Brief for the United States — United States v. Harriss

Supreme Court brief1954

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INDEX

Opinion below --------- SAP Ae Ey os hie PPD Oey inet

Jurisdiction - - - - - . 7 = on n/t

Questions presented - - ; renerkings wee nen

Statute involved______-_- ee ain Aiea wee eer er ‘i

Statement -_- :; Sep AR nr

i ao in arene wwe we dbierowe ea Ree a

B. The holding of the District ‘Court. a akg Pht hE

Specification of errors to be urged--------------------------

Summary of argument_. os ssh thats rh va wi na

Sioa cic dake at bap re a ckde eet woke ens bees awe

1. Sections 305 and 307 of the Federal Regulation of

Lobbying Act are not unconstitutionally indefinite

as applied to the counts of the information laid

under those provisions A

A. Sections 305 and 307 plainly apply to those

who expend money either (a) to pay others

to communicate to Congress or (b) in the

course of directly inducing others to com-

municate to Congress______-_-_---_------

1. The language of the Act...... aenatd ns

2. Legidiative Wistory............-...--.

a. The 1946 Act------ ee

B. The Section 305 ate charge that the de-

fendants paid others to make representa-

tions on their behalf to Congress or at-

tempted to induce others to communicate

with Congress _ -

C. There is no unconstitutional * vagueness in Beo-

tions 305 and 307 as applied to direct com-

munication with, or intentional stimula-

tion of direct communication with, Con-

gress _- SPIE: Rae i

D. The “principal: purpose”’ requirement of Sec-

tion 307 has substantial application only to

defendant National Farm Committee and

its application to that defendant is clear_

II. Section 308 of the Act is not unconstitutionally indef-

inite as applied to the counts laid under that sec-

tion -

A. As applied to ‘those who are » hired either to ex-

press views to Congress or to cause others

to do so, Section 308 is sufficiently definite_

B. Defendants Moore and Linder were hired to

express views to Congress and to cause

others to do so___----

273108—-53 1 (1)

Argument—Continued Page

III. As applied here, Sections 305, 307, and 308 of the Act

do not violate the First Amendment_-_-_-_______-_- 64

IV. The information should not have been dismissed on

the basis of the alleged invalidity of the penal pro-

vision of Section 310 (b) which is plainly separable- 75

V. The validity of the Lobbying Act as applied to other

situations is not before the Court. -____-_-______- 80

ee oo, ae Cree caw as cemackwuavusee ce 88

OIE sag oo sins sees Sods Scenes se Fede ees RG he Knap ee enne 89

CITATIONS

Cases:

URE 0 ee, ee ie oc See ep nne 80

American Communications Association v. Douds, 339 U. S.

ss see ae neds eng ee oak a an eta 49, 53, 70

Associated Press v. National Labor Relations Board, 301

Sas coe eee ee eee an as ee eer 71

Associated Press v. United States, 326 U.S. 1_-.---------- 71,73

Bandini Co. v. Superior Court, 284 U. 8S. 8._-_-_--_------ 53

Barrows v. Jackson, 346 U. 8. 249_..__..--.---.----.---- 83

Beauharnais v. Illinois, 343 U. 8. 250...........-.---.--- 69, 86

Boyce Motor Lines v. United States, 342 U. S. 337__ 18, 50, 52, 53

Burroughs and Cannon v. United States, 290 U.S. 534_ 37, 51, 56, 68

Carter v. Carter Coal Co., 208 U. 8. 238... ........-.-.-. 85

Dennis v. United States, 341 U. 8. 494__-----_- 53, 64, 70, 83, 86

District of Columbia v. Little, 339 U.S. 1__-------------- 82

Dovemy +. Raenses, Tet GU. B: BOC 6 on on nnn coven sewnccues 85

Electric Bond & Share Co. v. Securities and Exchange Com-

MOR Be Ar eS Re owes beh ees saw neem awed oune~ 77

Federation of Labor v. McAdory, 325 U.S. 450____-_----- 81, 84

For v. Washington, 236 U. S. 273_._....------- LES pesmi 87

Gorin v. Untied States, 313 U.S. 19. .........-...-.6.-.-- 53

Jordan v. De George, 341 U. 8. 228. .......-.--.----- 18, 53, 86

Kansas City Southern Ry. Co. v. Anderson, 233 U. S. 325-- 84

ag 9. Uiaieee Gey PE © Oe Bison cee cece cwenecntyes 77

et 7 ee ts Fk vo oni oricens tees weveens 52

Kuehner v. Irving Trust Co., 299 U.S. 445_-_----------- 83

Lewis Publishing Co. v. Morgan, 229 U.S. 288_---------- 70

Dea +, Br, FEU, BB Gs vw cence ewe coded ewcsn 53

Nash v. United States, 220 U. 8. $73...........--..---- 53

National Association of Manufacturers v. McGrath, 103 F.

Supp. 510, vacated on grounds of mootness, 344 U. 8S.

SUB a ae ee oe eee 13, 24, 54, 77, 81, 83

National Labor Relations Board v. Virginia Electric &

ee Oe i ee Oe Gn oo os was cenee eee ede eo 70

New York ex rel. Bryant v. Zimmerman, 278 U.S. 63-- - - - 75

Naa 6. Beer, VE. OO eee cn cw se ncecersewecsesnns 80

Oklahoma Press Publishing Co. v. Walling, 327 U. 8. 186-- 71

Old Dearborn Co. v. Seagram Corp., 299 U. S. 183_------- 52

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Cases—Continued Page

Omaechevarria v. Idaho, 246 U.S. “ aera ee cae praia fa seta mie” Se

Parker v. Los Angeles County, 338 U.S. 327_.__.______- 82

People ex rel. Alpha Portland fieied Co. v. Knapp, 230

ee Fe fo an ee Pi ee aed eA ee 84

Poindexter v. Greenhow, 114 U.S. 270______- See ee 84

Price v. Johapten, 334.0. B. 966.......-.. <2... cece. 80

Rescue Army v. Municipal Court, 331 U.S. 549__________ 22, 81

Robinson v. United States, 324 U. S. 282...__.__________. 83, 86

Screws v. United States, 325 U.S. 91_________- BR ieee ee 53

epeeles St. TRAE, GEO TB OBTE. oni ccc n ecco en 53

St. Louis, Iron Mountuin & Southern Ry. Co. v. Wynne,

Pe WE sericea Roce tiene oe dere 84

Stroud v. Swope, 187 F. 2d 850, certiorari denied, 342 U.S

FN barn aie a Eat pela el aeniet oe a Di tie bate Sree EE 80

ement ¥. Fanta, Gee UB: OOO... oo lke. 82

Thernhill v. Alabama, 310 me ME cat ake Soe ee YG

Toomer v. Witsell, 334 U. Se, EEE Sie toe en wnt 82

Touhy v. Ragen, 340 U. § S. 462. : 82

United Public Workers v. inp 330 U. 8.75. 22, 53, 70, 81, 82, 86

United States v. Alford, 274 U.S. 264____- SAE ee Le 52

United Stutes v. Congress of Industrial Organizations, 335

ie i: ee Sk ner ieee REISE Gee 6 eS CE 49

United States v. Curtiss-Wright Corp., 299 U.S, 304_____- 64

United States v. Hayman, 342 U. _ oo SRS ae tees ena 82

United States v. Petrillo, 382 U. $8. 1. ....-.-..-._-.-.- 18,

a“ 45, 47, 49, 52, 82, 83, 86,87

United States v. Ragen, 314 U.S. 513____- Sf eer Spe Ge 8 52, 53

United States v. Rumely, 345 U.S. 41___. 16, 24, 28, 50, 66, 82, 85

United States v. Spector, 343 U.S. 1€% -......--___- 22, 64, 83

United States v. Wurzbach, 280 U.S. 3896.________. : 18,

22, 50-51, 53, 56, 78, 83, 86

Viereck v. United States, 318 U. S. 236.....___-_________. 72

Warren v. Mayor of Charlestown, 2 Gray (Mass. 1854) 84__ 85

Waters-Pierce Oil Co. v. Teras (No. 1), 212 U.S. 86_____. 52

if ae eS a ee 77

Williams vy. United States, ag’ MeCN ace tects coe 53, 86

Winters v. New York, 333 U. 8. 507. ...--.........- Ree 87

Constitution and Statutes:

Constitution, First Amendment 64 Fe@eral Corrupt Prac-

SRE AOE, he MN sg ww nn on wn nk oak wks cwussavce 37

Federal Regulation of Lobbying Act, 60 Stat. 812, 839,

2.0. 8: ©. 361-370. .... Se pee sae ae aaa Vie ae 3, 66

PSUR cre amnsa axcware veces cleen eer heonweenene 89

Sa sc ase Beds neickee sae ee ee 58, 89

sities ree digo nn Gi a Ge a ge eee ao eck 90

RE tennwns was nne Gane noes oien meet Sere be Mueien 90

Sec. 305._....... 2, 18, 15, 17, 19, 22, 26, 28, 49, 54, 59, 60, 90

OR an wha die koae co uu pho ow eed Suter e use 92

— ELIE | a SERREL Reka IN gt NN OR TDR TPR HO Meee rer ayr SRLS TER CTRIORE Mp setae

sone

Constitution and Statutes—Continued Page

RO SUE wckeso ss ea Sy ea co eee eee 2, 13, 15,

17, 19, 22, 26, 27, 28, 49, 54, 55, 56, 57, 59, 60, 79, 84, 92

ee _ NAVES GRE RLS on pert 13, 15, 19, 22, 23, 26, 37, 59, 60, 79

UR IRS oon a cata e de neeees uae 2, 93

EE ly RE eter ey ete ay Ee eho Sg < Wd 94

acuta oan ns un ay ra wane acai Wey ora 94

IE io oo odin oe neee obese aeaeawsese 2, 75, 76, 94

See: 310 Go. - cnn 2, 13, 21, 59, 75, 76, 77, 78, 79, 80, 95

| SRR ee Beare een once Meese lee 95

Legislative Reorganization Act of 1946, 60 Stat. 812_____ 29, 66

i SO on donc nec exte codes saxsnwie cs ancet 21, 76, 95

26. Bo Se ey es OE ak a oe coca cw Snacavavecune 80

Miscellaneous:

Comment (1947) 56 Yale L. J. 304, 313-316____-__.__--- 68

TO TOE, Tate, Be nice sciceceewnnceeneunese seus 37

iy OO SS os, cee beac se soe aeaueneeoccone 41, 42

ee CE CI Gidea oie adword ahekmwemern seb aene 40

Oe ee i, ison ok owes ccsecnesteesunes 40

80 Cong. Rec. 9430-9434, 9743-9753 _ _...--.-.------.-- 40

OS Oe ee, re IR ase cam ari dentesnnccciiweeus 41

OE ae. ee, a dn hie eee cud n sw acunsue 33

Be I este were ncaa di inn acann vane 34

OF AE See SUE ca a aas caus ses bone aenens xmawas see 35

99 Cong. Ree.:

OO H. (dally ed., dam. B, 3000)... 225-26 secs cuus 65

2881 ff. (daily ed., April 7, 1953) -_.-------- retpteatate 65

6784 ff. (daily ed., June 15, 1953) ...-.----.-------- 65

Futor, An Analysis of the Federal Lobbying Act (1949), 10

Oe E.On con scuba ccucunensxeeenwontunaueneee 36, 57

MG EEE Cannas ceeesiow ak ce wend oeciubasas« 36

SH a oracles cansicm ne onawd ae wid Sohn ene 41

Committee Print of H. Rep. on Legislative Reorganization

Act of 1946, 79th Cong., 2d sess., pp. 32-33_......---- 31

Hearings, House Select Committee on Lobbying Activities,

Sint Cots., Wd ee, Whe 3 De WOR ec wick owen dunce 67

Hearings before the Special Senate Committee To Investi-

gate Lobbying Activities, 74th Cong., Ist and 2d

sessions, and 75th Cong., 3d sess., pp. 1014-1015_______- 38

H. Concurrent Res. 18, 79th Cong., Ist sess., 59 Stat. 839_ 30

Be Wes RU so os a wee ew wen sus eason 37, 40, 60

De. Wi Ss FE NR os so ewe een ee Geo icanuecun 40, 60

H. Rep. 2)81, 74th Cong., 2d sess., pp. 2-4... - - ----...--- 38

H. Rep. 1675, 79th Cong., 2d sess., p. 26_.-...----------- 30

H. Rep. 3239, 81st Cong., 2d sess.:

Poe ecdcc cud ncn aussena ten Resbuke Semen Geeeowee 43

MOR Ss cinieas cock d dee men cawar enw pn cnankd aes ees 43

ee Renn ae pine ee oe Rees 41

Lane, Some Lessons From Past Congressional Investigations

of Lobbying, 14 Pub. Opin. Quar. 14................-- 66

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Miscellaneous—Continued

Note, (1947) 47 Col. L. Rev. 98, 99-103________________-

Nutting, Freedom of Silence: Constitutional Protection

Against Governmental Intrusions in Political Affairs,

(1948) 47 Mich. L. Rev. 181, 204-206_______________-

Outline of Instructions for Filing Reports by Clerk of the

House, Federal Regulation of Lobbying Act (1951) -_-_-

Report of the President’s Committee on Civil Rights (To

Secure These Rights, 1947), pp. 52-53, 164

ey we ee ote cw ecawikewens

S. Rep. 1011, 79th Cong., 2d sess., p. 26...-__--___---_--

S. Rep. 1400, 79th Cong., 2d sess., p. 27__.-._..__.__---

S. Res. 165 and 184, 74th Cong., Ist sess____________----

Stern, Separability and Separability Clauses in the Supreme

Court, 51 Harv. L. Rev. 76

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Ynthe Supreme Court of the Wnited States

OcToBER TERM, 1953

Unrrep States oF AMERICA, APPELLANT

Rosert M. Harriss, RaLPH W. Moore, Tom LINDER,

AND NATIONAL Farm COMMITTEE

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

BRIEF FOR THE UNITED STATES

OPINION BELOW

The opinion of the District Court dismissing

the information (R. 39-40) is reported at 109 F.

Supp. 641.

JURISDICTION

The order of the District Court was entered on

January 30, 1953 (R. 40). Notice of appeal was

filed by the United States on February 27, 1953

(R. 41), and probable jurisdiction was noted by

this Court on May 4, 1953 (R. 43). The juris-

diction of this Court to review on direct appeal

a judgment dismissing an information based on

(1)

as “ 2 HORDES ARTUR UR Ae ORR CUNIAL ERS TIN

the unconstitutionality of the statute on which the

information is founded is conferred by 18 U.S. C.

3731. See also Rules 37 (a) (2) and 45 (a), F. R.

Crim. P.

QUESTIONS PRESENTED

Section 305 (a) of the Federal Regulation of |

Lobbying Act requires that certain records be kept

and reports filed by persons receiving contribu-

tions or expending money for the purposes des-

ignated in Section 307, 2. e., to influence, directly

or indirectly, the passage or defeat of federal

legislation. Section 308 (a) requires any person

) who engages himself for pay for the purpose of

| attempting to influence the passage or defeat of

legislation to register b ‘ore doing anything in

furtherance of such object. Section 310 (a)

makes violation of any of these disclosure require-

| ments a misdemeanor, punishable by fine or im-

| prisonment, and Section 310 (b) prohibits, for a

| period of three years, any person convicted of

| such a misdemeanor ‘‘from attempting to influ-

| ence, directly or indirectly, the passage or defeat

of any proposed legislation or from appearing

| before a committee of the Congress in support of

or opposition to proposed legislation.”’ The present

information charges violations of Sections 305 and

308 by persons who expended or collected money,

or engaged themselves for pay, for the purpose of

communicating directly to Congress on federal

legislation or of causing others so to communicate.

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—— :

The questions presented are:

1. Whether the purposes specified in Section

307 are so vague and indefinite as to render Sec-

tion 305 (a) invalid as applied to this information.

2. Whether Section 308 is unconstitutionally in-

definite as applied to this information.

3. Whether Sections 305, 307, and 308 violate

the First Amendment, as applied to this infor-

mation.

4. Assuming that the penalty in Section 310 (b)

is unconstitutional, whether the unconstitution-

ality of that provision serves to invalidate See-

tions 305 and 308, despite the inclusion in the Act

of a separability clause.

STATUTE INVOLVED

The full text of the Federal Regulation of Lob-

bying Act, 60 Stat. 812, 839, 2 U. 8. C. 261-270,

is set forth in the Appendix, enfra, pp. 89-95.

STATEMENT

A. THE INFORMATION

An information in ten counts charging viola-

tions of Sections 305 and 308 of the Federal Reg-

ulation of Lobbying Act was filed against the de-

fendants in the United States District Court for

the District of Columbia on August 31, 1949 (R.

1-23).

1. Section 308 counts.—Counts I, VIII, and 1X

against defendants Moore, McDonald,’ and Lin-

1The death of McDonald was suggested of record in the

District Court on January 30, 1953, and the case was dis-

missed as to him (R. 38).

