Appellants Reply Brief — Bread Political Action Committee v. FEC

Office - Supreme Court, US.

FILED

No. 80-1481 Jan © Wee

ALE OLR L. STEVAS,

CLERK

{ CLE!

Iu the

Supreme Court of the Anited States

Octroser Term, 1981

BREAD POLITICAL ACTION COMMITTEE, NATIONAL

LUMBER AND BUILDING MATERIAL DEALERS ASSOCIA-

TION, LUMBER DEALERS POLITICAL ACTION COMMIT.

TEE, NATIONAL RESTAURANT ASSOCIATION, and the

RESTAURATEURS POLITICAL ACTION COMMITTEE,

Appellants,

vs.

THE FEDERAL ELECTION COMMISSION, ET AL.,

Appellees.

ON APPEAL FROM THE UNITED STATES COURT

OF APPEALS FOR THE SEVENTH CIRCUIT

REPLY BRIEF FOR APPELLANTS

JEFFREY COLE

180 North LaSalle Street

Suite 4100

Chicago, Dlinois 60601

(312) 782-8300

Counsel for Appellants

Of Counsel:

STANLEY T. KALECZYC

National Chamber Litigation

Center, Inc.

1615 H Street, N.W.

Washington, D.C. 20062

(202) 659-3180

UNITED STATES LAW PRINTING CO., CHICAGO, ILLINOIS 60618 (312) $25-6581

(I)

TABLE OF CONTENTS

PAGE

ID i iethich iethlaak snc sini en ceiinansiba lbndbiesniessinedeustieapsadaoimaeied 1

SN a caetgtanisdeaeaemacemeiesnaaian 1

I. Jurisdiction over this appeal is proper under

ens ID hedtltibaiceasechesosccirciancineonannesnpaminnesies 2

Ll. Section (D) constitutes an unconstitutional prior

NN etaeetaiatseshcieecigti a et inccecsctnkenlnaheapiiotanesdqucsaaane 4

LI. Section (D) abridges the speech and association-

al freedom of plaintiffs and those with whom

they share an affinity of interest 000... 7

IV. Section (D) is violative of the due process

clause of the Fifth Amendment ........02.00000.00......... 16

V. Section (D) is vague and overbroad .................. 18

NS ES LED ILS IO LLL ET AS LOTTE 20

ii

LIST OF AUTHORITIES

Cases

PAGE

Abood v. Bd. of Education, 431 U.S. 209 (1977) ..1, 6, 14, 15

ACLU v. Jennings, 366 F.Supp. 1041 (D.D.C. 1973)

dismissed as moot, 422 U.S. 1030 (1975) oo... 5, 6

Anderson v. Martin, 375 U.S. 399 (1964) 0000000... 17

Bread Political Action Committee v. The Federal Elec-

tion Commission, 591 F.2d 29 (7th Cir. 1979) .......... 3

Bread Political Action Committee v. The Federal Elec-

tion Commission, 635 F.2d 621 (7th Cir. 1980) (En

SEI | scleninjisauch asticlinitinnnteiunacsssneastentasestanibhane-naniipendnisashaiiiaeaes 3

Broderick v. Oklahoma, 413 U.S. 606 (1973) ............ 14,18

Buckley v. Valeo, 424 U.S. 1 (1976) ....2, 3, 6, 8, 9, 10, 13, 16

CBS v. The FCG, ........ ee” ssensics (1981), 69 L.Ed.

RRR ES RSAC SS Reel de RRR UC ECCT LD ERP IO OME &

Citizens Against Rent Control v. City of Berkeley,

RRC: US. ......... 50 U.S. L.W. 4073 (1981) ..........8, 13, 15

Citizens and Southern National Bank v. Bougas, 434

if OF Fi: on add abiaieddehiiencnasndigiiasiiaiindanin 2

Cleveland Bd. of Education v. LaFleur, 414 U.S. 632

SII sabcicauich eainaehanpseseenamaesmiessnicsdvedoricasimmanumlaenetaacnaoues 8

CMA v. FEC, ........ U.S. ....... (1981); 69 L.Ed.2d

567 «x. Fs Ab ekinatcesnaca sod saelainamamscuaanantael 3, 16, 17

Consolidated Edison Co. v. Publie Service Commission,

RO IEE III © 6ciriccicrsnpacddicnestdlninamisrasecedonvailomnsceeinl 7,11

Davis v. Pringle, 268 U.S. 315 (1925) 0... . 10

Elrod v. Burns, 427 U.S. 347 (1976) oe 15

ili

PAGE

First National Bank of Boston v. Bellotti, 435 U.S.

Pe MOTE: *- dilixcseisbiobssinsmentsteneieddicacingiaienial 4, 6,9, 14, 15

Frost Trucking Co. v. Railroad Commission, 271 U.S.

EE EOIEE ccteiscisiencietasccnioucnaetectascnen eee 15

Griffin v. Illinois, 351 U.S. 12 (1955) ooo. 17

Hampton v. Mow Sun Wong, 426 U.S. 88 (1976) 2... 9

Hynes v. Mayor of Oradell, 425 U.S. 610 (1976) ........ 19

Illinois State Bd. of Election v. Socialist Workers, 440

ik BAM CREED - - stnsneuinebckinetnediaeaaaene 7

In Re Primus, 436 U.S. 412 (1979) oo 18

Landmark Communications, Ine. v. Virginia, 435 U.S.

WONe oc eee 6

Marsh v. Alabama, 326 U.S. 501 (1946) oo. 6

Martin Tractor v. FEC, 627 F.2d 375 (D.C. Cir.),

cert. denied, ........ CI. cicnins CREO ect badesaaumetnes 19

NAACP v. Alabama, 357 U.S. 449 (1958) oo. 5)

National Right to Work Committee v. FEC, ........ F.2d

wbihaai CD. Gite, BIRD © wasisticccnsceciscssecccsouistessaanaaenaeade ae

Nixon v. Administrator of General Services Admin-

istration, 458 US. 425 (1977) ....2.cecccccesceccccncssseecsnnseas 6

Vhralik v. The Ohio State Bar Association, 436 U.S.

