.
I hope we can count on your help, because I know that
we can count on the dedication of our opponents.
Sincerely,
/s/RICHARD L. LESHER
Richard L. Lesher
59a
P.S. There are tax advantages to making a contribution.
NCAP expenditures will be made solely for partisan
political purposes. Therefore, an individual’s political
contributions to NCAP during the year may be used as
a tax deduction (up to a maximum of $100 for an in-
dividual, or $200 for a joint return). Or, as an alternate
you may take a tax credit of 50% of your contribution
(up to a maximum of $25 for an individual or $50 for a
joint return).
60a
APPENDIX G
Constitutional, Statutory and Regulatory
Provisions Involved
United States Constitution
Article Ill
SECTION. 2.' The judicial Power shall extend to all Cases, in
Law and Equity, arising under this Constitution, the Laws of
the United States, and Treaties made, or which shall be
made, under their Authority;—to all Cases affecting Am-
bassadors, other public Ministers and Consuls;—to all Cases
of admiralty and maritime Jurisdiction;—to Controversies to
which the United States shall be a Party;—to Controversies
between two or more States;—between a State and Citizens of
another State;—between Citizens of different States,—bet-
ween Citizens of the same State claiming Lands under Grants
of different States, and between a State, or the Citizens
thereof, and foreign States, Citizens or Subjects.
STATUTES
2 U.S.C. §437f Advisory opinions
(a) Requests by persons, candidates, or authorized com-
mittees; subject matter; time for response.
(1) Not later than 60 days after the Commission
receives from a person a complete written request concer-
ning the application of this Act, chapter 95 or chapter 96
of title 26, or a rule or regulation prescribed by the Com-
mission, with respect to a specific transaction or activity
by the person, the Commission shall render a written ad-
visory opinion relating to such transaction or activity to
the person.
6la
(2) If an advisory opinion is requested by a can-
didate, or any authorized committee of such candidatte,
during the 60-day period before any election for Federal
office involving the requesting party, the Commission
shall render a written advisory opinion relating to such
request no later than 20 days after the Commission
receives a complete written request.
(b) Procedures appliable to initial proposal of rules or
regulations, and advisory opinions. Any rule of law which is
not stated in this Act or in chapter 95 or chapter 96 of title
26 may be initially proposed by the commission only as a rule
or regulation pursuant to procedures established in section
438(d) of this title. No opinion of an advisory nature may be
issued by the Commission or any of its employees except in
accordance with the provisions of this section.
(c) Persons entitled to rely upon opinions; scope of pro-
tection for g00d faith reliance.
(1) Any advisory opinion rendered by the Commission
under subsection (a) of this section may be relied upon
by—
(A) any person involved in the specific transac-
tion or activity with respect to which such advisory
opinion is rendered; and
(B) any person involved in any specific transac-
tion or activity which is indistinguishable in all its
material aspects from the transaction or activity with
respect to which such advisory opinion is rendered.
(2) Notwithstanding any other provisions of law,
any person who relies upon any provision or finding of
an advisory opinion in accordance with the provisions of
paragraph (1) and who acts in good faith in accordance
with the provisions and findings of such advisory opinion
shall not, as a result of any such act, be subject to any
sanction provided by this Act or by chapter 95 or chapter
96 of title 26.
62a
(d) Requests made public; submission of written
comments by interested public. The Commission
shall make public any request made under subsection
(a) of this section for an advisory opinion. Before
rendering an advisory opinion, the Commission shall
accept written comments submitted by any interested
party within the 10-day period following the date the
request is made public.
2 U.S.C. § 437g Enforcement
(a) Administrative and judicial practice and procedure.
(1) Any person who believes a violation of this Act or of
chapter 95 or chapter 96 of title 26 has occurred, may file a
complaint with the Commission. Such complaint shall be in
writing, signed and sworn to by the person filing such com-
plaint, shall be notarized, and shall be made under penalty of
perjury and subject to the provisions of section 1001 of title
18, United States Code. Within 5 days after receipt of a com-
plaint, the Commission shall notify, in writing, any person
alleged in the complaint to have committed such a violation.
Before the Commission conducts any vote on the complaint,
other than a vote to dismiss, any person so notified shall have
the opportunity to demonstrate, in writing, to the Commis-
sion within 15 days after notification that no action should be
taken against such person on the basis of the complaint. The
Commission may not conduct any investigation or take any
other action under this section solely on the basis of a com-
plaint of a person whose identity is not disclosed to the Com-
mission.