—_ SREP RIE EEG fig FOI BERNAL 9S AE. 8 TT CER NR INANE PCED RETR ARN Ta :

F f PRY,

Bee he ee Ti tan oe Fike as ia

der, respectively, were laid under Section 308 of

the Act (infra, pp. 93-94), and charged each defend-

ant with having been a person who engaged him-

self for pay for the purpose of attempting to in-

fluence the passage of legislation relating to the

price of farm commodities, without having regis-

tered as required by that section of the statute.

a. Moore was charged in count I (R. 1-6) with

having engaged himself for pay and other con-

siderations, on behalf of the defendant Harriss,

for the purpose of attempting to influence,

directly and indirectly, (a) the passage of legis-

lation by Congress which would cause a rise in

the price of agricultural commodities and com-

modity futures and (b) the defeat of legislation

by Congress which would cause a decline of such

prices. It was charged that, in pursuance of this

engagement, he did the following things (R. 4-6):

(a) Procured the Association, Southern

Commissioners of Agriculture, and the

Farm Commissioners Council to attempt to

influence legislation by Congress relating

to (1) parity on farm prices, (2) repeal

of the oleomargarine tax, and (3) the

President’s program for legislation pro-

viding for an increase in commodity trad-

ing margins.

(b) Procured one McCloskey to urge the

passage of legislation by writing state-

ments which were presented to committees

of Congress and to members of Congress,

urging the passage of the Case Bill and

Se ae ee a a OE TO” S RAREST PO CRIES IN LE IIL RE GEENA IM LMI EIT. I CARMI TH

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other bills which would enhance the prices

of farm commodities.

Raleigh Hotel in Washington, D. C., in

the name of the North Central States

Association of Commissioners, Secretaries

and Directors of Agriculture, at which

dinner a large number of members of Con-

gress were present, and at which speeches

and statements were made concerning

legislation by Congress.

(d) Paid the cost of a dinner at the

Mayflower Hotel, Washington, D. C., in

the name of Farm Commissioners Council,

at which dinner a large number of mem-

bers of Congress were present, and at

which speeches and statements were made

concerning legislation by Congress relating

to farm commodities.

(e) Procured one Clair, for pay, to

write up material for the Association,

Southern Commissioners of Agriculture, to

be presented to the Congress of the United

States and its committees relative to legis-

lative matters affecting the price of farm

commodities.

(f) Procured one McCloskey to write

letters to Grange officers in the Pacific

northwest, urging them to write and wire

their Congressmen to put peas in the pro-

gram for foodstuffs to be sent to Europe

under the European recovery program.

(g) Procured one Wilken to appear

before committees of Congress to urge

legislative action regarding farm com-

modities which defendants desired; and,

specifically, procured him to testify before

the House Agriculture Committee to urge

the defeat of legislation which would tend

| to cause lower prices of agricultural com-

modities, and, also, to testify before the

House Ways and Means Committee con-

cerning proposed legislation respecting the

reciprocal trade agreements program to

urge the defeat of any legislation which

would tend to cause lower prices of farm

commodities.

b. Similarly, Linder, who was alleged to have

been Commissioner of Agriculture for the State

of Georgia (R. 1), was charged in count IX (R.

19-21) with having, outside of and apart from his

official capacity, engaged himself for pay and

for other consideration on behalf of defendants

Moore and Harriss, for the purpose of attempt-

ing to influence, directly and indirectly, (a) the

passage of legislation by the Congress of the

United States which would cause a rise in the

price of agricultural commodities and commodity

futures, and (b) the defeat of legislation which

would cause a decline of such prices (R. 20).

And it was charged that, in pursuance of this en-

gagement, Linder did the following things

(R. 20-21) :

(a) Testified before Committees of Con-

gress, sent letters and telegrams to members

of Congress and officials of the executive

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“

branch of the Government of the United

States, issued press releases which were

distributed by the Association, the South-

ern Commissioners of Agriculture, and the

Farm Commissioners Council, to members

of the Congress of the United States, and

made speeches at various functions of these

two organizations,

(b) Together with the defendant, James

W. McDonald and others, organized the

Farm Commissioners Council, for the pur-

pose of utilizing it in influencing and at-

tempting to influence legislation by the

Congress relative to farm commodities.

Committee on Agriculture, using material

prepared by one Clair,’ opposing proposed

legislation which would reduce the prices

of farm commodities.

(d) Delivered a speech at a dinner al-

leged to have been sponsored by the Asso-

ciation, Southern Commissioners of Agri-

culture, staged at the Mayflower Hotel,

Washington, D. C., at which about 200

members of Congress were present; and in

that speech urged Congress to enact legis-

lation ending the Office of Price Admin-

istration controls of prices.’

C. Count LX, against the deceased defendant,

McDonald, was substantially the same as that

2 See allegation (e) of Count I, with respect to defendant

Moore (supra, p. 5). Cf. R. 5 with R. 21.

8 See allegation (d) of Count I, with respect to defendant

Moore (supra, p. 5). Cf. R. 5 with R. 21.

BA? STN PG TY IY TTBS 88 LILA EER BE CHET RBS OY

mca

against Linder, except that the specific events

and statements were different (R. 17-19).

2. Section 305 counts.—The remaining counts—

II, III, IV, and V, against the defendant Moore;

VI and VII, against the defendant Harriss; and

X, against the defendant National Farin Commit-

tee—were all laid under Section 305 of the Lobby-

ing Act (infra, pp. 91-92). The counts against

Moore and Harriss charged them with having

made various expenditures for the purpose prin-

cipally of influencing, directly or indirectly, legis-

lation which would affeet the prices of agricultural

commodities, and failing to file the reports re-

quired by Section 305. Count X, against the Na-

tional Farm Committee, charged that the Com-

mittee, whose principal purpose was to influence,

directly or indirectly, legislation relating to agri-

eultural commodity prices, solicited and received

specific sums of money for such purposes, and

failed to file the required reports.

The detailed allegations with respect to defen-

dants Moore and Harriss show that many of the

expenditures were in connection with the acts

alleged to have been done by Moore, MacDonald,

and Linder, in pursuance of their hire agree-

ments, but other expenditures of similar purpose

were also charged. More specifically, count IT

charges that Moore, for the purpose of influencing

and attempting to influence the passage of legis-

lation affecting the prices of agricultural com-

modities and commodity futures, ‘‘ paid money to,

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financed and sponsored activities of’’ the Associa-

tion, The Southern Commissioners of Agriculture,

the Farm Commissioners Council, and the North

Central States Association of Commissioners, each

of which was an unincorporated association which

had ‘tas its principal purpose the influencing,

directly and indirectly, of legislation by the Con-

gress of the United States affecting agriculture”’

(R. 7). Count IT also charges the procurement,

for hire, of the services of the defendants Linder

and Moore, who were state agricultural officers, as

well as officers in one or more of these associations ;

and, further, the payments of sums to Wilken and

McCloskey as set out earlier in count I (R. 5-7).*

Count V, also against Moore, charges the fol-

lowing expenditures (R. 11-13):

(a) On or about November 7, 1947, to one

C. C. Hanson, at Washington, D. C., in the

sum and amount of $46.21 for the services

of said Hanson in mimeographing 25 copies

of a document sent to R. M. Harriss, New

York, at the request of the defendant

James E. McDonald.

(b) On or about November 20, 1947, to

one C, C. Hanson, at Washington, D. C., in

the sum and amount of $63.05 for the serv-

ices of said Hanson in preparing and send-

ing out a press release on behalf of the

Association, Southern Commissioners and

Directors of Agriculture, in which a hear-

ing was requested before the Senate Com-

4 Nu pra, pp. 5-6.

—_— SEELEY SERE MELON SHEL OIE RNIB ea rei Te eet

3 eh

mittee on Agriculture on the proposed

legislation which the President mentioned

in his State message on January 17, 1947.

(ec) On or about November 20, 1947, to

one C. C. Hanson * * * in the sum of

$33.92 for the services of said Hanson, in

preparing and sending out a press release,

50 copies of which the said Hanson de-

livered at the National Press Club.

(d) On or about December 4, 1947, to the

Mayflower Hotel, Washington, D. C., the

sum and amount of $1,589.98 which amount

was credited to the defendant Moore’s ae-

count at said hotel against a charge therein

entered for 293 dinners on November 24,

1947.°

(e) On or about December 31, 1947, to

the Mayflower Hotel, Washington, D. C.,

the sum and amount of $4,356.01 which

amount was eredited to the defendant

Moore’s account at said hotel against the

balance of the charge for 293 dinners on

November 24, 1947, and other items.’

(f) On or about December 15, 1947, and

again on or about December 19, 1947, to one

C. C. Hanson, the sums and amounts, respec-

tively of $500 and $459.36, in payment of an

expense account of the said Hanson.

(g) On or about December 18, 1947, to

one C. C. Hanson, * * * the sum and

amount of $77.73 for the services of said

Hanson in preparing a document to Presi-

dent Wilson of the Association of Southern

Commissioners and Directors of Agri-

culture.

*>Compare items (c) and (d) in count I, supra, p. 5.

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(h) On or about December 18, 1947, to

one C. C. Hanson, * * * the sum and

amount of $52.76 for the services of said

Hanson in preparing and sending out a

Farm Commissioners press release stating

that nearly 200 members of Congress had

accepted invitations to the dinner sponsored

by the Farm Commissioners Council.

(i) On or about December 18, 1947, to

one ©. C, Hanson, * * * the sum and

amount of $205.61 for the services of said

Hanson on press releases in one of which

the defendant James E. McDonald stated

that he found the President’s proposal

unsound.

(j) On or about December 18, 1947, to

one C. C. Hanson, * * * the sum and

amount of $94.00 for the services of said

Hanson in respect to a news item in the

Washington Post, 531 copies of which were

sent to members of Congress.

(k) On or about December 18, 1947, to

ene C. C. Hanson, * * * the sum and

amourit of $197.34 for the services of said

Hanson in preparing 1600 copies of a state-

ment made by the defendant Tom Linder

before the Senate Committee on Agricul-

ture.

(1) On or about December 18, 1947, to

one ©. C. Hanson, * * * the sum and

amount of $100 to compensate one Dr.

Clair, for work on a press release.

(m) On or about June 1947, to one C.

H. Wilken, Washington, D. C., the sum and

amount of $1,000.

273108 —53--—-2

on |

(n) During said quarter the defendant

loaned to one C. H. Wilken, the sum and

amount of $5,750

The other Section 305 counts against Moore and

Harriss* do not materially differ, except that they

relate to different reporting quarters under the

Lobbying Act, and except that Harriss is charged

with having funnelled some of his expenditures

through Moore (see especialiy R. 16-17).

The Section 305 count against the Farm Com-

mittee (count X) is different in that it relies on

the language of Section 305 predicating liability

on the solicitation, collection, or receipt of funds,

rather than on the expenditure of funds as is the

ease in the Moore and Harriss counts. Thus,

count X charges that the National Farm Com-

mittee, whose principal purpose was to influence

the passage or defeat of legislation affecting the

price of agricultural commodities and commodity

futures, during ‘he third quarter of 1946 solicited,

collected and received contributions for carrying

out its purposes, and, specifically, solicited, col-

lected, and received the sum of $1,000 from de-

fendant Harriss, all without having at any time

complied with the reporting requirements of See-

tion 305 of the Act (R. 22-23).

B. THE HOLDING OF THE DISTRICT COURT

All of the defendants pleaded not guilty to all

counts (R. 42), and moved to dismiss the infor-

* J. e., counts IT, ITI, IV, VI, and VII.

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mation, contending, inter alia, that the lobbying

statute was unconstitutionally vague and indefi-

nite, and an unconstitutional infringement of the

rights guaranteed by the First Amendment (R.

23-38).

The District Court granted their motion, adopt-

ing for this case the opinion of a three-judge

court of the same district in National Association

of Manufacturers Vv. MeGrath, 103 F. Supp. 510,

vacated on grounds of mootness, 344 U. S. 804.

In that opinion, the District Court had heid that

the language of Section 307 (infra, pp. 92-93),

making the disclosure requirements applicable

to any person whose “‘principal purpose’? was

“to influence, directly or indirectly, the passage

or defeat of any legislation,’’ is so vague and

indefinite as to be in violation of the Fifth

Amendment; that the same defect vitiates See-

tion 305 (infra, pp. 91-92), which ineorporates the

critical language of Section 307; that the pro-

hibition against lobbying in Section 310 (b)

(infra, p. 95), imposed as a penalty for viola-

tion of the Act, is repugnant to the constitu-

tional guaranty of freedom of speech and of

petition; and that this infirmity of the penal

provision makes unconstitutional Sections 303

through 307 of the Act.

The decision in the N. A. M. case had not

passed upon the validity of Section 308 (infra,

pp. 93-94). Astothat Section, the Distriet Court in

St enn eameee |

the present case held that the invalidity of the

310 (b) penal provision, which also applies to

violations of Section 308, invalidates Section 308,

in spite of the separability clause in the statute

(R. 39-40). Thus, all counts of the information,

which was based on Sections 305 and 308, were

held bad.

SPECIFICATION OF ERRORS TO BE URGED

the Distriet Court erred:

1. In dismissing each count of the informa-

tion.

2. In holding that Section 305 (a) of the Fed-

eral Regulation of Lobbying Act is uneconstitu-

tionally vague and indefinite because, by ineor-

porating Section 307 of the Act, it applies to any

person who receives contributions or expends

money for the purpose of influencing ‘‘directly

or indirectly’? the passage or defeat of federal!

legislation.

3. In holding that the penalty imposed by Sec-

tion 310 (b) of the Aet, prohibiting convicted

violators from lobbying for a three-year period,

is unconstitutional as in contravention of the

First Amendment.

4. In holding that the invalidity of Section

310 (b) in itself serves to invalidate Sections

305 and 308 of the Act, despite the inclusion in

the Act of a separability clause.

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—“T

SUMMARY OF ARGUMENT

Three counts of this information come under

Section 308 of the Federal Regulation of Lobby-

ing Act, which requires registration by any per-

son ‘‘who shall engage himself for pay or for any

consideration for the purpose of attempting to

influence the passage or defeat of any legislation”

by Congress; the remaining seven counts are laid

under Section 305, which demands quarterly re-

ports from persons ‘receiving any contributions

or expending any money for the purposes desig-

nated in subparagraph (a) or (b) of section

307," 4. ¢., (a) the “passage or defeat of any

legislation by the Congress * * *,"’ or (b) ‘‘to

influence, directly or indireetly, the passage or

defeat of any legislation by the Congress * * *.”"

Somewhat different constitutional problems are

raised by Section 308, on the one hand, and See-

tions 305 and 307, on the other. In addition, the

validity of each of these provisions cannot be

appraised im vacuo, but as it applies in this case

to the particular charges made against these de-

fendants. No other case is here.

Sections 305 and 307 of the Federal Regulation

of Lobbying Act of 1946 are not uneonstitution-

ally vague and indefinite, as applied to the seven

counts of the information laid under those sec-

tions.

16 |

A. It is clear, from the language and legislative

history of the sections, that they were designed to

apply, at the least, to those who pay others to

state views to Congress, whether formally in com-

mittee sessions or informally in speeches, ietters,

or telegrams, so long as the statements are di-

rected at Congress or Congressmen. It is also

clear that the sections were intended to apply to

those who spend money in course of inducing

others, for nonfinancial considerations, direetly to

communicate with Congress—in short, to those

who sponsor campaigns asking persons to write

or contact their Congressmen with respect to the

merits of particular legislation. These activities

are the core of the traditional understanding of

“‘lobbying”’ (see United States v. Rumely, 345

U.S. 41, 47), and were undoubtedly intended to

be covered by a statute called the ‘* Federal Regu-

lation of Lobbying Act.”’ Both the history of the

1946 Act itself, and that of the 1936 progenitors

on which it was modeiled, show that, whatever else

Congress may have had in mind,’ it certainly de-

sired to reach those who seek or sponsor direct

communication with Congress and Congressmen.

B. Examination of the seven Seetion 305 counts

of this information shows that the great bulk, if

not all, of the charges against the defendants are

either specifically of this nature, or provable by

*For example, attempts to “saturate the thinking of the

community” or organized efforts to influence mass public

opinion on federal matters. Cf. United Ntates v. Rumely,

345 U.S. 41,47.

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—_

facts of this nature. Each count involves charges

of failing to report (1) payment to others to com-

municate directly with Congressmen on pending

or proposed legislation, or (2) expenditures or

receipt of money in an attempt to induce others to

communicate with Congress, usually by letter, on

pending or proposed legislation. The gist of these

counts is the defendants’ undisclosed efforts to

have Congressmen contacted on behalf of their

views, either directly by the defendants’ emis-

saries or through a stimulated letter campaign.

Defendants, with private financial interests at

heart, were attempting to exert direct influence

on Congressmen in the guise of official representa-

tives of the farmers of Georgia and Texas and

genuine proponents of the public weal.