BES TID vincetenstinennmnjunnciiad naa 18

Pennekamp v. Florida, 328 U.S. 331 (1946) 00000... 2

Perma Life Mufflers, Inc. v. International Parts

Cram, SR Wi .. BR CI os iesiccenicaicnidsiseceancrctentiacetion 3

Pipefitters v. United States, 407 U.S. 385 (1972) ... 14

Planned Parenthood y. Danforth, 428 U.S. 52 (1976) ... 6

Rowan v. Post Office, 397 U.S. 728 (1970) o.ccccssssssesee 6

iv

PAGE

Smith v. California, 361 U.S. 147 (1959) 000... 6

United States v. Calandra, 414 U.S. 338 (1974) .......... 12

United States v. CLO, 335 U.S. 106 (1948) o000000.... 6, 14

Vitek v. Jones, 445 U.S. 480 (1980) ooo. 15

Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) ........ 9

Williams v. Rhodes, 393 U.S. 1 (1968) 0... 15

Zenith Radio Corp. v. Hazeltine Research, Inc., 401

SEL TIENT 12st kadaseasalitatnbccanisianeshickentaaipennposeitemsiehanes 3

Statutes

SUITE: III. sles iisichiiesnleaniesibaimaeannisenenataanphbinambdbiinaibs 4

SII TIIIIIIIIL” -sicistsinidhatidessnsssseieniencsnmesdumpsagsustpebiebeaminaienise 2, 3,4

NEE a EEE eT 10, 11

SINT, SII,» hitless nslboceniancensninkanhninncntionlncniaadeeteidaoans 10

TINIE isc ats ans ccutsnsantinsdtssedinpnaindieneniaiedisendiaes 10

SEP IIIIIIIIIEED 5s catstadensneatiscbamiononssenupinsenniueenesiteideleiiis 16

EE IIIT Ds cvcinccrsssedsinansipionseusensisdinnencebiniminis 13

IIE csi esnsinsteasnentennbensnnseniiahinndsnanniniiiinn 16

UAE, WORMED GA PCE) aninnascinscsemcnesenceessccnensese 12

Be Ms BOD ccteccsinsstctssorcssoms - wliieeneiamanadie 12

IIIS dl dscbencishnininieeseonenrshonaninonnanintajuasnnied il

atid acacis icin nchacunmesiopsiesinipiaenebelieinigh 11

IE IIE cies deen nsanteonedenninssiiensevinninbactnenmeciotiinmasi 11

Constitution of the United States

First Amendment .........:.....0...c.00sscce000+. snlhensiganacetiaciacan passim

os nanan daapinsaesintbtnanigzaen 18

Vv

Periodicals

PAGE

J. Murphy, The Impact of First National Bank v. Bel-

lotti, The Corporation in Politics, 47-55 (Practicing

a_i ine re en Se 14

Other Authorities

Tribe, American Constitutional Law (1978). ................ 17

122 Cong. Rec. S. 6292 (March 16, 1976)... 9

122 Cong. Rec. S. 6694 (March 16, 1976) ................ 9, 10, 13

122 Cong. Rec. S. 6700 (March 16, 1976) 20.0... 9

Brief of the United States in CBS v. FCC, No. 80-207... 8

90 Stat. 1503 .......

Iu the

Supreme Court of the United States

OCTOBER TERM, 1981

No. 80-1481

BREAD POLITICAL ACTION COMMITTEE, NATIONAL

LUMBER AND BUILDING MATERIAL DEALERS ASSOCI-

ATION, LUMBER DEALERS POLITICAL ACTION COMMIT-

TEE, NATIONAL RESTAURANT ASSOCIATION and the

RESTAURATEURS POLITICAL ACTION COMMITTEE,

Appellants,

Vv.

THE FEDERAL ELECTION COMMISSION, ET AL.,

Appellees.

ON APPEAL FROM THE UNITED STATES COURT

OF APPEALS FOR THE SEVENTH CIRCUIT

REPLY BRIEF FOR APPELLANTS

ARGUMENT

INTRODUCTION

The overriding concern behind the Federal Election

Campaign Act was the problem of corruption of elected

representatives through the creation of political debts re-

sulting from lavish financial contributions. Equally im-

portant, however, was the goal of preservation of the

individual citizen’s confidence and participation in govern-

ment. Indeed, the Act’s ‘‘underlying philosophy was to

sustain the active, alert responsibility of the individual

citizen in a democracy for the wise conduct of govern-

ment.’’ United States v. Auto Workers, 352 U.S. 567, 575,

590 (1957) (See also App Br. at 28).

As we have shown in our opening brief, the restraints

imposed by §(D) not only undermine these goals but dis-

serve the First Amendment. Absent §(D), there will be

a freer flow of political information and enhanced involve-

ment in the political affairs of the Nation by a substantial

segment of our people. For no longer will the right of

political association be dependent upon the arbitrary,

censorial decisions of corporations—the very entities which

supposedly have had so pernicious an influence on the

electoral process. Instead, those decisions will emanate,

as the First Amendment intended, from the mind and con-

science of the individual. Abood v. Bd. of Education, 431

U.S. 209, 234-35 (1977).

Counterpoised against the palpable harm which has and

will continue to result if §(D) is sustained, is the absence,

if it is invalidated, of any injury to the goals which are

subserved by the Act. As we have shown, and as we shall

further explain below, a declaration of unconstitutionality

will not harm in the slightest the statutory machinery. Un-

impaired will be the contribution limitations, the disclosure

and reporting requirements, the anti-proliferation rules,

the criminal and civil sanctions and all of the other provi-

2

sions which contribute in a meaningful and necessary way

to the overall functioning of the Act.

