# Appellants Reply Brief — Bread Political Action Committee v. FEC

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1967%3A7

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appellants Reply Brief
- **Published:** January 1, 1982
- **Citation:** 455 U.S. 577

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1967%3A7. Public record. Not legal advice.