C. Applied to these facts, there is no constitu-

tional vagueness in Sections 305 and 307. The

covered activities are simple, specific, and definite.

The statutory language, 7. ¢., “to influence, di-

rectly or indirectly, the passage or defeat of any

legislation,”’ clearly comprehends actions of this

type, and, since they are so close to ‘‘lobbying”’ in

its most commonly accepted sense, defendants re-

ceived more than sufficient warning that they were

subject to the Regulation of Lobbying Act. The

added requirement that defendants be proved to

have had a specific purpose to secure a direct con-

tact with Congress also increases their protection.

As applied to this case, Sections 305 and 307 are

at least as definite as many other laws which this

Court has upheld. E. g., United Siates vy. Wurz-

bach, 280 U.S. 396, 399; United States v. Petrillo,

332 U. 8.1; Jordan v. De George, 341 U. S. 223;

Boyce Motor Lines v. United States, 342 U.S. 337.

D. The District Court also apparently thought

the statute invalid because coverage was based, in

part, on whether solicitations were made, or money

received, by persons whose ‘principal purposes”

were the purposes designated in Section 307. But

the statute itself shows that this ‘“‘principal pur-

? requirement is not significant in the pres-

pose’

ent case because coverage may clearly be predi-

cated either on (i) expenditures for the designated

purposes, (ii) the solicitation or receipt of specific

contributions principally for the designated pur-

poses, or (iil) any solicitation or receipt by a per-

son or group organized principally for the desig-

nated purposes. And all of the counts under

Section 305, except count X (against the National

Farm Committee), are based on e.rpenditures, to

which the “‘principal purpose’’ qualification does

not seem to apply. In any event, there will be no

difficulty in determining the purpose of these ex-

penditures, as they are alleged in the information,

since they are plainly single-purposed, and not

multi-purposed expenditures as to which the “‘ prin-

cipal purpose”? requirement is important. Simi-

larly, in the case of the National Farm Commit-

tee (count X), it is alleged that the purpose of the

unreported receipt of money was the specific pur-

bene srear ene norma:

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_— — — _

pose designated by the statute; this is alleged to

be the sole purpose.

Section 308 of the Act is not unconstitutionally

indefinite as applied to the two remaining counts

laid under that section.” Like Sections 305 and

307, Section 308 governs at least those who are

hired to express views to Congress or to cause

others to do so, and Moore and Linder are charged

with failing to register although they were hired

for these specific purposes.’

III

As applied in this information, Sections 305,

307, 308—requiring disclosure by those who pay

others to express views to Congressmen on their

behalf, or conduct letter-writing campaigns, or

hire themseives to affect legislation by these

methods—do not violate the First Amendment.”

Whatever restraint this requirement may im-

pose on communication is indirect, incomplete,

peripheral, and private. There is no legal or

governmental sanction on the expression of ideas;

if sanction there be, it is fear that the reporter or

registrant will be subject to private pressures.

*The count against McDonald has abated because of his

death (R. 40).

® The District Court did not hold Section 308 too vague, or

that the Act violated the First Amendment, although defend-

ants made those contentions.

* See footnote 9, supra.

This may, indeed, be an actual restraint, but it is

not an abridgment of First Amendment rights.

Self-censorship or self-restraint in expression of

ideas—stemming from but going beyond a legal

requirement (¢. g., the slander and libel laws)—is

a common result of timidity, caution, care, or the

desire to avoid controversy or litigation, but this

type of voluntary, tangential restraint has never

been thought within the First Amendment, even

where it flows from fear of a statutory penalty or

other legal sanction. A fortiori, there is no

abridgment here where the feared sanction is con-

cededly not legal at all, but social or economic

pressure consequent upon disclosure of true facts.

At least where disclosure serves a legitimate pur-

pose, it cannot invade First Amendment rights.

On the other hand, the interest in favor of

which this peripheral ‘‘restraint’’ is imposed is

fundamental to the very processes of democratic

society. For forty years, Congress has been con-

cerned with the relationship between (a) fact-

finding and opinion-finding, as bearing on the

legislative process, and (b) the individuals,

groups, and organizations which seek to influence

Congressional action. Congress” own studies, and

those of other responsible students, have indicated

that there is at least reasonable basis for the be-

lief that Congress’ functioning has been impaired

by tack of knowledge of the character, sponsor-

ship, and activities of those who seek to influence

it. Disclesure, it is thought, will aid the reaching

BLURRED COPY

y+ |

of wiser judgments on federal legislation by help-

ing Congress and the electorate to evaluate the

facts and arguments pressed on Congress and to

appraise the true scope of the blocs of opinion

said to support or oppose a particular bill or

project. The aim ef the Lobbying Act, which has

not been to silence or prohibit ideas but to under-

' stand their sponsorship, is consonant with, rather

than contrary to, the First Amendment.

The information should not have been dismissed

on the basis of the alleged invalidity of the penal

provision of Section 310 (b). Even if Section

310 (b) were invalid, the remainder of the Act is

plainly separable. Section 310 (a) imposes a

penalty of fine and/or imprisonment, which is

clearly separable from the penal provision of

Section 310 (b), both as a matter of obvious Con-

gressional intention and because the Act has an

explicit separability clause (60 Stat. 812, 814,

infra, p. 95). There is no reason to hinge valid

substantive provisions on the ‘‘additional’’ and

minor penalty in Section 310 (b). Moreover, the

penalty is valid as properly construed.

The validity of the Lobbying Act as applied to

other situations is not before the Court and should

not be determined. This Court does not reach out

to decide hypothetical constitutional controversies

unsupported by a proper record. E. g., United

Public Workers of America v. Mitchell, 330 U.S.

75; Rescue Army v. Municipal Court, 331 U. S.

549, 568 ff. Nor do the defendants have standing

to raise the alleged rights of others. E. g., United

States v. Wurzbach, 280 U. S. 396, 399. And

where the statute applies to the case before the

Court, borderline situations of greater difficulty

are put aside until they arise. Since the Lobby-

ing Act is severable as to both provisions and eir-

cumstances, there is no occasion to breach these

accepted principles of constitutional adjudication,

which have been expressly held to apply under

the Criminal Appeals Act. United States v.

Petrillo, 332 U. 8. 1, 5, 10-12; United States v.

Spector, 343 U. S. 169, 172.

ARGUMENT

Three of the ten counts of the information

(against Moore, Linder, and the deceased defend-

ant, McDonald) are laid under Section 308 of the

Federal Regulation of Lobbying Act, and the

other seven (against Moore, Harriss, and the Na-

tional Farm Committee) come under Section 305.

The former requires ‘‘any person who shall en-

gage himself for pay or for any consideration for

the purpose of attempting to influence the passage

or defeat of any legislation’? by Congress to

in furtherance of such object.’’ Section 305 de-

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mands a quarterly written report from ‘‘every

person receiving any contributions or expending

any money for the purposes designated in sub-

paragraph (a) or (b) of section 307.’’" The

District Court invalidated Section 305 on two

grounds, first, that Section 307, which was incor-

porated, is too vague and indefinite, and, second,

that the penalty provision of Section 310 (b), pro-

hibiting convicted violators from lobbying for a

three-year period, is unconstitutional and insep-

arable from the rest of the Act. Section 308 was

invalidated solely on the latter basis. The con-

stitutional problems posed in this Court by the

two sections are, therefore, not fully coextensive—

aside from the fact that the provisions differ in

wording and reach.

The constitutional issues befere the Court also

come here embedded in the context of this par-

ticular information. These charges concern de-

fendants who collected or spent money, or engaged

" Section 307 provides that the Lobbying Act shall apply,

with stated exceptions, to any person “who by himself, or

through any agent or employee or other persons in any

manner whatsoever, directly or indirectly, solicits, collects,

or receives money or any other thing of value to be used

principally to aid, or the principal purpose of which »erson

is to aid, in the accomplishment of any of the following

purposes :

(a) The passage or defeat of any legislation by the

Congress of the United States.

(b) To influence, directly or indirectly, the passage or

defeat of any legislation by the Congress of the United

States.”

PO te cota tesa

cea

—

themselves for pay, for the specific purpose of

making representations, or causing others to make

representations, to members of Congress—in com-

mittee assembled or at dinners in Washington,

through publications designed for direct Congres-

sional perusal, or through letters to Congressmen.

The pith of the information is that the defend-

ants sought, for their undisclosed private gain,

to influence Congress to maintain high prices for

farm products by deliberately purchasing repre-

sentations which would appear to Congress to be

made on behalf of the general public or of the

country’s farmers. Purporting to speak to Con-

gress on behalf of the farmers of Georgia and

Texas, the Commissioners of Agriculture of those

States (Linder and McDonald) actually repre-

sented, for pay, the defendants’ personal finan-

cial interest; the same is charged of the repre-

sentations made or procured on defendants’

behalf by various agricultural organizations and

other persons.

The vagueness which the District Court found

in the statute relates, not to its application to these

averments of paid direct representations to Con-

gress on behalf of undisclosed interests, but to its

possible impact on activities more remote from such

direct (but camouflaged) communication. Cf. Na-

tional Association of Manufacturers v. McGrath,

103 F. Supp. 510 (D. D. C.), vacated on the ground

of mootness, 344 U. 8.804; United States v. Rumely,

345 U.S, 41. But whether or not the Lobbying Act

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_——_— Renn

would be valid as applied to all organized efforts to

influence mass public opinion on federal matters,

it was error for the court below to dismiss this

information in view of the clearly operable area

for the statute in the circumstances presented

here—the area of direct communication with Con-

gress. The thrust of this brief is, therefore, di-

rected to the validity of the Act as it relates to

the specific situation alleged in this information.

It is in the light of this situation that we discuss

Sections 305 and 307, then Section 308, and finally

Section 310 (b).

I. SECTIONS 305 AND 307 OF THE FEDERAL REGULA-

TION OF LOBBYING ACT ARE NOT UNCONSTITU-

TIONALLY INDEFINITE AS APPLIED TO THE COUNTS

OF THE INFORMATION LAID UNDER THOSE PROVI-

SIONS

A. SECTIONS 305 AND 307 PLAINLY APPLY TO THOSE WHO EXPEND

MONEY FITHER (A) TO PAY OTHERS TO COMMUNICATE TO CON-

GRESS OR (B) IN THE COURSE OF DIRECTLY INDUCING OTHERS

TO COMMUNICATE TO CONGRESS

Congress enacted the Federal Regulation of

Lobbying Act because it had found, over a long

period of time, that its ability to determine the

public will, with respect to particular legislative

issues, was distorted by the fact that what ap-

peared to be legitimate expressions of the views

of individuals or groups, with various apparent

interests, turned out on closer inspection to be

views that those expressing them were hired,

pressured, or seduced to take. Congress did not

believe that it could effectively perform its legis-

~ .

lative function without being able to determine,

with as little distortion as possible, what were |

the true components of the public will and what |

was the source of the facts and information |

brought to its attention.

Two basie techniques were adopted to accom- |

plish these purposes. One was to require those

who were hired to communicate to Congress to |

state by what authority and at whose financial in-

stance they acted. That is the gist of Section 308

of the Act, which we discuss below (infra, pp.

58 ff.). But beeause the history of the problem

showed that identification of the paid lobbyist

solved only part of the difficulty, Congress also

devised a mechanism for disclosure by the direct

lobbyist’s financial supporters of their efforts to

affect legislative operations. Sections 305 and

307 fulfill that function.

In this Point, we show that those sections are

clearly designed, at the very least, to require dis-

closure by those who collect or spend money for

the specific purpose of causing other people to

communicate directly with members of Congress.

That is the express charge levied against Moore,

Harriss, and the Farm Committee, under Sece-

tions 305 and 307.

1. The language of the Act

Section 305 of the Act provides that:

Every person receiving any contribu-

tions or expending any money for the pur-

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en So ity Mae a" SENG HE Ait NRE BU ME tes tl OGL

poses designated in subparagrapk (a) or

(b) of section 307 shall file * * * a state-

net * * *.

Section 307 provides that:

The provisions of this title shall apply

to any person * * * who by himself, or

through any agent or employee or other

persons in any manner whatsoever, directly

or indirectly, solicits, collects, or receives

money or any other thing of value to be

used principally to aid, or the principal

purpose of which person is to aid, in the

accomplishment of any of the following

purposes:

(a) The passage or defeat of any legis-

lation by the Congress of the United

States.

(b) To infiuence, directly or indirectly,

the passage or defeat of any legislation by

the Congress of the United States.

It is clear that on its face this language com-

prehends, and must have been intended to com-

prehend, those who pay others to state their views

to Congress or Congressmen with respect to par-

ticular legislative matters ; it also covers those who

spend money in the course of inducing others to

contact Congressmen with respect to legislative

matters.

Obviously, such conduct may aid in the accom-

plishment of the passage or defeat of legislation

by the Congress; or, if more remote from a spe-

cific vote on legislation, such conduct may influ-

273108--53——_3

—_

ence its passage or defeat. The Congressional

testimony, for example, of the defendant Linder,

an agricultural official of the State of Georgia,

that certain legislation would adversely affect

agricultural income in Georgia, might well ‘‘in-

fluence’ a legislator in the sense that it might

cause him to shift his view or his vote for or

against the legislation. The same is true of

speeches or talks to Congressmen at dinners or

in their offices, as well as of written communica-

tions mailed or delivered to them. Nothing would

seem to be clearer than that a statute called the

‘Federal Regulation of Lobbying Act’’ (infra, p.

89) would cover at least those activities which this

Court, at its last term, called the ‘‘commonly ac-

cepted sense’’ of ‘‘lobbying,”’ 7. e., representations

made directly to the Congress, its members, or its

committees. United States v. Rumely, 345 U. S.

41, 47. Subparagraphs (a) and (b) of Section

307 must have that scope as a minimum, and Sec-

tion 305 must deal with those who expend or con-

tribute money for such activities.

Not all efforts will, however, be quite so imme-

diate. An avalanche of letters directed at a Con-

gressman in favor of or against a particular

piece of legislation may cause him to draw

some conclusion about community feeling with re-

spect to a legislative issue, and this conclusion will ‘

affect (¢. e., ‘‘influence’’) his vote, or his speech

on the floor, or conferences with colleagues, and

thereby the passage or defeat of legislation. In

- Op PH Sy Hoe, aver i z r i

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a _

such a case, the effort of the opinion-influencers

to mold Congressional opinion through the me-

dium of requests to people to write letters is one

step removed from direct contact, but it is at

least an ‘‘indirect’’ attempt to influence legisla-

tion, which Section 307 (b) also covers. The

making of representations to Congress, which is

the traditional core of lobbying, is both sought

and intended by those who urge the sending of

letters, and the letters constitute the representa-

tions they desire. The purpose of such people is

clearly to ‘‘influence”’ ‘‘the passage or defeat”’ of

legislation through direct communication with the

legislators.

2. Legislative history

a. The 1946 Act.—Congressional explanation of

the Lobbying Act at the time of its passage in

1946 was fairly sketchy. Nonetheless, that his-

~ tory shows that conduct like that charged against

the defendants, conduct which is calculated to

cause a direct and almost immediate impact on

Congress, was within the purpose of the Act.

The Lobbying Act was enacted as part of the

much broader Legislative Reorganization Act of

1946. That broader Act was reported to Congress

by the Joint Committee on the Organization of

Congress which had been authorized by concurrent

resolution to “‘make a full and complete study of

the organization and operation of the Congress of

the United States and * * * recommend improve-

ments in such organization and operation with a

view toward strengthening the Congress, simpli-

fying its operations, improving its relationships

with other branches of the United States Govern-

ment, and enabling it better to meet its responsi-

bilities under the Constitution.’’ H. Con. Res, 18,

79th Cong., Ist Sess., 59 Stat. 839.

After hearings, the Joint Committee issued

identical House and Senate Reports (H. Rep.

1675, 79th Cong., 2d Sess.; S. Rep. 1011, 79th

Cong., 2d Sess.) in which it was stated (at p. 26

of both reports) that:

Your committee heard many complaints

during its hearings of the attempts of or-

ganized pressure groups to influence the de-

cisions of Congress on legislation pending

before the two Houses or their committees.

We fully recognize the right of any citi-

zen to petition the Government for the re-

dress of grievances or freely to express

opinions to individual Members or to com-

mittees on legislation and on current po-

litical issues. However, mass means of

communication and the art of publie rela-

tions have so increased the pressures upon

Congress as to distort and confuse the nor-

mal expressions of public opinion.

A pure and representative expression of

public sentiment is welcome and helpful in

considering legislation, but professionally

inspired efforts to put pressure upon Con-

gress cannot be conducive to well consid-

ered legislation.

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This language shows that Congress intended to

deal, at the least, with those efforts which were

designed to result, directly and immediately, in

people talking or writing to Congress. The right

to express opinions to Congress and its committees

is unquestioned by the Joint Committee, but it

speaks of the problem raised by “mass means of

communications and the art of public relations.”’

