Held: The disclosure provisions of the Ohio Campaign
Expense Reporting Law requiring every candidate for political
office to report the names and addresses of campaign contributors
and recipients of campaign disbursements, cannot be
constitutionally applied to appellee Socialist Workers Party (SWP),
a minor political party that historically has been the object of
harassment by Government officials and private parties. Pp.
459 U. S.
91-102.
(a) The First Amendment prohibits a State from compelling
disclosures by a minor political party that will subject those
persons identified to the reasonable probability of threats,
harassment, or reprisals.
Buckley v. Valeo, 424 U. S.
1,
424 U. S. 74.
Moreover, minor parties must be allowed sufficient flexibility in
the proof of injury.
Ibid. These principles for
safeguarding the First Amendment interests of minor parties and
their members and supporters apply not only to the compelled
disclosure of campaign contributors but also to the compelled
disclosure of recipients of campaign disbursements. Pp.
459 U. S.
91-98.
(b) Here, the District Court, in upholding appellees' challenge
to the constitutionality of the Ohio disclosure provisions,
properly concluded that the evidence of private and Government
hostility toward the SWP and its members establishes a reasonable
probability that disclosing the names of contributors and
recipients will subject them to threats, harassment, and reprisals.
Pp.
459 U. S.
98-101.
Affirmed.
MARSHALL, J., delivered the opinion of the Court, in which
BURGER, C.J., and BRENNAN, WHITE, and POWELL, JJ., joined, and in
Parts I, III, and IV of which BLACKMUN, J., joined. BLACKMUN, J.,
filed an opinion concurring in part and concurring in the judgment,
post, p.
459 U. S. 102.
O'CONNOR, J., filed an opinion concurring in part and dissenting in
part, in which REHNQUIST and STEVENS, JJ., joined,
post,
p.
459 U. S.
107.
Page 459 U. S. 88
JUSTICE MARSHALL delivered the opinion of the Court.
This case presents the question whether certain disclosure
requirements of the Ohio Campaign Expense Reporting Law, Ohio
Rev.Code Ann. § 3517.01
et seq. (1972 and Supp.1981), can
be constitutionally applied to the Socialist Workers Party, a minor
political party which historically has been the object of
harassment by government officials and private parties. The Ohio
statute requires every political party to report the names and
addresses of campaign contributors and recipients of campaign
disbursements. In
Buckley v. Valeo, 424 U. S.
1 (1976), this Court held that the First Amendment
prohibits the government from compelling disclosures by a minor
political party that can show a "reasonable probability" that the
compelled disclosures will subject those identified to "threats,
harassment, or reprisals."
Id. at
424 U. S. 74.
Employing this test, a three-judge District Court for the Southern
District of Ohio held that the Ohio statute is unconstitutional as
applied to the Socialist Workers Party. We affirm.
I
The Socialist Workers Party (SWP) is a small political party
with approximately 60 members in the State of Ohio. The Party
states in its constitution that its aim is "the abolition of
capitalism and the establishment of a workers' government to
achieve socialism." As the District Court found, the SWP does not
advocate the use of violence. It seeks instead to achieve social
change through the political process, and its members regularly run
for public office. The SWP's candidates have had little success at
the polls. In 1980, for example, the Ohio SWP's candidate for the
United States Senate received fewer than 77,000 votes, less than
l.9% of the total
Page 459 U. S. 89
vote. Campaign contributions and expenditures in Ohio have
averaged about $15,000 annually since 1974.
In 1974, appellees instituted a class action [
Footnote 1] in the District Court for the
Northern District of Ohio challenging the constitutionality of the
disclosure provisions of the Ohio Campaign Expense Reporting Law.
The Ohio statute requires every candidate for political office to
file a statement identifying each contributor and each recipient of
a disbursement of campaign funds. § 3517.10. [
Footnote 2] The "object or purpose" [
Footnote 3]
Page 459 U. S. 90
of each disbursement must also be disclosed. The lists of names
and addresses of contributors and recipients are open to public
inspection for at least six years. Violations of the disclosure
requirements are punishable by fines of up to $1,000 for each day
of violation. § 3517.99.
