A labor organization and its president were indicted for
violations of § 313 of the Corrupt Practices Act of 1925, as
amended by § 304 of the Labor Management Relations Act of 1947,
which prohibits contributions or expenditures by corporations and
labor organizations in connection with federal elections. The
indictment charged that the labor organization made, and its
president consented to, expenditures for the publication of a
weekly periodical, in a certain issue of which appeared an article
by its president urging members to vote for a particular candidate
in a forthcoming congressional election, and that it made
expenditures for the publication and distribution of extra copies
of that issue in connection with the election, but it did not
charge that free copies were distributed to nonsubscribers,
nonpurchasers, or persons not entitled to receive copies as members
of the union. The District Court sustained a motion to dismiss on
the ground that the Act, so far as it related to expenditures by
labor organizations in connection with federal elections, violated
the First Amendment of the Federal Constitution. The Government
appealed directly to this Court under the Criminal Appeals Act.
Held:
1. The indictment does not state an offense under § 313 of the
Act. Pp.
335 U. S.
107-110,
335 U. S.
120-124.
2. The interpretation here placed on § 313 is supported by the
history, the language, and the purpose of the section, and by the
fact that grave doubt as to its constitutionality would arise were
it construed as applicable to the acts charged in the indictment.
Pp.
335 U. S.
113-122.
3. On review under the Criminal Appeals Act, this Court is not
required to pass upon the constitutionality of § 313 when the
indictment does not state an offense under it. P.
335 U. S.
110.
77 F.
Supp. 355, affirmed.
Respondents, a labor organization and an officer thereof, were
indicted for violations of § 313 of the Corrupt Practices Act, as
amended by § 304 of the Labor Management
Page 335 U. S. 107
Relations Act of 1947. The District Court dismissed the
indictment on the ground of unconstitutionality of the challenged
provision of the Act.
77 F. Supp.
355. The Government appealed directly to this Court under the
Criminal Appeals Act.
Affirmed on another ground, p.
335 U. S.
124.
MR. JUSTICE REED delivered the opinion of the Court.
This appeal presents a problem as to the constitutionality of §
313 of the Federal Corrupt Practices Act of 1925, as amended by §
304 of the Labor Management Act of 1947. Section 313 of the Federal
Corrupt Practices Act now reads as stated in the margin. [
Footnote 1]
Page 335 U. S. 108
An indictment was returned at the January, 1948, term in the
District Court of the United States for the District of Columbia on
two counts charging in count I the Congress of Industrial
Organizations and in count II its President, Philip Murray, with
violation of § 313 of the Federal Corrupt Practices Act because of
the publication and distribution in the District of Columbia of an
issue, Vol. 10, No. 28, under date of July 14, 1947, of "The CIO
News," a weekly periodical owned and published by the CIO at the
expense and from the funds of the CIO and with the consent of its
President, Mr. Murray. The number of "The CIO News" in question
carried upon its front page a statement by Mr. Murray as President
of the CIO, urging all members of the CIO to vote for Judge Ed
Garmatz, then a candidate for Congress in Maryland at a special
election to be held July 15, 1947. The statement said it was made
despite § 313 in the belief that the section was unconstitutional
because it abridged rights of free
Page 335 U. S. 109
speech, free press and free assemblage, guaranteed by the Bill
or Rights.
The defendants moved to dismiss the indictment on the ground
that § 313, as construed and applied and upon its face, abridged as
to the CIO and its members and Mr. Murray freedom of speech, press
and assembly and the right to petition the government for a redress
of grievances in violation of the Constitution; that the
classification of labor organizations was arbitrary and the
provisions vague in contravention of the Bill of Rights; and that
the terms of the section were an invasion of the rights of
defendants, protected by the Ninth and Tenth Amendments. The
District Court sustained the motion to dismiss on the ground that,
as "no clear and present danger to the public interest can be found
in the circumstances surrounding the enactment of this
legislation," the asserted abridgment of the freedoms of the First
Amendment was unjustified. [
Footnote 2]
77 F.
Supp. 355, 358. In the order granting the motion to dismiss,
the District Court defined its ruling as follows:
". . . that that portion of Section 313 of the Corrupt Practices
Act, as amended by Section 304 of the Labor-Management Relations
Act, 1947, which prohibits expenditures by any labor organization
in connection with any election at which Presidential and Vice
Presidential electors or a Senator or Representative in, or a
Delegate or Resident Commissioner to Congress are to be voted for,
or in connection with any primary election or political convention
or caucus held to select candidates for any of the foregoing
offices, is unconstitutional."
We accepted jurisdiction of the Government's appeal under the
Criminal Appeals Act. 18 U.S.C. § 682
Page 335 U. S. 110
.
The briefs and arguments submitted to us support and attack the
constitutionality of § 313 of the Federal Corrupt Practices Act on
its face -- at least so far as unconstitutionality is declared in
the above order. We do not admit any duty in this Court to pass
upon such a contention on an appeal under the Criminal Appeals Act
except in cases of logical necessity.
United States v.
Petrillo, 332 U. S. 1.
Although the case turned below on the constitutionality of the
provision, the Criminal Appeals Act does not require us to pass
upon the constitutionality of a federal statute where the
indictment does not state an offense under its terms.
United
States v. L. Cohen Grocery Co., 225 U.
S. 81,
225 U. S. 88,
225 U. S. 97.
Compare United States v. Carbone, 327 U.
S. 633. Our first obligation is to decide whether the
indictment states an offense under § 313. As we hereafter conclude
that this indictment does not charge acts embraced within its
scope, this opinion is limited to that issue.
Indictment. -- The presently essential parts of the
indictment are set out in the margin. [
Footnote 3] It will be noted
Page 335 U. S. 111
that paragraph (3) does not allege the source of the CIO funds.
The paragraph indicates on its face that "The CIO News" was a
regularly published weekly periodical of which the challenged issue
was Vol. 10, No. 28. The funds used may have been obtained from
subscriptions of its readers or from portions of CIO membership
dues, directly allocated by the members to pay for the "News," or
from other general or special receipts.
We do not read the indictment as charging an expenditure by the
CIO in circulating free copies to nonsubscribers, nonpurchasers or
among citizens not entitled to receive copies of "The CIO News," as
members of the union. The indictment, count I, paragraph (3),
charged the CIO with making expenditures from its funds for "the
cost of distribution" of the paper, in paragraph (6)(a), with
paying approximately $100 for postal charges for the challenged
issue and
"causing said article to be distributed in the Third
Congressional District of the State of Maryland and elsewhere in
connection with the special election held in that Congressional
District on the fifteenth day of July, 1947."
In paragraph (6)(b), there are allegations about certain extra
copies. These are set out in the marginal
note 3 supra. The extras, we assume, were
published pursuant to the order of Mr. Murray in the article.
[
Footnote 4] We conclude that
the indictment charges nothing more as to the extras than that
extra copies of the "News"
Page 335 U. S. 112
were published for distribution and were distributed in regular
course to members or purchasers, and that no allegation has been
made of expenditures for "free" distribution of the paper to those
not regularly entitled to receive it.
Scope of Section 313. -- The construction of this
section as applied to this indictment turns on the range of the
word "expenditure," added to the section by § 304 of the Labor
Management Act of 1947, as indicated in
note 1 supra. "Expenditure," as here used, is not
a word of art. It has no definitely defined meaning, and the
applicability of the word to prohibition of particular acts must be
determined from the circumstances surrounding its employment. The
reach of its meaning raised questions during Congressional
consideration of the bill when it contained the present text of the
section. Did it cover comments upon political personages and events
in a corporately owned newspaper? 93 Cong.Rec. 6438. Could
unincorporated trade associations make expenditures?
Id.,
6439. Could a union-owned radio station give time for a political
speech?
Id., 6439. What of comments by a radio
commentator?
Id., 6439. Is it an expenditure only when A
is running against B, or is free, favorable publicity for
prospective candidates illegal?
Id., 6440. What of
corporately owned religious papers supporting a candidate on moral
grounds? The Anti-Saloon League?
Id., 6440.
The purpose of Congress is a dominant factor in determining
meaning. [
Footnote 5] There is
no better key to a difficult problem of statutory construction than
the law from which the challenged statute emerged. Remedial laws
are to
Page 335 U. S. 113
be interpreted in the light of previous experience and prior
enactments. [
Footnote 6] Nor,
where doubt exists, should we disregard informed congressional
discussion. [
Footnote 7]
Section 304 of the Labor Management Relations Act of 1947 is not
a section without a history. Its earliest legislative antecedent
was the Act of January 26, 1907, which provided:
"That it shall be unlawful for any national bank, or any
corporation organized by authority of any laws of Congress, to make
a money contribution in connection with any election to any
political office. It shall also be unlawful for any corporation
whatever to make a money contribution in connection with any
election at which Presidential and Vice-Presidential electors or a
Representative in Congress is to be voted for or any election by
any State legislature of a United States Senator. . . ."
34 Stat. 864-65.
This legislation seems to have been motivated by two
considerations. First, the necessity for destroying the influence
over elections which corporations exercised through financial
contribution. [
Footnote 8]
Second, the feeling that corporate officials had no moral right to
use corporate funds for contribution to political parties without
the consent of the stockholders. [
Footnote 9]
The next important legislation was The Federal Corrupt Practices
Act, 1925. This statute was the legislative
Page 335 U. S. 114
response to the decision of this Court in
Newberry v. United
States, 256 U. S. 232.
Cf. United States v. Classic, 313 U.
S. 299. The
Newberry case held that federal
limitation upon expenditures by candidates was unconstitutional as
applied to expenditures made in the course of a primary election
for the Senate. [
Footnote
10] While that case did not directly concern itself with the
Act of 1907, it was widely construed to have invalidated all
federal corrupt practices legislation relating to nominations.
Therefore, the 1925 Act reenacted the earlier prohibitions against
corporate contributions for political purposes with two significant
changes. The phrase "money contribution" of 1907 was changed to
read "contribution," [
Footnote
11] and primaries and conventions were expressly excluded from
the scope of the legislation. [
Footnote 12]
The statute immediately preceding § 304 in time was the War
Labor Disputes Act of 1943. [
Footnote 13] This Act extended, for the duration of the
war, [
Footnote 14] the
prohibitions of
Page 335 U. S. 115
the Act of 1925 to labor organizations. Its legislative history
indicates congressional belief that labor unions should then be put
under the same restraints as had been imposed upon corporations. It
was felt that the influence which labor unions exercised over
elections through monetary expenditures should be minimized,
[
Footnote 15] and that it
was unfair to individual union members to permit the union
leadership to make contributions from general union funds to a
political party which the individual member might oppose. [
Footnote 16]
When Congress began to consider the Labor Management Act of
1947, it had as a guide the 1944 presidential election, an election
which had been conducted under the above amendment to the Act of
1925. In analyzing the experience of that election, a serious
defect was found in the wording of the Act of 1925. The difficulty
was that the word "contribution" was read narrowly by various
special congressional committees investigating the 1944 and 1946
campaigns. [
Footnote 17] The
concept of "contribution" was thought to be confined to direct
gifts or direct payments. [
Footnote 18] Since it was obvious that the statute, as
construed, could easily be circumvented through indirect
contributions, § 304 extended the prohibition of § 313 to
"expenditures." [
Footnote
19]
The Labor Management Relations Act of 1947 was the subject of
extensive debates in Congress. Embracing as
Page 335 U. S. 116
it did a number of controversial issues, the discussion
necessarily covered a wide range. It is not surprising therefore,
to find congressional explanation of the intended scope of the
specific provision of § 304, in issue here, scanty and indecisive.