(2) If the Commission, upon receiving a complaint under
paragraph (1) or on the basis of information ascertained in
the normal course of carrying out its supervisory respon-
sibilities, determines, by an affirmative vote of 4 of its
members, thai it has reason to believe that a person has com-
mitted, or is about to commit, a violation of this Act or
63a
chapter 95 or chapter 96 of title 26, the Commission shall,
through its chairman or vice chairman, notify the person of
the alleged violation. Such notification shall set forth the fac-
tual basis for such alleged violation. The Commission shall
make an investigation of such alleged violation, which may
include a field investigation or audit, in accordance with the
provisions of this section.
(3) The general counsel of the Commission shall notify
the respondent of any recommendation to the Commission by
the general counsel to proceed to a vote on probable cause
pursuant to paragraph (4)(A)(i). With such notification, the
general counsel shall include a brief stating the position of the
general counsel on the legal and factual issues of the case.
Within 15 days of receipt of such brief, respondent may sub-
mit a brief stating the position of such respondent on the
legal and factual issues of the case, and replying to the brief
of general counsel. Such briefs shall be filed with the
Secretary of the Commission and shall be considered by the
Commission before proceeding under paragraph (4).
(4) (A) (i) Except as provided in clause (ii), if the Com-
mission determines, by an affirmative vote of 4 of its
members, that there is probable cause to believe that any
person has committed, or is about to commit, a violation
of this Act or of chapter 95 or chapter 96 of title 26, the
Commission shall attempt, for! a period of at least 30
days, to correct or prevent such violation by informal
methods of conference, conciliation and persuasion, and
to enter into a conciliation agreement with any person in-
volved. Such attempt by the Commission to correct or
prevent such violation may continue for a period of not
more than 90 days. The Commission may not enter into
a conciliation agreement under this clause except pur-
suant to an affirmative vote of 4 of .s members. A con-
ciliation agreement, unless violated, is a complete bar to
any further action by the Commission, including the br-
inging of a civil proceeding under paragraph (6)(A).
64a
(ii) If any determination of the Commission under
clause (i) occurs during the 45-day period immediately
preceding any election, then the Commission shall at-
tempt, for a period of at least 15 days, to correct or pre-
vent the violation involved by the methods specified in
clause (i).
(B) (i) No action by the Commission or any person, and
no information derived, in connection with any concilia-
tion attempt by the Commission under subparagraph (A)
may be made public by the Commission without the writ-
ten consent of the respondent and the Commission.
(ii) If a conciliation agreement is agreed upon by the
Commission and the respondent, the Commission shall
make public any conciliation agreement signed by both
the Commission and the respondent. If the Commission
makes a determination that a person has not violated this
Act or chapter 95 or chapter 96 of title 26, the Commis-
sion shall make public such determination.
(5) (A) If the Commission believes that a violation of this
Act or of chapter 95 or chapter 96 of title 26 has been com-
mitted, a conciliation agreement entered into by the Commis-
sion under paragraph (4)(A) may include a requirement that
the person involved in such conciliation agreement shall pay a
civil penalty which does not exceed the greater of $5,000 or
an amount equal to any contribution or expenditure involved
in such violation.
(B) If the Commission believes that a knowing and
willful violation of this Act or of chapter 95 or chapter 96 of
title 26 has been committed, a conciliation agreement entered
into by the Commission under paragraph (4)(A) may require
that the person involved in such conciliation agreement shall
pay a civil penalty which does not exceed the greater of
$10,000 or an amount equal to 200 percent of any contribu-
tion or expenditure involved in such violation.
65a
(C) If the Commission by an affitinative vote of 4 of its
members, determines that there is probable cause to believe
that a knowing and willful violation of this Act which is sub-
ject to subsection (d) of this section, or a knowing and willful
violation of chapter 95 or chapter 96 of title 26, has occurred
or is about to occur, it may refer such apparent violation to
the Attorney General of the United States without regard to
any limitations set forth in paragraph (4)(A).
(D) In any case in which a person has entered into a
conciliation agreement with the Commission under paragraph
(4)(A), the Commission may institute a civil action for relief
under paragraph (6)(A) if it believes that the person has
violated any provision of such conciliation agreement. For the
Commission to obtain relief in any civil action, the Commis-
sion need only establish that the person has violated, in whole
or in part, any requirement of such conciliation agreement.
