Petitioner union and three of its officers were convicted of
conspiracy to violate 18 U.S.C. § 610, which prohibited a labor
organization from making a contribution or an expenditure in
connection with a federal election. Evidence indicated that the
union, from 1949 through 1962, maintained a political fund to which
union members and others working under the union's jurisdiction
were required to contribute, and that that fund was then succeeded
by the present fund, which was, in form, set up as a separate
"voluntary" organization; union officials, nevertheless, retained
unlimited control over the fund, and no significant change was made
in the regular and systematic collection of contributions at a
prescribed rate based on hours worked; union agents, moreover,
continued to collect donations at jobsites on union time, and the
proceeds were used for a variety of purposes, including political
contributions in connection with federal elections; those
contributions, on the other hand, were made from accounts strictly
segregated from union dues and assessments, and, although some of
the contributors believed otherwise, donations to the fund were
not, in fact, necessary for employment or union membership. Under
instructions to determine whether the fund was in reality a union
fund or the contributors' fund, the jury found each defendant
guilty. The Court of Appeals rejected petitioners' challenges, and
held that the fund was a subterfuge through which the union made
political contributions of union monies in violation of § 610. The
Federal Election Campaign Act of 1971, which became effective after
oral argument here, added a paragraph at the end of § 610 that
expressly authorizes labor organizations to establish, administer,
and solicit contributions for political funds, provided that the
fund not make a contribution or expenditure in connection with a
federal election by utilizing money or anything of value secured by
physical force, job discrimination, financial reprisals, or the
threat thereof, or by monies required as a condition of employment
or union membership.
Held:
1. Section 610, as confirmed by the Federal Election Campaign
Act, does not apply to contributions or expenditures from
voluntarily
Page 407 U. S. 386
financed union political funds. A legitimate political fund must
be separate from the sponsoring union only in the sense that there
must be a strict segregation of its monies from union dues and
assessments, and solicitation by union officials, although
permissible, must be conducted under circumstances plainly
indicating that donations are for a political purpose, and that
those solicited may decline to contribute without reprisal. Pp.
407 U. S.
401-427.
2. Section 10 may be interpreted to prohibit the use of general
union monies for the establishment, administration, or solicitation
of contributions for union political funds. By clearly permitting
such use, the Federal Election Campaign Act may, therefore, have
impliedly repealed § 610. Pp.
407 U. S.
428-432.
3. Even if there has been such an implied repeal, it
nevertheless does not require abatement of the prosecution against
petitioners because of the federal saving statute, 1 U.S.C. § 109.
United States v. Reisinger, 128 U.
S. 398, followed.
Hamm v. Rock Hill,
379 U. S. 306,
distinguished. Pp.
407 U. S.
432-435.
4. The instructions to the jury were clearly erroneous because
they permitted the jury to convict without finding that donations
to the fund had been actual or effective dues or assessments. The
sufficiency of the indictment is left open for determination on
remand. Pp.
407 U. S.
435-442.
434 F.2d 1127, vacated and remanded to the District Court with
instructions to dismiss indictment against petitioners Callanan and
Lawler, both now deceased, and reversed and remanded to the
District Court as to remaining petitioners.
BRENNAN, J., delivered the opinion of the Court, in which
DOUGLAS, STEWART, WHITE, MARSHALL, and REHNQUIST, JJ., joined.
POWELL, J., filed a dissenting opinion, in which BURGER, C.J.,
joined,
post, p.
407 U. S. 442.
BLACKMUN, J., took no part in the consideration or decision of the
case.
Page 407 U. S. 387
MR. JUSTICE BRENNAN delivered the opinion of the Court.
Petitioners -- Pipefitters Local Union No. 562 and three
individual officers of the Union -- were convicted by a jury in the
United States District Court for the Eastern District of Missouri
of conspiracy under 18 U.S.C. § 371 to violate 1 U.S.C. § 610. At
the time of trial, § 610 provided in relevant part:
"It is unlawful . . . 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 . . . 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. . . ."
"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 not more
than on year, or both; and if the violation was willful, shall be
fined
Page 407 U. S. 388
not more than $10,000 or imprisoned not more than two years, 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 exist
[
sic] 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. [
Footnote 1]"
The indictment charged, in essence, that petitioners had
conspired from 1963 to May 9, 1968, to establish and maintain a
fund that (1) would receive regular and systematic payments from
Local 562 members and members of other locals working under the
Union's jurisdiction; (2) would have the appearance, but not the
reality of being an entity separate from the Union; and (3) would
conceal contributions and expenditures by the Union in connection
with federal elections in violation of § 610. [
Footnote 2]
Page 407 U. S. 389
The evidence tended to show, in addition to disbursements of
about $150,000 by the fund to candidates in federal elections, an
identity between the fund and the
Page 407 U. S. 390
Union and a collection of well over $1 million in contributions
to the fund by a method similar to that employed in the collection
of dues or assessments. In particular,
Page 407 U. S. 391
it was established that, from 1949 through 1962, the Union
maintained a political fund to which Union members and others
working under the Union's jurisdiction were, in fact, required to
contribute, and that the fund was then succeeded in 1963 by the
present fund, which was, in form, set up as a separate "voluntary"
organization. Yet a principal Union officer assumed the
Page 407 U. S. 392
role of director of the present fund, with full and unlimited
control over its disbursements. The Union's business manager,
petitioner Lawler, became the first director of the fund, and was
later succeeded by petitioner Callanan, whom one Local 562 member
described as "the Union" in explaining his influence within the
local. Moreover, no significant change was made in the regular and
systematic method of collection of contributions at a prescribed
rate based on hours worked, and Union agents continued to collect
donations at jobsites on Union time. In addition, changes in the
rate of contributions were tied to changes in the rate of members'
assessments. In 1966, for example, when assessments were increased
from 2 1/2% to 3 3/4% of gross wages, the contribution rate was
decreased from $1 to 50� per day worked, with the result that the
change did not cause, in the words of the Union's executive board,
"one extra penny cost to members of Local Union 562." At the same
time, the contribution rate for nonmembers, who were not required
to pay the prescribed travel card fee for working under Local 562's
jurisdiction, remained the same at $2 per day worked, approximately
matching the total assessment and contribution of members. Finally,
in addition to political contributions, the fund used its monies
for nonpolitical purposes, such as aid to financially distressed
members on strike, and, for a period of a few months, upon the vote
of its members, even suspended collections in favor of
contributions to a separate gift fund for petitioner Callanan.
[
Footnote 3] Not surprisingly,
various witnesses testified that,
Page 407 U. S. 393
during the indictment period, contributions to the fund were
often still referred to as -- and actually understood by some to be
-- assessments, or that they paid their contributions "voluntarily"
in the same sense that they paid their dues or other financial
obligations. [
Footnote 4]
On the other hand, the evidence also indicated that the
political contributions by the fund were made from accounts
strictly segregated from Union dues and assessments, [
Footnote 5] and that donations to the fund
were not, in fact,
Page 407 U. S. 394
necessary for employment or Union membership. The fund generally
required contributors to sign authorization cards, which contained
a statement that their donations were "voluntary . . . [and] no
part of the dues or financial obligations of Local Union No. 562 .
. . ," [
Footnote 6] and the
testimony was overwhelming from both those who contributed and
those who did not, as well as from the collectors of contributions,
that no specific pressure was exerted, and no reprisals were taken,
to obtain donations. [
Footnote
7]
Page 407 U. S. 395
Significantly, the Union's attorney who had advised on the
organization of the fund testified on cross-examination that his
advice had been that payments to the fund could not be made a
condition of employment or Local 562 membership, but it was
immaterial whether contributions appeared compulsory to those
solicited. [
Footnote 8]
Under instructions to determine whether, on this evidence, the
fund was in reality a Union fund or the contributors'
Page 407 U. S. 396
fund, [
Footnote 9] the jury
found each defendant guilty. The jury also found specially that a
willful violation of § 610 was not contemplated, and the trial
court imposed
Page 407 U. S. 397
sentence accordingly. The Union was fined $5,000, while the
individual defendants were each sentenced to one year's
imprisonment and fined $1,000.
Page 407 U. S. 398
On appeal to the Court of Appeals for the Eighth Circuit,
petitioners contended that the indictment failed to allege, and the
evidence was insufficient to sustain, a conspiracy to violate §
610, and that § 610, on its face or as construed and applied,
abridged their rights under the First, Fifth, Sixth, and
Seventeenth Amendments and Art. I, § 2, of the Constitution. They
argued further that the special finding by the jury that a willful
violation of § 610 was not contemplated effectively resulted in
acquittal, since such willfulness was an essential element of the
conspiracy under 18 U.S.C. § 371. The Court of Appeals, in a
four-to-three en banc decision, 434
Page 407 U. S. 399
F.2d 1127 (1970), adopted Judge Van Oosterhout's panel opinion
rejecting each of these claims, 434 F.2d 1116 (1970). The gist of
the court's decision, insofar as pertinent here, was that the
Pipefitters fund was a subterfuge through which the Union made
political contributions of Union monies in violation of § 610, as
demonstrated by the evidence that the fund regularly served Union
purposes and that the donors to the fund contributed in the belief
that their job security depended upon it. We granted certiorari.
402 U.S. 994 (1971).
After we heard oral argument, the President, on February 7,
1972, signed into law the Federal Election Campaign Act of 1971,
which in § 205 amends 18 U.S.C. § 610,
see infra at
407 U. S.
409-410, effective April 7, 1972.
See Federal
Election Campaign Act of 1971, § 406, 86 Stat. 20. We accordingly
requested the parties to file supplemental briefs addressing the
impact of that amendment on this prosecution. [
Footnote 10] Having considered those briefs, we
now hold that § 205 of the Federal Election Campaign Act merely
codifies prior law, with one possible exception pertinent to this
case; that the change in the law, if in fact, made, does not, in
any event, require this prosecution to abate; but that the judgment
below must, nevertheless, be reversed
Page 407 U. S. 400
because of erroneous jury instructions. [
Footnote 11] This disposition makes decision of
the constitutional issues premature, and we therefore do not decide
them.
Cf.
Page 407 U. S. 401
United States v. Auto Workers, 352 U.
S. 567 (1957);
United States v. CIO,
335 U. S. 106
(1948).
I
We begin with an analysis of § 610.
First. The parties are in agreement that § 610, despite
its broad language, does not prohibit a labor organization from
making, through the medium of a political fund organized by it,
contributions or expenditures in connection with federal elections,
so long as the monies expended are in some sense volunteered by
those asked to contribute. Thus, the Government states in its
brief,
"Nor do we dispute [petitioners'] conclusion, following their
review of the legislative history of Section 610, that a union
could 'establish a political organization for the purpose of
receiving earmarked political monies directly from [voluntary
contributions of] union members. . . .'"
Brief for the United States 27 n. 7, quoting Brief for
Petitioners 62.
See also Brief for the United States 30.
This construction of § 610 is clearly correct. [
Footnote 12]
Page 407 U. S. 402
The antecedents of § 610 have previously been traced in
United States v. Auto Workers and United States v. CIO,
both
supra. We need recall here only that the prohibition
in § 313 of the Federal Corrupt Practices Act of 1925, 43 Stat.
1074, on contributions by corporations in connection with federal
elections was extended to labor organizations in the War Labor
Disputes Act of 1943, 57 Stat. 163, but only for the duration of
the war. As the Court noted in
CIO, supra, at
335 U. S.
115,
"It was felt that the influence which labor unions exercised
over elections through monetary expenditures should be minimized,
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."
The prohibition on contributions was then permanently enacted
into law in § 304 of the Labor Management Relations Act, 1947, 61
Stat. 19, with the addition, however, of a proscription on
"expenditures" and an extension of both prohibitions to payments in
connection with federal primaries and political conventions as well
as federal elections themselves. Yet, neither prohibition applied
to payments by union political funds in connection with federal
elections so long as the funds were financed in some sense by
the
Page 407 U. S. 403
voluntary donations of the union membership. Union political
funds had come to prominence in the 1944 and 1946 election
campaigns and had been extensively studied by special committees of
both the House and the Senate. Against the backdrop of the
committee findings and recommendations, the Senate debates upon the
reach of § 304 attached controlling significance to the voluntary
source of financing of the funds. The unequivocal view of the
proponents of § 304 was that the contributions and expenditures of
voluntarily financed funds did not violate that provision.
The special committees investigating the 1944 and 1946 campaigns
devoted particular attention to the activities of the Political
Action Committee (PAC) of the Congress of Industrial Organizations
(CIO) because they had stirred considerable public controversy.
See H.R.Rep. No. 2093, 78th Cong., 2d Sess., 2-6 (1945);
S.Rep. No. 101, 79th Cong., 1st Sess., 20-24, 57-59 (1945);
H.R.Rep. No. 2739, 79th Cong., 2d Sess., 30-31 (1946).
See
also S.Rep. No. 1, pt. 2, 80th Cong., 1st Sess., 34 (1947).
The committee findings were that PAC had been established by the
executive board of the CIO in July 1943; that it consisted of a
national office and 14 regional offices advising and coordinating
numerous state and local political action committees; that its
connection to the CIO was close at every level of organization;
that its program, adopted by the CIO convention in November, 1943,
had included the reelection of President Roosevelt and the election
of a "progressive" Congress; that it had initially been financed by
sizable pledges from the treasuries of CIO international unions and
that some of these funds had been expended in federal primaries;
but that, following the nomination in July, 1944, of President
Roosevelt for reelection, it was generally financed by $1
contributions knowingly and freely made by individual CIO members;
and that these monies were used for
Page 407 U. S. 404
political educational activities, including "get out the vote"
drives, but were not directly contributed to any candidate or
political committee. Thus, PAC had limited its direct contributions
in federal campaigns to primaries, to which the Act at the time
expressly did not apply, and restricted its activities in the
elections themselves to so-called "expenditures," rather than
"contributions." The Senate Special Committee on Campaign
Expenditures concluded in 1945 that, in these circumstances, there
was "no clear-cut violation" by PAC of § 313 of the Corrupt
Practices Act. S.Rep. No. 101,
supra, at 23. Although
there was agreement within the committee that § 313 should be
extended to federal primaries and nominating conventions because of
their importance in determining final election results,
id. at 81-82, [
Footnote
13] there was disagreement on whether § 313 should also be
amended to proscribe "expenditures" in addition to "contributions."