We find, however, in the Senate debates definite indication that
Congress did not intend to include within the coverage of the
section as an expenditure the costs of the publication described in
the indictment. As we have stated above, there are numerous
suppositional instances of acts by corporations or unions that
approach the border line of the expenditures that are declared
unlawful by § 313 of the Corrupt Practices Act. As we are dealing
on this appeal with the scope of § 313 as applied to an indictment
that charges certain allegedly illegal acts, we propose to confine
our examination of legislative history to the statements that tend
to show whether the congressional purpose was to forbid the
challenged publication. For example, Senator Taft, the Chairman of
the Committee on Labor and Public Welfare, and one of the conferees
for the Senate, answered inquiries as follows (93 Cong.Rec. 6437,
6438, 6440):
"MR. BARKLEY. Suppose the particular publication referred to by
the Senator from Florida is published and paid for by subscriptions
paid to the publication by the membership of that railway labor
organization?"
"MR. TAFT. That will be perfectly lawful. That is the way it
should be done."
"MR. BARKLEY. And suppose it is not paid for by union funds
collected from the various labor unions?"
"MR. TAFT. That will be perfectly proper."
"
* * * *"
"MR. BARKLEY. The Senator from Ohio referred to the law
prohibiting the making of direct or indirect
Page 335 U. S. 117
contributions by corporations as a justification for making the
same provision in the case of labor unions. Let us consider the
publication of a corporation which, day after day, takes a position
against one candidate and in favor of another candidate, and does
so in its editorials. The editorials occupy space in that newspaper
or publication, and the space costs a certain amount of money. Is
that a direct or an indirect contribution to a campaign, and if it
is neither, what is it?"
"MR. TAFT. I would say that is the operation of the newspaper
itself."
"MR. BARKLEY. That is true; it is the operation of the
newspaper. But I gathered the impression that, in referring to the
present law prohibiting the making of contributions, directly or
indirectly, by corporations, the Senator inferred that, if a
corporation publishes a newspaper -- as most of them do -- and uses
the editorials in that publication in advocacy of or opposition to
any candidate, at least that is a direct contribution to the
campaign. It could not be anything else."
"MR. TAFT. I do not think it is either a direct or an indirect
contribution. I do not think it is an expenditure of the sort
prohibited, because it seems to me it is simply the ordinary
operation of the particular corporation's business."
"
* * * *"
"MR. BARKLEY. Mr. President, let me ask the Senator this
question: let us suppose a labor organization publishes a newspaper
for the information and benefit of its members, and let us suppose
that it is published regularly, whether daily or weekly or monthly,
and is paid for from a fund created by the payment of dues into the
organization it represents. Let us assume that the newspaper is not
sold
Page 335 U. S. 118
on the streets, and let us assume further that a certain
subscription by the month or by the year is not charged for the
newspaper. Does the Senator from Ohio advise us that, under this
measure, such a newspaper could not take an editorial position with
respect to any candidate for public office without violating this
measure?"
"MR. TAFT. If it is supported by union funds, I do not think it
could. If the newspaper is prepared and distributed and circulated
by means of the expenditure of union funds, then how could a line
be drawn between that and political literature or pamphlets or
publications of that nature? It is perfectly easy for a labor union
to publish lawfully a
bona fide newspaper and to charge
subscriptions for that newspaper, either by itself or as a
corporation."
"
* * * *"
"MR. BALL. In the case of most union papers, as I understand,
the subscriptions from the union members are collected along with
the dues, but they are an earmarked portion of the dues which the
union collects and remits to the paper in the form of
subscriptions. I take it that would be in a different category from
the case where the union makes a blanket subscription and an
appropriation out of union dues."
"MR. TAFT. I think if the paper is, so to speak, a going
concern, it can take whatever position it wants to."
"
* * * *"
"MR. MAGNUSON: Teamsters' unions publish newspapers dealing with
matters in which such unions are interested. The same is true of
many other unions. If the pending measure becomes a law, from now
on, such unions will be prohibited from advocating
Page 335 U. S. 119
in their newspapers the support of any political
candidates."
"MR. TAFT. That is correct, unless they sell the papers they
publish to their members, if the members desire to buy them. In
such a case, there would be no expenditure for such a purpose of
union funds."
"
* * * *"
"MR. MAGNUSON: Mr. President, if the Senator will yield, let me
ask him another question. All the funds of labor unions come from
dues paid by their members. All the activities of the unions are
based upon expenditure of funds provided by dues. That money is in
the union's treasury. If the pending bill should become law, it
would mean that all labor organs which are now in existence would,
from now on, be prohibited from participating in a campaign,
favoring a candidate, mentioning his name, or endorsing him for
public office?"
"MR. TAFT. No; I do not think it means that. The union can issue
a newspaper, and can charge the members for the newspaper, that is,
the members who buy copies of the newspaper, and the union can put
such matters in the newspaper if it wants to. The union can
separate the payment of dues from the payment for a newspaper if
its members are willing to do so, that is, if the members are
willing to subscribe to that kind of a newspaper. I presume the
members would be willing to do so. A union can publish such a
newspaper, or unions can do as was done last year, organize
something like the PAC, a political organization, and receive
direct contributions, just so long as members of the union know
what they are contributing to, and the dues which they pay into the
union treasury are not used for such purpose. "
Page 335 U. S. 120
Senator Ellender, also one of the conferees made this
statement:
"May I say to the Senator from Florida, it is only in the event
that union funds are used for political contributions that a union
becomes liable. Mr. Green can talk all he wants to, if he pays for
his own time or if the members of the union desire to make
individual contributions for such a purpose. For another thing,
most unions operate and manage newspapers, and the most of them are
maintained by advertisements or by subscriptions from members of
the union and from other sources. The proceeds from such newspapers
are not union funds. In such cases, these newspapers can print
anything they desire, and they will not violate the law so long as
union funds are not used to pay for the operation of those
newspapers for political purposes."
93 Cong.Rec.6522.
Application. -- With this summary of the development of
and quotation of excerpts from discussion in Congress concerning §
313, we turn to its interpretation and a determination as to
whether it covers the circumstances charged in the indictment. Some
members of the Court, joining in this opinion, do not place the
reliance upon legislative history that this opinion evidences, but
reach the same conclusion without consideration of that history.
From what we have previously noted, it is clear that Congress was
keenly aware of the constitutional limitations on legislation, and
of the danger of the invalidation by the courts of any enactment
that threatened abridgment of the freedoms of the First Amendment.
It did not want to pass any legislation that would threaten
interferences with the privileges of speech or press or that would
undertake to supersede the Constitution. The obligation rests also
upon this Court, in construing congressional enactments, to
Page 335 U. S. 121
take care to interpret them so as to avoid a danger of
unconstitutionality. [
Footnote
20]
If § 313 were construed to prohibit the publication, by
corporations and unions in the regular course of conducting their
affairs, of periodicals advising their members, stockholders or
customers of danger or advantage to their interests from the
adoption of measures or the election to office of men, espousing
such measures, the gravest doubt would arise in our minds as to its
constitutionality. [
Footnote
21] Insofar as some of the many statements made on the floor of
Congress may indicate the thought, at the time, by certain members
of Congress that the language of § 313
Page 335 U. S. 122
carried a restrictive meaning in conflict with that which we
have adopted, we hold that the language itself, coupled with the
dangers of unconstitutionality, supports the interpretation which
we have placed upon it.
When Congress coupled the word "expenditure" with the word
"contribution," it did so because the practical operation of § 313
in previous elections showed the need to strengthen the bars
against the misuse of aggregated funds gathered into the control of
a single organization from many individual sources. Apparently
"expenditures" was added to eradicate the doubt that had been
raised as to the reach of "contribution," not to extend greatly the
coverage of the section. [
Footnote 22] One can find indications in the exchanges
between participants in the debates that informed proponents and
opponents thought that § 313 went so far as to forbid periodicals
in the regular course of publications from taking part in pending
elections where there was not segregated subscription, advertising
or sales moneys adequate for its support. Of course, a periodical
financed by a corporation or labor union for the purpose of
advocating legislation advantageous to the sponsor or supporting
candidates whose views are believed to coincide generally with
those deemed advantageous to such organization is on a different
level from newspapers devoted solely to the dissemination of news,
but the line separating the two classes is not clear. In the
absence of definite statutory demarcation, the location of that
line must await the full development of facts in individual cases.
It is one thing to say that trade or
Page 335 U. S. 123
labor union periodicals published regularly for members,
stockholders or purchasers are allowable under § 313, and quite
another to say that, in connection with an election, occasional
pamphlets or dodgers or free copies widely scattered are forbidden.
Senator Taft stated on the Senate floor that funds voluntarily
contributed for election purposes might be used without violating
the section, and papers supported by subscriptions and sales might
likewise be published. [
Footnote
23] Members of unions paying dues and stockholders of
corporations know of the practice of their respective organizations
in regularly publishing periodicals. It would require explicit
words in an act to convince us that Congress intended to bar a
trade journal, a house organ or a newspaper, published by a
corporation, from expressing views on candidates or political
proposals in the regular course of its publication. It is unduly
stretching language to say that the members or stockholders are
unwilling participants in such normal organizational activities,
including the advocacy thereby of governmental policies affecting
their interests, and the support thereby of candidates thought to
be favorable to their interests.
It is our conclusion that this indictment charges only that the
CIO and its president published with union funds a regular
periodical for the furtherance of its aims, that President Murray
authorized the use of those funds for distribution of this issue in
regular course to those accustomed to receive copies of the
periodical, and that the issue with the statement described at the
beginning of this opinion violated § 313 of the Corrupt Practices
Act.
We are unwilling to say that Congress, by its prohibition
against corporations or labor organizations making an "expenditure
in connection with any election" of candidates for federal office,
intended to outlaw such a publication.
Page 335 U. S. 124
We do not think § 313 reaches such a use of corporate or labor
organization funds. We express no opinion as to the scope of this
section where different circumstances exist and none upon the
constitutionality of the section.
Our conclusion leads us to affirm the order of dismissal upon
the ground herein announced.
It is so ordered.
[
Footnote 1]
§ 304, Labor Management Relations Act, 1947, 61 Stat. 159,
enacted June 23, 1947:
"Sec. 313. It is unlawful for any national bank, or any
corporation organized by authority of any law of Congress, to make
a contribution
or expenditure in connection with any
election to any political office,
or in connection with any
primary election or political convention or caucus held to select
candidates for any political office, or for any corporation
whatever, or any labor organization to make a contribution
or
expenditure in connection with any election at which
Presidential and Vice Presidential electors or a Senator or
Representative in, or a Delegate or Resident Commissioner to
Congress are to be voted for,
or in connection with any primary
election or political convention or caucus held to select
candidates for any of the foregoing offices, or for any
candidate, political committee, or other person to accept or
receive any contribution prohibited by this section. Every
corporation or labor organization which makes any contribution or
expenditure in violation of this section shall be fined not more
than $5,000, and every officer or director of any corporation, or
officer of any labor organization, who consents to any contribution
or expenditure by the corporation or labor organization, as the
case may be, in violation of this section shall be fined not more
than $1,000 or imprisoned for not more than one year, or both. For
the purposes of this section 'labor organization'
means any
organization of any kind, or any agency or employee representation
committee or plan, in which employees participate and which exists
for the purpose, in whole or in part, of dealing with employers
concerning grievances, labor disputes, wages, rates of pay, hours
of employment, or conditions of work."
The additions of 1947 are italicized.