On November 6, 1974, the District Court for the Northern
District of Ohio entered a temporary restraining order barring the
enforcement of the disclosure requirements against the class
pending a determination of the merits. [
Footnote 4] The case was then transferred to the District
Court for the Southern District of Ohio, which entered an identical
temporary restraining order in February, 1975. [
Footnote 5] Accordingly, since 1974,
Page 459 U. S. 91
appellees have not disclosed the names of contributors and
recipients, but have otherwise complied with the statute. A
three-judge District Court was convened pursuant to 28 U.S.C. §
2281. Following extensive discovery, the trial was held in
February, 1981. After reviewing the "substantial evidence of both
governmental and private hostility toward and harassment of SWP
members and supporters," the three-judge court concluded that,
under
Buckley v. Valeo, 424 U. S. 1 (1976),
the Ohio disclosure requirements are unconstitutional as applied to
appellees. [
Footnote 6] We
noted probable jurisdiction. 454 U.S. 1122 (1981).
II
The Constitution protects against the compelled disclosure of
political associations and beliefs. Such disclosures "can seriously
infringe on privacy of association and belief guaranteed by the
First Amendment."
Buckley v. Valeo, supra, at
424 U. S. 64,
citing
Gibson v. Florida Legislative Comm., 372 U.
S. 539 (1963);
NAACP v. Button, 371 U.
S. 415 (1963);
Shelton v. Tucker, 364 U.
S. 479 (1960);
Bates v. Little Rock,
361 U. S. 516
(1960);
NAACP v. Alabama, 357 U.
S. 449 (1958).
"Inviolability of privacy in group association may in many
circumstances be indispensable to preservation of freedom of
association, particularly where a group espouses dissident
beliefs."
NAACP v. Alabama, supra, at
357 U. S. 462.
The right to privacy in one's political associations and beliefs
will yield
Page 459 U. S. 92
only to a "
subordinating interest of the State [that is]
compelling,'" NAACP v. Alabama, supra, at 357 U. S. 463
(quoting Sweezy v. New Hampshire, 354 U.
S. 234, 354 U. S. 265
(1957) (opinion concurring in result)), and then only if there is a
"substantial relation between the information sought and [an]
overriding and compelling state interest." Gibson v. Florida
Legislative Comm., supra, at 372 U. S.
546.
In
Buckley v. Valeo, this Court upheld against a First
Amendment challenge the reporting and disclosure requirements
imposed on political parties by the Federal Election Campaign Act
of 1971. 2 U.S.C. § 431
et seq. 424 U.S. at
424 U. S. 60-74.
The Court found three government interests sufficient in general to
justify requiring disclosure of information concerning campaign
contributions and expenditures: [
Footnote 7] enhancement of voters' knowledge about a
candidate's possible allegiances and interests, deterrence of
corruption, and the enforcement of contribution limitations.
[
Footnote 8] The Court
stressed, however, that, in certain circumstances, the balance of
interests requires exempting minor political parties from compelled
disclosures. The government's interests in compelling disclosures
are "diminished" in the case of minor parties.
Id. at
424 U. S. 70.
Minor party candidates "usually represent definite and publicized
viewpoints" well known to the public, and the improbability of
their winning reduces the dangers of corruption and vote-buying.
Ibid. At the same time, the potential for impairing First
Amendment interests is substantially greater:
Page 459 U. S. 93
"We are not unmindful that the damage done by disclosure to the
associational interests of the minor parties and their members and
to supporters of independents could be significant. These movements
are less likely to have a sound financial base, and thus are more
vulnerable to fall-offs in contributions. In some instances, fears
of reprisal may deter contributions to the point where the movement
cannot survive. The public interest also suffers if that result
comes to pass, for there is a consequent reduction in the free
circulation of ideas both within and without the political
arena."
Id. at
424 U. S. 71
(footnotes omitted). We concluded that, in some circumstances ,the
diminished government interests furthered by compelling disclosures
by minor parties does not justify the greater threat to First
Amendment values.