One who pays another to talk to Congress, or who

specifically requests that others talk to Congress,

is plainly within this explanation of the problem

with which the Committee was to deal.

Both the Senate report and the House report

(issued only in preliminary form) on the Reor-

ganization Act (8S. Rep. No. 1400, 79th Cong.,

2d Sess., p. 27; Committee Print of H. Rep. on

Legislative Reorganization Act of 1946, 79th

Cong., 2d Sess., pp. 32-33) declare that the Regu-

lation of Lobbying title applies ‘‘chiefly to three

distinct classes of so-called lobbyists”’:

First. Those who do not visit the Capitol

but initiate propaganda from all over the

country, in the form of letters and tele-

grams, many of which have been based en-

tirely upon misinformation as to facts.

This class of persons and organizations will

be required under the title, not to cease or

curtail their activities in any respect, but

merely to disclose the sources of their collee-

tions and the methods in which they are

disbursed.

—?

Second. The second class of lobbyists are

those who are employed to come to the

Capitol under the false impression that they

exert some powerful influence over Mem-

bers of Congress. These individuals spend

their time in Washington presumably exert-

ing some mysterious influence with respect

to the legislation in which their employers

are interested, but carefully conceal from

Members of Congress whom they happen to

contact the purpose of their presence. The

title in no wise prohibits or curtails their

activities. It merely requires that they

shall register and disclose the sources and

purposes of their employment and_ the

amount of their compensation.

Third. There is a third class of entirely

honest and respectable representatives of

business, professional, and philanthropic

organizations who come to Washington

openly and frankiy to express their views |

for or against legislation, many of whom

serve a useful and perfectly legitimate pur-

pose in expressing the views and interpre-

tations of their employers with respect

to legislation which concerns them. They

will likewise be required to register and

state their compensation and the sources of

their employment.

The generally unsatisfactory debate on this

measure in the Senate and House shows the same

understanding. Senator La Follette, who was

Chairman of the Joint Committee on the Organ-

ization of Congress, stated at the outset of the

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debate in the Senate on this phase of the reorgan-

ization bill [92 Cong. Rec. 6367-6368 | :

* * * * *

Mr. President, in the last analysis the

Congress is the center of political gravity

under the Constitution, because it reflects

and expresses the popular will in the mak-

ing of national policy.

In recent years in particular, and to a

growing extent, the true attitude of public

opinion has too often been distorted and

obscured by pressures of special-interest

groups. Every Senator and Representative

has been on the receiving end of this type of

public pressure. Organized campaigns of

one kind and another are daily reflected

in the telegrams, letters, and other com-

munications which are received in the of-

fice of every Senator and every Repre-

sentative. Therefore, your committee has

come to the conclusion that the time has

arrived when the Congress must take

action, not in any way, shape, or manner to

contravene or to reduce the right of peti-

tion which is guaranteed to the citizens of

this Republie by the Constitution, but in

order that there may be a public record

of the activity of those pressure groups.

We have recommended, therefore, and there

is contained in this measure, a provision

for the registration of persons using their

influence upon the Congress.

* f * * *

* * * the title applies chiefly to three

distinet classes of so-called lobbyists:

First. Those who do not visit the Capitol,

but initiate propaganda from all over the |

country in the form of letters and tele-

grams, many of which have been based

entirely upon misapprehensions or mis-

information as to the faets.

I am sure every Senator has had the

same experience I have had on occasion of

writing to persons who have responded to

this type of suggestion, sending them a

copy of the proposed legislation, and asking

them for their comments. After they have

read the measure, it is discovered that the

telegram or letter was written perfectly

innocently by the citizen or the organiza-

tion without proper information as to the

true legislative intent of the measure then

pending.

At this point, Senator White interrupted Senator

La Follette to say [92 Cong. Ree. 6368]:

Of course, it is everlastingly true that,

unless Members of the Senate and the

House of Representatives are able to know

who is appealing to them, they never are

able properly to evaluate what is said to

them or what is written to them. It is ab-

solutely essential, if we are to give the proper

weight to whatever comes to our ears or

our desks, that we shall know who are the

people and what is the interest of the people

who are making their representations to us.

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Raat. puiteideemmemmmaneien et Ce

And later still, Senator McClellan, after quoting

the language of the Report stating that the Act

applied to those lobbyists “who do not visit the

Capitol but initiate propaganda from all over

the country in the form of letters and _ tele-

grams

PBR:

** *,” stated [92 Cong. Rec. 6552]:

The provision may have a wholesome pur-

pose. I do not know whether it can be

restricted to that one purpose. One of the

purposes is to try to reach those whe spend

large sums of money for broadeasting, buy-

ing radio time, or sending out literature

which usually winds up with the request, “Be

sure to write your Congressman or Sen-

ator to oppose H. R. »” or to support

a certain Senate bill. There is a great deal

of such activity. I doubt if there is any

Senator who cannot sense the propaganda

and pressure type of mail, even before he

opens the envelope. It is not difficult. I

know the peopie of my State well enough

so that when I receive a letter I can usually

tell from the opening sentences whether

the letter was inspired by the head of some

organization, or by some of the propaganda

which is continually being sent out over the

channels of the air by commentators and

others who spend a great deal of their time

criticizing the Congress and trying to bring

it into disrepute. * * *

*** TI believe there should be some

regulation of the professional propagan-

dists who are always trying to agitate the

people and stir them up to write their

Senators and Representatives on many sub-

jects. These professional propagandists

are motivated purely from a selfish or

personal standpoint, or because they are

paid for their activity. * * * [Emphasis

added throughout. ] |

There was, in short, ample indication to those

who voted in support of the Lobbyine Act in

1946 that the words ‘‘to influence the passage or

defeat of legislation’’ were meant, at the least, to

apply to the situation where expenditures were

made for programs explicitly designed to induce

others to contact Congress, and, a fortiori, where

people were paid or hired to state the views of

others to members of Congress. There is no

doubt that the Act was intended to reach at least

that kind of lobbying activity.

b. The 1936 proposals—The Lobbying Act

passed in 1946 had as progenitors some proposed

pieces of legislation introduced about ten years

earlier in the 74th Congress. See Futor, An

Analysis of the Federal Lobbying Act (1949),

10 Fed. Bar. J. 366, 375 ff. Like the 1946 law,

the history of the earlier proposals shows that,

although the bills may have had a broader scope,

the drafters certainly intended to cover those who,

as defendants here, either paid people to com-

municate to Congress, or spent money in an ex-

press attempt to induce others to talk or write to

Congress.

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a7" we —_

The first draft of the 1936 legislation,* which

was introduced in the House as H. R. 11223, was

deliberately based on the Federal Corrupt Practices

Act, 43 Stat. 1070, which required the disclosure of

contributions and expenditures of ‘‘any committee,

association, or organization which accepts con-

tri®utions or makes expenditures for the purpose

of influencing or attempting to influence the elec-

tion of candidates or presidential or vice presi-

dential electors * * *’’ [emphasis supplied].

(The constitutionality of this Act had been sus-

tained in Burroughs and Cannon v. Un ited States,

290 U. 8. 534.)

The proposed lobbying legislation stated as the

controlling purposes, in language not materially

different from that now used:

(a) The enactment or defeat of any legis-

lation or appropriation by the Congress of

the United States or the repeal or nonre-

peal of any existing laws of the United

States, or adoption or defeat of any

amendment to the Constitution of the

United States.

(b) To influence directly or indirectly the

passage or defeat of any legislation or ap-

propriation by the Congress of the United

States.

1° S, 2512, passed by the Senate in May 1935 (79 Cong.

Rec. 8304-8306), dealt with those who engaged themselves

for pay or other consideration to attempt to influence legisla-

tion, and was thus a parent of Section 308 of the 1946 Act.

See infra, pp. 58 ff.

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This earlier bill, unlike the 1946 legislation, was

not the product of a general attempt to overhaul

the functioning of Congress. Rather, it resulted

primarily from an investigation into activities fi-

nanced by public utilities in opposition to the Pub-

lic Utility Holding Company Act of 1935. Con-

sequently, it is fair and proper to read into this

and cognate bills a basic purpose to cure the glar-

ing aspects of the lobby campaign that provoked

the proposals.” While this reveals considerable

evidence of a broad purpose to regulate the ex-

penditures of enormous amounts of money to sat-

urate the publie with a particular point of view,

it reveals also a narrower and specifie purpose to

regulate those whose efforts were intended to

get people to write or talk to Congress. Thus, in

the House Committee Report, reporting H. R.

11223 and recommending its enactment, it is

stated (H. Rep. No. 2081, 74th Cong., 2d Sess.,

pp. 2-4):

* * * * *

* Tn 1935-1936, there was a major investigation of alleged

efforts by public utility holding companies to influence leg-

islation regulating holding companies. The Black Commit-

tee was designated by the Senate to investigate (S. Res. 165

and 184, 74th Cong., 1st Sess.), and it made an intensive

study, including the making of representations to Congress.

The study showed, for example, that out of a total of 31,580

telegrams sent to Washington from twenty different towns,

all but 13 were filed and paid for by utility company agents,

almost invariably without consent of the person whose name

was used. Hearings before the Special Senate Committee

to Investigate Lobbying Activities, 74th Cong., 1st and 2d

Sessions, and 75th Cong., 3d Sess., pp. 1014-1015.

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The companies acting in concert sought

to bring home to utilities investors and em-

ployees, and to the public generally, the

purport and consequences of this legisla-

tion as the companies saw them. The

means used were telegrams, articles, letters,

circulars, advertisements, and every form

of communication practicable. Coupled

with this county-wide dissemination of pub-

licity were appeals that whoever agrees with

the position of the companies communicate

his attitude to his Representative in Con-

gress. Field agents everywhere urged such

actions. In many instances facilities were

afforded and expenses paid for sending

such communications.

* * * * *

Ordinarily, the right of executives of cor-

porations to keep their investors informed

when in their judgment the value of their

securities is imperiled, as well as the right

of the investors to protest to their Repre-

sentatives in Congress is without question.

But this was no ordinary instance. The

committee is of the opinion that to unloose

upon Congress a highly charged avalanche

or propaganda is unwholesome and inimical

to the public interest. It seeks to impress

upon the membership the sense of a popu-

lar uprising, when in fact it is an artificial

product. * * *

* * * * *

This Committee believes that every

American citizen and interest that may be

affected by proposed legislation has the

highest right and privilege to be heard—

a right that should be neither denied nor

abridged. But on the other hand, the mem-

bership of Congress, to whom appeal is

made and upon whom it is sought to exert

pressure and the public likewise appealed

to, and who is asked to exert that pres-

sure, have a right to know by whom and in

whose interest such appeals are made, by

whom these movements are financed, and

the manner in which money is expended.

* * * Likewise, when legislators are ap-

proached upon any question they are en-

titled to know by whom, for whom, and

under what exact circumstances. * * *

[Emphasis added. ]

H. R. 11223 was carried over into H. R. 11663,

which was twice debated by the House, first in its

original ‘‘narrow’’ form and later as broadened

by the Senate and the Conference Committee.”

On both occasions, there was an authoritative

declaration that the bill applied to those who

caused letters and similar communications to be

sent to Congress. Representative Smith, the

“H. R. 11663 was first passed by the House in March 1936.

80 Cong. Rec. 4541. Without significant debate, the Senate

substituted its own bill by way of amendment. 80 Cong.

Rec. 4969-4970. The Conference Committee proposed the

so-called “broad” version of H. R. 11663. This was rejected

by the House in June 1936. 80 Cong. Rec. 9430-9454,

9743-9753.

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ee fee

sponsor, said during the first debate (80 Cong.

Ree. 4525) :

One class [affected by the bill] will be

those people who sit at home and raise

great funds to flood Congress with false

propaganda; people who cause telegrams

and letters to be sent to you and to me to

try to make it appear to us that there is

a great surge of public sentiment for or

against a certain measure proposed here.

Similarly, Mr. Smith stated on the second

occasion (80 Cong. Ree. 9750-9751) :

This bill * * * originated with the

utility investigation. It was aimed at the

utility lobby which was investigated by the

Rules Committee, of which I was a member.

* * * * *

The bill was framed principally to curb

the growing evil of organized attempts to

influence legislation by the stimulation of

false propaganda designed thru avalanches

of inspired letters and telegrams to im-

press upon Members of the Federal Con-

gress that a great surge of public senti-

ment exists for or against the passage of

proposed legislation.

These indications of Congressional purpose in

1936 are especially significant because the terms

of the 1946 Act were substantially taken from the

earlier bills. See Futor, op. cit. supra, pp. 374-

380; H. Rep. No. 3239, 81st Cong., 2d Sess.,

fie » :

» ey

TRIAL PR BARE

pp. 17-20 (the Buchanan Committee’s Report

and Recommendations on the Federal Lobbying

Act).

B. THE SECTION 305 COUNTS CHARGE THAT THE DEFENDANTS

PAID OTHERS TO MAKE REPRESENTATIONS ON THEIR BEHALF

TO CONGRESS OR ATTEMPTED TO INDUCE OTHERS TO COMMUNI-

CATE WITH CONGRESS

We have set out in the Statement the allega-

tions of the information in some detail (supra,

pp. 4-12) because we think they show that the

great bulk, if not all, of the charges against the

defendants relate to two general classes of acts:

(1) paying others to talk directly to Congress

or Congressmen, and (2) attempting to induce

others, by non-financial inducements, to com-

municate with Congress, usually by letter. In

each instance, the representation was made with

respect to the merits or demerits of pending

legislation affecting the prices of agricultural

commodities, but without disclosure of the de-

fendants’ private financial interest. Although

the form of the statute requires the Section 305

counts to be framed in terms of specific expendi-

tures, or receipts, in specific quarters of the year,

it is nonetheless true that the basic nature of the

defendants’ efforts to affect legislation, as

® Representative Smith’s statement, in 1936, of the three

classes of persons to be covered by the then lobbying bill (80

Cong. Rec. 4525) is virtually identical with that given by

both the Senate and the House reports on the 1946 Act.

See supra, pp. 31-32.

LE SIE LIED SG GEILE LEE EO NEG LIE LCG AGE POLL ICE OSE RAE GLE DEA LITE LATTE AH SO

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charged in this information, clearly falls into the

pattern we have stated.”

1. Thus, counts II, III, IV, and V, the Section

305 counts against defendant Moore, charge ex-

penditures for the principal purpose of aiding

“in influencing, * * * the passage of legislation

* * *” by (1) sponsoring activities of three farm

associations, The Southern Commissioners of Ag-

riculture, the Farm Commissioners Council, and

the North Central States Association of Commis-

sioners, Secretaries and Directors of Agriculture,

each of which in turn “had as its principal pur-

pose the influencing, directly and indirectly, of

legislation by the Congress of the United States

affecting agriculture’’; (2) by procuring the serv-

ices of the defendants, James E. McDonald and

Tom Linder, who had been identified as the Com-

The Act does not in terms state the amounts necessary

to be contributed or spent to result in coverage. But it must

certainly be true that it was not intended to cover minimal

amounts, since such contributions or expenditures obviously

would not have significance in terms of the purposes of the

Act. The Clerk of the House of Representatives, in prepar-

ing his Outline of Instructions for Filing Reports, Federal

Regulation of Lobbying Act (1951), placed the minimum

amount which would require compliance with the Act at

$100 per year. This figure was used as a result of a Report

by the House Select Committee on Lobbying Activities (the

Buchanan Committee), H. Rep. No. 3239, 81st Cong., 2d

Sess., pp. 15-16. The new forms for reporting and registra-

tion, adopted by the Clerk of the House and the Secretary

of the Senate in 1950, have simplified compliance with the

Lobbying Act. See H. Rep. No. 3239, Sist Cong., 2d

Sess., p. 5.

273108—53——4

missioners of Agriculture of Texas and Georgia,

respectively ; and (3) by procuring the services of

one Carl H. Wilken, who was apparently an agri-

cultural expert and who testified for defendants

before Congressional committees (R. 5-6).

In addition to these allegations, common to the

four Section 305 counts against defendant Moore,

there are allegations respecting particular expen-

ditures in particular quarters which Moore failed

to report. These particular expenditures are the

immediate basis for the charge of failing to re-

port, as required by Section 305." In count ITI,

these items related to payments, in the amount of

$2,250, to defendant Linder, and, in the amount

of $250, to one McCloskey, who appears from the

information to have written letters to Grange

officers at Moore’s instance, urging them to write

: their Congressmen to put peas in the program for

‘ foodstuffs to be sent to Europe under the Euro-

pean Recovery Program (R. 5), and also to have

written statements, also at Moore’s instance, for

presentation to Congress (R. 5) (although it does

not appear on the face of the information that

this payment was specifically related to these let-

ters and statements).

In count IIT, the specific expenditure was a

payment to the Mayflower Hotel for a dinner, in

* Through a typographical error, paragraph 11 of count II

(R. 8) refers back to paragraph 9 instead of paragraph 10.