[
Footnote 2]
Thornhill v. Alabama, 310 U. S. 88;
West Virginia State Board of Education v. Barnette,
319 U. S. 624, and
Thomas v. Collins, 323 U. S. 516,
were cited.
[
Footnote 3]
"(3) That at all the times hereinafter mentioned, the said
defendant CIO owned, composed, edited, and published a weekly
periodical known as 'The CIO News', and the said defendant CIO paid
all of the costs and made all of the expenditures necessary and
incidental to the publication and distribution of said periodical,
'The CIO News', from the funds of the said defendant CIO, including
the salaries of the editors and contributors and other writers of
texts set forth in said periodical, including also the cost of the
printing of the said periodical and the cost of the distribution of
the said periodical, and all such payments and expenditures,
including those representing the cost and distribution of the issue
of said 'The CIO News' under date of July 14, 1947, and designated
as Volume 10, No. 28, were made by said defendant CIO at
Washington, in the District of Columbia, and within the
jurisdiction of this Court."
"(6)(b) That the defendant CIO also caused one thousand copies
of the issue of the publication, 'The CIO News', dated July 14,
1947, and designated as the issue known as Volume 10, No. 28, to be
specially moved and transported from Washington, District of
Columbia, into the Third Congressional District of the State of
Maryland, by mailing the said one thousand extra copies to the
Regional CIO Director at Baltimore, Maryland, and caused the funds
of the said defendant CIO to be expended in printing, packaging and
transportation of said extra copies of the periodical, 'The CIO
News', in connection with the aforesaid special election."
[
Footnote 4]
The direction was in this form:
"I therefore have directed and requested the editor of the CIO
News to publish this statement, including the following paragraphs,
and to give to this issue of the CIO News proper circulation among
the members of CIO unions in the City of Baltimore, and
particularly within the Congressional District in which this
election is scheduled to take place."
[
Footnote 5]
United States v.
Kirby, 7 Wall. 482,
74 U. S.
486-487;
Hawaii v. Mankichi, 190 U.
S. 197,
190 U. S. 211;
Fort Smith & W.R. Co. v. Mills, 253 U.
S. 206,
253 U. S. 209;
United States v. Katz, 271 U. S. 354,
271 U. S. 359;
United States v. Guaranty Trust Co., 280 U.
S. 478,
280 U. S. 485;
Keifer & Keifer v. Reconstruction Finance Corporation,
306 U. S. 381,
306 U. S. 391,
note 4;
United States v. American Trucking Ass'n,
310 U. S. 534,
310 U. S.
544.
[
Footnote 6]
Burnet v. Harmel, 287 U. S. 103,
287 U. S. 108;
Boston Sand & Gravel Co. v. United States,
278 U. S. 41.
[
Footnote 7]
Harrison v. Northern Trust Co., 317 U.
S. 476,
317 U. S.
479.
[
Footnote 8]
See 40 Cong.Rec. 96; 41 Cong.Rec. 22.
[
Footnote 9]
See Hearings before the Hous Committee on the Election
of the President, 59th Cong., 1st Sess. 76 (1906); 40 Cong.Rec.
96.
In 1909, the Criminal Code of the United States, which codified,
revised and amended the penal laws of the country, was passed. 35
Stat. 1088. The Act of 1907 was reenacted as § 83. 35 Stat.
1103.
[
Footnote 10]
36 Stat. 822, as amended by 37 Stat. 25.
[
Footnote 11]
43 Stat. 1074. "Contribution" was defined to include
"a gift, subscription, loan, advance, or deposit, of money, or
anything of value, and includes a contract, promise, or agreement,
whether or not legally enforceable, to make a contribution."
43 Stat. 1071.
[
Footnote 12]
43 Stat. 1070.
[
Footnote 13]
57 Stat. 167.
"It is unlawful for any . . . labor organization to make a
contribution in connection with any election at which Presidential
and Vice Presidential electors or a Senator or Representative in,
or a Delegate or Resident Commissioner to Congress are to be voted
for, or for any candidate, political committee, or other person to
accept or receive any contribution prohibited by this section."
[
Footnote 14]
57 Stat. 168.
"Except as to offenses committed prior to such date, the
provisions of this Act and the amendments made by this Act shall
cease to be effective at the end of six months following the
termination of hostilities in the present war, as proclaimed by the
President, or upon the date (prior to the date of such
proclamation) of the passage of a concurrent resolution of the two
Houses of Congress stating that such provisions and amendments
shall cease to be effective."
[
Footnote 15]
See Hearings before a Subcommittee of the Committee on
Labor on H.R. 804, and H.R. 1483, 78th Cong., 1st Sess. 2, 4;
S.Rep.No.101, 79th Cong., 1st Sess. 24.
[
Footnote 16]
See Hearings on H.R. 804 and H.R. 1483,
supra,
n 15, 117-18, 133; 89
Cong.Rec. 5334, 5792; 93 Cong.Rec. 6440.
[
Footnote 17]
See H.R.Rep.No.2093, 78th Cong., 2d Sess. 11;
S.Rep.No.101,
supra, n 15, 57-59; H.R.Rep.No.2739, 79th Cong., 2d Sess. 39-40;
S.Rep.No.1, Part 2, 80th Cong., 1st Sess. 37, 38-39.
[
Footnote 18]
See note 17
supra.
[
Footnote 19]
This point was repeatedly emphasized in the Senate debates.
See 93 Cong.Rec. 6436-39.
[
Footnote 20]
United States v. Delaware & Hudson Co.,
213 U. S. 366,
213 U. S.
407-408.
"It is elementary when the constitutionality of a statute is
assailed, if the statute be reasonably susceptible of two
interpretations, by one of which it would be unconstitutional and
by the other valid, it is our plain duty to adopt that construction
which will save the statute from constitutional infirmity.
Knights Templars Indemnity Co. v. Jarman, 187 U. S.
197,
187 U. S. 205. And unless
this rule be considered as meaning that our duty is to first decide
that a statute is unconstitutional, and then proceed to hold that
such ruling was unnecessary because the statute is susceptible of a
meaning which causes it not to be repugnant to the Constitution,
the rule plainly must mean that, where a statute is susceptible of
two constructions, by one of which grave and doubtful
constitutional questions arise and by the other of which such
questions are avoided, our duty is to adopt the latter.
Harriman v. Interstate Commerce Comm., 211 U. S.
407."
Federal Trade Commission v. American Tobacco Co.,
264 U. S. 298,
264 U. S. 307;
Missouri Pac. R. Co. v. Boone, 270 U.
S. 466,
270 U. S.
471-472;
cf. Blodgett v. Holden, 275 U.
S. 142,
275 U. S.
147.
[
Footnote 21]
Compare "Free discussion of the problems of society is
a cardinal principle of Americanism -- a principle which all are
zealous to preserve."
Pennekamp v. Florida, 328 U.
S. 331,
328 U. S.
346.
"The case confronts us again with the duty our system places on
this Court to say where the individual's freedom ends and the
State's power begins. Choice on that border, now as always
delicate, is perhaps more so where the usual presumption supporting
legislation is balanced by the preferred place given in our scheme
to the great, the indispensable democratic freedoms secured by the
First Amendment."
Thomas v. Collins, 323 U. S. 516,
323 U. S.
529-530.
"For the First Amendment does not speak equivocally. It
prohibits any law 'abridging the freedom of speech, or of the
press.' It must be taken as a command of the broadest scope that
explicit language, read in the context of a liberty-loving society,
will allow."
Bridges v. California, 314 U.
S. 252,
314 U. S.
263.
[
Footnote 22]
93 Cong.Rec. 6436, 6437, 6439.
[
Footnote 23]
See 93 Cong.Rec. 6437-40.
MR. JUSTICE FRANKFURTER, concurring.
In a government operating under constitutional limitations,
there are obvious advantages in knowing at once the legal powers of
the government. The desire to secure these advantages explains the
strong efforts of some of the ablest members of the Philadelphia
Convention to associate the judiciary through a Council of Revision
in the legislative process. [
Footnote
2/1] The efforts failed because the disadvantages of such a
role by the judiciary were deemed greater than the advantages. And
it cannot be too often recalled that the first Chief Justice and
his Associates felt constrained to withhold even from the Father of
his country answers to questions regarding which Washington was
most anxious to have illumination from the Supreme Court,
pertaining as they did to the President's powers during the
Napoleonic conflict.
See 3 Johnston, Correspondence and
Public Papers of John Jay (1891) 486-89, and 10 Sparks, Writings of
Washington (1847) 542-45;
and see Thayer, Legal Essays
(1908) 53-54.
Accordingly, the fact that it would be convenient to the parties
and the public to know promptly whether a statute is valid has not
affected "rigid insistence" on limiting adjudication to actual
"cases" and "controversies." To that end, the Court has
developed,
"for its own governance
Page 335 U. S. 125
in the cases confessedly within its jurisdiction, a series of
rules under which it has avoided passing upon a large part of all
the constitutional questions pressed upon it for decision."
Mr. Justice Brandeis, concurring, in
Ashwander v. Tennessee
Valley Authority, 297 U. S. 288,
297 U. S.
345-346.
See also, more recently,
Alabama
State Federation of Labor v. McAdory, 325 U.
S. 450;
Alma Motor Co. v. Timken-Detroit Axle
Co., 329 U. S. 129;
United Public Workers of America v. Mitchell, 330 U. S.
75;
Rescue Army v. Municipal Court,
331 U. S. 549.
A case or controversy in the sense of a litigation ripe and
right for constitutional adjudication by this Court implies a real
contest -- an active clash of views, based upon an adequate
formulation of issues, so as to bring a challenge to that which
Congress has enacted inescapably before the Court. The matter was
thus put by an authoritative commentator:
"The determination of constitutional questions has been
associated with the strictly judicial function and so far as
possible has been removed from the contentions of politics. These
questions have been decided after full argument in contested cases,
and it is only with the light afforded by a real contest that
opinions on questions of the highest importance can safely be
rendered."
Charles Evans Hughes, The Supreme Court of the United States
(1928) 32. Time has not lessened the force of the reason for this
requirement of abstention as indicated by Chief Justice
Marshall:
"No questions can be brought before a judicial tribunal of
greater delicacy than those which involve the constitutionality of
a legislative act. If they become indispensably necessary to the
case, the court must meet and decide them; but if the case may be
determined on other points, a just respect for the legislature
requires that the obligation of its laws should not be
unnecessarily and wantonly assailed."
Ex parte Randolph, 20 Fed.Cas. page 242, at 254, No.
11558, 2 Brock, 447, 478-79 (C.C.D.Va. 1833).
Page 335 U. S. 126
In order that a contest may fairly invite adjudication, it is
not necessary that the parties should be personally inimical to one
another. On the other hand, the fact that the outward form of a
litigation has not been contrived by pre-arrangement of the parties
does not preclude want of a real contest which is essential to this
Court's exercise of its function, one of "great gravity and
delicacy," in passing upon the validity of an act of Congress.
Ashwander v. Tennessee Valley Authority, supra, at
297 U. S. 345,
and cases cited in footnote 3. This prerequisite may be lacking
though there be entire disinterestedness on both sides in their
desire to secure at the earliest possible moment an adjudication on
constitutional power. It may be lacking precisely because the
issues were formulated so broadly as to bring gratuitously before
the Court that for which there is no necessity for decision, or
because they invite formulation of a rule of constitutional law
broader than is required by the precise facts of the situation or
the terms of the assailed legislation.
See Liverpool, N.Y.
& P. S.S. Co. v. Commissioners of Emigration, 113 U. S.