The FEC has met the force of these and the other argu-

ments in our opening brief by ignoring them. And instead

of subjecting the Act to the exacting scrutiny mandated

by the First Amendment, it has succumbed to that mode of

thought whereby phrases are made to do service for critical

analysis by being turned into dogma. Pennekamp v. Flori-

da, 328 U.S, 331, 352 (1946) (Frankfurter, J., concurring).

Indeed, for the FEC, resolution of this case requires only

the undiscerning repetition of the shibboleth, ‘‘electoral in-

tegrity’’—that single supreme simplicity to which all other

values are subordinated.

In what follows, we shall further demonstrate the perva-

sively flawed bases upon which rest the Commission’s con-

tentions and those of the majority below.

I,

Relying on a hyper-literal parsing of the supposedly

‘*precise terms’’ of §437h,' the FEC contends that Congress

has limited the availability of §437h to the three classes

of expressly enumerated individuals and entities (i.e., the

FEC, individual voters, and the national committee of a

political party). (Gov. Br. at 12). Not surprisingly, no

attempt is made to explain how this restrictive construc-

tion can be harmonized with the expansive construction

accorded §437h by Buckley v. Valeo, 424 U.S. 1 (1976).

(See App. Br. at 13-14).

Buckley is not explicable on the basis that among the

plaintiffs were individuals eligible to vote. (Gov. Br. at

16). Indeed, as demonstrated in our opening brief, a care-

ful reading of that case demonstrates that their presence

was irrelevant to the Court’s construction of §437h. (See

' But see, Citizens and Southern National Bank v. Bougas, 434

U.S. 34, 45 (1977) (referring to “the inexactitude of Congressional

language” in FECA).

3

App. Br. at 13-14). Additionally, Buckley ‘‘makes it clear

that organizations may have standing under $437h if they

otherwise meet the requirements for ‘associational stand-

ing.’’’ BreadPAC vy. FEC, 591 F.2d 29, 36 (7th Cir.

1979), aff’d en banc, 635 F.2d 621 (7th Cir. 1980). As the

Seventh Circuit recognized, precisely the same situation

obtains in the instant case as was present in Buckley, for

the record makes clear that the appellants have individual

members, and that the test for associational standing has

been satisfied. See 591 F.2d at 36.*

In the last analysis, the FEC’s cramped and labored con-

struction of §437h is bottomed on the contention that the

rights established by the Act can only be vindicated by the

expressly enumerated parties since only they truly repre-

sent the ‘‘public interest [rather than] their own interest

in maximizing their political influence.’’ (Gov. Br. at 12-

13).* At least three flaws are manifest in this reasoning.

First, just as purely private litigation under the anti-

trust laws is in the public interest,‘ so too is quasi-private

litigation having as its end a determination of the con-

stitutionality of the Act. Second, an expansive construc-

tion of §437h will not diminish the role of the FEC in

litigation under the Act. It will do no more than cast

the Commission in the role of defendant rather than plain-

tiff. Surely, the public interest cannot be said to depend

upon procedural positioning.

* BreadPAC, RPAC, and LudPAC, which are “separate, distinct

legal entities”, CMA v. FEC, --- U.S. --- (1981), 69 L.Ed.2d

at 581, and n.17, are composed entirely of individual members.

§ This contention is demonstrably false, for the interests of the

national committee of a political party are obviously in “maximiz-

ing [its] political influence” rather than advancing some abstract

notion of public interest.

*See Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S.

321, 340 (1971); Perma Life Mufflers, Inc. v. International Parts

Corp., 392 U.S. 134, 139 (1968).

4

Third, it is illogical to suggest that the public interest

in a determination of the constitutionality, vel non, of

basic provisions of the Act is greater if obtained by one of

the parties enumerated in §437h. It is the rapid and cer-

tain determination of constitutional questions by this

Court, simpliciter, that serves the public weal; the identity

of the plaintiff neither enhances nor diminishes the value

of that determination.

Acceptance of the FEC ’s suggestion that constitutional

challenges should be raised defensively in enforcement

proceedings under §437g (Gov. Br. at 13) would not be in

the public interest. Fearing the imposition of the Act’s

civil and criminal sanctions, citizens, both individual and

corporate, will avoid engaging in speech and conduct which

might even remotely be suspect by the FEC. Cf., First

National Bank of Boston vy. Bellotti, 435 U.S. 765, 785 n.21

(1978). This avoidance, of course, precludes the possibility

of the very enforcement proceeding in which the constitu-

tional issue could be raised. In short, relegating constitu-

tional challenges to the limbo of enforcement proceedings

would chill First Amendment activity while the FEC inten-

tionally remained inert, thereby avoiding a judicial de-

termination of questionable provisions of FECA.

Finally, as previously demonstrated, relegating consti-

tutional challenges to general federal question jurisdiction.

is itself antithetical to the publie interest. (See App. Br.

at 15-16),

II.

In our opening brief, we demonstrated that the provision

of §(D) which makes solicitation dependent upon receipt

of advance permission from the corporate employer has

created a system of prior restraint indistinguishable in

its censoring effect on speech and associational freedoms

from the licensing systems consistently invalidated by this

and other courts. (See App. Br. at 16-29). Perhaps ree-

ognizing its inability to overcome the presumption of un-

constitutionality borne by any system of prior restraint

5

(id. at 27), the FEC makes the desperate claim that the

regime of censorship created by §(D) does not constitute

a prior restraint because it is accomplished by a private

corporation rather than an administrative official. (Gov.

Br. at 30). This contention ignores the reality that §(D)

does not merely passively allow, but rather explicitly and

affirmatively mandates, corporate censorship.