A majority believed that it should not be, in part because the
amendment "would tend to limit the rights of freedom of speech,
freedom of the press, and freedom of assembly as guaranteed by the
Federal Constitution."
Id. at 83. [
Footnote 14] Senators Ball and Ferguson, who
dissented from this conclusion, nevertheless conceded that even as
to "expenditures"
"[i]f the Political Action Committee had been organized on a
voluntary basis and obtained its funds from voluntary individual
contributions from the beginning, there could be no quarrel with
its activities or program and in fact, both are desirable in a
democracy."
Id. at 24. The
Page 407 U. S. 405
House Campaign Expenditures Committee in 1946, however, strongly
urged the adoption of a prohibition on "expenditures" in terms
condemning the activities of PAC without regard to the source of
its fund's. [
Footnote
15]
Then, in 1947, Congress made permanent the application of § 313
of the Corrupt Practices Act to labor organizations and closed the
loopholes that were thought to have been exploited in the 1944 and
1946 elections. These changes were embodied in § 304 of the labor
bill introduced by Representative Hartley, which was adopted by the
House and the conference committee with little apparent discussion
or opposition. [
Footnote 16]
The provision, however,
Page 407 U. S. 406
provoked lengthy debate on the Senate floor when Senator Taft,
sponsor of the Senate labor bill and one of the Senate conferees,
sought to explain its import. That debate compellingly demonstrates
that voluntarily financed union political funds were not believed
to be prohibited by the broad wording of § 304. Thus, Senator Taft
stated:
"[I]t seems to me the conditions are exactly parallel, both as
to corporations and labor organizations. [An association of
manufacturers] receiving corporation funds and using them in an
election would violate the law, in my opinion, exactly as the PAC,
if it got its fund from labor unions, would violate the law.
If
the labor people should desire to set up a political organization
and obtain direct contributions for it, there would be nothing
unlawful in that. If the National Association of
Manufacturers, we will say, wanted to obtain individual
contributions for a series of advertisements, and if it, itself,
were not a corporation, then, just as in the case of PAC, it could
take an active part in a political campaign."
93 Cong.Rec. 6439 (1947) (emphasis added). In response to a
question by Senator Magnuson whether unions would be prohibited
from publishing a newspaper "favoring a candidate, mentioning his
name, or endorsing him for public office," Taft continued:
"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
Page 407 U. S. 407
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. at 6440 (emphasis added). When Magnuson rejoined
that "all union members know that a part of their dues in these
cases go for the publication of some labor [newspaper] organ," Taft
concluded:
"Yes. How fair is it? We will assume that 60 percent of a
union's employees are for a Republican candidate and 40 percent are
for a Democratic candidate. Does the Senator think the union
members should be forced to contribute, without being asked to do
so specifically, and without having a right to withdraw their
payments, to the election of someone whom they do not favor? Assume
the paper favors a Democratic candidate whom they oppose or a
Republican candidate whom they oppose. Why should they be forced to
contribute money for the election of someone to whose election they
are opposed?
If they are asked to contribute directly to the
support of a newspaper or to the support of a labor political
organization, they know what their money is to be used for and
presumably approve it. From such contribution the organization can
spend all the money it wants to with respect to such
Page 407 U. S. 408
matters. But the prohibition is against labor unions using
their members' dues for political purposes, which is exactly
the same as the prohibition against a corporation using its
stockholders' money for political purposes, and perhaps in
violation of the wishes of many of its stockholders."
Ibid. (emphasis added).
See also id. at 6437,
6438.
Senator Taft's view that a union cannot violate the law by
spending political funds volunteered by its members was consistent
with the legislative history of the War Labor Disputes Act and an
express interpretation given to that Act by the Attorney General in
1944. [
Footnote 17] His
Page 407 U. S. 409
view also reflected concern that a broader application of § 610
might raise constitutional questions of invasion of First Amendment
freedoms, and he wished particularly to reassure colleagues who had
reservations on that score and whose votes were necessary to
override a predictable presidential veto,
see 93 Cong.Rec.
7485, of the Labor Management Relations Act. [
Footnote 18] We conclude, accordingly, that his
view of the limited reach of § 610, entitled, in any event, to
great weight, is, in this instance, controlling.
Cf. Newspaper
Pub. Assn. v. NLRB, 345 U. S. 100,
345 U. S.
106-111 (1953);
Bus Employees v. Wisconsin
Board, 340 U. S. 383,
340 U. S. 392
n. 15 (1951). We therefore hold that § 610 does not apply to union
contributions and expenditures from political funds financed in
some sense by the voluntary donations of employees.
Cf. United
States v. Auto Workers, 352 U.S. at
352 U. S. 592;
United States v. CIO, 335 U.S. at
335 U. S.
123.
Section 205 of the Federal Election Campaign Act confirms this
conclusion by adding at the end of § 610 the following
paragraph:
"
As used in this section, the phrase 'contribution or
expenditure' shall include any direct or indirect payment,
distribution, loan, advance, deposit, or gift of money, or any
services, or anything of value (except a loan of money by a
national or State bank
Page 407 U. S. 410
made in accordance with the applicable banking laws and
regulations, and in the ordinary course of business) to any
candidate, campaign committee, or political party or organization,
in connection with any election to any of the offices referred to
in this section; but
shall not include communications by a
corporation to its stockholders and their families or by a labor
organization to its members and their families on any subject;
nonpartisan registration and 'get out the vote' campaigns by a
corporation aimed at its stockholders and their families, or by a
labor organization aimed at its members and their families;
the
establishment, administration, and solicitation of contributions to
a separate segregated fund to be utilized for political purposes by
a corporation or labor organization: Provided, That it shall be
unlawful for such a fund to make a contribution or expenditure by
utilizing money or anything of value secured by physical force, job
discrimination, financial reprisals, or the threat of force, job
discrimination, or financial reprisal; or by dues, fees, or other
monies required as a condition of membership in a labor
organization or as a condition of employment, or by monies
obtained in any commercial transaction."
86 Stat. 10 (emphasis added). This amendment stemmed from a
proposal offered by Representative Hansen on the House floor,
see 117 Cong.Rec. 43379, to which the Senate acquiesced in
conference.
See id. at 46799 (joint conference committee
report). Hansen stated that the purpose of his proposal was, with
one exception not pertinent here, [
Footnote 19] "to codify the court decisions interpreting
[and the legislative history explicating] section 610 . . . and to
spell out in
Page 407 U. S. 411
more detail what a labor union or corporation can or cannot do
in connection with a Federal election." [
Footnote 20] Moreover, there was substantial agreement
among his colleagues that the effect of his amendment was, in fact,
mere codification and clarification, [
Footnote 21] and even those who disagreed did not dispute
that voluntarily financed union political funds are permissible.
Indeed, Representative Crane, who led the opposition to the Hansen
amendment, [
Footnote 22]
himself had written the House committee provision for which the
Hansen amendment was, in effect, substituted. [
Footnote 23] Mr. Crane's provision, like the
Hansen amendment, was said in some measure to codify existing law,
[
Footnote 24] and would also
have specifically authorized voluntary funds. [
Footnote 25] This consensus that has now been
captured in
Page 407 U. S. 412
express terms in § 610 cannot, of course, by itself,
conclusively establish what Congress had in mind in 1947. But it
does "
throw a cross-light'" on the earlier enactment that,
together with the latter's legislative history, demonstrates beyond
doubt the correctness of the parties' common ground of
interpretation of § 610. Michigan Nat. Bank v. Michigan,
365 U. S. 467,
365 U. S. 481
(1961) (quoting L. Hand, J.). Cf. 388 U.
S. Allis-Chalmers Mfg. Co.,
Page 407 U. S. 413
388 U. S. 175,
388 U. S. 194
(1967);
NLRB v. Drivers Local Union, 362 U.
S. 274,
362 U. S.
291-292 (1960).
Second. Where the litigants part company is in defining
precisely when political contributions and expenditures by a union
political fund fall outside the ambit of § 610. The Government
maintains, first, that a valid fund may not be the alter ego of the
sponsoring union in the sense of being dominated by it and serving
its purposes, regardless of the fund's source of financing:
"Section 610 was violated [the Government explains] if in fact,
the [Pipefitters] Fund was merely a subterfuge through which the
union itself made proscribed political contributions, irrespective
of whether the moneys so contributed were voluntarily given to the
Fund by the contributors. . . . [T]he evidence that the payments
were voluntary [was only a factor relevant] in determining if it
was the union or the Fund as a separate entity that made the
political contributions in question. . . ."
Brief for the United States in Opposition to the Petition for
Certiorari 7.
See also Brief for the United States 24. The
requirement that the fund be separate from the sponsoring union
eliminates, in the Government's view, "the corroding effect of
money employed in elections by aggregated powers,"
United
States v. Auto Workers, 352 U.S. at
352 U. S. 582,
which this Court has found to be one of the dual purposes
underlying § 610.
See id., passim; United States v. CIO,
335 U.S. at
335 U. S. 113,
335 U. S. 115.
The Government urges, secondly, that, in accordance with the
legislative intent to protect minority interests from overbearing
union leadership, which we have found to be the other purpose of §
610,
see ibid., the fund may not be financed by monies
actually required for employment or union membership or by payments
that
Page 407 U. S. 414
are effectively assessed, that is, solicited in circumstances
inherently coercive. [
Footnote
26] Petitioners, on the other hand, contend that, to be valid,
a political fund need not be distinct from the sponsoring union,
and, further, that § 610 permits the union to exercise
institutional pressure, much as recognized charities do, in
soliciting donations.
See Brief for Petitioners 71, 73 n.
22.
We think that neither side fully and accurately portrays the
attributes of legitimate political funds. We hold that such a fund
must be separate from the sponsoring union only in the sense that
there must be a strict segregation of its monies from union dues
and assessments. [
Footnote
27] We hold, too, that, although solicitation by union
officials is permissible, such solicitation must be conducted under
circumstances plainly indicating that donations are for a political
purpose, and that those solicited may decline to contribute without
loss of job, union membership, or any other reprisal within the
union's institutional power. Thus, we agree with the second half of
the Government's position, but reject the first.
As Senator Taft's remarks quoted above indicate,
supra
at
407 U. S.
406-408. the test of voluntariness under § 610 focuses
on whether the contributions solicited for political use are
knowing free-choice donations. The dominant concern in requiring
that contributions be voluntary was, after all, to protect the
dissenting stockholder or union
Page 407 U. S. 415
member. Whether the solicitation scheme is designed to inform
the individual solicited of the political nature of the fund and
his freedom to refuse support is, therefore, determinative.
Nowhere, however, has Congress required that the political
organization be formally or functionally independent of union
control or that union officials be barred from soliciting
contributions or even precluded from determining how the monies
raised will be spent. The Government's argument to the contrary in
the first half of its position is based on a misunderstanding of
the purposes of § 610. [
Footnote
28] When Congress prohibited
Page 407 U. S. 416
labor organizations from making contributions or expenditures in
connection with federal elections, it was, of course, concerned not
only to protect minority interests within the union, but to
eliminate the effect of aggregated wealth on federal elections. But
the aggregated wealth it plainly had in mind was the general union
treasury -- not the funds donated by union members of their own
free and knowing choice. Again, Senator Taft adamantly maintained
that labor organizations were not prohibited from expending those
monies in connection with federal elections. Indeed, Taft clearly
espoused the union political organization merely as an alternative
to permissible direct political action by the union itself through
publications endorsing candidates in federal elections. The only
conditions for that kind of direct electioneering were that the
costs of publication be financed through individual subscriptions,
rather than through union dues, and that the newspapers be
recognized by the subscribers as political organs
Page 407 U. S. 417
that they could refuse to purchase. [
Footnote 29] Neither the absence of even a formally
separate organization, the solicitation of subscriptions by the
union, nor the method for choosing the candidates to be supported
was mentioned as being material. Similarly, the only requirements
for permissible political organizations were that they be funded
through separate contributions and that they be recognized by the
donors as political organizations to which they could refuse
support. As Taft said,
"If the labor people should desire to set up a political
organization and obtain direct contributions for it, there would be
nothing unlawful in that, . . . 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."
Supra at
407 U. S. 406,
407 U. S.
407.
The operations of PAC, the organization that dominated the
congressional investigations of the 1944 and 1946 campaigns and
that was expressly approved by the 80th Congress, are especially
instructive in this regard. Significantly, it was exactly the
knowing free choice donation test of voluntariness that PAC sought
scrupulously to observe in soliciting contributions. Sidney
Hillman, Chairman of PAC, testified before the House Campaign
Expenditures Committee in 1944:
"[W]e have utilized every avenue to tell the people not to
become overenthusiastic about collections. We want this
contribution on a voluntary basis, and would rather have no
contribution than to have any
Page 407 U. S. 418
taint of coercion or even any interference. We do not want any
money except from those who want to see the reelection of
Roosevelt. [
Footnote
30]"
PAC was, nevertheless, generally regarded not as a functionally
separate organization (except for its method of financing [
Footnote 31]) but as an
instrumentality of the CIO, itself subsumed within the definition
of "labor organization." [
Footnote 32] It was, as we have seen, established by
Page 407 U. S. 419
the executive board of the CIO, its program was adopted at the
national CIO convention, and its relationship to the CIO was close
at every level of organization. [
Footnote 33] Furthermore, union agents generally
collected contributions, H.R.Rep. No. 2093, 78th Cong.,
Page 407 U. S. 420
2d Sess., 5 (1945), and the union leadership was instrumental in
choosing candidates to be supported. [
Footnote 34] Thus, far from being a separate organization
sprouting from the desires of the rank and file to engage in
political action, PAC, the paradigm union political fund, was a
medium for organized labor, conceived and administered by union
officials, to pursue through the political forum the goals of the
working man. [
Footnote 35]
And the only prerequisite for its continued
Page 407 U. S. 421
operation after enactment of § 304 of the Labor Management
Relations Act was that it be strictly financed by solicitations
designed to result in knowing free choice donations.