33,
113 U. S. 39;
see also Statement of the United States of America as
Amicus Curiae in
Burco, Inc. v. Whitworth, 297
U.S. 724; Government's Brief in
Landis v. North American
Co., 299 U. S. 248.
We are concerned here not with derogatory implications of
collusion, nor have we a case of mootness with its technical
meaning of a nonexistent controversy. The circumstances bring the
present record within those considerations which have led this
Court in the past "for its own governance of cases confessedly
within its jurisdiction" to avoid passing on grave constitutional
questions because the questions involving the power of Congress
come before us not so shaped by the record and by the proceedings
below as to bring those powers before this Court as leanly and as
sharply as judicial judgment upon an exercise of congressional
power requires.
Page 335 U. S. 127
This case is here under the unique jurisdiction of the Criminal
Appeals Act of 1907, as amended, whereby decisions of District
Courts raise almost abstract questions of law regarding the
invalidity or construction of criminal statutes, in that they do
not come here in the setting of normal adjudications on the merits
of a controversy.
Compare United States v. Petrillo,
332 U. S. 1,
with the subsequent adjudication on the merits in
United States v. Petrillo, 75 F.
Supp. 176. It is most important that such a decision result
from due weighing of the considerations which alone can justify the
invalidation of an Act of Congress. This implies that there be
presented to a District Court the most effective and the least
misapprehending legal grounds for supporting what Congress has
enacted, while at the same time constitutional adjudication is
sedulously resisted by presenting to the District Court alternative
constructions of what Congress has written so as to avoid, if
fairly possible, invalidation of the statute. The decision of the
District Court in this case comes to us wanting in both
respects.
According to the District Court, the Government conceded that §
304 of the Taft-Hartley Act is an abridgment of "rights guaranteed
by the First Amendment," but contended that
"Congress has power under Article I, Section 4 of the
Constitution to abridge First Amendment rights if it considers such
a course necessary in maintaining the purity and freedom of
elections."
This representation of the Government's argument below is made
in the opinion of the District Court not once, not twice, but
thrice. [
Footnote 2/2] At the bar
of this Court, it was urged on behalf of the Government that the
District Court misconceived the arguments of the Government, that
what
Page 335 U. S. 128
the District Court attributed to the Government is not what the
Government argued below. But ordinary English words have lost all
meaning if the District Judge does not say unequivocally and three
times that that is what the Government has argued. It cannot be
whistled away as a gauche manner of saying that, inasmuch as
utterance may, under certain circumstances, be restricted, § 304 is
not in violation of the First Amendment. That may have been the
argument put to the court below, but, plainly enough, that court
did not so understand it. Who is to say how the lower court would
have dealt with the problem of constitutionality before it if the
argument had been pitched differently than in the way in which it
reached the court, or if the court's misapprehension had been
corrected? No effort was made, by the familiar process of a
petition for rehearing or for a clarification of the court's
opinion, to see to it that the lower court manifested an
understanding of the Government's contentions by not attributing an
erroneous position to the Government.
See, for instance,
petition for rehearing in
Morgan v. United States,
304 U. S. 1,
304 U. S. 23.
Again, the defendants did not urge below, as is ordinarily the
way of defendants, a construction of the statute
Page 335 U. S. 129
which would afford them the rights they claim -- but would
secure those rights not by declaring an Act of Congress
unconstitutional, but by an appropriate restriction of its scope.
On its own motion, this Court now gives a construction to the
statute which takes the conduct for which defendants were indicted
out of the scope of the statute without bringing the Court into
conflict with Congress. Who can be confident that such a
construction, which salvages the statute and at the same time
safeguards the constitutional rights of the defendants, might not
have commended itself to the District Court and eventually brought
a different case, if any, before this Court for review?
I cannot escape the conclusion that, in a natural eagerness to
elicit from this Court a decision at the earliest possible moment,
each side was at least unwittingly the ally of the other in
bringing before this Court far-reaching questions of
constitutionality under circumstances which all the best teachings
of this Court admonish us not to entertain.
But since my brethren find that the case calls for adjudication,
I join in the Court's opinion. I do so because of another rule of
constitutional adjudication which requires us to give a statute an
allowable construction that fairly avoids a constitutional issue.
See my dissenting opinion in
Shapiro v. United States,
ante, p.
335 U. S. 36,
decided this day.
[
Footnote 2/1]
See 1 Farrand, The Records of the Federal Convention of
1787 (1911) 21, 28, 94, 97
et seq., 105, 107, 109, 110,
111 et seq., 131, 138, 141, 144-45; 2
id. 71, 73
et
seq., 294-95, 298
et seq.
[
Footnote 2/2]
1.
"The government concedes that rights guaranteed by the First
Amendment are abridged by the prohibition against expenditures by
labor organizations in connection with elections; but it says that
Congress has power under Article I, Section 4, of the Constitution
to abridge First Amendment rights if it considers such a course
necessary in maintaining the purity and freedom of elections."
"Thus, the Court is confronted with the necessity of passing on
the validity of Section 304 of the Act, insofar as it relates to
expenditures by labor organizations in connection with federal
elections."
2.
"It is insisted by the government that Congress could abridge
the freedoms guaranteed by the First Amendment (which the
government concedes was done here) because of its constitutional
control over the manner of holding elections, and its consequent
power to prevent corruption therein, and to secure clean
elections."
3.
"In support of its argument that congressional control over
elections may be exercised in abridgement of rights protected by
the First Amendment, the government points to the case of
United Public Workers v. Mitchell, 330 U. S.
75."
MR. JUSTICE RUTLEDGE, with whom MR. JUSTICE BLACK, MR. JUSTICE
DOUGLAS and MR. JUSTICE MURPHY join, concurring in the result.
If § 313 as amended [
Footnote
3/1] can be taken to cover the costs of any political
publication by a labor union, I think it comprehends
Page 335 U. S. 130
the "expenditures" made in this case. By reading them out of the
section, in order not to pass upon its validity, the Court in
effect abdicates its function in the guise of applying the policy
against deciding questions of constitutionality unnecessarily.
[
Footnote 3/2] I adhere to that
policy. But I do not think it justifies invasion of the legislative
function by rewriting or emasculating the statute. This, in my
judgment, is what has been done in this instance. Accordingly I
dissent from the construction given to the statute and from the
misapplication of the policy. I also think the statute patently
invalid as applied in these circumstances.
I
The Court's interpretation of the section and the indictment are
not entirely clear to me. But, as I understand the ruling, it is
only that § 313 does not forbid labor unions to take part in
pending elections, [
Footnote 3/3]
by publishing and circulating newspapers in regular course among
their membership, although the costs of publication are paid from
the union's general funds regardless of their source,
i.e., whether from subscriptions, advertising revenues and
returns from per copy sales, or from union dues and other
sources.
The line of coverage is marked without reference to the source
from which the union derives the funds so
Page 335 U. S. 131
expended, [
Footnote 3/4] but by
whether others than members of the union receive free copies of the
publication; and by whether the publication is "in regular course,"
or only in casual or occasional distributions. Apparently, in the
latter event, circulation limited to the membership would fall
within the prohibition as well as free (and perhaps also paid)
distribution outside that circle.
The construction therefore comes down to finding that Congress
did not intend to forbid these expenditures, though made from union
funds, since they were made: (1) to sustain the publication of the
union's political views; (2) in the regular course of publishing
and distributing a union newspaper; (3) with distribution limited
substantially [
Footnote 3/5] to
union members and not including outsiders. It is because applying §
313 to this type of expenditure would raise "the gravest doubt" of
the section's constitutionality that the Court holds the section
inapplicable.
If such an interpretation were tenably supportable on any other
basis, I should be in accord with this happy solution. But neither
the language of the section nor its history affords such a basis,
unless indeed it may be
Page 335 U. S. 132
that the wording is so broad, comprehensive, and indefinite that
any possible construction which would apply to a union's
publication of its political views would be subject to equally
grave constitutional doubt, and therefore was not intended to be
covered.
Indeed, so far as the present opinion concludes, that may be the
case. For it does not hold that distribution outside the circle of
membership, even in regular course, is forbidden, or, if so, the
prohibition would be constitutionally permissible. Neither does it
rule that either consequence would follow from casual or occasional
distribution within or without that circle. At the most, it is
indicated that the section more probably or possibly covers those
situations than the one now eliminated. But there seems to be no
corresponding intimation that the section would be valid in such
coverage.
In fact, the opinion points to no situation, relating to a
union's expression of political views, which certainly could be
taken as included, and validly so. This, of course, comes down to
excluding the present circumstances, not to save the statute
because there are other applications clearly and validly covered,
but because there are such applications which may or may not be
covered and which, if covered, may be equally or nearly as doubtful
constitutionally. Such a course of construction, if followed in
each instance of indictment on particular facts, would mean that
the section could not apply in any instance of publication, because
each would present "the gravest doubt" of constitutionality, and
therefore would be excluded.
The language of § 313, as amended, is sweepingly comprehensive.
Insofar as presently pertinent it forbids labor unions as well as
corporations
". . . to make a contribution or
expenditure in connection
with any election at which . . . [the designated federal
officers] [
Footnote 3/6] are to
be
Page 335 U. S. 133
voted for,"
including primaries, conventions or caucuses held to select such
candidates. (Emphasis added.)
The crucial words are "expenditure" and "in connection with."
Literally, they cover any expenditure whatever relating at any rate
to a pending election, and possibly to prospective elections or
elections already held. The broad dictionary meaning of the word
"expenditure" takes added color from its context with
"contribution." The legislative history is clear that it was added
by the 1947 amendment expressly to cover situations not previously
included within the accepted legislative interpretation of
"contribution." [
Footnote 3/7] The
coloration added is therefore not restrictive; it is expansive.
See 335
U.S. 106fn3/9|>note 9. And, in the absence of any indication
of restriction, light on
Page 335 U. S. 134
the scope of coverage can be found only in the legislative
history.
When one turns to that source, he finds a veritable fog of
contradictions relating to specific possible applications,
[
Footnote 3/8] contradictions
necessarily bred among both proponents and opponents of the
amendment from the breadth and indefiniteness of the literal scope
of the language used. But, in one important respect, the history
again is clear, namely, that the sponsors and proponents had in
mind three principal objectives.
These were: (1) To reduce what had come to be regarded in the
light of recent experience as the undue and disproportionate
influence of labor unions upon federal elections; (2) to preserve
the purity of such elections and of official conduct ensuing from
the choices made in them against the use of aggregated wealth by
union as well as corporate entities; and (3) to protect union
members holding political views contrary to those supported by the
union from use of funds contributed by them to promote acceptance
of those opposing views. [
Footnote
3/9] Shortly,
Page 335 U. S. 135
these objects may be designated as the "undue influence,"
"purity of elections," and "minority protection" objectives. They
are obviously interrelated, but not identical. And the differences,
as well as their combination, become important for deciding the
scope of the section's coverage and its validity in specific
application.
With those objects in mind as throwing light on the section's
coverage under the broad language employed, we turn to the
legislative history on that subject. The Government centers the
discussion, both on coverage and on constitutionality, around the
"minority protection" objective. And the legislative discussion,
taking place almost exclusively in the Senate and dominated largely
by the Labor Management Act's sponsor in that body, also took this
purpose as the central theme. [
Footnote 3/10]
The discussion ranged around a great variety of possible
specific applications, [
Footnote
3/11] with concentration upon both
Page 335 U. S. 136
the scope and the validity of the provision. The Senate sponsor
responded to a flood of inquiries with candor and, so far as
possible, with precision and certainty concerning particular
situations under his view of the section's criteria, [
Footnote 3/12] although, in numerous
instances, he was equally candid in stating doubt or disability to
give positive opinions, at times in the absence of further facts.