Buckley v. Valeo set forth the following test for
determining when the First Amendment requires exempting minor
parties from compelled disclosures:
"The evidence offered need show only a reasonable probability
that the compelled disclosure of a party's contributors' names will
subject them to threats, harassment, or reprisals from either
Government officials or private parties."
Id. at
424 U. S. 74. The
Court acknowledged that "unduly strict requirements of proof could
impose a heavy burden" on minor parties.
Ibid.
Accordingly, the Court emphasized that "[m]inor parties must be
allowed sufficient flexibility in the proof of injury."
Ibid.
"The proof may include, for example, specific evidence of past
or present harassment of members due to their associational ties,
or of harassment directed against the organization itself. A
pattern of threats or specific manifestations of public hostility
may be sufficient. New parties that have no history upon which to
draw may be
Page 459 U. S. 94
able to offer evidence of reprisals and threats directed against
individuals or organizations holding similar views."
Ibid.
Appellants concede that the
Buckley test for exempting
minor parties governs the disclosure of the names of
contributors, but they contend that the test has no
application to the compelled disclosure of names of
recipients of campaign disbursements. [
Footnote 9] Appellants assert that the State has a
substantial interest in preventing the misuse of campaign funds.
[
Footnote 10] They also
argue that the disclosure of the names of
Page 459 U. S. 95
recipients of campaign funds will have no significant impact on
First Amendment rights, because, unlike a contribution, the mere
receipt of money for commercial services does not affirmatively
express political support.
We reject appellants' unduly narrow view of the minor party
exemption recognized in
Buckley. Appellants' attempt to
limit the exemption to laws requiring disclosure of contributors is
inconsistent with the rationale for the exemption stated in
Buckley. The Court concluded that the government interests
supporting disclosure are weaker in the case of minor parties,
while the threat to First Amendment values is greater. Both of
these considerations apply not only to the disclosure of campaign
contributors, but also to the disclosure of recipients of campaign
disbursements.
Although appellants contend that requiring disclosure of
recipients of disbursements is necessary to prevent corruption,
this Court recognized in
Buckley that this concededly
legitimate government interest has less force in the context of
minor parties. The federal law considered in
Buckley, like
the Ohio law at issue here, required campaign committees to
identify both campaign contributors and recipients of campaign
disbursements. 2 U.S.C. §§ 432(c) and (d), and 434(a) and (b). We
stated that "by exposing large contributions
and
expenditures to the light of publicity," disclosure
requirements "ten[d] to
prevent the corrupt use of money to
affect elections.'" Id. at 424 U. S. 67
(emphasis added), quoting Burroughs v. United States,
290 U. S. 534,
290 U. S. 548
(1934). We concluded, however, that, because minor party candidates
are unlikely to win elections, the government's general interest in
"deterring the `buying' of elections" is "reduced" in the case of
minor parties. 424 U.S. at
424 U. S. 70. [Footnote 11]
Page 459 U. S. 96
Moreover, appellants seriously understate the threat to First
Amendment rights that would result from requiring minor parties to
disclose the recipients of campaign disbursements.
Page 459 U. S. 97
Expenditures by a political party often consist of
reimbursements, advances, or wages paid to party members, campaign
workers, and supporters, whose activities lie at the very core of
the First Amendment. [
Footnote
12] Disbursements may also go to persons who choose to express
their support for an unpopular cause by providing services rendered
scarce by public hostility and suspicion. [
Footnote 13] Should their involvement be
publicized, these persons would be as vulnerable to threats,
harassment, and reprisals as are contributors whose connection with
the party is solely financial. [
Footnote 14] Even individuals
Page 459 U. S. 98
who receive disbursements for "merely" commercial transactions
may be deterred by the public emnity attending publicity, and those
seeking to harass may disrupt commercial activities on the basis of
expenditure information. [
Footnote 15] Because an individual who enters into a
transaction with a minor party purely for commercial reasons lacks
any ideological commitment to the party, such an individual may
well be deterred from providing services by even a small risk of
harassment. [
Footnote 16]
Compelled disclosure of the names of such recipients of
expenditures could therefore cripple a minor party's ability to
operate effectively, and thereby reduce "the free circulation of
ideas both within and without the political arena."