This conclusion, too, we find confirmed by § 205 of the Federal
Election Campaign Act,
supra, at
407 U. S.
409-410. That provision expressly authorizes "the
establishment, administration, and solicitation of contributions to
a separate segregated fund to be utilized for political purposes by
a corporation or labor organization. . . ." The provision then
states in a proviso clause that
"it shall be unlawful for such a fund to make a contribution or
expenditure by utilizing money or anything of value secured by
physical force, job discrimination, financial reprisals, or the
threat of force, job discrimination, or financial reprisal; or by
dues, fees, or other monies required as a condition of membership
in a labor organization or as a condition of employment. . . ."
Thus, § 205 plainly permits union officials to establish,
administer, and solicit contributions for a political fund. The
conditions for that activity are that the fund be "separate" and
"segregated," and that its contributions and expenditures not be
financed through physical force, job discrimination, or financial
reprisal or the "threat" thereof, or through "dues, fees, or other
monies required as a condition of membership in a labor
organization or as a condition of employment." The quoted language
is admittedly subject to contrary interpretations. "Separate" could
(and normally, when juxtaposed to "segregated," would) be read to
mean an apartness beyond "segregated"; "threat" could be construed
as referring only to the expression of an actual intention to
inflict
Page 407 U. S. 422
injury; and "dues, fees, or other monies required as a condition
of membership in a labor organization or as a condition of
employment" could be interpreted to mean only actual dues or
assessments. But we think that the legislative history of § 205
establishes that "separate" is synonymous with "segregated"; that
"threat" includes the creation of an appearance of an intent to
inflict injury even without a design to carry it out; and that
"dues, fees, or other monies required as a condition of membership
in a labor organization or as a condition of employment" includes
contributions effectively assessed, even if not actually required
for employment or union membership.
The Hansen amendment was an alternative to Representative
Crane's proposal, which declared in relevant part,
n 25,
supra:
"Nothing in this section shall preclude an organization from
establishing and administering a separate contributory fund for any
political purpose . . . . if all contributions, gifts, or payments
to such fund are made
freely and voluntarily, and are
unrelated to dues, fees, or other moneys required as a condition of
membership in such organization or as a condition of
employment."
(Emphasis added.) The debate on the differences between the
Crane and Hansen provisions did not involve this language when the
Hansen amendment was first introduced and adopted by the House.
See ibid. At that point, Hansen merely indicated in
general explanation of his amendment that a permissible fund had to
be "separate," which, in context, clearly meant "segregated,"
see 117 Cong.Rec. 43379, [
Footnote 36] and that, although the law could not
"control
Page 407 U. S. 423
the mental reaction" of a union member solicited by his union
chief,
id. at 43381, [
Footnote 37] the monies obtained had to come
"in a truly voluntary manner, and without the employment of the
kinds of threats or reprisals or other methods that are prohibited
by this amendment."
Ibid. Thus, interpreted, the Hansen amendment, as its
author explained, served the traditional purposes of § 610:
"[T]he underlying theory of section 610 is that substantial
general purpose treasuries should not be diverted to political
purposes, both because of the effect on the political process of
such aggregated wealth and out of concern for the dissenting member
or stockholder. Obviously, neither of these considerations cuts
against allowing voluntary political funds. For no one who objects
to the organization's politics has to lend his support, and the
money collected
Page 407 U. S. 424
is that intended by those who contribute to be used for
political purposes, and not money diverted from another
source."
Ibid. No one at that time disputed that the Crane and
Hansen provisions were the same in these respects in codifying
prior law.
After the conference committee had adopted the Hansen amendment,
however, Crane inserted in the record a Wall Street Journal article
suggesting that the Hansen amendment had been inspired by the
AFL-CIO to overrule the Court of Appeals decision in this case by
authorizing a union political fund even if it is not separate and
distinct from the sponsoring union, and by altering the test of
voluntariness to focus on the absence of force, rather than on the
contributor's intent to make a donation of his own free and knowing
choice.
See 118 Cong.Rec. 323-324. [
Footnote 38] Crane did not significantly
elaborate on the article or specifically endorse each of the
particular points it made.
Hansen rejoined that he "[stood] fully behind every word of the
statement" he had made during the earlier debate on his amendment,
and
"[repeated] . . . that the purpose and effect of my amendment is
[
sic] to codify and clarify the existing law and not to
make any substantive
Page 407 U. S. 425
changes in the law."
Id. at 328. [
Footnote 39] He stated further that his
"amendment is consistent with the position taken by the Justice
Department in the brief it filed with the U.S. Supreme Court in the
Pipefitters case [which charged that the contributions to
the Pipefitters fund 'were assessed by the union as part of its
dues structure'] . . . ,"
since his amendment prohibited financing political funds through
monies required for employment or union membership. His amendment,
therefore, would not have the effect of "thwarting" that
prosecution.
Id. at 32329 (emphasis omitted). Hansen
stated, too, that his
"amendment is also consistent with the provisions of the
so-called Crane amendment dealing with the legality of a separate,
voluntary political fund."
Ibid. The only difference he appears to have seen
between his amendment and the text of the Crane provision quoted
above was that the one made explicit what the other treated
implicitly. Hansen explained:
"[A]s Senator DOMINICK stated, speaking in support of an
amendment to section 610 he offered to the other body, the general
view is that: "
" If a member wishes to pay money voluntarily to a candidate or
to a labor organization fund for a candidate or even to a fund
which the union will determine how it is to be spent, I have no
objections."
"[117 Cong.Rec. 29329. [
Footnote 40]]"
"The Hansen amendment, building on this consensus, tracks this
language with a single addition
Page 407 U. S. 426
making explicit what is implicit in the Crane amendment -- that
unions and corporations may solicit contributions to these funds as
long as they do so without attempting to secure money through
'physical force, job discrimination, financial reprisals,' or the
threat thereof. Thus, the Hansen amendment does not break new
ground; it merely writes currently accepted practices into clear
and explicit statutory language."
Id. at 329. Crane made no reply to these
assertions.
We conclude from this legislative history that the term
"separate" in the Hansen amendment is synonymous with "segregated."
Nothing in the legislative history indicates that the word is to be
understood in any other way. To the contrary, Hansen's comments in
general explanation of his amendment support that interpretation,
as does the use of the term in the Crane provision, with which,
Hansen said, his amendment was consistent. Moreover, Hansen did not
deny that his amendment departed from the Court of Appeals'
insistence in the
Pipefitters decision that a permissible
political fund be separate and distinct from the sponsoring union;
instead, he merely found his amendment consistent with the
Government's argument before this Court that political
contributions and expenditures cannot be made from dues or
assessments. Finally, both the Crane and the Hansen amendments
expressly authorize unions to establish and administer voluntary
political funds. The Hansen amendment also expressly authorizes
union officials to solicit contributions and, as the quoted
statement of Senator Dominick indicates, further permits them to
determine the disposition of the monies raised. In these
circumstances, it is difficult to conceive how a valid political
fund can be meaningfully "separate" from the sponsoring union in
any way other than "segregated."
Page 407 U. S. 427
Similarly, we conclude that the term "threat" and the phrase
"dues, fees, or other monies required as a condition of membership
in a labor organization or as a condition of employment" must be
read broadly to encompass solicitation schemes that do not make
plain the political nature of the union fund and the freedom of the
individual solicited to refuse to contribute without reprisal. The
term and the phrase, in other words, include apparent, as well as
actual, threats and dues or assessments, respectively. Again,
Hansen's explanatory statements are all consistent with that
interpretation. Even his observation that the law cannot "control
the mental reaction" of a union member approached by a union
official seems better taken simply as justification for allowing
solicitation by union officials at all, rather than as condoning
the use of tacit force or pressure. Moreover, if the Hansen
amendment is to be construed, as Hansen indicated it should be,
in pari materia with the Crane provision, it, too, must
require that donations be made "freely and voluntarily." Likewise,
if the amendment is meant, as Hansen said it was, to embrace the
Government's position in this case, we merely implement his purpose
by interpreting "dues, fees, or other monies required as a
condition of membership in a labor organization or as a condition
of employment" as including not only actual, but also effective,
dues or assessments.
Construed as we have done, § 205 of the Federal Election
Campaign Act does nothing more than accomplish the expressed
purpose of its author -- that is, codify and clarify prior law. But
since we have arrived at our interpretation without reference to
prior law, § 205 once again throws on § 610, as embodied in § 304
of the Labor Management Relations Act, "a cross-light" that
confirms our understanding of the law applicable to this
prosecution.
Page 407 U. S. 428
Third. Arguably, however, there is one change effected
by § 205 material to this case, and that is with regard to the use
of general union monies for the establishment, administration, and
solicitation of contributions for political funds. Section 304 of
the Labor Management Relations Act may be interpreted to prohibit
such use, while the Hansen amendment plainly permits it.
As we have seen,
supra at
407 U. S. 403,
PAC was initially financed from general union treasuries. After the
nomination of President Roosevelt for reelection, however, the
costs of administration of PAC, as well as its political
expenditures, were mainly, although not entirely, financed from a
segregated account of voluntary individual donations. The House
campaign expenditures committee explained in its 1945 report,
H.R.Rep. No. 2093, 78th Cong.2d Sess., 5 (1945):
"[I]t is not . . . possible completely to separate the resources
and facilities made available to the Political Action Committee
even after July 23, 1944 [when Roosevelt became a candidate for
reelection], from those of the Congress of Industrial Organizations
and its unions. On the national level and in most States, that
separation appears to have been preserved so far as cash income and
cash expenditures for strictly Political Action Committee. as
distinguished from union activities. are concerned. The local
distribution of Political Action Committee literature, for example,
has been largely handled by volunteers on their own time; and the
contributions have largely been taken by shop stewards outside
working hours. But no such separation has proved possible where the
use of union offices [
Footnote
41] and office
Page 407 U. S. 429
personnel is concerned. Union personnel assigned to full-time
Political Action Committee work have typically been transferred
from the union to the Political Action Committee payroll. But the
part-time Political Action Committee services of persons who are
both union and Political Action Committee officers cannot be thus
readily segregated."
In endorsing PAC in the enactment of § 304 of the Labor
Management Relations Act, Congress clearly had in mind PAC's
financial structure after July, 1944. Congress, therefore, may have
considered that PAC's activities in the future could be financed
only from voluntary donations separate from union dues and
assessments, except for incidental expenses such as office space
and part-time personnel. Alternatively, in view of the emphasis on
protecting minority union interests and maintaining a strict
segregation of funds, Congress may have thought that all of PAC's
activities, including the costs of administration and solicitation
of contributions, had to be paid for exclusively from voluntary
contributions. The evidence is strong at least that Congress
believed the costs of organization of new union political funds had
to be financed in that way.
See, e.g., S.Rep. No. 101,
79th Cong., 1st Sess., 24 (1945) (statement by Sens. Ball and
Ferguson, quoted
supra at
407 U. S.
404).
In contrast, the Hansen amendment provides that "it shall be
unlawful for such a fund to make a contribution or expenditure by
utilizing money or anything of value secured" in a prohibited way.
Conceivably this language could be read to forbid making
contributions or expenditures through the establishment or
administration of a political fund or through the solicitation
of
Page 407 U. S. 430
donations financed by general union monies. But that is neither
the plain meaning nor, as the legislative history of § 205 shows,
the intended construction of the provision. When the Hansen
amendment was first introduced, its sponsor explained:
"As a further safeguard [against the use of a compulsory fund
for political purposes], the proviso also makes it a violation for
such a fund to make a contribution or expenditure from money
collected as dues or other fees required as a condition of
membership or employment or obtained through commercial
transactions. This insures that any money, service, or tangible
item -- such as a typewriter, Xerox machine, and so forth --
provided to a candidate by such a fund must be financed by the
voluntary political donations it has collected."
117 Cong.Rec. 43381. At no point in the debate on § 205 did
Hansen suggest that his amendment was to be read more broadly than
this, despite the fact that the Wall Street Journal article
inserted in the record by Representative Crane specifically charged
that "union chiefs could use dues money to pay for the soliciting.
. . ." 118 Cong.Rec. 323. Furthermore, the exemption for the
establishment, administration, and solicitation of contributions
for voluntary political funds was but one of three exceptions to
the general rule prohibiting corporations and labor organizations
from making contributions or expenditures in connection with
federal elections. The other two exceptions were communications to,
and nonpartisan registration and get-out-the-vote campaigns aimed
at, stockholders or union members and their families. In explaining
the three exemptions, Hansen clearly regarded each of them as a
permissible activity to be financed by general union funds, for
each, in his view, was an activity where group
Page 407 U. S. 431
interests predominated [
Footnote 42] and "the interest of the minority [was]
weakest. . . ." 117 Cong.Rec. 43380.
"At the present time, [Hansen summarized] there is broad
agreement as to the essence of the proper balance in regulating
corporate and union political activity required by sound policy and
the Constitution. It consists of a strong prohibition on the use of
corporate and union treasury funds to reach the general public in
support of, or opposition to, Federal candidates, and a limited
permission to corporations and unions, allowing them to communicate
freely with members and stockholders on any subject, to attempt to
convince members and stockholders to register and vote, and to make
political contributions and expenditures financed by voluntary
donations which have been kept in a separate segregated fund. This
amendment writes that balance into clear and unequivocal statutory
language."
Id. at 43381.
Page 407 U. S. 432
Thus, § 205 may in one respect have impliedly repealed the
substantive law relating to this prosecution. [
Footnote 43] But we need not now decide that
question, because even if there has been such an implied repeal, it
would not affect this prosecution for reasons to which we now
turn.
II
The rule is well established that prosecutions under statutes
impliedly or expressly repealed while the case is still pending on
direct review must abate in the absence of a demonstration of
contrary congressional intent or a general saving statute. For,
"[p]rosecution for crimes is but an application or enforcement of
the law, and if the prosecution continues, the law must continue to
vivify it."
United States v. Chambers, 291 U.
S. 217,
291 U. S. 226
(1934). This doctrine had its earliest expression in
United States v. Schooner
Peggy, 1 Cranch 103 (1801), and has since "been
consistently recognized and applied by this Court."
Bell v.