[
Footnote 3/13]
Page 335 U. S. 137
What is most significant for the question of coverage, however,
and for the Court's construction in this case is the fact that, in
making his responses to the numerous and varied inquiries, he
tested coverage invariably or nearly so by applying the very
criterion the Court now discards, namely, the source of the funds
received and expended in making the political publication.
That is, in his view that the primary purpose of the amendment
was "minority protection," the line drawn by the section was
between expenditure of funds received by the union expressly for
the purpose of the publication and earmarked for that purpose and,
on the other hand, expending funds not so limited by the person or
source supplying them. [
Footnote
3/14] There was strong opposition to the
Page 335 U. S. 138
provision and spirited exchange between proponents and critics
of the measure concerning its wisdom and its constitutionality. But
there was no disagreement among them that the sponsor's test was
the intended criterion. Indeed, the legislative discussion was
stated explicitly to be for the purpose of making plain beyond any
question that this was so. [
Footnote
3/15] Although there were many differences over whether
specified types of activity would fall under the criterion's ban,
and doubts concerning others, the purpose succeeded. There was no
divergence from the view that political comment by a union paper or
other instrumentality using nonsegregated funds was within the
section's coverage. When this was the source of the expenditure, it
violated the intended prohibition of the section whether or not the
publication was in regular course and whether or not it went to
others than members and persons accustomed to receive it.
If, therefore, the sponsor's steadfast view can have weight to
determine the coverage of a statute indefinite in its terms,
Wright v. Vinton Branch, 300 U. S. 440;
United States v. Dickerson, 310 U.
S. 554;
United States v. American Trucking
Ass'n, 310 U. S. 534;
United States v. Wrightwood Dairy Co., 315 U.
S. 110, this case is brought squarely within the
prohibition of § 313. This is conclusively established by the
excerpts from the legislative discussion quoted in the Court's
opinion. Others to the same effect are added to this one as an
335
U.S. 106app|>appendix.
Moreover, in his message vetoing the Labor Management Act of
1947, the President stated that § 313 "would prevent the ordinary
union newspaper from commenting favorably or unfavorably upon
candidates or issues in national elections." H.R.Doc. No. 334,
80th
Page 335 U. S. 139
Cong., 1st Sess. 9. In the debate preliminary to the overriding
of the veto, none of the legislators in charge of the measure gave
any indication that they differed with the President's
interpretation. Nor could they have differed, for the statement in
the veto message gave effect to their clearly expressed views as to
the section's coverage in the specific instance stated.
Thus, in the face of the legislative judgment, reiterated after
veto, and of the Chief Executive's in making his veto, this Court
sets aside the one clearly intended feature of the statute apart
from its general objectives. I doubt that, upon any matter of
construction, the Court has heretofore so far presumed to override
the plainly and incontrovertibly stated judgment of all
participants in the legislative process with its own tortuously
fashioned view. This is not construction under the doctrine of
strict necessity. It is invasion of the legislative process by
emasculation of the statute. The only justification for this is to
avoid deciding the question of validity.
II
We are concerned in this case with the constitutionality of §
313 as amended only insofar as it may be applied in restriction or
abridgment of the rights of freedom of speech, press and assembly
secured by the First Amendment. [
Footnote 3/16] Other applications are not in question.
There can be little doubt of Congress' power to regulate the making
of political contributions and expenditures by labor unions, as
well as by other organizations and individuals, in the interest of
free and pure elections and the prevention of official corruption,
by appropriate measures not trenching on those basic rights. But
when regulation
Page 335 U. S. 140
or prohibition touches them, this Court is duty-bound to examine
the restrictions and to decide in its own independent judgment
whether they are abridged within the Amendment's meaning. [
Footnote 3/17] That office cannot be
surrendered to legislative judgment, however weighty, although such
judgment is always entitled to respect.
As the Court has declared repeatedly, that judgment does not
bear the same weight and is not entitled to the same presumption of
validity, when the legislation on its face or in specific
application restricts the rights of conscience, expression and
assembly protected by the Amendment, as are given to other
regulations having no such tendency. [
Footnote 3/18] The presumption, rather, is against the
legislative intrusion into these domains. For, while not absolute,
the enforced surrender of those rights must be justified by the
existence and immediate impendency of dangers to the public
interest which clearly, and not dubiously, outweigh those involved
in the restrictions upon the very foundation of democratic
institutions, grounded as those institutions are in the freedoms of
religion, conscience, expression and assembly. Hence, doubtful
intrusions cannot be allowed to stand consistently with the
Amendment's command and purpose, [
Footnote 3/19] nor therefore can the usual presumptions
of constitutional validity, deriving from the weight of legislative
opinion in other matters more largely within the legislative
province and special competence, obtain. It is in the light and
spirit of these principles that the validity
Page 335 U. S. 141
of § 313 as claimed to be applicable here must be
determined.
At the outset, the Government admits that § 313, in prohibiting
expenditures in connection with any federal election, does "bring
into play" the rights of freedom of speech, press and assembly.
This is a necessary consequence of its construction of the section
and the presently attempted application. But it is claimed no
unconstitutional abridgement is involved. This, because it is said
Congress has power to act to preserve the freedom and purity of
federal elections under Art. I, § 4, of the Constitution, [
Footnote 3/20] and of official action.
Thus, it is claimed the First Amendment's guaranties are balanced
by this other constitutional provision; and Congress' exercise of
the authority granted by it is entitled to the same weight and
presumptive validity in placing limits upon the freedoms as
attaches in their favor in other connections. Accordingly, the
usual preeminence accorded to the First Amendment liberties
disappears, it is said, and the legislative judgment, having
rational basis in fact and policy, becomes controlling.
Apart from the question whether the same argument might not be
applicable to all other powers granted to Congress by the
Constitution, to destroy the principles stated for securing the
preferential status of the First Amendment freedoms, the argument
ignores other equally settled corollary principles. These are that
statutes restrictive of or purporting to place limits to those
freedoms must be narrowly drawn to meet the precise evil the
legislature seeks to curb,
Cantwell v.
Connecticut, 310 U.S.
Page 335 U. S. 142
296;
Thornhill v. Alabama, 310 U. S.
88;
Schneider v. State, 308 U.
S. 147;
De Jonge v. Oregon, 299 U.
S. 353;
Saia v. New York, 334 U.
S. 558, and that the conduct proscribed must be defined
specifically, so that the person or persons affected remain secure
and unrestrained in their rights to engage in activities not
encompassed by the legislation. Blurred signposts to criminality
will not suffice to create it.
Cantwell v. Connecticut, supra;
Stromberg v. California, 283 U. S. 359;
cf. Thomas v. Collins, 323 U. S. 516;
Winters v. New York, 333 U. S. 507.
Section 313 falls far short of meeting these requirements, both
in its terms and as infused with meaning from the legislative
history. This is true whether the section is considered in relation
to one or another of the evils said to be its targets or with
reference to all of them taken together.
If the evil is taken to be the corruption of national elections
and federal officials by the expenditure of large masses of
aggregated wealth in their behalf, the statute is neither so
phrased nor so limited, even in its legislative construction.
Indeed, the Government does not explicitly argue corruption
per
se arising from union expenditures for publication in the same
sense as gave rise to the original and later legislation against
corporate contributions down to the War Labor Disputes Act of 1943.
And very little in the legislative history directly suggests this
evil, although there are inferences implicit in some statements
that it was not entirely out of mind. [
Footnote 3/21] So also with the Government's argument.
[
Footnote 3/22]
Page 335 U. S. 143
The Government stresses the "undue influence" of unions in
making expenditures by way of publication in support of or against
candidates and political issues involved in the campaign, rather
than corruption in the gross sense. It maintains that large
expenditures by unions in publicizing their official political
views bring about an undue, that is supposedly a disproportionate
sway, of electoral sentiment and official attitudes. In short, the
"bloc" power of unions has become too great, in influencing both
the electorate and public officials, to permit further expenditure
of their funds in directly and openly publicizing their political
views. And the asserted evil is to be uprooted by prohibition of
union expenditures as such, not by regulation specifically drawn to
meet it.
There are, of course, obvious differences between such evils and
those arising from the grosser forms of assistance more usually
associated with secrecy, bribery and corruption, direct or subtle.
But it is not necessary to stop to point these out or discuss them,
except to say that any asserted beneficial tendency of restrictions
upon expenditures for publicizing political views, whether of a
group or of an individual, is certainly counterbalanced to some
extent by the loss for democratic processes resulting from the
restrictions upon free and full public discussion. The claimed evil
is not one unmixed with good. And its suppression destroys the good
with the bad unless precise measures are taken to prevent this.
The expression of bloc sentiment is and always has been an
integral part of our democratic electoral and legislative
processes. They could hardly go on without it. Moreover, to an
extent not necessary now to attempt delimiting, that right is
secured by the guaranty of freedom of
Page 335 U. S. 144
assembly, a liberty essentially coordinate with the freedoms of
speech, the press, and conscience.
Cf. Bowe v. Secretary of the
Commonwealth, 320 Mass. 230, 251-252. It is not by accident,
it is by explicit design, as was said in
Thomas v. Collins,
supra, at
323 U. S. 530,
that these freedoms are coupled together in the First Amendment's
assurance. They involve the right to hear as well as to speak, and
any restriction upon either attenuates both.
There is therefore an effect in restricting expenditures for the
publicizing of political views not inherently present in
restricting other types of expenditure, namely, that it necessarily
deprives the electorate, the persons entitled to hear, as well as
the author of the utterance, whether an individual or a group, of
the advantage of free and full discussion and of the right of free
assembly for that purpose.
The most complete exercise of those rights is essential to the
full, fair and untrammeled operation of the electoral process. To
the extent they are curtailed, the electorate is deprived of
information, knowledge and opinion vital to its function. To say
that labor unions as such have nothing of value to contribute to
that process and no vital or legitimate interest in it is to ignore
the obvious facts of political and economic life and of their
increasing interrelationship in modern society.
Cf. DeMille v.
American Federation of Radio Artists, 31 Cal. 2d 137, 187 P.2d
769. That ostrich-like conception, if enforced by law, would deny
those values both to unions, and thus, to that extent, to their
members, as also to the voting public in general. To compare
restrictions necessarily resulting in this loss for the public good
to others not creating it is to identify essentially different
things. The cases are not identical. The loss inherent in
restrictions upon expenditures for publicizing views is not
necessarily involved in other expenditures.
It is this very difference, of course, which brings into play
the First Amendment's prohibitions and the principles
Page 335 U. S. 145
giving them presumptive weight against intrusions or
encroachments upon the area the Amendment reserves against
legislative annexation. It is this difference, the very fact that
the restriction seeks to contract the boundaries of expression and
the right to hear previously considered open, which forces upon its
authors the burden of justifying the contraction by demonstrating
indubitable public advantage arising from the restriction
outweighing all disadvantages, thus reversing the direction of
presumptive weight in other cases.
If therefore it is an evil for organized groups to have
unrestricted freedom to make expenditures for directly and openly
publicizing their political views and information supporting them,
but cf. Bowe v. Secretary of the Commonwealth, supra, at
252, it does not follow that it is one which requires complete
prohibition of the right.
Ibid. That is neither consistent
with the Amendment's spirit and purpose,
ibid., nor
essential to correction of the evil, whether it be considered
corruptive influence or merely influence of undue or
disproportionate political weight.