In addition, it is contrary to every case which has ever

considered a problem with comparable dimensions. Illus-

trative is ACLU v. Jennings, 366 F.Supp. 1041 (D. D.C.

1973) (3 judge court), appeal dismissed as moot, 422 U.S.

1030 (1975). There, the ACLU sought to enjoin enforce-

ment. Title I of the Federal Election Campaign Act of

1971, which required that any person desirous of publish-

ing an advertisement either ‘‘on behalf’’ or in ‘‘derogation

of’’ a candidate had first to obtain certain certifications

from the candidate. Without such a certification, a news-

paper could not lawfully publish the advertisement. In

holding Title I to be violative of the First Amendment,

the court underscored the impermissible nature of -the

prior restraint imposed by the Act. There, as here, the

Congress had, in effect, delegated censorial powers to

private corporate and individual citizens. That fact was

deemed of no significance, for the censorship stemmed from

the compulsion of the statute. /d. at 1049.

Also instructive is NAACP v. Alabama, 357 U.S. 449

(1958), which rejected the argument that the consequences

of disclosure of the NAACP’s membership were not the

result of state action, but of private prejudices:

‘*Tt is not sufficient to answer, as the state does here,

that whatever repressive effect compulsory disclosure

of names of petitioner’s members may have upon par-

ticipation by Alabama citizens in petitioner’s activi-

ties follows not from state action but from private

community pressures. The crucial factor is the inter-

play of governmental and private action, for its only

after the initial exertion of state power represented

6

by the production order that private action takes

hold.’’ Id. at 463 (Emphasis in original).°

The most glaring deficiency in the FEC’s presentation

is the absence of any attempt to explain how the prior

permission rule furthers the goals of eliminating corrup-

tion and preserving the confidence of our people in govern-

ment. (App. Br. at 31-42). There are, of course, vague

allusions to the importance of electoral integrity, coupled

with a plea for judicial deference to the means chosen by

Congress. (Gov. Br. at 25, n.23). However, as Buckley

and ACLU vy. Jennings teach, that interest can neither be

invoked as a talismanic incantation to support any exer-

cise of power (App. Br. at 30, n.42),° nor as a basis for

relaxation of the rigorous standard of review required

by the First Amendment.’

Any rational assessment of the interests implicated by

the Act reveals that they ‘‘are not served at all, or in

other than a random manner, by the prohibition in §|D].’’

Belotti, supra, 435 U.S. at 788. In addition, such an assess-

ment ineluctably leads to the firm conclusion that, in its

operative effect, the prior permission rule has subjected

the First Amendment rights of vast numbers of our people

to the ‘‘arbitrary discretion’’, (Nixon v. GSA, App. Br. at

25, n.34) of their corporate employers. This broad-based

apparatus of censorship disserves the First Amendment

by ‘‘indiscriminate[ly] interfer|ing]’’ with freedom of

association, Abood, supra, 431 U.S. at 234, n.30, and sub-

5Cf., Smith v. California, 361 U.S. 147, 154 (1959); Planned

Parenthood v. Danforth, 428 U.S. 52, 69 (1976): Rowan v.

Post Office, 397 U.S. 728, 741 (1974) (Brennan J., concurring) ;

Marsh v. Alabama, 326 U.S. 501, 506-09 (1946).

*Cf., Bellotti, supra, 435 U.S. at 788; Lefkowitz v. Cunningham,

431 U.S. 801, 808 (1977); Abood, supra.

™The exacting scrutiny required in First Amendment cases is

not pretermitted even where there are explicit legislative findings.

See Landmark Communications Inc. v. Virginia, 435 U.S. 829,

843-44 (1978) ; United States v. CIO, 335 U.S. 106, 139-40 (1948)

(Rutledge, Jj., concurring).

7

verts the Act’s underlying purposes. (App. Br. at 16-29;

31-32; 37-43).°

ITI,

A.

Rather than responding in any principled way to the

arguments in Part III of our opening brief, the FIC under-

scores the fact that §(D) allows the appellants to engage in

a variety of political activity unrelated to political solicita-

tion. (Gov. Br. at 20-21; 26-27). However, as shown in our

opening brief, the First Amendment will not brook signifi-

cant restraints on political solicitation merely because re-

strictions are not imposed on other separate, distinct forms

of protected activity. (App. Br. at 19-23).°

Moreover, even if the argument had some validity as

applied to appellant-trade associations, it can have no per-

tinence as applied to the appellant-political committees

which are separate jural entities that in the main exist

only for the purpose of making political solicitations and

contributions. Nor is the FEC’s partial paralysis argu-

*The suggestion that §(D) “does not provide for any form of

prior censorship of First Amendment activity” because “corpora-

tions could exercise the same power simply by not joining a trade

association” (Gov. Br. at 30-31) overlooks the fact that a corpora-

tion’s decision whether to join a trade association is a business de-

termination free of any governmental compulsion. That a negative

decision would place the corporation's executives outside the class

of permissible solicitees, as defined hy §(D), is simply the inciden-

tal effect of that purely private decision. A very different situation

is presented when the corporation is invested by statute with abso-

lute, unreviewable, arbitrary power to determine whether its em-

plovees can receive political information (See App. Br. at 26-28).

® Compare Consolidated Edison Co. v. Public Service Commis-

sion, 447 U.S. 530 (1980) (prohibition against inserts in utility

bills held unconstitutional even though there clearly were alterna-

tive avenues available to inform customers); Illinois State Bd. of

Election vy. Socialist Workers, 440 U.S. 173, 184 (1979) (ballot

restrictions affect associational freedoms and may be unconstitu-

tional even though other aspects of right of political association

are unaffected).

8

ment sufficiently sensitive to the fact that $(D)’s restraints

affect the fundamental right of potential contributors to

receive information about candidates” and thereafter to

exercise the right of political association through the

medium of a political committee. (See App. Br. at 20-22)."