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—

the amount of $1,100 (R. 9). From allegations

elsewhere in the information (R. 5), it may rea-

sonably be inferred that this was a dinner which

was ostensibly sponsored by one of the defend-

ants’ farm associations, and at which Congress-

men were spoken to about farm legislation.”

In count IV, the specifie expenditures were de-

posits of three separate sums of $3,000, $4,500,

and $3,600 in brokerage accounts of the late de-

fendant MeDonald, of one Harold B. MeDon-

ald, of Texas, and of Ruth Aspinwall (not other-

wise identified), presumably as part of the pro-

gram of securing the good offices of McDonald, a

Texas state official, and those of the person for

whom Aspinwall acted, in having representations

made to Congress.

In count V, the specific expenditures were

many, but they included (1) a printers bill for

preparing and sending out a press release on be-

half of the Association, Southern Commissioners

and Directors of Agriculture in which a hearing

was requested before the Senate Committee on

Agriculture on the specific proposed legislation ;

(2) a payment to one Hanson in respect to a news

*® A comparison of paragraphs 11 (c), (d), and (e) on

R. 5 with paragraph 2 (a) on R. 9 and paragraphs 2 (d)

and (e) on R. 12 indicates that the hotel referred to in count

III should be the Raleigh Hotel, not the Mayflower. This

and other errors can be corrected on remand. See United

States v. Petrillo, 332 U.S. 1, 11.

item in the Washington Post, 531 copies of which

were sent to members of Congress; (3) payments

and a loan to Wilken, who is elsewhere identified

as having testified before Congressional commit-

tees at Moore’s instance (R. 5-6), in the total

sum of $6,750; and (4) payments to the May-

flower Hotel, in the sum of $5,945.99, for dinners

at which Congressmen were spoken to on agricul-

tural legislation (see R. 5).

2. Similarly, in counts VI and VII, the Section

305 counts against defendant Harriss, it is first

generally alleged that Harriss expended money

‘‘principally to aid in influencing * * * legisla-

tion * * *’’ affecting the prices of agricultural

commodities and commodity futures; and that he

did so by procuring the services of defendants

Moore, McDonald, and Linder (whose activities

are described elsewhere in the information). And

in count VI it is charged that he made specific

expenditures to various persons, including Lin-

der, Hanson (see supra, pp. 45-46), one Lois Moore,

one Matt Dahl, the National Farm Committee,

and to Richard Tullis, identified as an officer of

the National Farm Committee, in each case in

amounts of $250 or larger. In count VII, pay-

ments to defendant Moore, in the total amount of

$50,000, and to defendant McDonald, in the

amount of $6,000, are alleged. From other alle- |

gations in the information, it can be assumed

that these expenditures related to the procuring

PRAT RH ERNIE RTS TRS, EF TES EL ORAL AIR EP TROL Ny

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a Sev

of direct representations to Congress on agricul-

tural matters.”

3. Finally, in count X, the remaining Section

305 count, it is alleged that defendant National

Farm Committee, whose principal purpose was to

influence the passage of legislation which would

cause a rise in the price of agricultural commodi-

ties and commodity futures and the defeat of

legislation which would cause a fall in such prices,

had solicited, collected and received from the de-

fendant Harriss the sum of $1,000 for carrying

out its purposes.

* * * * ~

Realistically read in the context of the whole

information, it is clear that the substance of the

305 charges against defendants Moore and Harriss

is that they paid individuals and groups to com-

municate with Congress, in various ways, on their

behalf, and that this was deliberately done with-

out disclosure of the true nature of the pecuniary

backing or the identity of the sponsors or their

private financial interests.” It is plain, also,

No bill of particulars was sought by the defendants.

See United States v. Petrillo, 332 U.S. 1, 10-11.

*° Paragraph 6 of count I, which is expressly incorporated

into all the other counts, declares that the “defendants well

knew and intended [that] the members of the Congress

would not know that such activities, plans, schemes and de-

signs of the defendants and such use and employment of

these several organizations were in fact based upon and in

pursuance of the defendants’ purpose to advance their per-

sonal financial interests; and, as to the defendants Tom

that the means of communication took the form

of releases directed at Congress, testimony before §

Congress and its committees, the more subtle

blandishment of after dinner speeches to Con-

gressmen, or, finally, the encouragement of letters |

to Congress. With respect to the National Farm

Committee, the substance of the charge is that

the Committee received money, for the purpose

of taking positions on farm legislation which

would ‘‘directly’’ influence the passage of favor-

able farm legislation, from Harriss, the motiva-

tion of whose interest in that type of legislation

did not coincide with that of a public nonprofit

agricultural group such as the Committee ap-

peared to be.

These charges are all provable, within the mean-

ing of the statute, by showing facts which would

go no farther than we have shown is appropri-

ate in subsection A of this Point of the Argument

(supra, pp. 25-42). The lobbying activities with

which the information deals all involve direct

representations to Congress or the express in-

ducement of such representations.”

Linder and James FE. McDonald, that the members of the Con-

gress would be unaware that they were acting outside of

and apart from their capacities as state officials instead of

making unbiased efforts to further the interests of persons

engaged in agricultural pursuits and of other members of

the public” (R. 3).

* There is no prohibition in the Criminal Appeals Act on

this Court’s construing an indictment or information in con.

nection with a determination of constitutional or statutory

issues, so long as the Court does not go counter to a const ruc-

ol ceh alee OTE

— PR REIID, PCUIEES CE AEBS ORL IES SRE EPO PR EE BS I II

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oo.

Oe ek ieee oa

C. THERE 15 NO UNCONSTITUTIONAL VAGUENESS IN SEC ‘TIONS 205

AND 307 AS APPLIED TO DIRECT COMMUNICATION WITH, OR

INTENTIONAL STIMULATION OF DIKECT C¢ IMM UNICATION WITH,

CONGRESS

As we have shown (supra, pp. 25-42), the lan-

guage and legislative history of Sections 305 and

307 make it plain that they were intended, at the

least, to apply and they do apply to persons who

pay others to state views to Congress, whether

formally in committee sessions, or informally in

speeches, letters, etc., so long as the statements

are directed at Congress or Congressmen. It is

also clear that the sections apply to those who

spend money to induce others directly to com-

municate with Congress, such as the sponsors of

campaigns asking members of the public to write

or contact their Congressmen with respect to par-

ticular legisiation. We have also shown (supra,

pp. 42-48) that the activities charged in this in-

formation fall within these bounds of direct

communication.

Thus applied, the Act presents no serious ques-

tion of indefiniteness, in appraising which ‘‘the

particular context is all important.” American

tion of the indictment or information made by the District

Court. See United States v. Congress of Industrial Organi-

zations, 335 U. 8. 106, 110-112: United States vy. Petrillo,

382 U.S.1. If the Court should feel, however. that any part

of the information is not sufliciently definite for the purposes

of constitutional adjudication, United States v. Petrillo, 332

U.S. 1. 9-13, shows that the case can be remanded without

determination of the issues relating to that portion of the

information.

| a

50 }

Communications Assn. v. Douds, 339 U. 8S. 382,

412.* The necessity that there be direct contact

with Congress, whether paid for or expressly

stimulated, imports a sufficient degree of specific-

ity. Certainly, no one who paid money to have

another present views to Congress or who spent

money to stimulate persons to write to their Con-

gressmen would be in any doubt that his conduct

came within the terms of a statute which covers a

; purpose “to influence, directly or indirectly, the

passage or defeat of any legislation by the Con-

: gress of the United States.’’ Activities of that

type—as United States v. Rumely, 345 U.S. 41, 47,

now underlines—are the traditional heart of lobby-

ing and legislature-influencing, and would plainly

be governed by a “Regulation of Lobbying Act.”’

The coverage is indisputable in this instance, but,

even if it were more doubtful, it would not be

“unfair to require that one who deliberately goes

perilously close to an area of proscribed conduct

shall take the risk that he may cross the line ”’

Boyce Motor Lines v. United States, 342 U. S.

337, 340.

For this aspect of the case, it is perhaps not

necessary to go beyond the decision in United

States v. Wurzbach, 280 U. S. 396, where the

Court sustained, on direct appeal, an act which

22 As we point out in detail infra, pp. 81 ff, the presence of t

difficult, borderline or peripheral cases does not invalidate a ;

! statutory provision where there is a hard core of circum-

stances to which the statute unquestionably applies.

EAPO STD LIT OPA ARE MERIT i Sind OC MOINES pte > ge PLN A bE TEL GS RL EY Reh AL IME ROS §

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—————

made it unlawful for any Congressman, or candi-

date for Congress, or officer or employee of the

United States “‘to directly or indirectly solicit,

receive, or be in any manner concerned in solicit-

ing or receiving any assessment, subscription, or

contribution for any political purpose whatever,

from any such officer, employee, or person.”’

[Emphasis supplied.] The indictment charged

a Congressman with having received money from

federal officers and employees for the political

purpose of promoting his nomination as Re-

publican candidate for representative at certain

Republican primaries. The Court thought that

the “‘language is perfectly intelligible and clearly

embraces the acts charged.’’ 280 U. S. at 398.

It was argued that the statute was invalid, among

other reasons, because there was no definite mean-

ing to the crucial words ‘political purposes.”’

However, the Court, in an opinion by Mr. Justice

Holmes, said, at p. 399:

* * * But we imagine that no one not

in search of trouble would feel any. When-

ever the law draws a line there will be eases

very near each other on opposite sides.

The precise course of the line may be un-

certain, but no one can come near it with-

out knowing that he does so, if he thinks,

and if he does so it is familiar to the

criminal law to make him take the risk.

Nash v. United States, 229 U. S. 373.

Cf. Burroughs and Cannon v. United States, 290

U. S. 534 (Federal Corrupt Practices Act).

As sought to be applied to the present defend-

ants, the Regulation of Lobbying Act is also at

least as definite as several other statutes upheld

by this Court. In Boyce Motor Lines y. United

States, 342 U.S. 337, the defendant was required

to determine whether there was a truck route

available which made it possible to avoid ‘‘eon-

gested thoroughfares, places where crowds are

assembled, street car tracks, tunnels, viaduets,

and dangerous ecrossings’’; if so, it then beeame

necessary to determine whether the alternative

route was “‘practicable’’ and ‘‘feasible.”’ Other

statutes have required those covered to decide

whether sound trucks are “loud and raueous”’

(Kovaes vy. Cooper, 336 U. 8. 77, 79); whether

competitive activities are ‘fair and open’? (Old

Dearborn Co, v. Seagram Corp., 299 U.S. 183) ;

whether sheep are interfering with the ‘‘usual and

customary’’ use of a range (Omaechevarria vy.

Idaho, 246 U.S. 343, 348) ; whether activities are

: “reasonably calculated’? or ‘‘tend’’ to fix prices

(Waters-Pierce Oil Co. v. Texas (No. 1), 212

: U.S. 86); whether a fire is ‘near’? the publie

domain (United States v. Alford, 274 U. 8. 264) ;

whether income tax deductions are for “a rea-

sonable allowance for salaries or other compen-

sation for personal services actually rendered”’

(United States v. Ragen, 314 U. 8. 513); whether

one is coercing an employer to employ persons

in excess of the number ‘needed’? (United States

v. Petrillo, 332 U.S. 1); or whether a crime in-

LIE SEE ST ENN I Mg OTE? RM MPN FIORE NENT AP HO IS SF

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volves ‘moral turpitude’? (Jordan v. De George,

341 U.S. 223). See also United Public Workers

Mitchell, 3830 U.S. 75, 103-104 (Hateh Act

“active part in political management or in po-

litical eampaigns’’). Men can constitutionally be

required to make these determinations, each of

which involves a general standard of consider-

able latitude.”

The Lobbying Act, as applied here, makes no

greater demands on those who come within its

compass, for a very specifie and easily foreseeable

content has been given to the general terms of

the statute. In addition, the requirement of a

deliberate purpose to influence federal legislation

relieves the Act of the basie ‘objection that it

punishes without warning an offense of which the

accused was unaware’’, Screws v. United States,

325 U.S. 91, 102.% With the specifie subordinate

ery applicable here and this element of

sctenter, there can be no entrapment of the

innocent or the unwary.

** For other cases, see Lmerican Communications Assn, Vv.

Douds, 339 U.S. 382, 412-3: Dennis vo United States, 341

U.S. 494, 515: NSerews v. United States, 325 U.S. 91: Wial-

liams v. Pages States, 341 UL S. 97; Gorin v. United States,

312 UL S. 19; Nash v. United States, 229 U.S. 373: Miller vy

Sirah: 239 U. S. 426, 454; Bandini Co. v. Superior C art,

284 U.S. 8, 17-18; Sproles v. Binford, 286 U.S. 874, 392-3

ms en ap vican Communications Assn. v. Douds, 339 U.S.

3Aa2, 413: Dennis v. United States, 341 U.S, 494, 515: Boyce

Motor Lines vy. United States, 342 U.S. 3387, 342: Gorin v.

United States, 312 U.S. 19, 27-28; Unite d States v. Ragen,

314 U.S. 513, 524; Unite ‘d States v. Wurzbach, 280 U.S. 396,

399; Omaechevarva v. Idaho, 246 U.S. 348, 348.

teehee a

54 "

D. THE “PRINCIPAL PURPOSE” REQUIREMENT OF SECTION 307

HAS SUBSTANTIAL APPLICATION ONLY TO DEFENDANT NATIONAL

FARM COMMITTEE AND ITS APPLICATION TO THAT DEFENDANT

IS CLEAR

Section 307 of the Lobbying Act states, in part,

that :

The provisions of this title shall apply

to any person * * * who * * * directly or

indirectly, solicits, collects, or receives

money or any other thing of value to be

used principally to aid, or the principal

purpose of which person is to aid, in the

accomplishment of any of the following

purposes:

* * * * *

The District Court in the N. A. M. case held that

the reference to ‘‘principal purpose’? was so

vague as to be meaningless. See 103 F. Supp.

510,514. Presumably, the court’s reference in this

ease to the N. A. M. holding (R. 39) means that

the alleged indefiniteness of the ‘principal pur-

pose”’ language was also thought to be present here.

1. Actually, however, the ‘‘principal purpose”’

aspect of Section 307 has little to do with this

case. Section 307 refers to any person who

‘‘solicits, collects, or receives money”’ to aid, or

‘*the principal purpose of which person is to aid,”’

in the influencing of legislation. The reporting

requirements of Section 305, however, apply not

only to persons soliciting but also to those ‘‘ex-

pending any money for the purposes designated

in subparagraph (a) or (b) of section 307,”’ ¢. e., |

the purposes of influencing legislation. Thus, the

— EEO LOL E SING LD ED ME REE BNE GN NM Ss SIE NE SSRN IW MR LTO Sp, ERE EGF LEIS API ad =

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—7_

‘‘principal purpose’’ language of Section 307

would appear to have no application to those

making expenditures (as distinguished from those

receiving contributions) for the purpose of in-

fluencing legislation. In the instant case, all of

the Section 305-307 counts, with the exception of

eount X against the National Farm Committee,

are predicated on the fact that ‘‘expenditures’’

were made for the purposes designated in Section

307, and not on the fact that some person had

‘solicited, collected, or received’’ funds for those

purposes. All that it seems necessary to prove is

that the expenditures were actually made for the

purposes set forth in subparagraphs (a) or (b)

of Section 307.

2. If the ‘‘principal purpose’’ language does

apply to ‘‘expenditures’’ as well as ‘‘contribu-

tions,’’ the statute poses no problem whatever as

to defendants Harriss or Moore. The ‘‘principal

purpose’’ requirement is worded alternatively. It

suffices to bring a person under the Act if either

(1) that person’s principal purpose is ‘‘to in-

fluence’? federal legislation, or if (ii) that is

the principal purpose of the contribution itself,

or of the expenditure itself (if the latter is to be

ineluded).” However great a problem it may be

> The language of Section 307 is “The provisions of this

title shall apply to any person * * * who * * * directly or

indirectly, solicits, collects, or receives * * * any * * *

thing of value to be» .ed principally to aid, or the principal

purpose of which person is to aid * * *.” [Emphasis

added. ]

56 ;

to determine the principal purpose of a person,

there is usually little difficulty in determining

whether the principal purpose of a specific con- H

tribution or expenditure is to accomplish one of

the statutory purposes. In this case, specific ex-

penditures are listed, and it is charged that their

principal purpose was the affecting of designated

legislation. This raises a precise issue capable of

proof or disproof in ordinary course, just as if

the inquiry was solely as to the ‘‘purpose’’ (un-

qualified by the adjective ‘‘principal’’) of the ex-

penditures. See United States v. Wurzbach, 280

U. S. 396 (discussed supra, pp. 50-51) ; Burroughs

and Cannon v. United States, 290 U. S. 534.

Consequently, with respect to all the Section

305 counts, except that against the National Farm

Committee, the short answer to the court below

is that the ‘‘principal purpose”? requirement is

either inapplicable or it is met easily and without

any doubt.