It is not necessary now to consider whether restricting the
rights of individuals, singly or in organized relationships, to
publicize their political views, rights often essential to their
survival and always to their wellbeing, can be accommodated, in
some instances, with the Amendment's purpose or justified because
in legislative judgment those persons unless restricted acquire
"undue influence" in the electoral process. For "undue influence"
in this connection may represent no more than convincing weight of
argument fully presented, which is the very thing the Amendment and
the electoral process it protects were intended to bring out. And
one may question how far legislators may go in accurately assessing
undue or disproportionate weight as distinguished from making
substantially accurate findings and conclusions concerning
corruption.
Page 335 U. S. 146
But even if the right to sway others by persuasion is assumed to
be subject to some curtailment, in the interest of preventing
grossly unbalanced presentations, that right cannot be wholly
denied,
Bowe v. Secretary of the Commonwealth, supra, at
252; nor can it be restricted beyond what is reasonably and clearly
necessary to correct an evil so gross and immediate that the
correction indubitably outweighs the loss to the public interest
resulting from the restriction.
Here the restriction in practical effect is prohibition, not
regulation, when it is considered with respect to the objects of
suppressing corruption and "undue influence." It is not a
limitation it is a prohibition upon expenditure of union funds in
connection with a federal election. Unions can act and speak today
only by spending money, as indeed is true of nearly every
organization and even of individuals if their action is to be
effective. As was said in the course of the Senate debates, the
interdiction applies to "a dollar, or 50 cents, or $500 or $1,000."
93 Cong.Rec. 6438. There is no showing, legislative or otherwise,
of corruption so widespread or of "undue influence" so dominating
as could possibly justify so absolute a denial of these basic
rights. The statute, whether in terms or as given meaning by the
legislative history, is not narrowly drawn to meet the precise
evils of corruption or "undue influence," if these were the
controlling object of the legislation. Nor, as will appear, were
the restrictions specifically defined, if they can be considered to
have been defined at all, so as to leave the union secure and
unrestrained in the right to engage in activities within the region
of the First Amendment's coverage but not encompassed by the
legislation.
As has been stated, it was the "minority protection" idea which
became the dominantly stressed one in the Senate debates, although
at the most § 313 on its face gave only slight suggestion of this
purpose. Nor was
Page 335 U. S. 147
there indication in the section's terms that its prohibition
turns on the source from which the funds expended were derived. The
language bearing on this case "expenditure in connection with an
election" and no more. Literally all union expenditures in that
connection were outlawed. There is not a word to suggest that
unions could spend their funds in that manner if contributed
expressly for the purpose or derived from such sources as
advertising revenues, subscriptions, etc., received in connection
with publication of a paper in regular course or otherwise. The
limitation of the prohibition to funds received generally,
i.e., without specific designation for use in political
publicity, is almost wholly a construction of the Senate sponsor,
so far as appears from the legislative history.
Notwithstanding accepted canons of statutory construction, it
certainly would be going far to expect laymen, or even lawyers, to
read a statute so lacking in specificity concerning its basic
criterion with any semblance of understanding of its
limitations.
The lawyer might indeed read the Congressional Record and
conclude that the source of the funds used was the crux. But even
he would be left in broad and deep doubt whether it would turn
multitudinous situations one way or the other. If the section is
taken nevertheless to have been intended to draw the sponsor's line
of distinction, the restriction it makes remains a drastic one. The
effect is not merely one of minority protection. It is also one of
majority prohibition.
Cf. DeMille v. American Federation of
Radio Artists, supra. Under the section as construed, the
accepted principle of majority rule which has become a bulwark,
indeed perhaps the leading characteristic, of collective activities
is rejected in favor of atomized individual rule and action in
matters of political advocacy.
Ibid. Union activities in
political publicity are confined to the use of funds received from
members with their explicit designation given in advance for the
purpose. [
Footnote 3/23] Funds so
received
Page 335 U. S. 148
from members can be thus expended and no others. Even if all or
the large majority of the members had paid dues with the general
understanding that they or portions of them would be so used, but
had not given explicit authorization, the funds could not be so
employed. [
Footnote 3/24] And
this would be true even if all or the large majority were in
complete sympathy with the political views expressed by the union
or on its behalf with any expenditure of money, however small.
It is true that the union could ask and in many instances secure
the required explicit assents. It seems to be suggested that this
might be done by expressly designating a specific portion of the
dues for political uses, possibly though not at all clearly by
bylaw or constitutional provision, possibly by earmarking upon
statements of dues payable. But it is not made clear whether the
member could refuse to pay the earmarked portion and retain
membership or would have to pay it to remain in that status. If the
latter is true, the section affords little real "minority
protection"; if the former, the dissentient is given all the
benefit derived from the union's political publicity without having
to pay any part of its cost. This is but another of the important
and highly doubtful questions raised on the section's wording and
construction.
Page 335 U. S. 149
The section does not merely deprive the union of the principle
of majority rule in political expression. [
Footnote 3/25]
Cf. DeMille v. American Federation
of Radio Artists, supra. It rests upon the presumption that
the majority are out of accord with their elected officials in
political viewpoint and its expression and, where that presumption
is not applicable, it casts the burden of ascertaining minority or
individual dissent not upon the dissenters, but upon the union and
its officials. The former situation may arise, indeed in one
notable instance has done so. But that instance hardly can be taken
to be a normal or usual case. Unions too must often operate under
the electoral process and the principle of majority rule. Nor in
the latter situation does it seem reasonable to presume dissent
from mere absence of explicit assent, especially in view of long
established union practice.
If merely "minority or dissenter protection" were intended, it
would be sufficient for securing this to permit the dissenting
members to carry the burden of making known their position and to
relieve them of any duty to pay dues or portions of them to be
applied to the forbidden uses without jeopardy to their rights as
members. This would be clearly sufficient, it would seem, to
protect dissenting members against use of funds contributed by them
for purposes they disapprove, but would not deprive the union of
the right to use the funds of concurring members, more often than
otherwise a majority, without securing their express consent in
advance of the use. [
Footnote
3/26]
Page 335 U. S. 150
Again, in view of these facts, the section is more broadly drawn
than is necessary to reach the intended evil. Moreover, this
demonstrates, in my opinion, that "minority protection" was not the
only or perhaps the dominant object of its enactment. That object
was rather to force unions as such entirely out of political life
and activity, including for presently pertinent purposes the
expression of organized viewpoint concerning matters affecting
their vital interests at the most crucial point where the
expression would become effective.
Cf. Thomas v. Collins,
supra, at
323 U. S.
536-537;
Board of Education v. Barnette,
319 U. S. 624,
319 U. S. 642;
Bridges v. California, 314 U. S. 252,
314 U. S. 269.
And so we come back to the conjunction of objectives which, taken
together, are claimed to sustain the section's validity.
It would be a very great infringement of individual as well as
group freedoms, affecting vast numbers of our citizens, if labor
unions could be deprived of all right of expression upon pending
political matters affecting their interests. But we need not now
decide whether § 313 has gone so far. [
Footnote 3/27]
For if we assume that the objects said to have been the
motivation for enacting § 313 can sustain substantial limitations
upon the rights of free expression and assembly,
Page 335 U. S. 151
they cannot support the sweeping and highly indefinite
restrictions placed upon them, whether by the section as drawn, as
legislatively construed, or as sought to be applied. It is
difficult to conceive a statute affecting those rights more lacking
in precision, more broad in the scope of doubt and uncertainty of
its reach.
We have only the broad and indefinite words "expenditure in
connection with any election." Apart from the literal sweep of
"expenditure" and the large area of doubt created by efforts to
confine it, what is "in connection with"? [
Footnote 3/28] What is a forbidden because a political
comment? [
Footnote 3/29] What
sorts of union activities outside of publishing a newspaper with
unsegregated funds would fall under the ban? [
Footnote 3/30]
Page 335 U. S. 152
The catalogue of doubt and uncertainty need not be extended.
Throughout the preceding discussion, both of coverage and of
validity, instances have been noted which demonstrate its
encyclopedic scope. The case is not one where a hard core of
certain prohibition has been formed, with only a fringe of doubt
narrow in scope at its outer boundary. Indeed, the difference
between the view now
Page 335 U. S. 153
taken by the Court and that taken by the Senate and presumably
by the House shows that even the core is soft. To the gambles of
the statute itself are added those of guessing not only at its
perimeter, but at its very center. Nor have these been lessened by
today's decision other than by eliminating the one application the
legislative discussion had sought to make clear.
Vagueness and uncertainty so vast and all-pervasive seeking to
restrict or delimit First Amendment freedoms are wholly at war with
the long established constitutional principles surrounding their
delimitation. They measure up neither to the requirement of narrow
drafting to meet the precise evil sought to be curbed nor to the
one that conduct proscribed must be defined with sufficient
specificity not to blanket large areas of unforbidden conduct with
doubt and uncertainty of coverage. In this respect, the Amendment's
policy adds its own force to that of due process in the definition
of crime to forbid such consequences.
Cf. Winters v. New York,
supra. If the statute outlaws all union expenditures for
expression of political views, it is a bludgeon ill designed for
curbing the evils said to justify its enactment, without also
curbing the rights. If the section does less, the exact thing
forbidden is too loosely defined, and the consequent cloud cast
over the things not proscribed but within the Amendment's bearing
is far too great. In this aspect, and in view of the criminal
sanctions imposed, the section serves as a prior restraint upon the
freedoms of expression and of assembly the Amendment was designed
to secure. Only a master, if any, could walk the perilous wire
strung by the section's criterion.
The force of these considerations is vastly multiplied when it
is recalled that, unless they were effective to nullify the section
in its application to publicizing activities, the broadly
prohibitive and blanketing consequences
Page 335 U. S. 154
would be applicable also to all similar corporate political
expressions, possibly not excepting even those of the regularly
conducted corporate press. [
Footnote
3/31] This would be true, for instance, if the Senate sponsor's
contrary view should meet the same fate in this Court that his view
of the section's application to the presently involved situation
has met. Moreover, in the sponsor's view, special editions and
apparently free distribution by such corporate publishers,
containing political items, would appear to fall under the ban.
The argument for applying and sustaining the section in its
presently attempted application has gone largely upon the
assumption that it would be valid as applied to similar corporate
publications, excepting possibly the regular press. The assumption
is one not justified by any decision of this Court, which has the
final voice in such matters. There are, of course, important legal
and economic differences remaining between corporations and
unincorporated associations, including labor unions, which justify
large distinctions between them in legal treatment. But to whatever
extent this may be true, it does not follow that the broadside and
blanketing prohibitions here attempted in restriction of freedom of
expression and assembly would be valid in their corporate
applications. Corporations
Page 335 U. S. 155
have been held within the First Amendment's protection against
restrictions upon the circulation of their media of expression.
Grosjean v. American Press Co., 297 U.
S. 233. It cannot, therefore, be taken, merely upon
legislative assumption, practice or judgment, that restrictions
upon freedoms of expression by corporations are valid. Again, those
matters cannot be settled finally until this Court has spoken.
Finally, if § 313 is taken in the Court's construction, in my
opinion, its constitutionality stands in no better case. For I know
of nothing in the Amendment's policy or history which turns or
permits turning the applicability of its protections upon the
difference between regular and merely casual or occasional
distributions. Indeed, pamphleteering was a common mode of
exercising freedom of the press before and at the time of the
Amendment's adoption. It cannot have been intended to tolerate
exclusion of this form of exercising that freedom. Nor does making
the difference between distribution to dues-paying members only and
distribution to outsiders or the public, whether with or without
price, make a constitutional difference. The Amendment did not make
its protections turn on whether the hearer or reader pays, or can
pay, for the publication or the privilege of hearing the oral or
written pronouncement. Neither freedom of speech and the press nor
the right of peaceable assembly is restricted to persons who can
and do pay.