B.

Relying on the a prior: conclusion of the majority below,

the FEC ominously warns that without the single solicita-

tion rule of §(D)" there would be a ‘ ‘proliferation of

trade associations and solicitations which would, in turn,

undermine the very purpose of the Act’s restrictions on

the use of corporate treasuries in federal elections.’ ’’

(Gov. Br. at 25-26).

These result-oriented, hypothetical, ‘‘after-the-fact ra-

tionalizations’’, Cleveland Board of Education v. LaFleur,

414 U.S. 632, 653 (1974) (Powell, J., concurring), are un-

acceptable since they find no support either in the legisla-

tive history of the 1976 Amendments or in any critical and

% The Solicitor General recently acknowledged that in the hier-

archy of First Amendment rights, the right of the public to receive

such information is “supreme”. Brief for the United States in

CBS v. FCC, No. 80-207 at 60. See also Buckley, supra, 424 U.S.

at 14-15. For the reasons advanced at pages 19-23 of our opening

brief and in Citizens Against Rent Control v. Berkley, ... U.S. -.-

(1981), 50 L.W. 4073, §(D)'s abridgements cannot be dismissed

as insignificant merely because they have not completely emascu-

lated the First Amendment rights of potential contributors.

1 Tllustrative is the incredible claim that §(D) does not affect

individual rights at all. (Gov. Br. at 10; 29). This contention

blinks reality and is contrary to the district court's unchallenged

Findings of Fact. (See App. Br. at 2-5; 20-22; 29; 635 F.2d at

639 (dissenting opinion) ).

12 Section (D) is comprised of two distinct restraints: the prior

permission rule and the single solicitation rule, which prohibits

solicitation by more than one trade association in any year even

though, as here (Findings 76; 181), the trade associations are

autonomous and have non-identical goals and memberships.

9

discerning analysis of the ultimate purposes of the Act.’

The legislative history of the 1976 Amendments reveals

that they were passed ‘‘without adequate hearings’’, 122

Cong. Rec. 8.6292 (March 16, 1976) (Remarks of Senator

Griffin), and in extraordinary haste in order to satisfy the

time pressures imposed by the Buckley decision. (Id. at

6692-93; 6701; 6703) (Remarks of Senators Cannon, Hat-

field and Griffin).'"* Moreover, the Congress’ central focus

was on the reconstruction of the FEC. Consequently, the

restraints of §(D) were never discussed or analyzed. In-

deed, while there was an isolated reference to the existence

of §(D) in the Senate debates, (id. at 6700), there was no

discussion about the purposes of or justifications for its

dual restraints.’

In marked contrast to the inattention given to §(D) is

Congress’ careful consideration of the ‘‘anti-proliferation”’

provisions, which were designed neither to prevent solici-

tations nor the growth of trade associations. Rather, they

were expressly intended to prevent evasion of the contribu-

tion limitations by unions, corporations, individuals and

groups ‘‘by curtailing the vertical proliferation of political

committee contributions, by providing that all contributions

made by a PAC established, controlled, financed, or main-

tained by any person or group of persons shall be con-

sidered to have been made by a single political committee."

122 Cong. Ree, 8.6694 (Emphasis supplied). See also App.

In both the First Amendment and equal protection contexts,

this Court has repeatedly refused to sanction post-hoc, speculative

theorizing when an examination of the legislative context and pur-

pose helies the asserted purpose. Sce Bellotti, supra 435 U.S. at

792-93; Weinberger v. Wiesenfeld, 420 U.S. 636, 648 (1975);

Hampton v. Mow Sun Wong, 426 U.S. 88, 103 (1976).

See, generally, 90 Stat. 1503.

Section (D) was not even in the Senate version of the bill.

See 122 Cong. Rec. S$.6700. It is thus demonstrably false to sug-

gest that §(D) is an integral part of a carefully thought out, deli-

cately balanced legislative scheme.

10

Br. at 40."" Surely ‘‘ (i]t is incredible that after conspicuous

mention of the [anti-proliferation provisions] in the first

place at the beginning of | $441a], Congress should have

intended to smuggle in a |second section which serves ‘‘a

similar purpose’’™"| by muffled words at the end [of

§441b].’’ Davis v. Pringle, 268 U.S. 315, 318 (1925)

(Holmes, J.).

In sum, the single solicitation rule cannot be sustained

as a valid loophole closing device since, by virtue of the

anti-proliferation provisions ($44la(a)(5)), there is no

loophole left to close. Rather, as the FEC has elsewhere

conceded, §(D) constitutes a purposeful attempt to limit

the fundraising potential of trade associations (App. Br.

at 32). Yet, as we have shown, such a purpose cannot

withstand constitutional scrutiny. (/d. at 47).

The majority’s attempt to justify §(D) on the ground

that it serves to prevent ‘‘a proliferation of . . . solicita-

tions’’ overlooks the fact that it is not the solicitation of

contributions, but the making of lavish contributions

which poses the threat to the integrity of the election

process. See National Right To Work Committee v. FEC,

sonantens F.2d ........ (D.C. Cir.) (Slip Op. 80-1487 at 8,

September 4, 1981). It is for this reason that the Act does

not restrict either the number of solicitations or the amount

of money which PACs can aggregate. Indeed, it was pre-

cisely because the Act accorded the opportunity for unim-

peded solicitations that this Court in Buckley validated its

contribution limitations. (App. Br. at 31). Thus, properly

viewed, the single solicitation rule prevents the very thing

which Buckley found justified the restrictions on the First

Amendment right to make political contributions. We fail

In discussing the import of the anti-proliferation provisions,

Senator Cannon stressed that contributions from a trade association

and the PACs of its corporate members would not be aggregated

for purposes of the contribution limits. 122 Cong. Rec. S$.6694.

