# Petition — National Chamber Alliance for Politics v. Federal Election Commission > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0368%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 449 U.S. 954 ## Text 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0368%3A1. Public record. Not legal advice.