Maryland, 378 U. S. 226,
378 U. S. 231
n. 2 (1964). As Chief Justice Hughes observed in
Chambers,
supra, at
291 U. S.
226,
"The principle involved is . . . not archaic, but rather is
continuing and vital -- that the people are free to withdraw the
authority they have conferred, and, when withdrawn, . . . the
courts [cannot] assume the right to continue to exercise it."
In this case, however, although we do not find a demonstration
of contrary congressional intent that would
Page 407 U. S. 433
overcome application of this rule if applicable, [
Footnote 44] we do hold that the general
federal saving statute, 61 Stat. 635, 1 U.S.C. § 109, operates to
nullify any abatement of the prosecution. That statute provides in
pertinent part:
"The repeal of any statute shall not have the effect to release
or extinguish any penalty, forfeiture, or liability incurred under
such statute unless the repealing Act shall so expressly provide,
and such statute shall be treated as still remaining in force for
the purpose of sustaining any proper action or prosecution for the
enforcement of such penalty, forfeiture, or liability."
In
United States v. Reisinger, 128 U.
S. 398 (1888), the Court reviewed an indictment,
returned in 1885, alleging that the defendant, an attorney, had in
1883 charged
Page 407 U. S. 434
clients in pension cases against the Government $100 and $50,
respectively, in violation of a $10 maximum fee established by Act
of Congress, June 20, 1878, 20 Stat. 243. Despite the fact that
Congress had expressly repealed that Act and raised the maximum
permissible fee in pension cases to $25 in 1884, Act of Congress,
July 4, 1884, § 3, 23 Stat. 99, the Court sustained the indictment
on the basis of the federal saving statute. In
Hamm v. Rock
Hill, 379 U. S. 306
(1964), on the other hand, we held that the saving statute would
not nullify abatement of federal prosecutions for trespass in
public luncheon facilities following enactment of the public
accommodation requirements of the Civil Rights Act of 1964. We
explained,
id. at
379 U. S. 314:
obviate mere technical abatement such as that illustrated by the
application of the rule in
United States v.
Tynen, 11 Wall. 88, decided in 1871. There, a
substitution of a new statute with a greater schedule of penalties
was held to abate the previous prosecution. In contrast, the Civil
Rights Act works no such technical abatement. It substitutes a
right for a crime. So drastic a change is well beyond the narrow
language of amendment and repeal. It is clear, therefore, that, if
the convictions were under a federal statute, they would be
abated.
The instant case is controlled by
Reisinger, rather
than by
Hamm. Section 205 of the Federal Election Campaign
Act may, of course, make lawful what was previously unlawful --
namely, the financing of the establishment, administration, and
solicitation of contributions for voluntary political funds from
general union monies. But § 205 does not, in any event,
"[substitute] a right for a crime." To the contrary, as in
Reisinger and
Tynen, it
Page 407 U. S. 435
retains the basic offense -- contributions or expenditures by
labor organizations in connection with federal elections are still
forbidden so long as they are paid for from actual or effective
dues or assessments. We therefore hold that, even if there has been
an implied repeal of § 610, petitioners remain punishable under
that provision. We turn now to determine whether the convictions
below have been returned consistently with that law.
III
The Government urges:
"The essential charge of the indictment and the theory on which
the case was tried was that the [Pipefitters] Fund, although
formally set up as an entity independent of Local 562,
was, in
fact, a union fund, controlled by the union, contributions to
which were assessed by the union as part of its dues structure,
collected from non-members in lieu of dues, and expended, when
deemed necessary, for union purposes and the personal use of the
directors of the Fund."
Brief for the United States 2 (emphasis added).
See
also Brief for the United States in Opposition to the Petition
for Certiorari 11-12. [
Footnote
45] This was indeed, as we shall shortly see, the theory on
which the indictment was drawn, the jury was instructed, and
petitioners' convictions were affirmed. It is also the construction
of
Page 407 U. S. 436
§ 610 that we have rejected in favor of the Government's
narrower construction that the prerequisite for a permissible
political fund is simply that it not be financed by actual or
effective dues or assessments.
See supra at
407 U.S. 413-414. On the other hand, we
find that the indictment may be read to allege not only that the
Pipefitters fund was "a union fund, controlled by the union," but
that "contributions to [it] were assessed by the union as part of
its dues structure, [and were] collected from non-members in lieu
of dues. . . ." For reasons that follow, however, we do not now
construe the indictment as making this essential allegation, but
leave that question open for determination on remand. We hold now
only that the jury instructions failed to require proof of the
essential element for conviction, and hence reverse the judgment
below.
First. Petitioners moved before trial to dismiss the
indictment on the following ground, App. 28:
"The gist of the indictment is to allege that Section 610 . . .
prohibits labor unions from forming parallel political
organizations which receive voluntary contributions from the
members of the union to be contributed and expended in Federal
elections. Congress intended such political organizations to be
legally authorized. Thus, the indictment fails to state an offense.
. . ."
Petitioners also moved for a bill of particulars,
id.
at 30:
"whether it is the government's position and theory of the case
that the mere fact that the [Pipefitters fund] was established,
maintained, and administered by members, officers, employees,
agents, foremen and shop [stewards] of Local 562 is, in and of
itself, sufficient to make said Fund, under the law, a Fund of
Local 562[;] . . . whether or not it is the government's
Page 407 U. S. 437
position that Section 610 . . . prohibits the members, officers,
employees, agents, foremen and shop [stewards] of a union from
establishing any political organization or fund for the purpose of
making contributions and expenditures in connection with [federal]
elections . . . [;] . . . whether it is the government's position
and theory of the case that the alleged 'regular and systematic
collection, receipt, and expenditures of money obtained from
working members of Local 562 and from working members of other
labor organizations employed under jurisdiction of the defendant
Local 562' were voluntary or involuntary collections and
contributions. [
Footnote
46]"
In a memorandum in opposition to the motion to dismiss, the
Government acknowledged petitioners' argument "that the indictment
is defective in that it does not allege that the funds involved
were not voluntary," and took the position that
"[p]roof of the offense charged here does not depend upon
whether the funds were volunteered or not by union members. The
issue is whether these funds were the general funds of Local
562,"
id. at 56, which the indictment, in the Government's
view, impliedly charged in alleging that petitioners
"
unlawfully, willfully and knowingly did conspire and agree
with each other . . . to violate Section 610. . . .'" Id.
at 54. The trial court overruled each of petitioners' motions
without opinion.
On appeal the Court of Appeals adopted the Government's theory
of the case. First, it ruled that, by implication,
"[t]he gist of the government's claim as reflected by the
indictment is that the money in the fund is, in
Page 407 U. S. 438
truth and in fact, money belonging to Local 562."
434 F.2d at 1120. [
Footnote
47] The court then held,
ibid.:
"The failure of the indictment to allege that the payments to
the fund were involuntary is not fatal. . . . If [the allegation
that the money in the fund is in fact, Union money] is established
by the evidence, the issue of whether the payment to the fund is
voluntary or involuntary is not controlling."
"Of course, as observed by the [trial] court in its
instructions, the issue of whether the payments to the fund were
voluntary is relevant and material on the issue of whether the fund
is the property of Local 562. Other considerations such as the
intention of the donors as to ownership and control of the fund
also bear upon the issue."
This account of the proceedings below indicates that the
question of the voluntariness of the contributions to the
Pipefitters fund was regarded both at trial and on appeal as a
matter relating to, but not essential for, the basic charge of the
indictment that Local 562 concealed political contributions of
Union monies through the subterfuge of a Union controlled fund.
This theory, of course, flies in the face of the legislative
history of
Page 407 U. S. 439
§ 610. The impressive lesson of that history in this regard is
that the political contributions in issue violated § 610 if, and
only if, payments to the fund were actually or effectively required
for employment or union membership. In other words, the essence of
the crime in this respect is whether the method of solicitation for
the fund was calculated to result in knowing free choice donations.
Whether the fund was otherwise controlled by the Union is
immaterial.
We think, nevertheless, that the indictment may be read,
consistently with the proper interpretation of § 610, to allege
that the contributions to the Pipefitters fund derived from
effective dues or assessments. [
Footnote 48] But
Page 407 U. S. 440
whether the indictment should now be construed in light of the
proceedings below to make this allegation is an altogether
different question. [
Footnote
49] Since this precise question was not addressed below and has
not been briefed or argued before us, and since the case must, in
any event, be remanded, whereupon the issue may become moot,
[
Footnote 50] we do not now
undertake to decide it. Instead, in the event that the Government
chooses to proceed with the indictment before us, petitioners shall
have leave to renew their motion to dismiss.
Second. The jury instructions embody an interpretation
of § 610 that is plainly erroneous. The trial court refused
requests by petitioners for instructions that the jury should
acquit if it found that contributions to the Pipefitters fund were
made voluntarily. [
Footnote
51] Adopting a
Page 407 U. S. 441
contrary view, the court instructed the jury, over petitioners'
objections, that it should return verdicts of guilty if the
fund
"was in fact, a union fund, . . . the money therein was union
money, and . . . the real contributor to the candidates was the
union. . . . In determining whether the Pipefitters Voluntary Fund
was a
bona fide fund, separate and distinct from the union
or a mere artifice or device,"
the jury was further instructed to "take into consideration all
the facts and circumstances in evidence, and in such consideration
. . . [to] consider" 19 factors, several of which related to the
regularity, rate, method of collection, and segregation from Union
monies of payments to the fund. Others concerned the kinds of
expenditures the fund made and the Union's control over them. Still
others involved whether the payments to the fund were made
voluntarily. In the latter regard the court charged (emphasis
added):
"A great deal of evidence has been introduced on the question of
whether the payments into the Pipefitters Voluntary . . . Fund by
members of Local 562 and others working under its jurisdiction were
voluntary or involuntary. This evidence is relevant for your
consideration, along with all other facts and circumstances in
evidence, in determining whether the fund is a union fund.
However, the mere fact that the payments into the fund may have
been made voluntarily by some or even all of the contributors
thereto does not, of itself, mean that the money so paid into the
fund was not union money."
See n 9,
supra.
Page 407 U. S. 442
On appeal the Court of Appeals did not address the validity of
these instructions other than to agree with the trial judge
that
"the issue of whether the payments to the fund were voluntary is
relevant and material [but not determinative] on the issue of
whether the fund is the property of Local 562."
Supra at
407 U. S.
438.
The instructions, as the Court of Appeals confirmed, clearly
permitted the jury to convict without finding that donations to the
Pipefitters fund had been actual or effective dues or assessments.
This was plain error. [
Footnote
52]
The judgment of the Court of Appeals as to petitioners Callanan
and Lawler is vacated, and the case is remanded to the District
Court with directions to dismiss the indictment against them.
See n 11,
supra. The judgment of the Court of Appeals as to
petitioners Local 562 and Seaton is reversed, and the case is
remanded to the District Court for proceedings as to them
consistent with this opinion.
It is so ordered.
MR. JUSTICE BLACKMUN took no part in the consideration or
decision of this case.
[
Footnote 1]
Section 371, in turn, provided:
"If two or more persons conspire . . . to commit any offense
against the United States . . . and one or more of such persons do
any act to effect the object of the conspiracy, each shall be fined
not more than $10,000 or imprisoned not more than five years, or
both."
"If, however, the offense, the commission of which is the object
of the conspiracy, is a misdemeanor only, the punishment for such
conspiracy shall not exceed the maximum punishment provided for
such misdemeanor."
[
Footnote 2]
Omitting the overt acts charged, the indictment, filed May 9,
1968, stated in relevant part:
"The Grand Jury charges: "
"1. That at all times hereinafter mentioned defendant
Pipefitters Local Union No. 562, St. Louis, Missouri, (hereinafter
referred to as Local 562), affiliated with the United Association
of Journeymen and Apprentices of the Plumbing and Pipe Fitting
Industry of the United States and Canada, AFL-CIO (hereinafter
referred to as the United Association), was a labor organization
within the meaning of Section 610 of Title 18, United States Code,
that is to say, an organization in which employees participated and
which existed, in part, for the purpose of dealing with employers
concerning grievances, labor disputes, wages, rates of pay, hours
of employment, or conditions of work."
"
* * * *"
"3. That from on or about October 12, 1966, up to and including
the date of the filing of this indictment, defendant Lawrence L.
Callanan was an officer of defendant Local 562."
"4. That at all times hereinafter mentioned defendant John L.
Lawler was an officer of defendant Local 562."
"5. That at all times hereinafter mentioned, defendant George
Seaton was an officer of defendant Local 562."
"
* * * *"
"7. That at all times hereinafter mentioned, the Pipefitters
Voluntary, Political, Educational, Legislative, Charity and Defense
Fund (hereinafter the Fund), was a fund of defendant Local 562,
established, maintained, and administered by officers, employees,
members, agents, foremen and job stewards of defendant Local 562,
to effect a regular and systematic collection, receipt, and
expenditure of moneys obtained from working members of defendant
Local 562 and from working members of other labor organizations
employed under the jurisdiction of defendant Local 562."
"
* * * *"
"9. That from in or about 1963 and continuously thereafter up to
and including the date of the filing of this indictment, in the
City of St. Louis, in the Eastern District of Missouri and
elsewhere, Local 562, Lawrence L. Callanan, John L. Lawler and
George Seaton, the defendants herein, and John F. Burke and Edward
J. Steska, named herein as coconspirators but not as defendants,
unlawfully, willfully and knowingly did conspire and agree with
each other and with divers other persons to the grand jurors
unknown, to violate Section 610 of Title 18, United States Code in
that they did unlawfully, willfully, and knowingly conspire and
agree to have Local 562 make contributions and expenditures in
connection with elections at which Presidential and Vice
Presidential electors or United States Senators and Representatives
to Congress were to be voted for, and to willfully consent to the
making of such contributions and expenditures by Local 562."
"10. It was a part of said conspiracy that the defendants and
coconspirators would establish and maintain a special fund entitled
'Pipefitters Voluntary Political, Educational, Legislative, Charity
and Defense Fund,' which fund would have the appearance of being a
wholly independent entity, separate and apart from Local 562; and
that the defendants and coconspirators would thereby conceal the
fact that Local 562 would make contributions and expenditures in
connection with elections at which Presidential and Vice
Presidential electors or United States Senators and Representatives
to Congress were to be voted for."