A statute which, in the claimed interest of free and honest
elections, curtails the very freedoms that make possible exercise
of the franchise by an informed and thinking electorate, and does
this by indiscriminate blanketing of every expenditure made in
connection with an election, serving as a prior restraint upon
expression not in fact forbidden as well as upon what is, cannot be
squared with the First Amendment.
Page 335 U. S. 156
[
Footnote 3/1]
Section 313 of the Corrupt Practices Act, as amended by § 304 of
the Labor Management Relations Act of 1947, 61 Stat. 159.
[
Footnote 3/2]
Rescue Army v. Municipal Court, 331 U.
S. 549;
Ashwander v. Valley Authority,
297 U. S. 288,
concurring opinion of Mr. Justice Brandeis at
297 U. S.
346-348;
Federation of Labor v. McAdory,
325 U. S. 450;
United Public Workers v. Mitchell, 330 U. S.
75.
[
Footnote 3/3]
The statutory wording is:
". . . expenditure in connection with any election at which
Presidential and Vice Presidential electors or a Senator or
Representative in, or a Delegate or Resident Commissioner to
Congress are to be voted for, or in connection with any primary
election or political convention or caucus held to select
candidates for any of the foregoing offices. . . ."
[
Footnote 3/4]
The indictment explicitly charges that "The CIO News" was
regularly (weekly) published by the CIO, and costs of publication
and distribution, including the issue in question, were paid from
the union's funds. There was no allegation concerning their source,
whether from revenues not connected with or earmarked for receipt
of the paper or from sources specifically so connected. The Court's
opinion does not, nor could it fairly, assume that the allegations
were limited to expenditure of funds derived from subscriptions,
advertising revenues or returns from per copy sales. The opinion
explicitly holds that source of the funds is immaterial under § 313
for coverage of the type of publication and circulation here
involved.
[
Footnote 3/5]
By the opinion's phrase, "in regular course to those
accustomed to receive copies," p.
335 U. S. 123
(emphasis added), room seems to be left for the inference that
insubstantial distribution outside the membership would not tend to
bring the case within the section's terms.
[
Footnote 3/6]
See 335
U.S. 106fn3/3|>note 3. The section as presently effective is
quoted in full at
note 1 of the
Court's opinion
[
Footnote 3/7]
"Contribution" had been construed by legislative committees
investigating campaign expenditures prior to 1947,
see
notes
335
U.S. 106fn3/9|>9 and
335
U.S. 106fn3/10|>10, though not always unanimously, not to
cover expenditures made by labor unions in publishing their
political views during campaigns or at other times.
See
H.R.Rep.No.2093, 78th Cong., 2d Sess. 10-11; Sen.Rep.No.101, 79th
Cong., 1st Sess. 57-59, 83-84; H.R.Rep.No.2739, 79th Cong., 2d
Sess. 39-40, 46; Sen.Rep.No.1, Part 2, 80th Cong., 1st Sess. 37,
38-39. It is not necessary to summarize the differing viewpoints
expressed in the 1947 debates concerning the validity of this
construction. Whether valid or not would make only the difference
between extending the statute's scope by adding to its terms or by
"plugging a loophole," albeit a large one, created by
misconstruction. In either event, a large addition to the section's
coverage was made.
See, e.g., 93 Cong.Rec. 6438-6440.
The Federal Corrupt Practices Act of 1925, 43 Stat. 1070,
amended the preexisting legislation forbidding a corporate "money
contribution" by changing that term to "contribution" and defining
this to include
"a gift, subscription, loan, advance, or deposit, of money, or
anything of value, and includes a contract, promise, or agreement,
whether or not legally enforceable to make a contribution. . .
."
Since "expenditure" was intended to broaden "contribution" in
the 1947 amendment of § 313, it would seem that its scope could
hardly be less broad than was given by the 1925 Act's definition to
"contribution," although the Government does not appear to urge
that "expenditure" incorporates that definition.
[
Footnote 3/8]
See 93 Cong.Rec. 6436-6441, 6446-6448, and excerpts
quoted in the Court's opinion and the
335
U.S. 106app|>appendix to this one.
Cf. also notes
335
U.S. 106fn3/11|>11,
335
U.S. 106fn3/12|>12,
335
U.S. 106fn3/13|>13.
[
Footnote 3/9]
These were the objects of the prohibition against
"contributions" by labor unions, which first appeared on a
temporary basis in 1943 in the War Labor Disputes Act, which, by
its terms, was to expire six months following the termination of
hostilities. Act of June 25, 1943, c. 144, § 9, 57 Stat. 167.
See Hearings before a Subcommittee of the Committee on
Labor on H.R. 804 and H.R. 1483, 78th Cong., 1st Sess. 2, 4, 117,
118, 133.
Cf. 89 Cong.Rec. 5328, 5334, 5792. The
Government's brief states that the legislative history of the 1943
Act shows that the principal basis of the extension to labor
unions, like that of the same and earlier acts applying to
corporations,
"was the securing of elections in accordance with the will of
the people through removing disproportionate influences exerted by
means of large aggregations of money."
Since the 1947 amendment to § 313 was designed to make permanent
the prohibitions of the 1943 Act, H.R.Rep.No.245, 80th Cong., 1st
Sess. 46; H.R.Rep.No.510, 80th Cong., 1st Sess. 67-68 (Conference
report to accompany H.R. 3020), and to expand them by adding
"expenditures," the objects of the 1943 Act necessarily were
carried forward into the 1947 amendment.
Ibid. See
also 93 Cong.Rec. 3428.
[
Footnote 3/10]
Congressional committees investigating campaign expenditures in
1946 and 1947 had recommended that "expenditures" be added to the
prohibition of § 313.
See H.R.Rep.No.2739, 79th Cong., 2d
Sess. 39-40, 46; Sen.Rep.No.1, Part 2, 80th Cong., 1st Sess. 37,
38-39. The so-called Taft-Hartley Bill as introduced in the House
contained the prohibition, H.R. 3020, 80th Cong., 1st Sess., § 304,
while the Senate version did not. S. 1126, 80th Cong., 1st Sess.
There was apparently little discussion in either body on the matter
until the conference report incorporating the provision was made.
H.R.Rep.No.510, 80th Cong., 1st Sess. Then lengthy discussion
ensued in the Senate, from which excerpts are quoted in the Court's
opinion and in the
335
U.S. 106app|>appendix to this one.
See 93 Cong.Rec.
6436-6441, 6445-6448, 6522-6524, 6530.
[
Footnote 3/11]
Some of the more important instances included whether the
section applies to forbid political comment or information "in
connection with" elections by corporately owned newspapers and
periodicals, in regular course of distribution, 93 Cong.Rec. 6436,
or in special editions,
ibid.; by "house organs,"
id., 6440, or like publications put out by corporations
engaging primarily in other business than publishing; by religious,
ibid., and charitable corporations; by organizations like
the Anti-Saloon League,
ibid.; by radio commentators
sponsored by commercial corporations,
id., 6439, 6447; by
trade associations, such as the National Association of
Manufacturers, which receive funds from constituent corporations,
id., 6438.
These inquiries generally proceeded with analogous ones relating
to comparable activities of unions and comparable responses,
touching for example PAC activities; labor publications, regular or
special; sponsored broadcasts, etc. Illustrative responses are set
forth in
335
U.S. 106fn3/12|>note 12.
[
Footnote 3/12]
E.g., the regular corporately owned press was
considered not covered as to its ordinary circulation, because
"that is the operation of the newspaper itself," 93 Cong.Rec. 6437.
The same exemption from coverage, however, was thought not to
extend to regularly published union or labor papers, since members'
dues could not be so used without specific earmarking or
designation by each for such use, even though, from previous
practice, they might know such use would be made.
Id.,
6440. On the other hand, neither the regular press, corporately
owned, nor union papers could publish special editions or
distribute them with or without charge. Nor could house organs,
union or corporate, comment politically, or religious
organizations, if incorporated; neither could associations like the
National Association of Manufacturers, which receive funds from
corporations and by such expenditures would be making
"contributions" indirectly. Problems involving organizations like
the Anti-Saloon League and sponsored radio broadcasts, whether by
unions or corporations, as well as guest appearances of candidates
and others supporting them on sponsored radio programs, raised
matters of greater difficulty.
See the various pertinent
citations in
335
U.S. 106fn3/11|>note 11.
Cf. notes
335
U.S. 106fn3/13|>13 and
335
U.S. 106fn3/14|>14.
[
Footnote 3/13]
The problems raised in connection with radio discussions
presented particularly dubious situations, frequently admitted to
call for further facts, to present questions of fact, and to
require fine lines of distinction.
See, e.g., 93 Cong.Rec.
6439, 6440.
Difficulty arose and doubt was expressed also over what would
constitute political comment,
e.g., publishing an
incumbent candidate's voting record,
id., 6438, 6446,
6447, an instance in which the Senate sponsor at first disagreed
with Senator Ball, but later apparently though somewhat equivocally
agreed with him that publication of the record without comment
further than
"merely a bare statement of actual facts and simply direct
quotations of what the man had said in the course of certain
speeches on certain subjects"
would not be forbidden,
id., 6447; corporate broadcasts
not for or against a candidate, but for a party or relating to
issues in the election, said to be "again, a question of fact," and
to depend on "how close it is to the election."
Ibid.
These instances are illustrative only, not comprehensive.
Cf. 335
U.S. 106fn3/29|>note 29.
[
Footnote 3/14]
This rubric turned the answers to the inquiries and situations
mentioned in notes
335
U.S. 106fn3/11|>11,
335
U.S. 106fn3/12|>12 and
335
U.S. 106fn3/13|>13, as indeed to all others. If the funds
used for the publication came to the corporate or union treasury
without securing the contributor's express consent for that use,
the organization could not so apply them; if so contributed, they
could be thus employed. Except in the case of the regular corporate
press, which presumably were not covered as to ordinary
circulation,
cf. 335
U.S. 106fn3/12|>note 12
supra, expenditure of any
corporate or union funds not derived from operation of the
publication,
e.g., from advertising revenues or returns
from per copy sales, or funds received from individuals without
individual and explicit authorization for the purpose of the
publication was forbidden.
[
Footnote 3/15]
See the
335
U.S. 106app|>appendix to this opinion.
[
Footnote 3/16]
Since the statute in my judgment abridges those freedoms here,
it is unnecessary to consider other groundings urged for its
invalidation.
[
Footnote 3/17]
Thomas v. Collins, 323 U. S. 516,
323 U. S. 531;
Board of Education v. Barnette, 319 U.
S. 624,
319 U. S. 639;
Thornhill v. Alabama, 310 U. S. 88,
310 U. S. 96;
Schneider v. State, 308 U. S. 147,
308 U. S.
161.
[
Footnote 3/18]
Thomas v. Collins, 323 U. S. 516,
323 U. S. 530;
Thornhill v. Alabama, 310 U. S. 88,
310 U. S. 95;
Schneider v. State, 308 U. S. 147,
308 U. S. 161;
cf. United States v. Carolene Products Co., 304 U.
S. 144,
304 U. S. 152,
n. 4.