7 Gov. Br. at 24 (Emphasis supplied).

11

to perceive how such an irrational consequence furthers

any compelling interest.

Apart from the analytical deficiencies discussed above,

the majority's argument is persuasive only if it rational-

ly could be supposed that, absent the single solicitation

rule, a substantial number of corporations would, in fact,

be willing to fraudulently proliferate ‘‘dummy?’’ associa-

tions (635 F.2d at 640) in order to evade the effeets of the

anti-proliferation rules.’* For it is fundamental that the

First Amendment will tolerate no restraints predicated

upon conjecture or refined speculation that untoward con-

sequences might result. (See App. Br. at 27, 1.40).

This willingness, of course, depends upon whether the

risks are exceeded by Wie benefits. The risks in making

contributions through the vehicle of a ‘‘dummy”’ trade

association are glaringly apparent. Since the purpose of

the creation of such an alter-ego is to evade the Act’s con-

tribution limitations, contributions by the controlled asso-

ciation PAC presumably would violate $441a. Addition.

ally, to screen the conspirators’ illicit scheme, false reports

necessarily would have to be filed with the FEC, thereby

violating the Act’s reporting and disclosure provisions,

and its prohibition against the use of nominees (sce App.

Br. at 40-41), as well as 18 U.S.C. $$371 (conspiracy) ;

1001 (false statements to a federal agency) ; and 1341 (mail

fraud). Those responsible for the fraud would face

18 The circumvention postulated by the majority could only occur

with the active connivance of a number of corporations willing to

expend substantial sums of money to create a facade of legitimacy

and willing to risk the awesome criminal penalties wnic could be

imposed if the fraudulent enterprise were detected. Tor, as the

minority conclusively demonstrated, absent a pervasive conspiracy,

no single corporation could exercise a sufficient degree of domi-

nance over a trade association's affairs. 635 F.2d at 640.

See also Consolidated Edison, supra, 447 U.S. at 543 (“Mere

speculation of harm does not constitute a conipelling state interest.” ),

12

staggering jail terms and fines under ‘Title 18 and under

the Act’s criminal provisions. (§441)).

Counterpoised against the obvious and crushing risks

would be exceedingly speculative and limited benefits. The

conspirators’ ability to make illegal contributions through

the ‘‘dummy’’ trade association PAC would depend upon

‘*illicit’’ solicitations having generated sufficient revenues

and on the unlikely concurrence among the co-conspirators

regarding the identity of the potential recipient of the con-

tribution. Given the uncertainty of any fundraising effort,

coupled with the fact that the controlled PAC would be

competing with other trade association PACs for funds

see, e.g., Finding 148, from the same fixed pool of solicitees,

it could not be said with even a reasonable degree of cer-

tainty that enough money could ever be raised to make the

enterprise worthwhile. When to the balance are added com-

petitive internal solicitations by the corporate conspirators

own PACs and the biannual union solicitations allowed

by §441b(b)(4)(B), the prospects become even more

dismal.”

In short, it is quixotic to suggest that the uncertain

benefits which might be derived from the creation of a

‘‘dummy”’ trade association would motivate corporations

to engage in the broad-based criminal conspiracy implicit

in the majority’s inordinantly speculative thesis.". And it

would be naive to believe that corporations willing to

proliferate trade associations to evade the Act’s contribu-

* If the corporate conspirators do not have PACs of their own,

the chances of success are thus not reduced, pro tanto. However,

in that event, it is luminously clear that a corporation would rather

create its own PAC and engage in /awful solicitation than create a

fraudulent PAC with the uncertainty of success and the potential

for disastrous consequences in the event of discovery.

*1In other contexts, this Court has refused to base rules and

doctrine on such speculative assumptions. Sec, ¢.g., United States

vy. Calandra, 414 U.S. 338, 351 (1974).

13

tion limits would flinch at disobeying the single solicitation

rule. Compare Buckley, supra, 424 U.S. at 45 (easily

- evaded expenditure limitations which impose restraints on

_ First Amendment rights serve no societal interest).

Finally, as we have shown in our opening brief (pp. 40-

41), in light of the elaborate mechanism set up by the Act

to insure compliance with its contribution limitations, the

single solicitation rule of §(D) needlessly imposes direct

and immediate restraints on the appellants’ First Amend-

ment rights and on the speech and associational rights of

potential contributors, without helping to effectuate the

Act’s contribution limitations. That being the case, it is

violative of the First Amendment. (App. Br. at 30, n.42;

40-41; Citizens Against Rent Control, supra, 50 L.W. at

4073) (contribution limitations rendered unnecessary by

other provisions of the statute).

GC.

The dominant theme in the FEC’s brief is that since

Congress, in §441b(b)(2)(C), has accorded a statutory

benefit to corporations by allowing them to use their funds

to defer the administrative costs of PAC solicitation—

a benefit to which the FEC claims they are not constitu-

tionally entitled—it can condition the exercise of that

benefit by the kinds of restraints in §(D). (Gov. Br. at

29-32). We have previously demonstrated that this argu-

ment is not supported by a single pronouncement of this

or any other Court, and that it is contrary to the official

interpretation of the Department of Justice as reflected in

the formal Opinion Letter of Assistant Attorney General

Thornburg. (App. Br. at 33-36)," which ‘‘is entitled

%2 The letter was issued to the FEC in connection with the

Sun Oil Advisory Opinion 1975-23. The FEC’s present claim

that the affinity of interest standard was “specifically rejected” by

Congress is erroneous. (Gov. Br. at 31, n3l). A reading of

Senator Cannon's remarks and the debates on the 1976 Amend-

ments makes clear that that standard was never discussed or de-

bated as an option to the categories of permissible solicitees set

forth in the Act. See 122 Cong. Rec. S.6694.