"11. It was further a part of the conspiracy that defendant John
L. Lawler would be Director of the Fund and that, at a certain time
he would be succeeded as Director of the Fund by defendant Lawrence
L. Callanan; and that the Director of the Fund would appear to have
control and management of the Fund, including the receipt and
disbursement of money and the keeping of its books."
"12. It was further a part of the conspiracy that defendants
John L. Lawler and Lawrence L. Callanan would not have the books of
the Fund audited, or afford members of defendant Local 562 and
other pipefitters contributing to the Fund any accounting for the
money on hand, paid into or disbursed from the Fund."
"13. It was further a part of the conspiracy that the defendants
and coconspirators, by means of the creation and operation of the
Fund, would continue in new form the practice of collecting for
political purposes One Dollar ($1.00) per day worked from members
of defendant Local 562 and Two Dollars ($2.00) per day worked from
non-member pipefitters employed on jobs within the jurisdiction of
defendant Local 562."
"14. It was further a part of the conspiracy that the defendants
and coconspirators would waive and fail to enforce Section 180 of
the Constitution of the United Association in order to facilitate
the payment of monies into the Fund, by failing to collect from
non-members of Local 562, working under its jurisdiction, a
required travel card fee of not in excess of Eight Dollars ($8.00)
per month, and in lieu thereof, collecting payments to the Fund at
the rate of Two Dollars ($2.00) per eight-hour working day from
such non-members."
"15. It was further a part of the conspiracy that the defendants
and coconspirators would cause general foremen, area foremen, job
stewards, officers, agents, employees and other members of Local
562 acting in a supervisory capacity over members and pipefitters
working on jobs under the jurisdiction of Local 562, to become
agents of the Fund in order to facilitate the collection of monies
for the Fund on a regular basis on job sites and at the
headquarters of Local 562, 1242 Pierce Avenue, St. Louis,
Missouri."
"16. It was further a part of the conspiracy that the defendants
and coconspirators, in order to facilitate an orderly, regular and
systematic collection of contributions to the Fund, would cause the
agents of the Fund referred to in paragraph 15 of this Indictment
to distribute to the pipefitters working at all job sites
contribution agreement cards to be signed by such pipefitters, and
to distribute to foremen and job stewards at such job sites printed
collection sheets for the Fund upon which to record the number of
hours worked by such pipefitters and the amount of the
contributions paid by each into the Fund; and that such foremen or
job stewards would advise newly employed pipefitters at such job
sites of the existence of the Fund and of the rates of
participation, that is, for members of Local 562, One Dollar
($1.00) per eight hours worked; and after January 1, 1965, Fifty
Cents ($.50) per eight hours worked, and for members of other
pipefitter locals Two Dollars ($2.00) per eight hours worked."
"17. It was further a part of the conspiracy that defendant
Local 562 would make substantial contributions in connection with
the 1964 General Election and the 1966 General Election and that
defendants Lawrence L. Callanan and John L. Lawler would consent to
such contributions by issuing checks drawn upon the account of the
Fund in the approximate total amount of One Hundred Fifty Thousand
Dollars ($150,000)."
[
Footnote 3]
These facts petitioners, in essence, concede:
"It was undisputed that contributions to the Fund were routinely
made at regular intervals at job sites; that they were routinely
collected by union stewards, foremen, area foremen, general
foremen, or other agents of the union; that they were determined by
a formula based upon the amount of hours or overtime hours worked
upon a job under the jurisdiction of the union; that they were at
one rate for 562 members and at a different rate for members of
other unions; that they began, continued and terminated with
employment on a job under the jurisdiction of the union; that
monies of the Fund were used to provide benefits to union members
[as well as to make political contributions]; that non-members were
not charged any dues and assessments, including travel card dues in
the amount of eight dollars per month; that monies of the Fund were
used in part to promote activities permitted to the union by its
Constitution and by laws; that contributions to the Fund were only
requested and received from Journeyman Pipefitters working on jobs
under the jurisdiction of Local 562, and not from any other classes
of persons or organizations; that expenditures from the Fund were
under the control of its director, who was also the principal
officer of the union; and that records used in the collection of
the contributions to the Fund were similar to those employed from
time to time by the union in the collection of its regular dues and
assessments."
Brief for Petitioners 52-53.
[
Footnote 4]
See App. 197, 212; 270, 281-283; 294; 318, 323-324;
427, 432; 457, 462; 619-621; 698-699; 746; 843; 893; 903. Judge Van
Oosterhout's panel opinion, adopted by the majority in the
rehearing en banc below, 434 F.2d 1127 (1970), succinctly makes the
point:
"It would appear to be unrealistic to believe that such a large
number of workmen would make such substantial voluntary
contributions to be used for political purposes unless they felt
that their job security required them so to do."
434 F.2d 1116, 1122 (1970).
[
Footnote 5]
It also appears that the costs of administration of the fund,
including the solicitation of contributions, were to some extent,
though by no means entirely, similarly financed.
See,
e.g., App. 17 (indictment apparently charging fund
disbursements to pay for authorization cards,
see n 6,
infra and collection
sheets); 95-96, 99, 513 (one-time fund employee continuing to
assist in fund bookkeeping activities in evenings and on Saturdays
while on Union welfare fund payroll); 107-111 (another employee
assisting in fund bookkeeping and collection activities while on
Union welfare fund payroll before becoming full-time fund
employee); 154
passim (Union agent collecting
contributions on union time); 787 (Callanan never on Union and fund
payrolls at same time).
[
Footnote 6]
The authorization card read, Brief for Petitioners 21-22:
"VOLUNTARY CONTRIBUTION AGREEMENT"
"I, the undersigned, of my own free will and accord, desire to
make regular contributions to the Political, Education,
Legislative, Charity and Defense Fund which has been established
and will be maintained by persons who are members of Local Union
No. 562."
"I, therefore, agree to hereafter contribute ___% per 8-hour day
to said fund and authorize my contributions to be used and expended
by those in charge of the fund, in their sole judgment and
discretion, for political, educational, legislative, charity and
defense purposes."
"I understand that contributions are voluntary on my part and
that I may revoke this agreement by a written notice to that effect
mailed to the fund or to persons in charge thereof. I also
understand that my contributions are no part of the dues or
financial obligations of Local Union No. 562 and that the Union has
nothing whatsoever to do with this fund."
"Signed __________________"
"Date: __________________"
"Witness: __________________ "
[
Footnote 7]
See App. 171-172; 189-190; 239-240,244-245;
256,259-260; 299, 311; 322-323; 347; 359-361, 363-365; 382-384;
404, 411; 446; 460; 481-483; 529; 541, 543; 554-555; 561-562; 566,
570-571; 572-573; 577-578; 581; 584-585; 593-594; 600-602, 606;
617; 633-634; 641; 653; 659; 663; 669; 685, 689; 694; 700-702; 705;
710; 715; 718; 723; 731; 752-753; 766; 835; 840; 845-847; 850; 854;
858; 860; 865-866; 869, 871; 872; 875; 877; 887; 889; 894; 902;
915; 919; 925; 930; 944, 947; 948; 953; 956; 962. The only contrary
evidence was the testimony of William Copeland,
id. at
194-213, a non-562 member who was laid off from a job two days
after refusing to contribute when the Union steward explained that
everyone had to pay. A coworker, however, who was also a non-562
member, but paid his contributions, was discharged at the same
time, and although he was shortly thereafter put on another 562
job, Copeland did not return to the Union hiring hall for further
work. Moreover, Copeland acknowledged on cross-examination that he
had "strong feelings" against Local 562 not only because of the
political fund, but because of an earlier dismissal at another job
involving a jurisdictional dispute between 562 and his own
union.
[
Footnote 8]
The cross-examination was as follows,
id. at
1067-1068:
"Q. Was it of any concern to you as to what the members who were
being solicited thought about it, the atmosphere in which the
solicitation was made, was that of any concern to you?"
"A. None, because it made no difference as a matter of law and
as a matter of procedure. I would have no way of knowing what
assumptions people reach. I have no way of knowing what people
think. My concern is what was said, what was done, and how it was
done."
"
* * * *"
"Q. Well, in your opinion to [the organizers of the fund] did
you not make it clear that in no way should it appear compulsory to
the members who were asked to contribute?"
"A. No, sir, I did no such thing. I simply told them that the
contributions must not be made a condition of employment or a
condition of Union membership, and that was the extent of my advice
to them on what they must do, what they must not do, and how they
should do it."
[
Footnote 9]
The court.'s instructions in this regard were as follows
(emphasis added):
"You will note that Section 610 prohibits contributions by labor
organizations for use in connection with an election for a federal
office. It does not prohibit any person from making or agreeing to
make such contributions or setting up an independent fund for such
purpose separate and distinct from union funds either alone or in
conjunction with others, simply because such person happens to be a
member of a labor organization. That is, the statute is not
violated unless the contribution is in fact, and in the final
analysis made by the labor organization."
"In this case, evidence was offered by the Government to the
effect that funds were contributed to or on behalf of candidates
for federal office and that such funds were paid out upon checks
drawn upon the Pipefitters Voluntary Political, Educational,
Legislative Charity and Defense Fund.
It is necessary,
therefore, that the evidence establish that the Pipefitters . . .
Fund was in fact, a union fund, that the money therein was union
money, and that the real contributor to the candidates was the
union. As to this issue, the defendants contend that the fund in
question was a bona fide entity separate and apart from the union,
established by the voluntary good faith act of members of the
pipefitters Local 562 and others, from which contributions to
candidates were made on behalf of the persons who created the fund
and not on behalf of the union. On the other hand, the Government
contends that the fund was a mere artifice or device set up by the
defendant and others as a part of the alleged conspiracy to give
the outward appearance of being an independent and separate entity,
but, in fact, constituting a part of union funds."
"In determining whether the Pipefitters Voluntary Fund was a
bona fide fund, separate and distinct from the union or a mere
artifice or device, you should take into consideration all the
facts and circumstances in evidence, and, in such consideration,
you may consider"
"1. Whether or not payments to the fund were routinely made at
regular intervals at job sites,"
"2. Whether or not payments to the fund were routinely collected
by union stewards, foremen, area foremen, general foremen, or other
agents of the union,"
"3. Whether or not the payment to the fund was determined by a
formula based upon the amount of hours or overtime hours worked
upon a job under the supervision of the union,"
"4. Whether or not payments to the fund were at one rate for 562
members and at a different rate for members of other unions,"
"5. Whether or not payments to the fund began, continued and
terminated with employment on a job under the jurisdiction of the
union,"
"6. Whether or not. monies of the fund were used to provide
benefits to union members in their capacity as members,"
"7. Whether or not payments to the fund by members of other
unions were in lieu of payments to the union in the form of travel
card dues in the amount of eight. dollars per month,"
"8. Whether or not monies of the fund were used in part to
promote activities properly permitted to the union pursuant to
Section 2.05 of its Constitution and by laws,"
"9. Whether or not payments to the fund were made by those
affiliated with the union to the general exclusion of other classes
of persons or organizations,"
"10. Whether or not contributions to the fund were required as a
condition of employment or continued employment or membership in
Local 562,"
"11. Whether or not the individuals who contributed to said fund
signed a voluntary contribution agreement,"
"12. Whether or not the contributions to said fund were made
voluntarily or involuntarily,"
"13. Whether or not the monies contributed to said fund were
kept separate and distinct from the funds of Local 562,"
"14. Whether or not some persons who worked under the
jurisdiction of Local 562 did not contribute to said fund,"
"15. Whether or not the monies of said fund were used in part to
promote activities which were prohibited to Local 562 by its
Constitution and by laws,"
"16. Whether or not said fund was established and maintained
pursuant to the advice of counsel,"
"17. Whether or not the monies of said fund were reported to the
Department of Labor on the LM-2 forms, which required the reporting
of monies of Local 562,"
"18. Whether or not expenditures from the fund were under the
control of the union and its officers,"
"19. Whether or not records used in the collection of the
payments to the fund are similar to those employed from time to
time by the union in the collection of its regular dues and
assessments."
"If upon consideration of all the facts and circumstances in
evidence you find that the contributions to the candidates for
federal office for political purposes were in fact, made out of
union funds by the union, and that the individual defendants as
officers of the union, willfully consented thereto, then you may
take this fact into consideration together with other facts in
evidence in determining whether there was a prior understanding or
agreement so to do."
"
* * * *"
"A great deal of evidence has been introduced on the question of
whether the payments into the Pipefitters Voluntary Political,
Educational, Legislative, Charity and Defense Fund by members of
Local 562 and others working under its jurisdiction were voluntary
or involuntary. This evidence is relevant for your consideration,
along with all other facts and circumstances in evidence, in
determining whether the fund is a union fund. However, the mere
fact that the payments into the fund may have been made voluntarily
by some or even all of the contributors thereto does not, of
itself, mean that the money so paid into the fund was not union
money."
[
Footnote 10]
The questions posed to the parties were:
"Does § 205 of the Federal Election Campaign Act of 1971 [P.L.
92-225] affect the decision in this case, and, if so, with what
result? More particularly, does § 205 effect a substantive change
in 18 U.S.C. § 610 in any way material to this case, as, for
example, by altering any of the attributes of permissible union
political organizations, such as the method of organization or
administration or the method of solicitation or collection of
contributions? If so, must this prosecution abate under the
doctrine of
United States v. The Schooner
Peggy, 1 Cranch 103, and its progeny? Or does the
federal saving statute, 1 U.S.C. § 109, nullify any abatement of
the prosecution? In answering the latter question, what effect
should be given to
Hamm v. Rock Hill, 379 U. S.
306?"
[
Footnote 11]
Petitioners Callanan and Lawler died pending our decision. The
judgment affirming the convictions of those petitioners will
therefore be vacated with directions to the District Court to
dismiss the indictment against them.
Durham v. United
States, 401 U. S. 481
(1971). The remaining petitioners press the argument, rejected by
the Court of Appeals, that the special finding by the jury that a
willful violation of § 610 was not contemplated amounted to an
acquittal, since such willfulness was an essential element of the
conspiracy under 18 U.S.C. § 371. The trial court apparently
required a special finding to determine whether the substantive
offense that petitioners were charged with conspiring to commit was
a misdemeanor or a felony.