(6) (A) If the Commission is unable to correct or prevent any
violation of this Act or of chapter 95 or chapter 96 of title
26, by the methods specified in paragraph (4)(A), the Com-
mission may, upon an affirmative vote of 4 of its members,
institute a civil action for relief, including a permanent or
temporary injunction, restraining order, or any other ap-
propriate order (including an order for a civil penalty which
does not exceed the greater of $5,000 or an amount equal to
any contribution or expenditure involved in such violation) in
the district court of the United States for the district in which
the person against whom such action is brought is found,
resides, or transacts business.
(B) In any civil action instituted by the Commission
under subparagraph (A), the court may grant a permanent or
temporary injunction, restraining order, or other order, in-
cluding a civil penalty which does not exceed the greater of
$5,000 or an amount equal to any contribution or expenditure
involved in such violation, upon a proper showing that the
person involved has committed, or is about to commit (if the
relief sought is a permanent or temporary injunction or a
66a
restraining order), a violation of this Act or chapter 95 or
chapter 96 of title 26.
(C) In any civil action for relief instituted by the Com-
mission under subparagraph (A), if the court determines that
the Commission has established that the person involved in
such civil action has committed a knowing and willful viola-
tion of this Act or of chapter 95 or chapter 96 of title 26, the
court may impose a civil penalty which does not exceed the
greater of $10,000 or an amount equal to 200 percent of any
contribution or expenditure involved in such violation.
(7) In any action brought under paragraph (5) or (6), sub-
poenas for witnesses who are required to attend a United
States district court may run into any other district.
(8) (A) Any party aggrieved by an order of the Commission
dismissing a complaint filed by such party under paragraph
(1), or by a failure of the Commission to act on such com-
plaint during the 120-day period beginning on the date the
complaint is filed, may file a petition with the United States
District Court for the District of Columbia.
(B) Any petition under subparagraph (A) shall be filed,
in the case of a dismissal of a complaint by the Commission,
within 60 days after the date of the dismissal.
(C) In any proceeding under this paragraph the court
may declare that the dismissal of the complaint or the failure
to act is contrary to law, and may direct the Commission to
conform with such declaration within 30 days, failing which
the complainant may bring, in the name of such complainant,
a civil action to remedy the violation involved in the original
complaint.
(9) Any judgment of a district court under this subsec-
tion may be appealed to the court of appeals, and the judg-
ment of the court of appeals affirming or setting aside, in
whole or in part, any such order of the district court shall be
final, subject to review by the Supreme Court of the United
States upon certiorari or certification as provided in section
1254 of title 28, United States Code.
67a
(10) Any action brought under this subsection shall be
advanced on the docket of the court in which filed, and put
ahead of all other actions (other than other actions brought
under this subsection or under section 437h of this title).
(11) If the Commission determines after an investigation
that any person has violated an order of the court entered in
a proceeding brought under paragraph (6), it may petition the
court for an order to hold such person in civil contempt, but
if it believes the violation to be knowing and willful it may
petition the court for an order to hold such person in
criminal contempt.
(12) (A) Any notification or investigation made under this
section shall not be made public by the Commission or by
any person without the written consent of the person receiv-
ing such notification or the person with respect to whom such
investigation is made.
(B) Any member of employee of the Commission, or any
other person, who violates the provisions of subparagraph (A)
shall be fined not more than $2,000. Any such member,
employee, or other person who knowingly and willfully
violates the provisions of subparagraph (A) shall be fined not
more than $5,000.
(b) Notice to persons not filing reports prior to institution
of enforcement action; publication of identity of persons and
unfiled reports. Before taking any action under subsection (a)
of this section against any person who has failed to file a
report required under section 434(a)(2)(A)(iii) of this title for
the calendar quarter immediately preceding the election in-
volved, or in accordance with section 434(a)(2)(A)(i), the
Commission shall notify the person of such failure to file the
required reports. If a satisfactory response is not received
within 4 business days after the date of notification, the Com-
mission shall, purusuant to section 438(a)(7) of this title,
publish before the election the name of the person and the
report or reports such person has failed to file.
68a
(c) Reports by Attorney General of apparent violations.
Whenever the Commission refers an apparent violation to the
Attorney General, the Attorney General shall report to the
Commission any action taken by the Attorney General regar-
ding the apparent violation. Each report shall be transmitted
within 60 days after the date the Commission refers an ap-
parent violation, and every 30 days thereafter until the final
disposition of the apparent violation.
(d) Penalties; defenses; mitigation of offenses.
(1) (A) Any person who knowingly and willfully com-
mits a violation of any provison of this Act which in-
volves the making, receiving,
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