[
Footnote 3/19]
Thomas v. Collins, 323 U. S. 516,
323 U. S. 530;
and cf. other cases cited in
335
U.S. 106fn3/17|>note 17.
[
Footnote 3/20]
"The Times, Places and Manner of holding Elections for Senators
and Representatives, shall be prescribed in each State by the
Legislature thereof; but the Congress may at any time by Law make
or alter such Regulations, except as to the Places of chusing
Senators."
See also U.S.Const., Art. I, § 2, clause 1, § 8, clause
18.
Cf. as to Congress' power over the electoral process,
Ex parte Yarbrough, 110 U. S. 651;
United States v. Classic, 313 U.
S. 299.
[
Footnote 3/21]
As has been noted, the Senate debate went largely on the
"minority protection" basis of justification with only inferential
or incidental reference to corrupting influence and occasional
suggestions of "undue influence."
See, however, the
statements of Representative Hoffman, 93 Cong.Rec. 3428, and of
Senator Taft,
id., 6437.
[
Footnote 3/22]
The brief, however, includes among the reasons for the
prohibition of § 313
"[a] distrust of the use of large contributions not because
these prove corruption, but because the large single contributions
imply resulting obligations and, therefore, can breed
corruption,"
and goes on to state that
"there is no practical difference between a contribution and an
expenditure so far as the effect of the use of money for campaign
purposes is concerned."
[
Footnote 3/23]
Apparently the Senate sponsor considered that revenues derived
from the operation of union newspapers, such as advertising
revenues, etc., are available for political publicity, although
they are union funds in which politically dissentient members have
interests proportionally with concurring ones and, it seems, do not
give explicit consent to such use. The situation, like the case of
the regular incorporated press, would seem to be exceptional in
permitting the union (or corporation) to use its own funds for
political publicity.
[
Footnote 3/24]
See 335
U.S. 106fn3/12|>note 12
supra.
[
Footnote 3/25]
It would even seem questionable whether union funds, not
individually earmarked for the purpose, could be used for calling
union meetings to discuss and determine official political policies
or to hear candidates or others expressing their views on campaign
issues.
Cf. 335
U.S. 106fn3/30|>note 30
infra.
[
Footnote 3/26]
This difference is minimized, though noted, in the Government's
comparison of § 313 with the British legislation and experience.
Cf. Trade Union Act of 1913, 2 & 3 Geo. V, c. 30;
Trade Disputes and Trade Unions Act of 1927, 17 & 18 Geo. V, c.
22, repealed by Trade Disputes and Trade Unions Act of 1946, 9
& 10 Geo. VI, c. 52. The legislation was not intended to
prevent expenditures for union newspapers.
See Rothschild,
Government Regulation of Trade Unions in Great Britain: II, 38
Col.L.Rev. 1335, 1364.
And see further regarding the
British legislation's effect,
DeMille v. American Federation of
Radio Artists, 31 Cal. 2d 137, 148, 187 P.2d 769,
distinguishing
Amalgamated Society of Railway Servants v.
Osborne [1910] A.C. 87.
[
Footnote 3/27]
Cf.:
"It is perfectly clear that union funds are not to be used to
interfere in political campaigns and with political candidates,
either in favor of one candidate or against another candidate."
93 Cong.Rec. 6437. "Labor unions are supposed to keep out of
politics in the same way that corporations are supposed to keep out
of politics."
Id., 6440.
[
Footnote 3/28]
When does the connection begin? Obviously not with the date of
the election, primary, convention or caucus. How long beforehand,
with the announcement of candidacies or with earlier though not
always public efforts to induce persons to run? When does the
connection end? With the selection of candidates, in the one case,
and the election of officers, in the other, or does it extend to
activities relating to these events taking place later?
[
Footnote 3/29]
The publication of bare facts,
e.g., voting records, of
quotations from speeches and addresses, their reproduction in full?
Cf. 335
U.S. 106fn3/13|>note 13. And does accuracy or inaccuracy of
the quotation make the difference between criminality and legality?
Could a president's speech in the course of a campaign for
reelection be reproduced in a union newspaper published with
unsegregated funds, whether designedly and clearly political or
purporting not to be so? Where to draw the line between facts and
comment, or comment and advocacy or opposition?
[
Footnote 3/30]
A summary from appellees' brief indicates the scope and variety
of questions which would arise:
"This measure thus, on its face, would prevent a labor
organization from holding a meeting for the purpose of advocating
the election or defeat of a particular political candidate. It
would preclude a labor organization from organizing a public
gathering to advocate the election of a candidate pledged to the
defeat of such a measure as Section 304. [§ 313, as amended.]"
"A labor organization under this statute could not a place at
the disposal of a candidate its own hall. It could not engage radio
time to denounce a candidate who had identified himself with
interests fundamentally opposed to those basic to the interests of
the defendants. Nor could it pay the salary or expenses of an
individual for the purpose of permitting him to participate in a
political campaign."
"Handbills, placards or union newspapers advising the union
membership of the voting records of public officials could not be
published or distributed at election time to advocate either the
election of labor's friends or the defeat of labor's enemies. Paid
advertisements and radio publications for the same purposes would
be likewise proscribed."
"No matter how dangerous the threat presented by a candidate to
the fundamental interests of a labor organization, it is powerless
under this law to speak and to inform the people of its views. It
could not send to a single member a penny postcard dealing with
such a candidate. It could not even send a delegate or observer to
a political convention."
"It could oppose bad laws, but not 'in connection with any
election.' It could endorse good laws, but, at all times, both its
opposition and its endorsement would be undertaken at the peril of
crossing the line at which such opposition or endorsement or
advocacy could be regarded as being 'in connection with any
election.'"
"Moreover, a labor organization could not sponsor a public
meeting in connection with an election for the purpose of hearing
the views of candidates of various political parties with respect
to issues of importance to its membership, since such a meeting
would inevitably require expenditures."
"The traditional campaigns on the part of labor organizations
prior to federal elections to 'get out the vote' would, since they
require expenditures, be proscribed by the statute. And the
publication of voting guides and analyses of the voting records of
candidates would likewise be condemned."
[
Footnote 3/31]
Cf. the President's view, stated in his veto message as
follows:
"Furthermore, this provision can be interpreted as going far
beyond is apparent objectives, and as interfering with necessary
business activities. It provides no exemption for corporations
whose business is the publication of newspapers or the operation of
radio stations. It makes no distinctions between expenditures made
by such corporations for the purpose of influencing the results of
an election and other expenditures made by them in the normal
course of their business 'in connection with' an election. Thus, it
would raise a host of troublesome questions concerning the legality
of many practices ordinarily engaged in by newspapers and radio
stations."
H.R.Doc.No.334, 80th Cong., 1st Sess. 9-10.
|
335
U.S. 106app|
APPENDIX
MR. PEPPER. . . .
I wish to ask the Senator, if I may, this question: would the
newspaper called Labor, which is published by the Railway Labor
Executives, be permitted to put out a special edition of the paper,
for example, in support of President Truman, if he should be the
Democratic candidate for the Presidency next year, and in
opposition to the Senator from Ohio, if he should be the Republican
nominee for the Presidency, stating that President Truman was a
friend of labor and that the Senator from Ohio was not friendly to
labor? Would that be called a political expenditure on the part of
the labor organization?
MR. TAFT. If it were supported by union funds contributed by
union members as union dues, it would be a violation of the law,
yes. It is exactly as if a railroad itself, using its stockholders'
funds, published such an advertisement in the newspaper supporting
one candidate as against another. If the paper called Labor is
operated independently, if it derives its money from its
subscribers, then of course there would be no violation. The
prohibition is against a labor organization using its funds either
as a contribution to a political campaign or as a direct
expenditure of funds on its own behalf.
(93 Cong.Rec. 6436.)
* * * *
MR. PEPPER. . . . Yet the Senator from Ohio says that the
newspaper Labor, published by the 21 railway labor executives,
would not be permitted to publish a statement saying that it
supported President Truman and opposed Candidate Taft, or vice
versa. I say that would be a deprivation of the freedom of the
press.
MR. TAFT. No; I said that union funds could not be used for that
purpose. They could conduct a newspaper
Page 335 U. S. 157
if they wanted to, just as a corporation can conduct a
newspaper. But why should a labor organization be able to publish
pamphlets or special newspapers against one candidate or in favor
of another candidate, using funds which that organization collected
from the union members?
(Id. 6436-6437.)
* * * *
MR. PEPPER. Mr. President, I call the attention of the Senator
from Ohio to the following practice of the railway labor executives
in the past: if a certain candidate was unfriendly to the interests
of labor, they would publish a special edition of their paper and
would put that special edition into circulation in the area where
that candidate was running for office, and would place it in the
hands of labor union members and also in the hands of the public
generally.
MR. TAFT. That is exactly what they should not be allowed to
do.
MR. PEPPER. Very well; I want it definitely understood that the
Senator from Ohio intends to outlaw that privilege on the part of
labor. Now that I have that clear --
MR. TAFT. It is perfectly clear. It is perfectly clear that
union funds are not to be used to interfere in political campaigns
and with political candidates, either in favor of one candidate or
against another candidate.
(
Id., 6437.)
* * * *
MR. BARKLEY. So if there is a labor organization which is
publishing a newspaper -- not as a political newspaper, but for the
benefit of its members -- and if the expenses of that publication
and distribution are paid from the funds raised by means of the
payment of dues, and if all members of the union understand that a
certain portion of their dues goes to the publication of that
newspaper,
Page 335 U. S. 158
then in order for that newspaper to take any position with
respect to any candidate, it would have to charge a subscription by
the month or by the year, in order that it might express its views
in that respect; is that so?
MR. TAFT. I am inclined to think so, just as a corporation gets
out regular house organs to its members, and if that corporation
interferes in a political election through one of those house
organs, it violates the Corrupt Practices Act.
(
Id., 6437-6438.)
* * * *
MR. MAGNUSON. In order to determine the meaning of that, let us
assume a concrete example. The International Brotherhood of
Teamsters have a newspaper, which they have published for many
years. It has a circulation of probably 200,000. It is distributed
to members. On the newsstand, no price appears on it. No
advertisements are accepted. Under this prohibition, would they be
prohibited in the future from mentioning in their editorial
columns, for their regular circulation without adding anything
additional, the support of a certain candidate or a certain
political party?
MR. TAFT. We discussed that. We discussed the question of
whether or not that newspaper was supported in effect by
contributions of corporations or labor organizations, or was paid
for by the people who received it. If the latter, I do not think it
was an expenditure of union funds or contributions, but if the
union simply takes the union funds and publishes a newspaper and
uses it as a political organ in an effort to elect or to defeat one
man, that is prohibited.
(
Id., 6439-6440.)
* * * *
MR. MAGNUSON. . . . If the pending bill should become law, it
would mean that all labor organs which are
Page 335 U. S. 159
now in existence would, from now on, be prohibited from
participating in a campaign, favoring a candidate, mentioning his
name, or endorsing him for public office?
MR. TAFT. No; I do not think it means that. The union can issue
a newspaper, and can charge the members for the newspaper, that is,
the members who buy copies of the newspaper, and the union can put
such matters in the newspaper if it wants to. The union can
separate the payment of dues from the payment for a newspaper, if
its members are willing to do so, that is, if the members are
willing to subscribe to that kind of a newspaper. I presume the
members would be willing to do so. A union can publish such a
newspaper, or unions can do as was done last year, organize
something like the PAC, a political organization, and receive
direct contributions, just so long as members of the union know
what they are contributing to, and the dues which they pay into the
union treasury are not used for such purpose.
(
Id., 6440.)