See 18 U.S.C. § 610. That, in
turn, was relevant for imposing sentence under § 371.
See
n 1,
supra.
Petitioners contend that § 371 punishes a conspiracy to commit a
malum prohibitum such as § 610 only when the object of the
conspiracy is known to have been unlawful, which, so the argument
goes, the jury found not to have been the case here by virtue of
its special finding. This argument is not persuasive. Petitioners
not only failed to object to the trial court's requirement that the
jury return a special finding as inconsistent with the general
charge, but also failed to move for acquittal on the ground now
offered once the special finding was returned. More important, even
assuming,
arguendo, the correctness of petitioners'
premise that knowledge of the reach of § 610 was a requisite for
conviction,
but see Keegan v. United States, 325 U.
S. 478,
325 U. S. 506
(1945) (Stone, C.J., dissenting);
see generally
Developments in the Law -- Criminal Conspiracy, 72 Harv.L.Rev. 920,
936-937 (1959), petitioners would still be entitled at best to a
new trial, not acquittal. The trial court specifically instructed
the jury:
"The crime charged in this case requires proof of specific
intent before a defendant can be convicted. . . .
To establish
specific intent the Government must prove that the defendant
knowingly, willfully and purposely did an act which the law
forbids. . . ."
"An act is done 'knowingly' if done voluntarily and with
knowledge of the facts, and not because of mistake or inadvertence
or other innocent reason."
"
An act is done 'willfully' if done voluntarily and
purposely and with the specific intent to do that which the law
forbids; that is to say, with bad purpose either to disobey or to
disregard the law."
"An act is done 'unlawfully' if done contrary to law."
App. 1110 (emphasis added).
See also id. at 1116
(instruction on good faith belief in legality of object of
conspiracy). In view of this instruction the jury's special finding
may well have been inconsistent with its general verdict, but that,
we hold, could require only reversal, not acquittal.
[
Footnote 12]
The dissent declines to accept this agreement of the parties on
the ground that the language of § 610 is so clear on its face that
there is no warrant for turning to the legislative history of the
provision. The contrary is plainly true: Section 610 wholly fails
to specify what funds a labor organization is barred from
contributing or expending in connection with a federal election.
Moreover, as we shall shortly see, the dissent's "facial"
interpretation of § 610 was expressly rejected by its proponents in
1947, both from concern that it would raise constitutional
questions of invasion of First Amendment freedoms, and in an effort
to ensure enactment of the law. In addition, Congress has only
recently in the Federal Election Campaign Act of 1971 decisively
rejected that interpretation on the basis of the very legislative
history found dispositive herein.
See n 20,
infra. Congress in 1947 and again
only a few months ago was able to come to this conclusion solely
because of the facial ambiguity of the provision.
It is also worth noting that the dissent's own analysis reveals
the necessity for resorting to the legislative history of the
statute. The dissent, too, appreciates "the freedom of union
members, as well as that of employees and stockholders of
corporations to make uncoerced political contributions." If that is
so, it obviously becomes imperative to determine the contours of
that freedom, which, in turn, requires investigation of the
legislative history of § 610.
[
Footnote 13]
See also H.R.Rep. No. 2093, 78th Cong., 2d Sess., 9
(1945); S.Rep. No. 1, pt. 2, 80th Cong., 1st Sess., 36 (1947).
But see H.R.Rep. No. 2739, 79th Cong., 2d Sess., 46-47
(1946).
[
Footnote 14]
The Senate committee did recommend that the use of general union
funds to finance the distribution of a political pamphlet in
connection with a federal election be prosecuted as a test case to
determine the scope of the term "contribution" in § 313. S.Rep. No.
101, 79th Cong., 1st Sess., 57-59 (1945).
[
Footnote 15]
H.R.Rep. No. 2739,
supra, n 13, at 39-40, 43, 46. The House Committee declared, for
example,
id. at 43:
"The CIO Political Action Committee is a committee of the
Congress of Industrial Organizations and, as such, under the
Corrupt Practices Act, is likewise as a labor union prohibited
[from] making any contribution in connection with any election at
which a Representative to Congress is to be elected."
"The committee feels that whether or not the activities carried
on by these organizations and the payment of salaries to men known
as organizers or advisers who go into the congressional districts
and actively assist in local campaign activities, and expenditures
for radio time, newspaper advertising, printing and distribution of
handbills and posters, and for transportation of voters, constitute
violations of the letter of the Federal Corrupt Practices Act, they
certainly constitute violations of the spirit and intent of the law
and the [Act] should be so amended as to clearly and distinctly set
out that such activities are prohibited."
The Senate committee studying the 1946 campaign joined this
recommendation, but without any reference to PAC.
See
S.Rep. No. 1, pt. 2,
supra, n 13, at 38-39.
See also H.R.Rep. No. 2093,
supra, n 13, at 9,
10-11 (noting the controversy over the scope of the term
"contribution" and expressing views seemingly sympathetic with
prohibiting "expenditures").
[
Footnote 16]
See H.R.Rep. No. 245, 80th Cong., 1st Sess., 46 (1947);
93 Cong.Rec. 3428, 3522-3523 (1947); H.R.Conf.Rep. No. 510, 80th
Cong., 1st Sess., 67-68 (1947).
See also 93 Cong.Rec. 6389
(critical remarks of Rep. Sabath following the conference committee
report). The only statement offering a rationale for § 304 was made
by Representative Robsion after the House had voted to override
President Truman's veto of the Act. Robsion stressed that it was
unfair to union members to allow the expenditure of union funds in
support of candidates for federal office whom they opposed.
See 93 Cong.Rec. 7492.
[
Footnote 17]
See Hearings on H.R. 804 and H.R. 1483, before a
Subcommittee of the House Committee on Labor, 78th Cong., 1st
Sess., 117, 133 (1943) (statements of Rep. Landis, sponsor of the
measure) ("Individual union members would not be prohibited from
contributing. . . . If you have a membership of 500,000, and all
the Democrats wanted to give a dollar apiece, and there were
300,000, that would be $300,000. . . . Your whole organization
could give as high as that if they donated only a dollar apiece");
letter from Attorney General Biddle to Sen. E. H. Moore (Sept. 23,
1944) (emphasis added), reproduced in Department of Justice Press
Release, Sept. 25, 1944, and noted in 4 Law.Guild Rev. No. 5, p. 49
(1944):
"You also point out [the Attorney General wrote] that committees
composed of members of unions are engaged in the solicitation of
funds from individual union members, and you assert that committees
of this kind 'are as much a labor organization as a union
organization itself.' This contention is inconsistent with the
provisions of the statute. In amending section 313 of the Corrupt
Practices Act, the [War Labor Disputes Act] provided that, for the
purposes of the amendment the words 'labor organization' should
have the same meaning they have under the National Labor Relations
Act. . . . I think it clear that committees of the kind that you
describe are not labor organizations within the meaning of this
definition, and they would not be recognized as bargaining agencies
by the National Labor Relations Board.
Even if it were true
that these committees were identical with the labor organizations
to which their members belong -- which I believe not to be the fact
-- there would still be no violation of law because the statute
applies to contributions made by labor organizations and in this
case the contributions are made by individuals and not by the
committees."
[
Footnote 18]
See, e.g., 93 Cong.Rec. 6448, 6522-6523 (exchange
between Sen. Pepper, who, in opposing § 304, decried it as
Republican legislation in contravention of the First Amendment, and
Sen. Ellender, who, as a Democratic representative on the
conference committee, rose in support of Sen. Taft's construction).
See also United States v. CIO, 335 U.
S. 106,
335 U. S. 120
(1948).
[
Footnote 19]
The exception involved whether nonpartisan registration and "get
out the vote" campaigns could be directed to the public at large.
See 117 Cong.Rec. 43379-43381, 43390.
[
Footnote 20]
Id. at 43379.
See also 118 Cong.Rec. 329. In
determining that § 610 has always permitted unions to organize
voluntarily financed political funds, Hansen relied, as we have
done, on Sen. Taft's floor explanation of § 304 of the Hartley
bill.
See 117 Cong.Rec. 43381; 118 Cong.Rec. 329.
[
Footnote 21]
See, e.g., 117 Cong.Rec. 43381 (remarks of Rep. Hays),
43383-43385 (remarks of Rep. Thompson), 43388-43389 (remarks of
Reps. Steiger and Gude).
[
Footnote 22]
See, e.g., 117 Cong.Rec. 43382, 43386, 43390-43391; 118
Cong.Rec. 323-324.
[
Footnote 23]
The Hansen proposal was offered as an amendment to an amendment
in the nature of a substitute to the bill as reported out of
committee. Although the substitute amendment had no provision
relating to § 610,
see 117 Cong.Rec. 43365-43366, it was
expected that the Crane provision would be taken up as an amendment
to the substitute amendment if the Hansen amendment failed to
carry.
See, e.g., id. at 43389-43390 (remarks of Reps.
Devine and Crane). [REPORTER's NOTE: The remarks of Rep. Devine,
whose name was erroneously omitted from 117 Cong.Rec. 43389, col.
3, par. 5, line 1, begin with the language, "Mr. Chairman, I rise
in opposition. . . ."]
[
Footnote 24]
See, e.g., id. at 43389-43390 (remarks of Rep.
Devine).
[
Footnote 25]
The Crane provision would have added the following paragraph at
the end of § 610:
"As used in this section, the phrase 'contribution or
expenditure' shall include any direct or indirect payment,
distribution, loan, advance, deposit, or gift, of money, or any
services, or anything of value to any candidate, compaign
[
sic] committee, or political party or organization, in
connection with any election to any of the offices referred to in
this section, including any expenditure in connection with 'get out
the vote' activities.
Nothing in this section shall preclude an
organization from establishing and administering a separate
contributory fund for any political purpose, including voter
registration or 'get out the vote drives,' if all contributions,
gifts, or payments to such fund are made freely and voluntarily,
and are unrelated to dues, fees, or other moneys required as a
condition of membership in such organization or as a condition of
employment."
H.R.Rep. No. 92-564, p. 19 (1971) (emphasis different). The
principal bone of contention between the proponents and opponents
of the Hansen amendment when it was first introduced was whether
union or corporation treasuries could and should be available to
finance "get out the vote" drives. Representative Frenzel, for
example, summarized the debate shortly before the House vote on the
Hansen amendment was taken, 117 Cong.Rec. 43391:
"[I]t is important that we understand neither the Crane
amendment nor the Hansen amendment is directed toward voluntary or
COPE [the successor of PAC] moneys. What we are talking about is
Treasury money. The principal distinction is that the Hansen
amendment would allow its use to 'get-out-the-vote' drives for
union members while the Crane amendment would not."
Following the conference committee report, Crane rose once again
in opposition to the Hansen amendment, this time, and for the first
time, criticizing the amendment in its treatment of union political
funds. The dispute centered then, however, not on whether voluntary
funds were permissible, but on exactly what their prerequisites
were.
See infra at
407 U. S.
422-426.
[
Footnote 26]
"A union member [the Government explains] may find irresistible
the union's demand -- through its steward on the jobsite -- for
contributions fixed as a regular percentage of days worked and
money earned. Section 610 reduces this institutional pressure by
forbidding the unions from making direct political contributions
from money that is effectively assessed."
Brief for the United States 38. As we shall see,
infra
at
407 U. S.
435-442, the Government's theory in prosecuting this
case focused on the first, but not the second, of its arguments
here presented.
[
Footnote 27]
For the scope of the required segregation of funds,
see
infra at
407 U. S.
428-432.
[
Footnote 28]
The Government relies on
United States v. Lewis Food
Co., 366 F.2d 710 (1966), where the Court of Appeals for the
Ninth Circuit upheld an indictment under § 610 that failed to
allege,
inter alia, that an expenditure by a corporation
in connection with a federal election was made against the wishes
of an individual stockholder. The court there explained,
id. at 713-714:
"The statute itself . . . does not provide an exception when
stockholders consent. We are of the opinion that Congress intended
to insure against officers proceeding in such matters without
obtaining the consent of shareholders by forbidding all such
expenditures."
"The Supreme Court stated that the other legislative motivation
[in addition to the protection of minority interests] for enactment
of legislation such as section 610 was the necessity for destroying
the influence over elections which corporations exercised through
financial contributions. [
United States v. CIO, 335 U.S.
at
335 U. S. 113.] This
consideration would be meaningless if a corporation could make
expenditures for activities otherwise forbidden by section 610 by
simply obtaining unanimous consent of its shareholders. In the
Auto Workers case, the indictment contained no allegation
that the expenditure of union funds [to finance television
broadcasts designed to influence the electorate at large] was
contrary to the wish of members. Nevertheless, the Supreme Court
found the indictment sufficient."
The Ninth Circuit's reliance on
Auto Workers was
misplaced. The indictment there did allege, as we noted, 352 U.S.
at
352 U. S.
584,
"'that the fund used came from the Union's dues, was not
obtained by voluntary political contributions or subscriptions from
members of the Union, and was not paid for by advertising or
sales.'"
In
Auto Workers, therefore, we had no occasion to
address the legitimacy of union controlled political contributions
financed from the knowing free choice donations of union members.
More important, the court in
Lewis labored under the same
misapprehension on which the Government's argument rests here --
namely, that the legislative purpose to eliminate the effects of
aggregated wealth on federal elections reaches union- or
corporation-controlled contributions and expenditures financed not
from the general treasury, but from voluntary donations.
By saying this, we do not mean to suggest that the result in
Lewis was incorrect. To the contrary, an indictment that
alleges a contribution or expenditure from the general treasury of
a union or corporation in connection with a federal election states
an offense.
See nn.
47
and |
47 and S.
385fn48|>48,
infra. The unanimous vote of the union
members or stockholders may at most (but we need not now decide) be
a defense.
[
Footnote 29]
In
United States v. CIO, this Court, of course, went
further than Senator Taft's comments would allow by holding that §
304 did not bar a union from using union funds to publish a
periodical, in regular course and for distribution to those
accustomed to receiving it, that urged union members to vote for a
candidate for Congress. The Court, however, arrived at that
construction because the contrary interpretation would create "the
gravest doubt" of the statute's constitutionality. 335 U.S. at
335 U. S.
121.