3. Count X, against the National Farm Com-

mittee, does allege that that organization, which

was one whose principal purpose was to influence

legislation, received money to be used principally

to aid in the passage and defeat of legislation

relating to agricultural commodities; specifically,

the charge is that it received a check for $1,000

from Harriss for the purpose of influencing and

attempting to influence such legislation. Irre-

spective of the “principal purpose’’ of the or-

ganization, the count charges a violation of Sec-

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—

tions 305 and 307 under the alternative require-

ment of Section 307 that reports be made by per-

sons receiving contributions principally to aid the

accomplishment of the purposes specified in See-

tion 307. And it is clear that the specifie con-

tribution which is alleged in count X was a single-

purpose contribution—that the one purpose was

to influence the passage or defeat of legislation

which would, respectively, enhance or depress

farm prices.

For the present case it is enough that the

information charges that the contribution was ob-

tained for the purpose of influencing legislation.”

The statute is definite and explicit enough to

inform a person receiving money for such a pur-

pose that he is within its terms. The **principal

purpose’’ language of Section 307 (pp. 54-55,

supra) is designed to make clear that the fact that

the contributions are multi-purposed will not neces-

sarily preclude coverage under the Act. Cf.

Futor, An Analysis of the Federal Lobbying Act

(1949), 10 Fed. B. J. 366. Where contributions

have several purposes, the qualifying word ‘*prin-

cipal” may possibly raise problems, but no prob-

lems of indefiniteness are presented where, as in

this case, contributions are obtained solely for the

purpose of influencing legislation, particularly

* The additional allegation that the principal purpose of

the Farm Committee was to influence the passage or defeat

of legislation does not appear in the operative paragraphs

of count X, 7. ¢., paragraphs 6 and 7,

when “‘influencing” is interpreted, as discussed

above (supra, pp. 25-42), to mean acts of directly

contacting or stimulating direct contact with Con-

gress. The National Farm Committee cannot

properly complain of any vagueness in the charge

against it in this information.”

II. SECTION 308 OF THE ACT IS NOT UNCONSTITUTION-

ALLY INDEFINITE AS APPLIED TO THE COUNTS LAID

UNDER THAT SECTION

A. As applied to those who are hired either to

express views to Congress or to cause others to do

so, Section 308 is sufficiently definite——The Dis-

27In the court below, defendants also contended that the

statutory definition of “legislation” in Section 302 (infra,

pp. 89-90) is too vague because it includes—in addition to

“bills, resolutions, amendments, nominations, and other mat-

ters pending or proposed in either House of Congress”—“any

other matter which may be the subject of action by either

House.” Like so many of defendants’ arguments below, this

contention has no place in this case, for the information

makes it quite clear that it uses the term “legislation” in the

ordinary sense of bills and legislative proposals already

being, or just about to be, considered by Congress, its com-

mittees, or its members. See, especially, paragraphs 1

through 8 of count I (R. 1-4), which are incorporated into

the other nine counts. Whatever may be the difficulties in

other circumstances with the phrase defendants attack,

there are no real problems here, particularly since the charges

concern direct or stimulated contact with Congressmen. We

may point out in passing, however, that the critical phrase,

“which may be the subject of action by either House,” can be

read as referring to “other matters” which “are” being con-

sidered by Congress, its organs, or its members, or which

“are” being presented at that time to some member of Con-

gress. The statute would not appear to cover matters merely

being debated in the schools,

SEP ESE LPO NOTES AERP ai LAIN LE Ft BEE

a a TOC Te eee is Smee REL ST ay,

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trict Court did not hold Section 308 unconstitu-

tionally vague. It held Section 308 unconstitu-

tional because the penal provision of Section 310

(b) was unconstitutional, and because Sections 308

and 310 (b) were thought to be inseparable. We

discuss this separability problem in Point IV,

infra, pp. 75-80.

The defendants argued below, however, that

Section 308 was unconstitutionally vague (a) be-

cause it could not be determined what was meant

by “influencing’’ legislation as defined in the stat-

ute, and (b) because Section 308, although self-

sufficient on its face, seems inconsistent with

Section 307 which states the persons to whom the

Act is applicable. We have already discussed the

meaning of “influencing’’ legislation, and have

shown that at the minimum it covers direct com-

munication with Congress and the intentional

stimulation of direct representations. Supra, pp.

2542. Like Sections 305 and 307, Section 308 is

not too indefinite to govern this case.

Section 308 does not refer to Section 307 and is

not governed by it. Section 308 covers one ‘‘who

shall engage himself for pay or for any considera-

tion for the purpose of attempting to influence the

passage or defeat of any legislation by the Con-

gress of the United States.’”’ There is nothing

mysterious about the concept of hiring oneself

out to do a job, and the language ‘“‘engage him-

self for pay or for any consideration” plainly em-

braces that notion.

273108—53——_5

; =

The history of the legislation shows that the

provisions for the registration of paid lobbyists

grew out of a different bill from those which

sought to require disclosures by groups and indi-

viduals who collected moneys for lobbying pur-

poses.* There is, therefore, nothing in the leg-

islative history which requires Section 308 to take

on additional requirements from Section 307.

But even if the persons described by Section 308

would have also to meet the description of 307,

the result would be the same. Section 307 is

specifically applicable to those who receive money

to be used principally to aid the passage or de-

feat of legislation. See supra, pp. 54 ff. Presum-

ably, the receipt of money for lobbying services

by a professional lobbyist is the receipt of money

principally to aid the passage or defeat of

legislation.

The defendants also argued below that Section

308 was unconstitutionally vague because it is “‘so

all embracing in that it requires the person who

has engaged himself for pay or for any consid-

eration for the purpose of attempting to influ-

ence the passage or defeat of legislation ‘before

doing anything in furtherance of such object’ to

* This provision, now Section 308 of the Act, grew out of

S. 2512, 74th Cong., which dealt only with paid lobbyists

(see fn. 12, supra, p. 37); Sections 305 and 307 of the Act

grew out of the major provisions of H. R. 11223 and 11663.

See supra, pp. 36-42.

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_———

ing anything’’ includes so much that ‘‘men of

common intelligence must guess at what is really

meant shall constitute an offense * * *’’ (R. 25).

It is plain, however, that the phrase ‘‘doing

anything”’ refers to acts done consciously, in ex-

change for pay or other consideration, in pursuit

of the passage or defeat of legislation. The de-

fendants’ complaints on this score seem to us to

come down to the proposition that Congress can-

not require them to distinguish between the posi-

tions they take with respect to legislation because

they are paid to do so and those positions rep-

resenting a genuine unsolicited conviction. Not

only is this position unsound on its face, but the

information further aids defendants by specify-

ing in each instance the acts done by them with-

out registering. See R. 4-6, 20-21.

B. Defendants Moore and Linder were hired to

express views to Congress and to cause others to

do so.—It is clear that counts I and IX charge

defendants Moore and Linder with offenses under

Section 308. Count I alleges that Moore “‘en-

gaged himself for pay and for other considera-

tion on behalf of Robert M. Harriss for the pur-

pose of attempting to influence, directly and in-

directly, (a) the passage of legislation by the

Congress of the United States which would cause

a rise in the prices of agricultural commodities

and commodity futures and (b) the defeat of leg-

islation by the Congress of the United States

which would cause a decline of prices of agri-

cultural commodities and commodity futures’’

(R. 4). The count alleges in considerable detail

the acts done to carry out this undertaking—the

procurement, on various and sundry occasions, of

witnesses, private individuals, and southern agri-

cultural associations to take positions before

Congress and Congressmen with respect to certain

legislation.

As to Linder, it is alleged that he engaged him-

self “for pay and for other consideration on behalf

of the defendants * * * Moore and * * *

Harriss for the purpose of attempting to in-

fluence, directly and indirectly, (a) the passage of

legislation by the Congress of the United States

which would cause a rise in the price of agri-

cultural commodities and commodity futures, and

(b) the defeat of legislation by the Congress

* * * which would cause a decline [in such

prices]’’ (R. 20). The information also alleges

that Linder, ‘‘acting outside of and apart from

his official capacity, in furtherance of the objects

and purposes for which he had theretofore re-

ceived money and other things of value * * *

[helped to organize] the Farm Commissioners

Council * * * made a statement before the Sen-

ate Committee on Agriculture of the Congress of

the United States, using material prepared by one

Dr. Clair, opposing proposed legislation which

would tend to reduce the prices of farm com-

modities [and] on or about the fall of the year 1946,

— sonememnney

ET ae AR BOING WIL NOIR AMEE BE LIELP SPER,

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at a dinner alleged to have been sponsored by the

Association, Southern Commissioners of Agricul-

ture, staged at the Mayflower Hotel, in Washington,

D. C., at which about 200 members of Congress

were present, the defendant Tom Linder delivered

a speech in which he urged Congress to enact leg-

islation ending the Office of Price Administration

controls of prices’’ (R. 21).

As they are charged, both Moore and Linder

were acting to bring pressures to bear directly on

Congress, but in such a fashion that Congress had

no idea where the sponsorship of their ideas lay.

Moore almost consistently spoke through the

medium of others. And though Linder talked for

himself, he permitted it to be supposed, according

to the information (see fn. 20, supra, p. 47), that

he spoke only as the State Commissioner of

Agriculture for Georgia; the charge is that he

had a personal, financial stake outside of his job

in such a way as to permit the inference that he

was being paid to divide his loyalties between

Georgia, on the one hand, and his own personal

interests as well as those of Moore and Harriss,

on the other. It was, partly, to avoid precisely

this type of situation that the Lobbying Act was

passed. Supra, especially p. 32. There is not the

slightest reason to suppose that those who were act-

ing as did Moore and Linder could not have deter-

mined that the Act required their registration.

III. AS APPLIED HERE, SECTIONS 305, 307, AND 308

OF THE ACT DO NOT VIOLATE THE FIRST AMEND-

MENT

The District Court did not hold Sections 305,

307, or 308 of the Lobbying Act invalid under the

First Amendment, but the defendants strenu-

ously insisted on that contention below. See R.

24, 32, 33, 35. For that reason, we answer it

here.”

A. The First Amendment guarantees to the de-

fendants, as to all others, the right to petition

Congress; and the expression of views to Con-

gress in groups or through agents is admittedly

an exercise of the right to petition. But it is

equally clear that the right to petition, like other

First Amendment freedoms, may be qualified, in

certain circumstances, if necessary to protect

other interests in the community whose preserva-

tion is of sufficient importance. The limitation

on the freedom to teach and advocate the idea

of forceful and violent overthrow of the Gov-

ernment is only a recent and dramatic example

of this point. Dennis vy. United States, 341 U.S.

494.

The problem, then, in the present case is to de-

termine the nature and extent of the restraint, if

any, which has been imposed on the defendants’

2” The Court has apparently held that it has power, under

the Criminal Appeals Act, to consider constitutional con-

tentions other than those passed on by the District Court.

See United States v. Spector, 343 U. S. 169, 172; United

States v. Curtiss-Wright Corp., 299 U. S. 304, 330.

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RGU,

—

right to petition; and then to determine whether

the interest in favor of which the restraint has

been imposed can justify a limitation of this type.

The restraint, if it be one, is certainly not a

direct or a heavy one. The conduct of those at-

tempting to influence the passage or defeat of

legislation is not prohibited or made criminal.

They are not forbidden to make their views known

or to hold beliefs. It is simply provided that

under certain circumstances there must be dis-

closure of specified facts; and disclosure is re-

quired, not on the basis that anything improper

is being done, but merely as an impartial register

of those whose concern with their affairs before

Congress is great enough so that they spend, or

solicit, money to pay or induce people to make

certain kinds of presentations to Congress. There

is no choice among differing political opinions

and no singling out of selected activities or views

for disclosure. All must be reported alike and

no stigma is attached to those who register and

report.”

On the other hand, the interest in favor of

which this restraint has been imposed is funda-

mental to the legislative process. The intricate

back-and-forth process between representative

%° For the most recently published lists of those registering

and reporting under the Act, see 99 Cong. Rec. 60 ff. (daily

ed.; Jan. 3, 1953), 2881 ff. (daily ed.; April 7, 1953) ; 6784 ff.

(daily ed.; June 15, 1953). There is a wide representation

of occupations, professions, organizations, and individuals,

both notable and unknown.

— - a

and represented, which is the gist of the demo-

cratic form of government, has brought forth

two central problems with which Congress can :

rightly concern itself. The first is to ascertain

correctly the true will, desires, needs, and hopes

of the people as a whole, and of the different

groups in the Nation. The other aim is to se-

cure the facts, all the facts, on which to build

legislative action. Without both kinds of knowl-

edge, legislation is hobbled and to that extent rep-

resentative government fails in its exacting

goals.”

For at least forty years,” Congress has been

much concerned with the relationship between

these two prime ends of opinion-finding and fact-

finding, on the one hand, and the individuals,

groups, and organizations which seek to encour-

age or retard Congressional action, on the other.

There have been many, inside Congress and out,

disturbed by the thought that proper attainment

of the two fundamental aims has been partially

frustrated by persons with special axes to grind.

Congress, in legislation, has an obligation to the

general welfare which ‘‘is not the mere sum * * *

* The Legislative Reorganization Act of 1946 resulted, of

course, from a deep concern with both aspects. It was not

accidental that the Regulation of Lobbying Act was part of

the Legislative Reorganization Act.

* See Lane, Some Lessons From Past Congressional In-

vestigations of Lobbying, 14 Pub. Opin. Quar. 14; Brief for

the United States, United States v. Rumely, Oct. Term,

1952, No. 87, pp. 30ff.

ROSIN 6G PETIT SA SALON THIN Gy ' ’ :

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—

of Maine potatoes, Texas oil, Wyoming wool,

Colorado silver, Mississippi cotton, and Georgia

peanuts.’’ Hearings, Hous Select Committee on

Lobbying Activities, 81st Cong., 2d sess., pt. 1,

p. 100. As those interests, and their like, have

borne down upon it, Congress has repeatedly

undertaken to determine for itself how much it has

been subject to pressures only partially repre-

sentative of the total interest, and how much these

pressures have distorted its functioning.

The remedy has not been to silence or prohibit

the ‘‘interest’’ or ‘‘pressure’’ groups, but to uti-

lize a measure of factual disclosure in an attempt

to remedy the distortion which Congress has

found, without forbidding or limiting in any way

the expression of ideas. In the present context,

there would, of course, be indirect disclosure of

the political ideas or actions of some persons

whose views or activities may now be relatively

private (e. g., defendants Harriss, Moore, and

Linder), but only to the extent that they affirm-

atively engage in attempting to affect federal

legislation by communicating to Congress or in-

ducing others to communicate. And such dis-

closure of these activities and views enables Con-

gress and the public, it is believed, better to ap-

praise the source and true worth of the facts and

arguments brought forth, and thus to reach wiser

judgments on proposed federal legislation.”

In addition to the Federal Government, over twenty

states seek to regulate some aspects of lobbying through dis-

The legislative interest is so important and the

means adopted for its preservation so moderate

that it is difficult to believe that the possible de-

terrence of some communication with Congress or

Congressmen by certain individuals can be the

abridgment of freedom which the First Amend-

ment prohibits. This Court and informed opinion

have always refused to see illegality in compara-

ble minor ‘‘restraints’’ of this character, where a

significant social end was being served by the leg-

islation. Thus, in Burroughs and Cannon v.

United States, 290 U. S. 534, the Court sustained

the statute requiring disclosure by those who at-

tempt to influence the outcome of presidential

elections by soliciting contributions or making ex-

penditures for that purpose, although it is clear

that such a disclosure requirement would cause

some to forego support of the candidate of their

choice. The Court, in an opinion with major and

special relevance to the present problem, both be-

cause of the fact that the language of the earlier

act was the basis of the present statute and also

because of the similarity of the interest involved,

stated its view as follows (290 U. S., at 545) :

closure (see Note, (1947) 47 Col. L. Rev. 98, 99-103; Com-

ment (1947) 56 Yale L. J. 304, 313-316). Almost all the

states require disclosure of campaign contributions and some

also regulate political advertisements and circulars (Nutting,

Freedom of Silence: Constitutional Protection Against Gov-

ernmental Intrusions in Political Affairs, (1948) 47 Mich.

L. Rev. 181, 204-206).

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The importance of his [the President’s]

election and the vital character of its rela-

tionship to and effect upon the welfare and

safety of the whole people cannot be too

strongly stated. To say that Congress is

without power to pass appropriate leg-

islation to safeguard such an election

from the improper use of money to influ-

ence the result is to deny to the nation in a

vital particular the power of self protec-

tion. Congress, undoubtedly, possesses that

power, as it possesses every other power

essential to preserve the departments and

institutions of the general government from

impairment or destruction, whether threat-

ened by force or by corruption.