14

... to great weight... .’’ Pipefitters v. United States,

supra, 407 U.S. at 409."

This Court’s prior decisions, as well as the debates on

the Hansen Amendment, reflect that the evil at which the

general prohibition against union and corporate expendi-

tures was directed was the use of treasury funds to iw

fluence the general public to vote for or against a par-

ticular candidate. See United States v. CIO, 335 U.S. 106,

116, 121 (1948); United States v. Auto Workers, supra,

352 U.S. at 584-85, 587, 589, 592; Pipefitters, supra, 407

US. at 430-31. Since the solicitation of the stockholders

and the executive and administrative personnel of a trade

association’s corporate members (and others having an

affinity of interest, see App. Br. at 23, n.29; 35-36) neither

serves that purpose nor is directed to the publie at large,

but solely to the only natural ‘‘constituents’’ a trade

association can have, Pipefitters, supra, at 431, n.42, there

can be no persuasive claim that such benign political activi-

ty, lying as it does at the core of the First Amendment,*

can be constitutionally burdened by the restraints imposed

by §(D).

% The statements at page 31, n.31 of the FEC’'s brief are un-

pardonably false. As Pipefitters makes clear, the Hays’ remarks

were directed to the unofficial comments of some unspecified

“Associate Deputy Attorney General” contained in a newspaper

article. 407 U.S. at 424-25 and id. at nn. 38 and 39. Moreover,

Representative Hays could not have been referring to the Thorn-

burg opinion letter since his comments antedated that letter by al-

most four years!

*4 See App. Br. at 19, n.24, 24, n.32; Abood, supra, 431 U.S.

at 234; Broderick v. Oklahoma, 413 U.S. 606, 616 (1973).

*5 The former General Counsel of the FEC has concluded that it

is doubtful that the restraints on trade association solicitation can

survive constitutional scrutiny. See J. Murphy, The Impact of

First National Bank vy. Bellotti, in The Corporation In Politics

55 (Practicing Law /nstitute 1979).

15

Nor does such solicitation pose a threat to the evil sought

to be eradicated by the general prohibition against cor-

porate and union contributions, namely the problem of

actual or apparent corruption of elected representatives

resulting from lavish financial contributions. Thus, the

restraints of §(D) cannot be justified on this basis. Finally,

even if all we have said is inaccurate and the Congress

has the right to prohibit corporate expenditures to defray a

PAC’s solicitation costs, it does not follow that where that

right is accorded by statute, its exercise may be conditioned

by the kinds of otherwise unconstitutional and unnecessary

conditions imposed by §(D)*

The decisions of this Court make clear that substantial

restraints on political solicitations and contributions im-

plicate fundamental First Amendment rights and thus are

subject to exacting judicial review. See Citizens Against

Rent Control, supra, 50 L.W. at 4072; Abood, supra, 431

U.S. at 234-35. That review requires that before the re-

straints can withstand constitutional challenge, it must be

shown that: the inhibitions on expressional and association-

al freedoms are truly necessary to further the goal of

electoral integrity; that absent the curtailment of First

Amendment rights, harm will certainly result; that the

means employed are the least restrictive of associational

freedoms; and that the benefits gained outweigh the harm

to constitutionally protected rights. (App. Br. at 30, n.

42).27_ As the discussion in our opening brief demonstrates,

§(D) fails to satisfy any of these criteria. 7d. at 31-43.

*6Cf., Frost Trucking Company v. Railroad Commission, 271

U.S. 577 (1925); Williams v. Rhodes, 393 U.S. 1, 28 (1968) ;

Bellotti, supra, 435 U.S. at 798, n.14; Elrod vy. Burns, 427 U.S.

347, 360-62 (1976); Vitek v. Jones, 445 U.S. 480, 488 (1980).

** The FEC seems to concede the applicability of these criteria.

(Gov. Br. at 26).

16

Nothing in the plurality opinion in CMA v. FEC, supra,

supports an argument for diminished judicial review in

this case. Unlike the substantial restrictions created by

§(D), the restrictions in CMA were marginal since they

permitted at least the symbolic expression of suppor% evi-

denced by a contribution. Here, the intended and inevitable

effect of §(D) is to directly interdict solicitations thereby

preventing the making of contributions and thus preclud-

ing even the symbolic expression of support evidenced by

the act of contributing. And by preventing the contribu-

tion, §(D) interdicts the very act which serves to affiliate

the contributor with the PAC and other like-minded per-

sons. (See App. Br. at 31-32; 47).

IV.

Reduced to its essentials, the FEC’s response to the

arguments in Part IV of our brief consists of a reitera-

tion of the majority’s holding that §(D) benefits rather

than disadvantages trade associations. (Gov. Br. at 35).

For the reasons set forth in our opening brief, this con-

tention is specious and at war with Buckley’s recognition

%8 This contention is based on the FEC’s dissection of the various

subparts of §441b(b)(4) into its purportedly prohibitive and per-

missive components. (Gov. Br. at 35, n.33). The difficulty with

this highly artificial mode of analysis is that it overlooks the inex-

tricable concatenation between the various subparts of §441b(b),

and it ignores the FEC’s admission, as revealed by its ac-

quiescence in certain findings of fact which were jointly sub-

mitted by it and the appellants to the district court, that §(D) is

indeed restrictive. See Findings 140; 144. Moreover, this claim

is belied by the district court’s findings, by reality, and by the

FEC’s own Advisory Opinions. (See App. Br. at 3, n.8; 29; 32,

n.44). Prior to §(D), appellants’ solicitation activities were not

circumscribed by the throttling restraints of §(D). (App. Br. at

2-3). It is thus absurd to suggest that their imposition, with all

their devitalizing effects (App. Br. at 3-4; 29), has conferred a

“benefit” on trade associations.