[
Footnote 30]
Hearings before the House Committee to Investigate Campaign
Expenditures on H.Res. 551, 78th Cong., 2d Sess., 79 (1944).
See also id. at 16-17. PAC's method of collection of
contributions appears, in large measure, to have been true to
Hillman's words, since both its political and voluntary nature were
well known.
See id. at 51, 76-79, 712-713, 728-729,
800-801, 822-823, 844-845, 851, 864-866, 871, 880, 885-886,
921-925, 928, 935-936, 941, 946, 962, 964, 988, 999, 1017,
1021-1031, 1033-1038, 1041. In some instances complaints were
lodged that pressure had been exercised in obtaining donations, and
the House Committee noted in its report that in California some PAC
monies were taken directly from union treasuries and "that at least
one local union . . . , upon vote by its entire membership, levied
an assessment of 25 cents per month upon each member. . . ."
H.R.Rep. No. 2093,
supra, n 13, at 6. This, nevertheless, was recognized as an
exception "[to] the general national plan" following Roosevelt's
nomination for reelection, under which PAC was generally financed
by individual contributions "largely . . . taken by shop stewards
outside working hours."
Id. at 5. Indeed, the amount of
individual contributions actually collected by PAC evidences that
it successfully informed CIO members that donations were not
mandatory assessments.
Cf. L. Overacker, Presidential
Campaign Funds 61 (1946). From an estimated CIO membership of five
million, PAC might have collected $5 million at the requested rate
of $1 a member. Yet the national PAC office, which received 50� of
each $1 donated, obtained only $376,910.77 in 1944, S Rep. No. 101,
supra, n 14, at 23,
suggesting contributions by less than 800,000 CIO members.
See
also H.R.Rep. No. 2739,
supra, n 13, at 31 ($218,415.98 received in 1946).
[
Footnote 31]
See infra at
407 U. S.
428-429.
[
Footnote 32]
Indeed, in a letter to regional PAC directors, the national PAC
office itself referred to the organization "as an instrumentality
of the Congress of Industrial Organizations." S.Rep. No. 101,
supra, n 14, at 22.
See also Hearing before the Senate Special Committee to
Investigate Presidential, Vice Presidential, and Senatorial
Campaign Expenditures on S.Res. 263, 78th Cong., 2d Sess., 19
(1944) (testimony of Sidney Hillman) ("We just speak and act for
the C.I.O. organizations"); House Hearings,
supra,
n 30, at 839-840 (testimony
of state PAC president) (local PAC is agent of union local). It is
true that Senator Taft stated at one point in the Senate debates
that "[t]he PAC is a
separate organization which raises
its own funds for political purposes, and does so perfectly
properly." 93 Cong.Rec. 6437 (1947) (emphasis added). But if meant
to indicate anything more than that PAC had a formal identity
separate from the CIO, this isolated statement was clearly
inconsistent with well known facts about the organization.
Moreover, neither Taft nor any of his colleagues appears to have
attached any particular significance to the statement. Nor can we,
in view of Taft's endorsement of direct union electioneering
through political newspapers paid for through subscriptions.
See supra at
407 U. S.
406-408,
407 U. S.
416-417. It is also true that the Attorney General, in
his letter to Senator Moore in 1944, opined that committees like
PAC were not "labor organizations" within the meaning of the War
Labor Disputes Act, inasmuch as they were not bargaining agencies.
See n 17,
supra. But the Senate Campaign Expenditures Committee,
implicitly in 1945, and the House Committee, expressly in 1946,
rejected that conclusion.
See S.Rep. No. 101,
supra, n 14, at 23;
H.R.Rep. No. 2739,
supra, n 13, at 43 (quoted in
n 15,
supra).
See also House Hearings,
supra, n 30, at 27
(whether PAC was a "labor organization" "highly debatable" in
opinion of PAC counsel).
[
Footnote 33]
The House Committee observed in its 1945 report, H.R.Rep. No.
2093,
supra, n 13,
at 5:
"The relationship between the Political Action Committee and the
Congress of Industrial Organizations is . . . close on every level
of organization. Mr. Hillman is president of the Amalgamated
Clothing Workers of America, as well as chairman of the Political
Action Committee. The State political action committees typically
utilize the existing mechanism of the Congress of Industrial
Organizations State councils, and the local political action
committees are similarly set up as committees of the Congress of
Industrial Organizations locals."
[
Footnote 34]
The national PAC organization did not endorse senatorial,
congressional, state, or local candidates, but gave advice to state
and local political action committees in that regard. The national
organization did endorse President Roosevelt on May 17, 1944, when,
in the words of Sidney Hillman, "substantially all of the C.I.O.
international unions and the great majority of its State councils
had already acted. . . ." House Hearings,
supra, n 30, at 8. The national
organization also endorsed Vice President Truman. Candidates for
Congress were apparently chosen for endorsement by state or local
PAC committees composed of representatives of the international CIO
unions after review of incumbents' voting records in consultation
with the regional PAC offices.
See S.Rep. No. 101,
supra, n 14, at 21;
Senate Hearing,
supra, n 32, at 12-13, 20-22; House Hearings,
supra, at
8, 39-41, 43-46, 709-712, 714-715, 725-728, 842-845, 896-898, 904,
906-908, 942-944, 949-950, 954-960, 977-979, 983-985, 993-995,
1001, 1003, 1006-1007. PAC's endorsement procedures were described
in 1951 as follows: the chairman of the local political action
committee, who was usually the union president, would consult with
a prospective candidate together with a screening committee. If
that committee acted favorably, the candidate would then be
presented to the political action committee for a vote on formal
endorsement. Any endorsement would then be reported to the
constituent unions of the area PAC and to the state and national
PAC offices, and activity in support of the candidate would get
under way. J. Kroll, The CIO-PAC and How it Works, in The House of
Labor 120, 122-123 (J. Hardman & M. Newfeld eds.1951).
[
Footnote 35]
Accord, Overacker,
supra, n 30, at 61-62:
"Although the political action committee of the CIO was
separately organized, and in most cases its separate identity was
scrupulously preserved, it is hard to escape the conclusion that it
was the alter ego of the organization which inspired it. The
circumstances under which it came into being, the 'interlocking of
directorates' at the top, and the close cooperation at the local
level all point in that direction."
[
Footnote 36]
"This fund [Hansen stated] must be
separate from any
union or corporate funds, and contributions must be voluntary. To
insure that contributions are voluntary, the amendment prohibits
the use by the
separate political fund of any money or
anything of value obtained by the use or threat of force, job
discrimination, or financial reprisal, or by dues or fees, or other
monies required as a condition of employment or membership in a
labor organization. . . ."
(Emphasis added.)
[
Footnote 37]
"The essential prerequisite [Hansen said] for the validity of
such political funds is that the contributions to them be
voluntary. For that reason, the final section of this amendment
makes it a violation of section 610 to use physical force, job
discrimination, financial reprisals or the threat thereof, in
seeking contributions. This is intended to insure that a solicitor
for COPE or BIPAC [union political funds] cannot abuse his
organizational authority in seeking political contributions. Of
course, nothing can completely erase some residual effects on this
score, any more than the law can control the mental reaction of a
businessman asked for a contribution by an individual who happens
to be his banker, or of a farmer approached by the head of his
local farm organization. The proper approach, and the one adopted
here, is to provide the strong assurance that a refusal to
contribute will not lead to reprisals, and to leave the rest to the
independence and good sense of each individual."
[
Footnote 38]
In particular, the article quoted "a man at the Justice
Department" as saying that "
[t]he (Hansen) provision . . . not
only doesn't codify existing law, but it overrules existing law'";
stated that Hansen had
"[ignored the Court of Appeals decision in this case] that holds
that labor can raise campaign cash only through voluntary funds
that are 'separate and distinct' from the sponsoring union'"
asserted that, under the Hansen amendment, "union chiefs . . .
wouldn't be required to tell members for what purpose the money
[solicited] is going"; and quoted an Associate Deputy Attorney
General as reporting the Government's position to be "
that a
contribution to a political fund [must] be not only "voluntary," in
the sense of an absence of force, but also knowingly
made.'"
[
Footnote 39]
At this point Representative Hays, a supporter of the Hansen
amendment, interjected, 118 Cong.Rec. 328:
"I will say to the gentleman that what he is saying will be the
legitimate legislative history, and that what somebody down in the
Department of Justice, some Assistant Attorney General's opinion
[
see n 38,
supra], is worth exactly as much as the piece of paper it
is printed on, no more and no less."
[
Footnote 40]
See also 117 Cong.Rec. 43380 (Hansen quoting
approvingly same statement by Sen. Dominick).
[
Footnote 41]
Compare Senate Hearing,
supra, n 32, at 41 (regional PAC offices, to
Sidney Hillman's knowledge, separate from CIO offices, as "we don't
like them to mix their union business with political activities"),
and House Hearings,
supra, n 30, at 717, 901 (testimony of regional PAC
directors) (regional office financed from national PAC
headquarters),
with House Hearings,
id. at
717-718, 736, 841, 857-861, 867-868, 872 (overlapping use of
offices on state and local level).
[
Footnote 42]
With the exemption for communications to stockholders or union
members and their families apparently in mind, Hansen stated, for
example, 117 Cong.Rec. 43380:
"[E]very organization should be allowed to take the steps
necessary for its growth and survival. There is, of course, no need
to belabor the point that Government policies profoundly affect
both business and labor. . . . If an organization, whether it be
the NAM, the AMA or the AFL-CIO, believes that certain candidates
pose a threat to its wellbeing or the wellbeing of its members or
stockholders, it should be able to get its views to those members
or stockholders. As fiduciaries for their members and stockholders,
the officers of these institutions have a duty to share their
informed insights on all issues affecting their institution with
their constituents. Both union members and stockholders have the
right to expect this expert guidance."
This reasoning, of course, applies as well to solicitations for
contributions to voluntary political funds.
[
Footnote 43]
See, e.g., 78 U. S. Tynen,
11 Wall. 88, 92 (1871):
"[I]t is a familiar doctrine that repeals by implication are not
favored. When there are two acts on the same subject, the rule is
to give effect to both if possible. But if the two are repugnant in
any of their provisions, the latter act, without any repealing
clause, operates, to the extent of the repugnancy, as a repeal of
the first. . . ."
[
Footnote 44]
The Government, in response to the questions posed in
n 10,
supra, argues
that
"[h]ere, there is no problem of inferring legislative intent,
because Congress [in the House debates] clearly expressed its
intention that pending prosecutions should not abate."
Supplemental Brief for the United States 7. Representative
Hansen, to be sure, did state in the debate that this prosecution
would not abate.
See supra at
407 U. S. 425.
But he also indicated that the effect of his amendment on pending
cases was not, and should not be, a matter of concern:
"Obviously, the members of the joint Senate-House conference
committee were not concerned about the suggested effect of this
amendment on pending cases. Nor were Members of the other body who
approved the conference report by a voice vote. There is no reason
for Members of this body to be concerned. This is much needed and
meritorious legislation. I strongly urge an overwhelming vote of
approval."
118 Cong.Rec. 329. More important, Hansen's view that this
prosecution would continue was possibly premised, as we have seen,
on a mistaken understanding of what § 610 previously provided in
terms pertinent to this case. If his understanding was, in fact,
mistaken, we would have to assume that Congress would intend the
general rule of abatement "applicable as part of the background
against which [it] acts,"
Hamm v. Rock Hill, 379 U.
S. 306,
379 U. S. 314
(1964), to prevail.
[
Footnote 45]
The Government in response to the questions posed in
n 10,
supra, confirms that
this was the theory of the prosecution:
"In short, the case was tried on the theory that the fund here
involved was
not the kind of a fund which the amended
statute permits, but was the kind of a fund which was, and still
is, a violation of Section 610 -- a fund which, while ostensibly
separate, was, in fact, a union fund, supported by money collected
as union money and used, when deemed desirable, as general union
funds."
Supplemental Brief for the United States 5 (emphasis in
original).
[
Footnote 46]
These inquiries were addressed to paragraphs 7, 10, and 17 of
the indictment,
see n
2,
supra. Comparable inquiries were generally leveled at
other pertinent paragraphs of the indictment.
[
Footnote 47]
The court arrived at this conclusion on the basis of
United
States v. Lewis Food Co., supra, n 28, where the Court of Appeals for the Ninth Circuit
sustained an indictment under § 610 that failed to allege expressly
that an expenditure by a corporation in connection with a federal
election was financed from the general corporate treasury (or, as
discussed in
n 28,
supra, that it was made against the wishes of an
individual stockholder).
"In our opinion [the court there explained], the allegation in
the indictment that the corporation made an 'expenditure' for the
stated purpose necessarily infers [
sic] an allegation that
general corporate funds were used. Corporate expenditures normally
come from a corporation's general funds, and not from some
independent fund contributed by shareholders or otherwise
obtained."
366 F.2d at 713.
[
Footnote 48]
The heart of the indictment is found in paragraph 10, which
states,
supra, n
2:
"It was a part of said conspiracy that the defendants . . .
would establish and maintain a special fund . . . which fund would
have the appearance of being a wholly independent entity, separate
and apart from Local 562; and that the defendants . . . would
thereby conceal the fact that Local 562 would make contributions
and expenditures in connection with [federal] elections. . . ."
As in
Lewis Food Co., supra, n 47, it is a fair inference from this allegation that
the union made prohibited political contributions and expenditures
from general union monies, rather than from the knowing free-choice
donations of individual members. Moreover, the indictment not only
expressly alleges that collections for the fund were "regular and
systematic" at an established rate,
see paragraphs 7, 13,
15, and 16 of the indictment,
supra, n 2, but specifically charges in paragraph 14,
ibid. (emphasis added):
"It was further a part of the conspiracy that the defendants . .
. would waive and fail to enforce Section 180 of the Constitution
of the United Association in order to facilitate the payment of
monies into the Fund
by failing to collect from
non-members of Local 562, working under its jurisdiction,
a
required travel card fee of not in excess of Eight Dollars
($8.00) per month,
and, in lieu thereof, collecting payments to
the Fund at the rate of Two Dollars ($2.00) per eight-hour working
day from such non-members."