Civil and criminal libel and slander law un-

doubtedly deters some people from communicat-

ing ideas which are actually permissible, but

which they fear will provoke litigation. But that

kind of restraint obviously does not invalidate

such laws. Indeed, this Court has recently sus-

tained an Illinois law imposing criminal sane-

tions on those who publish material which ‘‘por-

trays depravity, criminality, unchastity, or lack of

virtue of a class of citizens, of any race, color,

creed or religion’’ or which exposes the citizens

of any such group to ‘‘contempt, derision, or ob-

loquy * * *’’; and this validation was in the face

of serious contentions that the proscribed conduct

was too vaguely described. Beauharnais v. IIli-

nots, 343 U.S. 250. The Court did not regard the

restraint flowing from the prohibition of the stat-

ute, or that voluntarily operating on its edges

upon people who fear getting uncomfortably close

to its reach, as sufficient to invalidate the attempt

by Illinois to wrestle with the perennially intract-

able problem of meliorating troubled racial and

religious antagonisms.

It is also true that a requirement that holders

of second-class mailing privileges disclose their

ownership of the publication probably discourages

some who have certain views they would like to

express in newspapers or periodicals. But this

peripheral discouragement is permitted, in part,

so that the public may not be ‘‘deceived through

ignorance of the interests the publication repre-

sents.’’ Lewis Publishing Co. v. Morgan, 229 U.S.

288, 312, quoting H. Rep. No. 955, p. 24.

The existence of the Hatch Act probably deters

some federal employees from activity permitted

by that statute, and, yet, the national interest in

a nonpolitical civil service has sufficed to permit

the restraint. United Public Workers v. Mitchell,

330 U.S. 75. Perhaps, the Smith Act and the sedi-

tion statute (Dennis v. United States, 341 U. S.

494), the non-Communist affidavit provision of the

Labor-Management Relations Act (American

Communications Association v. Douds, 339 U. S.

382), and the employer free speech unfair labor

practice provisions of the National Labor Rela-

tions Act (National Labor Relations Board v. Vir-

ginia Elec. & Power Co., 314 U.S. 469), have all

Nt PRP TAG LORE ORBEA PEELE LATTICE Gh iLL LO LL I GS OE Ar

a ne OP eae

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;

had comparable effects on certain individuals.

But, in each ease, broader interests in the safety

and the economic order of the community have

made these tangential restraints permissible.

Even the prospect of being called as a witness in

a proceeding before a court or other tribunal, or

of being investigated by a public or private

agency, may discourage some people from utter-

ing, even privately, wholly permissible ideas.”

In short, there is frequently self “‘ecensorship’’

or self-restraint in expression or communication

growing out of, but going beyond, a requirement

of law. But the First Amendment has never been

thought, for that reason, to invalidate the law or

other Government action because of these tangen-

tial, voluntary consequences. Caution, timidity, a

desire for privacy or to be free from controversy

or litigation, may all cause people voluntarily to

refrain from expressing their views in order to

avoid all chance of incurring some legal sanction—

which is not actually imposed on or related to the

expression of those views—but it does not follow

from this that any law has abridged their First

* The National Labor Relations Act (Associated Press vy.

National Labor Relations Board, 301 U.S. 103), the Fair

Labor Standards Act (Oklahoma Press Publishing Co. v.

Walling, 327 U. S. 186), and the Sherman Act ( Associated

Press v. United States, 326 U. S. 1), as well as the income

tax, may likewise have affected publication by existing or

potential publishers.

Amendment freedoms.” The burden, non-existent

for some, of first importance for others, is merely

a consequence of the hard and enduring fact that

most of the truly effective pressures and sanctions

on conduct are private or internal, protection

from which simply cannot be the business of the

First Amendment.

B. The case may be put more affirmatively in

somewhat different aspect. The basic legislative

problem here is to preserve the conditions under

which the legislative process can function, inde-

pendently and intelligently. The technique of dis-

closure is thought by many to permit such inde-

pendent and intelligent operation. The permis-

sible purposes of this technique were summarized

in the dissenting opinion of Mr. Justice Black in

Viereck v. United States, 318 U. S. 236, involving

the Foreign Agents Registration Act (22 U.S. C.

611, et seq.) (in which the Court found it unnec-

essary to pass on the statute’s constitutionality be-

cause it held Viereck’s activities not within its

purview). Mr. Justice Black said (at p. 251):

* * * Resting on the fundamental con-

stitutional principle that our people, ade-

quately informed, may be trusted to dis-

tinguish between the true and the false,

the bill is intended to label information of

foreign origin so that hearers and readers

36 This is all the more true, of course, when the feared sanc-

tion is not legal at all but social or economic, such as a hostile

public reaction resulting from disclosure of opinions or

activities.

oe EEA SO ast, ATER Ste Ley ee:

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;

may not be deceived by the belief that the

information comes from a disinterested

source. Such legislation implements rather

than detracts from the prized freedoms

guaranteed by the First Amendment. * * *

[Emphasis added.]

On this view, disclosure—because it implements

the conditions precedent to free and intelligent

judgment, particularly in a large, diverse, and

segmented political economy—is not improper

merely because it may restrain some whose pur-

veyance of their ideas is more effective or con-

genial when it is anonymous. The test of con-

formity with the First Amendment cannot be

limited to the disclosure requirement in vacuo;

rather, the test must consider the effectiveness of

the disclosure to forward the conditions which

underlie the body of political freedoms protected

by the Amendment.

In Associated Press v. United States, 326 U.S.

1, this Court, in sustaining an antitrust prosecu-

tion against a press association, answered an ob-

jection that the prosecution was prevented by the

First Amendment, by saying (at p. 20):

The First Amendment, far from provid-

ing an argument against application of the

Sherman Act, here provides powerful rea-

sons to the contrary. That Amendment

rests on the assumption that the widest

possible dissemination of information from

diverse and antagonistic sources is essential

to the welfare of the public, that a free

FEMALE LE IESG LEED LE SB IPI AA IS HEY

——

press is a condition of a free society.

Surely a command that the government

itself shall not impede the free flow of

ideas does not afford non-governmental com-

binations a refuge if they impose restraints

upon that constitutionally guaranteed free-

dom. Freedom to publish means freedom

for all and not for some. Freedom to pub-

lish is guaranteed by the Constitution, but

freedom to combine to keep others from pub-

lishing is not. Freedom of the press from

governmental interference under the First

Amendment does not sanction repression of

that freedom by private interests. The

First Amendment affords not the slightest

support for the contention that a combina-

tion to restrain trade in news and views

has any constitutional immunity.

This was express recognition that it is the legit-

imate business of Congress to maintain the con-

ditions on which freedoms of expression depend.

The present legislation has a comparable goal. A

primary aim of the right to petition and the

other First Amendment rights is to keep open

the channels of communication between the rep-

resented and the representative. When Congress

finally drew the conclusion, out of its experience

of many decades, that the integrity of the legisla-

tive process was threatened by its inability to ap-

praise the sources of the stream of demands flow-

ing from the ‘‘public,”’ it sought to free the chan-

nels by requiring disclosure of the sponsorship of

those seeking to influence it directly. What Con-

PRISON LIE AER Be PRYING? LEAN AOL TN ee I I

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gress attempted is to remove anonymity from

those who are operating in certain concealed

ways to convey their views on legislation, and

thus, in a measure, to make itself more responsi-

ble to the public it represents. It would be re-

markable if the freedom to speak of those who

have funds and agents to enhance themselves were

held to be infringed by legislation designed to

preserve a meaningful freedom to speak for all,

as well as a meaningful responsibility of the rep-

resentative to the represented, without respect

either to the accidents of finance or the artifices

of publicity. Cf. New York ex rel. Bryant v.

Zimmerman, 278 U.S. 63, 72.”

IV. THE INFORMATION SHOULD NOT HAVE BEEN DIS-

MISSED ON THE BASIS OF THE ALLEGED INVALIDITY

OF THE PENAL PROVISION OF SECTION 310 (B)

WHICH IS PLAINLY SEPARABLE

A. Section 310 (a) of the Lobbying Act pro-

vides for a fine of not more than $5,000 or im-

prisonment for not more than twelve months for

2 violation of the Act (infra, pp. 94-95).

Section 310 (b) states:

In addition to the penalties provided for

in subsection (a), any person convicted of

the misdemeanor specified therein is pro-

hibited, for a period of three years from

% See the Report of the President's Committee on Civil

Rights (70 Secure These Rights, 1947), pp. 52-53, 164, ap-

proving disclosure legislation broader than the Federal

Regulation of Lobbying Act, as it is applied in this case.

273108—53—_6

the date of such conviction, from attempt-

ing to influence, directly or indirectly, the

passage or defeat of any proposed legis-

lation or from appearing before a commit-

tee of the Congress in support of or oppo-

sition to proposed legislation; and any per-

son who violates any provision of this sub-

section shall, upon conviction thereof, be

guilty of a felony, and shall be punished

by a fine of not more than $10,000, or im-

prisonment for not more than five years,

or by both such fine and imprisonment.

Judge Holtzoff invalidated Section 308 because

he found the penal provision of Section 310 (b)

unconstitutional and inseparable, and also gave

this as an alternative ground for striking down

Section 305 (R. 39-40). In our view, it is not

necessary to decide whether Section 310 (b) is

constitutional. The District Court’s holding that

Sections 305 and 308 of the Act are invalid be-

cause of the penal provisions of Section 310 (b)

was clearly wrong in the face of the separability

clause, applicable to the whole Legislative Re-

organization Act, which provides that ‘‘if any pro-

vision of this Act or the application thereof to

any person or circumstances is held invalid, the

validity of the remainder of the Act and of the

application of such provision to other persons

and circumstances shall not be affected thereby.”’

60 Stat. 812, 814, infra, p. 95.

Examination of the statute shows that Section

310 (a) makes a violation of either Section 305

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Ri a ee

or 308 a misdemeanor, punishable by fine or im-

prisonment or both. The prohibition of Section

310 (b) is expressly stated to be ‘‘in addition to

the penalties provided for in subsection (a).”’

Thus, if Section 310 (b) were eliminated, there

would still be left a statute defining specific

duties and providing a specific penalty for vio-

lation of any such duty. The elimination of the

additional penalty in Section 310 (b) in no way

affects the construction of the Act or the nature

of the duties prescribed thereby. It is difficult,

very difficult, to conceive of a section which could

be severed with less effect on the structure of the

Act as a whole. Congress undoubtedly did not

desire the whole Act to stand or fall on this

supplemental and minor penalty. Therefore, any

possible invalidity in Section 310 (b) does not

invalidate either Section 305 or 308. Compare

Electric Bond & Share Co. v. Securities and Ez-

change Commission, 303 U. 8. 419, 433-437; Kay

v. United States, 303 U. 8. 1, 6-7, 8; Watson

v. Buck, 313 U. 8. 387, 395-397. See, also, infra,

pp. 84-85.”

The separability argument may be approached

in another way: The contention that a penalty is

improper cannot normally be made by one against

whom the penalty has not been imposed. This

3° In National Assn. of Mfrs. v. McGrath, 103 F. Supp. 510

(D. D. C.), vacated as moot, 344 U. S. 804, the three-judge

court, speaking through Judge Holtzoff, expressly held Sec-

tion 308 severable from Section 305.

point was involved in United States v. Wurz-

bach, 280 U. S. 396, in which an indictment under

the Federal Corrupt Practices Act had been dis-

missed on the basis of the invalidity of the sub-

stantive portions of the statute. In support of

tne judgment the defendant argued in this Court

that the Act was unconstitutional because it was

uncertain and vague as to which of the several

sections imposed the penalty (Brief for Appellee,

No. 66, O. T. 1929, pp. 19, 24). The Court, by

Mr. Justice Holmes, held that the objection on

this score was premature (p. 399):

It is said to be uncertain which of several

sections imposes the penalty and therefore

uncertain what the punishment is. That |

question can be raised when a punishment

is to be applied. [Emphasis added. ]

The Wurzbach case involved the contingency

that the inability to determine which of two penal i

provisions was applicable would make enforce- '

ment of the statute impossible. If in that situ-

ation the penal provision cannot be attacked prior

to its application, it must be beyond debate that

such a provision cannot be attacked where it is

so clearly separable from an unquestionably valid

penal provision like Section 310 (a).

B. If the validity of Section 310 (b) is to be

reached, we suggest that, properly read, it is sus-

tainable.

We have shown that the statute means at least

to cover (a) the so-called professional lobbyists,

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_ —_

i. e., those who engage themselves for pay to in-

fluence the passage or defeat of legislation, and

(b) organizations and persons who solicit or spend

money for the purpose of paying others to com-

municate with Congress or of conducting cam-

paigns to induce other people to express their

views to Congressmen. It is clear that the pro-

hibitions of Section 310 (b) against ‘‘attempting

to influence * * * ’’ can bear a similar meaning;

and, if necessary to sustain its constitutionality,

the section would have to bear that meaning. As

a matter of fact, Section 310 (b) bears some in-

ternal evidence that it was intended to operate

more narrowly than the rest of the Act. For,

unlike Sections 307 and 308, the word ‘‘proposed’’

is added before “‘legislation.’’ Both Sections 307

and 308 predicate coverage under the Act on acts

done with a purpose to ‘‘influence * * * the pas-

sage or defeat of any legislation by the Con-

gress * * *,’’ while Section 310 (b) prohibits the

attempt to influence ‘‘the passage or defeat of

any proposed legislation * * *’’ [Emphasis

added]. It would seem that in adding the word

‘“‘proposed’’ in Section 310 (b) Congress added

a definite limitation, which may well limit the

reach of the penalty provision to direct contact

with Congress, or the stimulation of direct con-

tact, on behalf of others. In like vein, the pro-

** There was no comment on the purpose of this provision

in the legislative reports on the bill nor on the floor of either

House.

hibition on appearances before a Congressional

committee can easily be read as referring to paid

appearances on behalf of others and not to ap-

pearances in one’s own behalf.

So interpreted, Section 310 (b) does not appear

very different from the temporary suspension of

the professional license of a lawyer, accountant, or

doctor for some misconduct or failure to abide by

a statutory requirement. The convicted lobbyist

similarly loses, for a three years period, his occu-

pational right to communicate with Congress on

behalf of others or to induce others so to com-

municate. Furthermore, this penalty is certainly

less drastic than the deprivation of a convicted

felon’s civil rights or the disqualification of some

offenders from holding any office of honor, trust,

or profit under the United States (e. g., 18 U.S. C.

202, 205, 206, 207). Convicted prisoners’ rights

and freedoms are also subject to severe limita-

tions. See Price v. Johnston, 334 U. 8. 266, 285;

Stroud v. Swope, 187 F. 2d 850 (C. A. 9), certio-

rari denied, 342 U.S. 829; Numer v. Miller, 165 F.

2d 986 (C. A. 9); Adams v. Ellis, 197 F. 2d 483

(C. A. 5).

V. THE VALIDITY OF THE LOBBYING ACT AS APPLIED

TO OTHER SITUATIONS IS NOT BEFORE THE COURT

So far as the present information is concerned,

the preceding sections have disposed, we believe,

of the grounds on which the District Court held

the Lobbying Act invalid, and also of the other

PETER PEA ERIN MERLIN PIT IEP BSR WR A CRT RE PROP RG ORIEN I aa TEM Sy SRO yr STN

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—7—""~

constitutional objections raised below by defend-

ants. However, the District Court and appellees

have raised issues of constitutionality which can

only emerge in factual settings other than that

posed by this case. The N. A. M. decision, on

which the District Court relied as decisive, did not

present, as does this case, only acts of direct con-

tact with Congress or the deliberate stimula-

tion of such direct contact. The constitutional

questions raised in that litigation presupposed a

broader coverage of the Act than it is necessary to

assume for the present litigation. The wider is-

sues of the N. A. M. case have been interjected

here but they have no proper place, and the Court

need not and should not concern itself with re-

solving them. A familiar set of related principles

of constitutional adjudication calls upon the par-

ties and the Court to restrict consideration to the

precise question presented by the information

against these defendants.

A. The Court has repeatedly announced that it

does not pass on issues of validity until they in-

escapably come before it in concrete form, with

the factual background and record appropriate

for decision of the precise question; the Court

neither renders advisory opinions on hypothetical

cases nor declares general constitutional doctrines

unrelated to the setting of a particular case.”

*® See Federation of Labor v. McAdory, 325 U. S. 450,

461-2; United Public Workers of America v. Mitchell, 330

U.S. 75; Rescue Army v. Municipal Court, 331 U. S. 549,

As the Court recently stated in United Public

Workers v. Mitchell, 330 U. S. 75, in which it

refused to entertain a complaint, at the instance

of persons who had not violated the Act, that the

Hatch Act violated rights under the First Amend-

ment and was unconstitutionally vague under the

Fifth Amendment (at pp. 89-90) :

The power of courts, and ultimately of

this Court, to pass upon the constitutional-

ity of acts of Congress arises only when the

interests of litigants require the use of this

judicial authority for their protection

against actual interference. A hypothetical

threat is not enough. We can only specu-

late as to the kinds of political activity the

appellants desire to engage in or as to the

contents of their proposed public state-

ments or the circumstances of their publi-

eation. It would not accord with judicial

responsibility to adjudge, in a matter in-

volving constitutionality, between the free-

dom of the individual and the requirements

of public order except when definite rights

appear upon the one side and definite pre-

judicial interferences upon the other.