17

that even when a statute appears to be evenhanded, the

appearance of fairness may not reflect political reality, as

well as with the fundamental precept that realities must

dominate judgment. (App. Br. at 43; 45).

CMA vy. FEC, supra, does not support the FEC’s argu-

ment that §(D) is not invidiously discriminatory. In CMA,

the plurality compared the restrictions placed on in-

dividuals and unincorporated associations, on the one hand,

with those imposed on unions and corporations on the other.

The plurality found that overall the Act imposed fewer

restrictions on the former than on the latter. However, the

plurality did not pretend to decide whether the restrictions

imposed on unions and corporations on the one hand were

comparable to those imposed on corporate trade associa-

tions on the other.

The only other aspects of the FEC’s argument that merit

a response are the claims that i) §(D) does not violate

the due process clause since there is no ‘‘purposeful dis-

crimination’’ and ii) that any disparity in treatment is

rationally based. (Gov. Br. at 35, n.33; 38). We need

not dwell long on either of these contentions.

The cases cited in support of the first argument all in-

volved claims of racial discrimination. In that context,

this Court has indeed required a showing of ‘‘ purposeful

discrimination.’’ While such a showing is not a pre-

requisite in other equal protection cases, see Tribe, supra,

991, et seq, in any event it is satisfied here. (App. Br. at

32, n.44).

Contrary to the FEC’s veiled suggestion, in cases

implicating core First Amendment values, it is not

enough to satisfy the minimal test of reasonableness.

%8 See also Anderson v. Martin, 375 U.S. 399, 402-03 (1964) ;

Griffin v. Illinois, 351 U.S. 12, 23 (1955) (Frankfurter, J., con-

curring) (“Law addresses itself to actualities.”) ; L. Tribe, Ameri-

can Constitutional Law 1203 (1978).

18

Rather, the disparity in treatment must withstand the

exacting scrutiny applicable in First Amendment cases.

(See App. Br. at 48, n.53). Since, as we have shown, the

restraints of §(D) fail to satisfy the criteria applicable in

such cases, and since no restraints comparable to those in

$(D) are imposed upon corporations and unions (Finding

201), it must be concluded that §(D) invidiously diserimi-

nates against trade associations in violation of the due

process clause of the Fifth Amendment.

V.

Where the term ‘‘solicitation’’ has been used in a statute

without being explicitly defined, it has almost always been

accorded its dictionary definition (i.e., a request, petition,

entreaty). (See App. Br. at 48). Significantly, however,

the FEC does not say, because it cannot, that as used in

§(D), ‘‘solicitation’’ was intended to have such an explicit

and narrow defmition! On the contrary, it is clear that in

§(D) Congress has disavowed the dictionary definition in

favor of an oceanic concept that defines solicitation as ‘‘any

action that could fairly be considered a request for a con-

tribution.’’ (See App. Br. at 48-49). This definition is

flawed since it, does not allow men of common intelligence to

ascertain in advance what is forbidden, and it necessarily

‘* ‘puts the speaker wholly at the mercy of the varied

understanding of his hearers’... .’’ (App. Br. at 48).™

®% The authorities relied on by the FEC (Gov. Br. at 38, n.34) do

not support a contrary conclusion. Neither Ohralik v. The Bar

Ass'n, 436 U.S. 447 (1978) nor Jn Re Primus, 436 U.S. 412

(1978) involved questions of statutory vagueness. In fact, the disci-

plinary rules involved in those cases did not use the term “solicita-

tion”, but rather spelled out in words the conduct which was prohib-

ited. See 436 U.S. at 418, n.10; 436 U.S. at 453. It was this Court

which employed the term “solicitation” to describe the petitioners’

activities. Broderick vy. Oklahoma, 413 U.S. 601 (1973) involved

(footnote continued )

19

The FEC’s contention that §(D) is not vague because

of the existence of the Advisory Opinion mechanism (Gov.

Br. at 39-40) evades rather than answers the question pre-

sented here. While in some cases the harm to First Amend-

ment values inevitably flowing from vague laws can be

mitigated by the promulgation of a comprehensive body

of principled administrative decisions designed to narrow

and sharpen an objectionable statute, it is the body of

decisions, not the mere existence of an advisory opinion

mechanism, which is significant. In the context of this

case, the advisory opinions have done nothing to alleviate

the pervasive vagueness of §(D), Rather, they are episodic

determinations which give no guidance beyond their im-

mediate factual situations; they neither ‘‘shed much light

on the Commission’s interpretation of ‘solicitation’ activi-

ties’’, nor have they ‘‘much illuminated the meaning of

‘solicit’ . . .’’ Martin Tractor v. FEC, 627 F.2d 376, 390

(D.C. Cir.), cert. denied, 449 U.S. 954 (1980).

In conclusion, we can think of no better denunciation of

§(D) than that unwittingly offered by the FEC. After

stating the test for vagueness, the Commission said: ‘‘The

term ‘solicit’ as used in FECA falls far short of this

standard.’’ (Gov. Br, at 38) (Emphasis supplied). We

respectfully agree.

(footnote continued)

a statute which prohibited, inter alia, certain political solicitations.

The petitioner's vagueness argument and this Court's focus

were not directed toward the word “solicitation”, but rather

centered on the ambiguity of the phrase “for any political organiza-

tion, candidacy or other political purposes.” See id. at 608. That

Broderick does not stand for the proposition that “solicitation”

statutes are per se constitutional is illustrated by Hynes vy. Mayor

of Oradell, 425 U.S, 610 (1976), which invalidated on vagueness

grounds an ordinance prohibiting charitable and political solicita-

tions without notice to the police.

20

CONCLUSION

The judgment of the court of appeals should be re-

versed,

Respectfully submitted,

JEFFREY COLE

Counsel for Appellants

Of Counsel:

Stanuey T. Kateczyc

National Chamber Litigation

Center, Inc.