These allegations together, although not a model of clarity,
might (but we do not now decide for the reasons stated in the text)
constitute "a plain, concise and definite" statement, within the
meaning of Rule 7(c) of the Federal Rules of Criminal Procedure,
that the conspiracy included the actual or effective assessment of
contributions to the Pipefitters fund as part of the Union's
compulsory dues structure.
[
Footnote 49]
Compare, e.g., Hagner v. United States, 285 U.
S. 427 (1932);
United States v. Comyns,
248 U. S. 349
(1919),
and Dunlop v. United States, 165 U.
S. 486 (1897),
with, e.g., United States v. Boston
& M. R. Co., 380 U. S. 157,
380 U. S. 159
n. 1 (1965),
and Russell v. United States, 369 U.
S. 749 (1962).
[
Footnote 50]
Although two of the petitioners died pending decision in this
case,
see n 11,
supra, the Government may decide on remand to seek a new
indictment against the remaining petitioners. The present
indictment charges that the conspiracy continued up to the date of
the indictment, May 9, 1968, and that an overt act was committed in
furtherance of the conspiracy on July 14, 1967, in which case it
does not appear that the five-year statute of limitations governing
noncapital offenses has run.
See 18 U.S.C. § 3282;
Grunewald v. United States, 353 U.
S. 391,
353 U. S.
396-397 (1957).
See also United States v.
Reisinger, 128 U. S. 398
(1888) (indictment valid, though returned after law repealed).
[
Footnote 51]
Petitioners offered seven instructions on "voluntariness." Two
merely used the term without further definition, while others
referred to whether the contributions constituted union dues or
assessments or were made by the donors for political purposes.
See App. 1096-1100. Hereafter, proper instructions on the
question of voluntariness may be framed in terms of the application
to the proofs of the language of § 205 of the Federal Election
Campaign Act as herein construed.
See supra at
407 U. S.
421-427.
[
Footnote 52]
The Court of Appeals did not directly rule on the validity of
the instructions because, in the majority's view petitioners had
failed to preserve their objections on appeal.
See 434
F.2d at 1125.
See also id. at 1128 (Matthes, C.J.,
concurring). The dissent below makes a strong argument to the
contrary,
see id. at 1135 (Lay, J.), but we need not
address the question, since the instructions were plainly
erroneous, the claim of error was brought to the attention of the
trial court, and we may notice a plain error not presented.
See, e.g., Silber v. United States, 370 U.
S. 717 (1962).
See also 434 F.2d at 1130
(Heaney, J., dissenting), 1135 (Lay, J., dissenting).
MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE joins,
dissenting.
The decision of the Court today will have a profound effect upon
the role of labor unions and corporations in
Page 407 U. S. 443
the political life of this country. The holding, reversing a
trend since 1907, opens the way for major participation in politics
by the largest aggregations of economic power, the great unions and
corporations. This occurs at a time, paradoxically, when public and
legislative interest has focused on limiting -- rather than
enlarging -- the influence upon the elective process of
concentrations of wealth and power.
I
The majority opinion holds that unions lawfully may make
political contributions so long as they come from funds voluntarily
given to the union for such purpose. The Court seeks to buttress
this holding by a long and scholarly presentation of the
legislative history of 18 U.S.C. § 610. But some of that history
invites conflicting inferences, and the background of § 205 of the
Federal Election Campaign Act of 1971, to which the majority also
devotes extensive attention, is of dubious value in interpreting an
earlier statute which on its face is clear and unambiguous.
[
Footnote 2/1]
In its preoccupation with the legislative history, the Court has
overlooked the central point involved in this case: that the
conviction of petitioners accords with the plain language of the
controlling statute. Nor does the majority demonstrate an ambiguity
in that statutory language that makes relevant its long journey
into the legislative history.
The operative language of § 610 states that:
"It is unlawful . . . for any corporation whatever, or any
labor
Page 407 U. S. 444
organization to make a contribution or expenditure in connection
with"
any federal election. Despite this unqualified proscription, the
majority opinion sustains the right of unions and corporations to
make political contributions
directly, provided only that
the funds therefor come voluntarily from members, employees, or
stockholders and are maintained separately from the other funds of
the union or corporation. [
Footnote
2/2] With all respect, this holding is precisely contrary to
the express language of the law. At the risk of unnecessary
repetition I set forth in juxtaposition the operative language in §
610 as contrasted with that of the Court's holding:
Section 610 Court's Holding
It is unlawful . . . for . . . [Section] 610 does not ap-
any labor organization to ply to union contributions
make a contribution or ex- and expenditures from po-
penditure in connection litical funds financed in
with any [federal] elec- some sense by the volun-
tion. . . . tary donations of employees.
Ante at
407 U. S.
409.
If words are given their normal meaning, the statute and the
Court's holding flatly contradict each other. One says that it
shall be unlawful for a union to make a political contribution or
expenditure. The other says this is perfectly lawful, so long as
the funds which the union contributes or expends were donated
freely and knowingly. The Court has simply added a
qualification,
Page 407 U. S. 445
not found in the statutory language, which significantly changes
the meaning of this Act of the Congress.
The Court's holding, moreover, directly counters the purposes
for which § 610 was enacted. Congress passed this legislation to
restrict and minimize the influence corporations and unions might
exert on elections. In
United States v. CIO, 335 U.
S. 106,
335 U. S. 113
(1948), with respect to corporations, the Court stated:
"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. 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."
In commenting on the reasons for extending the legislation to
labor organizations, the Court in the same case observed:
"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, 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."
Id. at
335 U. S.
115.
The two principal motivations for the enactment of 610, as
identified in CIO, are (i) the minimizing of influence of labor
unions (as well as corporations) on elections "through monetary
expenditures"; and (ii) the elimination of the unfairness "to
individual union members" of allowing union management to make
political
Page 407 U. S. 446
contributions from general union funds. It seems self-evident
that both of these legislative purposes will be frustrated by the
Court's holding that, despite the language of the statute
forbidding union contributions, unions may now make political
contributions and expenditures, provided only that the source of a
fund is voluntary.
To be sure, there is some language in the congressional debates
which emphasizes the freedom of union members, as well as that of
employees and stockholders of corporations, to make uncoerced
political contributions. No one contests this basic freedom. But
whatever may have been said in congressional debates, courts are
bound by what is written into legislation. If the language of a
statute is clear and unambiguous, there is no occasion to resort to
legislative history. Nor can such history, however illuminating it
may seem, be relied upon to contradict, or dilute, or add
unspecified conditions to statutory language which is perfectly
clear. Where statutory provisions were "clear and unequivocal on
their face," the Court has found "no need to resort to the
legislative history of the Act."
United States v. Oregon.,
366 U. S. 643,
366 U. S. 648
(1961). As Justice Black observed, "[n]o legislative history can
justify judicial emasculation" of the unambiguous language of a
statute.
Maryland Casualty Co. v. Cushing, 347 U.
S. 409,
347 U. S. 437
(154) (dissenting). [
Footnote
2/3]
II
Accepting, as I think we must, § 610 as written, the issue in
this case is whether the political fund of Local
Page 407 U. S. 447
562 was, in reality, a sham or subterfuge through which the
union itself made the contributions forbidden by the statute. The
indictment in this case was framed on this basis, and the jury was
so instructed. The question properly addressed by the Court of
Appeals was "whether the contributions or expenditures were [in
fact] made by a labor organization." 434 F.2d 1116, 1121 (1970).
After summarizing the evidence submitted to the jury on this issue,
the Court of Appeals concluded:
"There is substantial evidence to support a jury finding that
the fund was not a
bona fide separate and distinct entity
but was, in fact, a device set up to circumvent the provisions of §
610, and that the fund constituted union money."
434 F.2d at 1121. It is not normally the function of this Court
in a case of this kind to determine whether a jury verdict is
supported by substantial evidence. It may not be inappropriate,
however, to say -- in light of the record before us -- that the
evidence was more than sufficient to show that union officials
supervised closely the collection of the "contributions," sought
"contributions" in much the same manner as compulsory assessments,
viewed them as part of the total cost burden which the union member
had to bear, expended them freely both for union projects and
political purposes, and so generally commingled the administration
of the fund with the administration of the union as to entitle the
jury to believe the gifts by Local 562 from the fund to candidates
for federal office constituted union political contributions in
violation of § 610. [
Footnote
2/4]
Page 407 U. S. 448
The majority opinion of this Court does not contest this view.
It concludes, rather, that the jury was erroneously instructed, and
that, accordingly the verdict and judgment must be set aside. If a
new trial is held, the jury must be instructed in accordance with
the Court's interpretation of § 610 that a union may lawfully make
political contributions from a fund it collects and administers so
long as the payments into it are voluntary.
It is from this interpretation of § 610 -- one which, in my
view, will render the statute largely ineffectual -- that I
dissent. [
Footnote 2/5]
III
The consequences of today's decision could be far-reaching
indeed. The opinion of the Court provides a blueprint for
compliance with § 610, as now construed,
Page 407 U. S. 449
which will be welcomed by every corporation and union which
wishes to take advantage of a heretofore unrecognized opportunity
to influence elections in this country. [
Footnote 2/6]
It may be that the unions, by virtue of a system of collecting
"political contributions" simultaneously with the collection of
dues and regularizing such collections to the point where they are
indistinguishable from dues, will be the primary beneficiaries. But
the corporations are more numerous than the unions. They have
millions of stockholders and hundreds of thousands of nonunion
employees. Both unions and corporations have large financial
resources. Today's interpretation of § 610 will enable a more
direct and extensive political employment of these resources by
both union and corporation.
By refusing to affirm the judgment below, the majority renders
the ultimate fate of this litigation uncertain. If, on remand, the
techniques of Local 562 should be sanctioned, other unions and
corporations could easily follow Local 562 and obtain from members,
employees, and shareholders a consent form attesting that the
contribution (or withholding) is "voluntary." The trappings of
voluntariness might be achieved while the substance of coercion
remained. Union members and corporate employees might find
themselves the objects of regular and systematized solicitation by
the very agent which exercises direct control over their jobs and
livelihood.
Page 407 U. S. 450
The only remaining requirement to meet the new standards is that
the fund be separate from other union or corporate funds, although,
under the majority's interpretation of § 205, it may be established
and administered, and the contributions to it solicited, by the
union or corporation with its own funds. Again, if Local 562 were
to provide the standards, the separateness of such a fund need be
nothing more than a separate ledger and bank account.
In sum, the opinion of the Court today, adopting an
interpretation of § 610 at variance with its language and purpose,
goes a long way toward returning unions and corporations to an
unregulated status with respect to political contributions. This
opening of the door to extensive corporate and union influence on
the elective and legislative processes must be viewed with genuine
concern. This seems to me to be a regressive step, as contrasted
with the numerous legislative and judicial actions in recent years
designed to assure that elections are indeed free and
representative.
I would affirm the judgment below.
[
Footnote 2/1]
The majority opinion finds confirmation of its interpretation of
the legislative history of § 610 in the recently enacted § 205 of
the Federal Election Campaign Act of 1971. The majority concludes,
however, that § 205 is not retroactive and therefore is
inapplicable to this case, a view which I share. I find it
unnecessary to the disposition of this case to intertwine the
legislative history of the two statutes when only one of them is
applicable.
[
Footnote 2/2]
The alleged separate fund involved in this case was segregated
only in the sense that there was a separate ledger and bank
account. The Court of Appeals held that there was "substantial
evidence to support a jury finding that the fund was not a
bona
fide separate and distinct entity." 434 F.2d 1116, 1121
(1970). The decision of the majority focuses attention on the issue
of voluntariness, and gives little indication that a more realistic
segregation of the fund is required.
[
Footnote 2/3]
It has been an ancient and cardinal tenet of statutory
construction that,
"where a law is expressed in plain and unambiguous terms,
whether those terms are general or limited, the legislature should
be intended to mean what they have plainly expressed, and
consequently no room is left for construction."
Lake County v. Rollins, 130 U.
S. 662,
130 U. S.
670-671 (1889);
Yates v. United States,
354 U. S. 298,
354 U. S. 305
(1957);
United States v. Standard Brewery, 251 U.
S. 210,
251 U. S. 217
(1920).
[
Footnote 2/4]
Even on the issue of voluntariness, which the Court of Appeals
rightly found "relevant and material," though "not controlling,"
434 F.2d at 1120, the evidence was impressive that the collection
scheme was inherently coercive. Since Local 562 had consistently
collected contributions to its political funds since 1949,
"contributions" appear to have become a customary
de facto
condition to union membership or employment within Local 562's
jurisdiction. Moreover, the regularity of these contributions --
week by week and year by year and each in the same amount as
requested by the union -- seems suspiciously incompatible with the
concept of free-will gifts.
[
Footnote 2/5]
My interpretation of the statute does not imply that no
"separate fund" would be permissible. I recognize that,
consistently with the statute (as amended by § 205), a union or
corporation may be instrumental in establishing a political fund,
provided it is a
bona fide one -- separate and segregated
from the union in a genuine, not merely formalistic, way. For
example, such a fund might be managed by a separate nonprofit
entity, with independent trustees not subservient to the union or
corporate sponsor, who engage independent auditors, who make
regular reports to contributors, and who provide realistic means by
which contributors can express their preference as to political
candidates or parties. Safeguards would be required to assure that
contributions were not coerced, either directly or by means of an
inherently coercive system or relationship. Such a
bona
fide fund would contrast quite sharply with that operated by
Local 562, where there were no bylaws, no constitution, no
independent trustees, no audit, no report to contributors, or other
indications of genuine separateness or segregation, and where the
union itself collected, operated, and expended the "contributions"
in substantially the same manner as union dues and assessments.
[
Footnote 2/6]
I recognize, of course, that the recent enactment of § 205 of
the Federal Election Campaign Act of 1971 has supplemented and
extended § 610 in defining permissible limits of union and
corporate contributions. But § 205 still leaves intact the
operative language of § 610 which explicitly proscribes political
contributions by unions and corporations. The interpretative gloss
today added unnecessarily on this language will result in rendering
ineffectual the basic intention of the Congress to prevent the
intrusion of corporate and union power into our political
system.