These doctrines, which have been explicitly ap-

plied to constitutional cases under the Criminal

568 7f, and earlier cases there collected; United States v.

Petrillo, 332 U.S. 1,5; Toomer v. Witsell, 334 U.S. 385, 394;

Parker v. Los Angeles County, 338 U. S. 327, 333; District

of Columbia v. Little, 339 U. S. 1, 34; Sweatt v. Painter,

339 U. S. 629, 631; Touhy v. Ragen, 340 U.S. 462, 469; United

States v. Hayman, 342 U. S. 205, 223; United States v.

Rumely, 345 U.S. 41, 48.

LIA ACRE R RAL LEAT TED TI IL a OO TOMI EN AEE ETO EE GE ILE, SEE

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Appeals Act (United States v. Petrillo, 332 U.S.

1, 5, 10-12; United States v. Spector, 343 U. 8.

169, 172), counsel against determination here of

any case other than that of these four defendants

as they are charged in the ten counts of the

present information. Neither the N. A. MM. case

nor any other litigation which may raise broader

issues is here for decision, and the circumstances

upon which will turn the applicability and valid-

ity of the Lobbying Act as it applies to those other

cases are not now before the Court.

B. Appellees’ complaint is also limited to their

own case by the principle that they have standing

to challenge the validity of legislation only on

their own behalf and only as it affects them ad-

versely. They cannot challenge the statute by

flaunting the rights of others, whether the cases

be actual or hypothetical. United States v. Wurz-

bach, 280 U. S. 396, 399; Robinson v. United

States, 324 U. S. 282, 286; Kuehner v. Irving

Trust Co., 299 U. 8. 445, 455. For instance, in

Chief Justice Vinson’s opinion in Dennis Vv.

United States, 341 U. 8S. 494, 515-516, it was

pointed out that the defendants, convicted for con-

spiracy to teach and advocate the violent over-

throw of the Government, could not complain of

possible difficulties in the application of the stat-

ute to other persons and in other circumstances.

So here, we do not believe that defendants should

#0 As its opinion states, Barrows v. Jackson, 346 U. S. 249,

255-260, rests on a “unique situation.”

be permitted to attack all possible applications of

the statute where their conduct brings them within

a clearly defined area validly covered by the leg-

islation.“

C. A third governing principle is that of sep-

arability. The defendants’ contention is that a

valid application of the ‘‘purpose’’ language of

Section 307 cannot be permitted to stand because

of a possibly too broad separate application of

that same language in other cases. But there can

be no question that the Lobbying Act can without

difficulty be applied to those factual situations

which validly come with it, and that Congress in-

tended it to stand insofar as it possibly could.

It contains a separability clause (infra, p. 95)

and, by its very terms, that clause is enough to

establish the strongest of presumptions in favor

of divisibility as to both separate provisions and

separate applications of the same _ provision.

Supra, pp. 76-77. Judge Cardozo stated in People

ex rel. Alpha Portland Cement Co. v. Knapp, 230

N. Y. 48, 60, 129 N. E. 202, 207:

* * * Severance does not depend upon

the separation of the good from the bad by

paragraphs or sentences in the text of the

enactment * * *. The principle of divi-

* A statute may, of course, be invalid as applied to one set

of facts and valid as applied to another. St. Louis, Iron

Mountain & Southern Ry. Co. v. Wynne, 224 U. S. 354;

Kansas City Southern Ry. Co. vy. Anderson, 233 U. S. 325;

Poindexter v. Greenhow, 114 U. 8. 270, 295; Federation of

Labor v. McAdory, 325 U.S. 450, 462.

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sion is not a principle of form. It is a

principle of function.

The test is whether the constitutional and un-

constitutional provisicns and applications of a

statute are ‘‘so mutua.ly connected with and de-

pendent on each other * * * as to warrant a be-

lief that the legislature intended them as a whole,

and that, if all could not be carried into effect, the

legislature would not pass the residue independ-

ently.” Warren v. Mayor of Charlestown, 2 Gray

(Mass. 1854) 84, 99; see also Brandeis, J., in

Dorchy v. Kansas, 264 U. S. 286, 289-290; Carter

v. Carter Coal Co., 298 U. 8. 238, 322 (Hughes,

C. J., dissenting).

There is no doubt that Congress would have

intended the Lobbying Act to operate on the nar-

rower basis we have suggested, even if a broader

application to opinion-molding agencies“ were

prohibited. The legislative history we have col-

lated above (supra, pp. 29-42) shows a strong] y felt

Congressional desire to deal with all those who

communicate with Congress, including the initia-

tors of letter-writing campaigns from the ‘‘grass

roots.”’

D. Still another controlling principle is that

the possible existence oi borderline, peripheral,

or difficult cases does not invalidate a statute, or

“The subject is discussed more fully in Stern, Separa-

bility and Separability Clauses in the Supreme Court, 51

Harv. L. Rev. 76.

“Such as the Committee for Constitutional Government,

involved in United States v. Rumely, 345 U.S. 41.

make it unconstitutionally indefinite, when it can

be properly applied to the set of circumstances

before the Court. For instance, in United Public

Workers v. Mitchell, 330 U. 8. 75, 103-104, the

Court upheld the Hatch Act’s proscription

against taking ‘‘any active part in political man-

agement or in political campaigns,’ as applied

to the clear case of a ward executive committee-

man and worker at the polls, but expressly re-

fused to examine any further at that time into the

validity of the general standard.“

There is therefore no warrant to trespass be-

yond this case in the charge that the Lobbying

Act would be unconstitutional if it were applied

to the National Association of Manufacturers or

to some other litigation which may come in the

future or may never arise.“

* * * * *

* See also, Williams v. United States, 341 U. S. 97, 101-2;

Jordan vy. De George, 341 U.S. 223, 231-2; Dennis v. United

States, 341 U.S. 494, 516; Beauharnais v. Illinois, 343 U.S.

250, 263-4; United States v. Petrillo, 332 U.S. 1,7; Robinson

v. United States, 324 U. S. 282, 286; United States v. Wurz-

bach, 280 U.S. 396, 399.

* Even if the broader interpretations of some of the state-

ments in 7'hornhill v. Alabama, 310 U.S. 88, 97-98, on the

status of legislation touching on free speech, are now the

law, there are several reasons why that ruling does not

control here:

(1) it applies primarily to State court decisions where

this Court’s power to interpret the statute is limited and the

State court’s construction must be accepted (see Dennis v.

United States, 341 U.S. 494, 501-2) ; where a federal statute

is in issue this Court has at hand the remedy of interpreta-

NELLIE EEE ALONE LITE ALE TLIO ER MEER AN SOME ah ODS LIBEL LEMS TS (pt

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Guided by each of these fundamental principles,

we abstain from discussing the validity of the

Lobbying Act in circumstances other than those

presented by this particular information. It is

our earnest hope that the Court will refuse, once

again, ‘“‘to strike down a statute as violative

| of * * * constitutional guarantees * * * when

the statute has not been, and might never be,

applied in such manner as to raise the question

[defendants] ask us to decide.’’ United States

v. Petrillo, 332 U. 8.1, 11.

| tion (cf. Winters v. New York, 333 U. S. 507, 510; Fox v.

. Washington, 236 U.S. 273, 277) ;

(2) the Thornhill ruling applied to what the Court be-

lieved to be an unlimited and outright ban on one form of

free communication, and not merely, as here, a possible

minor restriction on a form of communication ;

(3) Thornhill concerned a direct regulation of free speech

and not, as here, a regulation of other conduct (i. ¢., report-

ing and registration of certain political conduct) which

affects speech only incidentally and tangentially (cf. United

States v. Petrillo, 332 U.S. 1).

CONCLUSION

For the foregoing reasons, it is respectfully sub-

mitted that the judgment of the District Court be

reversed and the case remanded to that Court for

further proceedings on the information.

J Rosert L. Stern,

Acting Solicitor General.

Assistant Attorney General.

j Oscar H. Davis,

Special Assistant to the Attorney General.

4 BEATRICE ROSENBERG,

) Jou R. WILKINS,

Attorneys.

SEPTEMBER 1953.

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APPENDIX

LEGISLATIVE REORGANIZATION Act oF 1946

* * * * *

Title I1I—Regulation of Lobbying Act [60 Stat.

812, 839; 2 U. S. C. 261-270]

SHORT TITLE

Sec. 301. This title may be cited as the ‘‘Fed-

eral Regulation of Lobbying Act.”’

DEFINITIONS

Sec. 302. When used in this title—

(a) The term ‘‘contribution”’’ includes a gift,

subscription, loan, advance, or deposit of money

or anything of value and includes a contract,

promise, or agreement, whether or not legally en-

forceable, to make a contribution.

(b) The term ‘‘expenditure’’ includes a pay-

ment, distribution, loan, advance, deposit, or gift

of money or anything of value, and includes a

contract, promise, or agreement, whether or not

legally enforceable, to make an expenditure.

partnership, committee, association, corporation,

and any other organization or group of persons.

(d) The term ‘‘Clerk” means the Clerk of the

House of Representatives of the United States.

(e) The term “‘legislation’’ means bills, resolu-

tions, amendments, nominations, and other mat-

ters pending or proposed in either House of Con-

| (89)

gress, and includes any other matter which may

be the subject of action by either House.

DETAILED ACCOUNTS OF CONTRIBUTIONS

Sec. 303. (a) It sha!l be the duty of every per-

son who shall in any manner solicit or receive a

contribution to any organization or fund for the

purposes hereinafter designated to keep a detailed

and exact account of—

(1) all contributions of any amount or of any

value whatsoever ;

(2) the name and address of every person mak-

ing any such contribution of $500 or more and the

date thereof ;

(3) all expenditures made by or on behalf of

such organization or fund; and

(4) the name and address of every person to

whom any such expenditure is made and the date

thereof.

(b) It shall be the duty of such person to ob-

tain and keep a receipted bill, stating the par-

ticulars, for every expenditure of such funds

exceeding $10 in amount, and to preserve all re-

ceipted bills and accounts required to he kept by

this section for a period of at least two years from

the date of the filing of the statement containing

such items.

RECEIPTS FOR CONTRIBUTIONS

Sec. 304. Every individual who receives a con-

tribution of $500 or more for any of the purposes

hereinafter designated shall within five days after

receipt thereof rendered to the person or organiza-

tion for which such contribution was received a

detailed account thereof, including the name and

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address of the person making such contribution

and the date on which received.

STATEMENTS TO BE FILED WITH CLERK OF HOUSE

Sec. 305. (a) Every person receiving any con-

tributions or expending any money for the pur-

poses designated in subparagraph (a) or (b) of

section 307 shall file with the Clerk between the

first and tenth day of each calendar quarter, a

statement containing complete as of the day next

preceding the date of filing—

(1) the name and address of each person who

has made a contribution of $500 or more not men-

tioned in the preceding report; except that the

first report filed pursuant to this title shall con-

tain the name and address of each person who has

made any contribution of $500 or more to such

person since the effective date of this title;

(2) the total sum of the contributions made to

or for such person during the calendar year and

not stated under paragraph (1) ;

(3) the total sum of all contributions made to

or for such person during the calendar year;

(4) the name and address of each person to

whom an expenditure in one or more items of the

aggregate amount or value, within the calendar

year, of $10 or more has been made by or on be-

half of such person, and the amount, date, and

purpose of such expenditure ;

(5) the total sum of all expenditures made by

or on behalf of such person during the calendar

year and not stated under paragraph (4) ;

(6) the total sum of expenditures made by or

on behalf of such person during the calendar year.

(b) The statements required to be filed by sub-

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section (a) shall be cumulative during the calendar

vear to which they relate, but where there has been

no change in an item reported in a previous

statement only the amount need be carried forward.

STATEMENT PRESERVED FOR TWO YEARS

Sec. 306. A statement required by this title to

be filed with the Clerk—

(a) shall be deemed properly filed when de-

posited in an established post office within the

prescribed time, duly stamped, registered, and di-

rected to the Clerk of the House of Representa-

tives of the United States, Washington, District of

Columbia, but in the event it is not received, a

dupheate of such statement shall be promptly

filed upon notice by the Clerk of its nonreceipt;

(b) shall be preserved by the Clerk for a period

of two vears from the date of filing, shall consti-

tute part of the public records of his office, and

shall be open to public inspection.

PERSONS TO WHOM APPLICABLE

Sec. 307. The provisions of this title shall apply

to any person (except a political committee as

defined in the Federal Corrupt Practices Act, and

duly organized State or local committees of a po-

litical party), who by himself, or through any

agent or employee or other persons in any man-

ner whatsoever, directly or indirectly, solicits, col-

lects, or receives money or any other thing of

value to be used principally to aid, or the principal

purpose of which person is to aid, in the accom-

plishment of any of the following purposes:

(a) The passage or defeat of any legislation by

the Congress of the United States.

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(b) To influence, directly or indirectly, the pas-

sage or defeat of any legislation by the Congress

of the United States.

REGISTRATION WITH SECRETARY OF THE SENATE AND

CLERK OF THE HOUSE

Src. 308. (a) Any person who shall engage him-

self for pay or for any consideration for the pur-

pose of attempting to influence the passage or

defeat of any legislation by the Congress of the

United States shall, before doing anything in

furtherance of such object, register with the Clerk

of the House of Representatives and the Secretary

of the Senate and shall give to those officers in

writing and under oath, his name and business

address, the name and address of the person by

whom he is employed, and in whose interest he

appears or works, the duration of such employ-

ment, how much he is paid and is to receive, by

whom he is paid or is to be paid, how much he is

to be paid for expenses, and what expenses are to

be included. Each such person so registering

shall, between the first and tenth day of each

calendar quarter, so long as his activity continues,

file with the Clerk and Secretary a detailed report

under oath of all money received and expended

by him during the preceding ealendar quarter in

carrying on his work; to whom paid; for what

purposes; and the names of any papers, periodi-

eals, magazines, or other publications in which he

has caused to be published any articles or edi-

torials; and the proposed legislation he is em-

ployed to support or oppose. The provisions of

this section shall not apply to any person whe

merely appears before a committee of the Con-

gress of the United States in support of or oppo-

sition to legislation; nor to any public official act-

ing in his official capacity; nor in the case of any

newspaper or other regularly published periodical

(including any individual who owns, publishes, or

is employed by any such newspaper or periodical)

which in the ordinary course of business publishes

news items, editorials, or other comments, or paid

advertisements, which directly or indirectly urge

the passage or defeat of legislation, if such news-

paper, periodical, or individual, engages in no

further or other activities in connection with the

passage or defeat of such legislation, other than to

appear before a committee of the Congress of the

United States in support of or in opposition to

such legislation.

(b) All information required to be filed under

the provisions of this section with the Clerk of the

House of Representatives and the Secretary of

the Senate shall be compiled by said Clerk and

Secretary, acting jointly, as soon as practicable

after the close of the calendar quarter with re-

spect to which such information is filed and shall

be printed in the Congressional Record.

REPORTS AND STATEMENTS TO BE MADE UNDER OATH

Sec. 309. All reports and statements required

under this title shall be made under oath, before

an officer authorized by law to administer oaths.

PENALTIES

Sec. 310. (a) Any person who violates any of

the provisions of this title, shall, upon conviction,

be guilty of a misdemeanor, and shall be punished

by a fine of not more than $5,000 or imprisonment

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—

for not more than twelve months, or by both

such fine and imprisonment.

(b) In addition to the penalties provided for

in subsection (a), any person convicted of the

misdemeanor specified therein is prohibited, for a

period of three years from the date of such con-

viction, from attempting to influence, directly

or indirectly, the passage or defeat of any pro-

posed legislation or from appearing before a com-

mittee of the Congress in support of or opposition

to proposed legislation; and any person whe vio-

lates any provision of this subsection shall, upon

conviction thereof, be guilty of a felony, and shall

be punished by a fine of not more than $10,000,

or imprisonment for not more than five years, or

by both such fine and imprisonment.

EXEMPTION

Sec. 311. The provisions of this title shall not

apply to practices or activities regulated by the

Federal Corrupt Practices Act nor be construed

as repealing any portion of said Federal Corrupt

Practices Act.

a *

(SEPARABILITY CLAUSE (60 STAT. 812, 814) ]

Sec. 1. (b) Separability Clause —If any pro-

vision of this Act or the application thereof to

any person or circumstances is held invalid, the

validity of the remainder of the Act and of the

application of such provision to other persons

and circumstances shall not be affected thereby.

U. S$. GOVERNMENT PRINTING OFFICE, 1953

AVESSR ARPES OTA RIE Dey P ER ARES

RAAT. PROG SIP LES NO be Se Pa ba

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.