Buckley, 424 U.S. at
424 U. S. 71
(footnotes omitted).
See Sweezy v. New Hampshire, 354 U.S.
at
354 U. S.
250-251 (plurality opinion) ("Any interference with the
freedom of a party is simultaneously an interference with the
freedom of its adherents").
We hold, therefore, that the test announced in
Buckley
for safeguarding the First Amendment interests of minor parties and
their members and supporters applies not only to the compelled
disclosure of campaign contributors, but also to the compelled
disclosure of recipients of campaign disbursements.
III
The District Court properly applied the
Buckley test to
the facts of this case. The District Court found "substantial
evidence
Page 459 U. S. 99
of both governmental and private hostility toward and harassment
of SWP members and supporters." Appellees introduced proof of
specific incidents of private and government hostility toward the
SWP and its members within the four years preceding the trial.
These incidents, many of which occurred in Ohio and neighboring
States, included threatening phone calls and hate mail, the burning
of SWP literature, the destruction of SWP members' property, police
harassment of a party candidate, and the firing of shots at an SWP
office. There was also evidence that, in the 12-month period before
trial, 22 SWP members, including 4 in Ohio, were fired because of
their party membership. Although appellants contend that two of the
Ohio firings were not politically motivated, the evidence amply
supports the District Court's conclusion that "private hostility
and harassment toward SWP members make it difficult for them to
maintain employment."
The District Court also found a past history of Government
harassment of the SWP. FBI surveillance of the SWP was "massive,"
and continued until at least 1976. The FBI also conducted a
counterintelligence program against the SWP and the Young Socialist
Alliance (YSA), the SWP's youth organization. One of the aims of
the "SWP Disruption Program" was the dissemination of information
designed to impair the ability of the SWP and YSA to function. This
program included "disclosing to the press the criminal records of
SWP candidates, and sending anonymous letters to SWP members,
supporters, spouses, and employers." [
Footnote 17] Until at least 1976, the FBI employed
various covert techniques to
Page 459 U. S. 100
obtain information about the SWP, including information
concerning the sources of its funds and the nature of its
expenditures. The District Court specifically found that the FBI
had conducted surveillance of the Ohio SWP and had interfered with
its activities within the State. [
Footnote 18] Government surveillance was not limited to
the FBI. The United States Civil Service Commission also gathered
information on the SWP, the YSA, and their supporters, and the FBI
routinely distributed its reports to Army, Navy and Air Force
Intelligence, the United States Secret Service, and the Immigration
and Naturalization Service.
The District Court properly concluded that the evidence of
private and Government hostility toward the SWP and its members
establishes a reasonable probability that disclosing the names of
contributors and recipients will subject them to threats,
harassment, and reprisals. [
Footnote 19] There were numerous instances of recent
harassment of the SWP both in Ohio and
Page 459 U. S. 101
in other States. [
Footnote
20] There was also considerable evidence of past Government
harassment. Appellants challenge the relevance of this evidence of
Government harassment in light of recent efforts to curb official
misconduct. Notwithstanding these efforts, the evidence suggests
that hostility toward the SWP is ingrained, and likely to continue.
All this evidence was properly relied on by the District Court.
Buckley, 424 U.S. at
424 U. S. 74.
IV
The First Amendment prohibits a State from compelling
disclosures by a minor party that will subject those persons
identified to the reasonable probability of threats, harassment, or
reprisals. Such disclosures would infringe the
Page 459 U. S. 102
First Amendment rights of the party and its members and
supporters. In light of the substantial evidence of past and
present hostility from private persons and Government officials
against the SWP, Ohio's campaign disclosure requirements cannot be
constitutionally applied to the Ohio SWP.
The judgment of the three-judge District Court for the Southern
District of Ohio is affirmed.
It is so ordered.
[
Footnote 1]
The plaintiff class as eventually certified includes all SWP
candidates for political office in Ohio, their campaign committees
and treasurers, and people who contribute to or receive
disbursements from SWP campaign committees. The defendants are the
Ohio Secretary of State and other state and local officials who
administer the disclosure law.
[
Footnote 2]
Section 3517.10 provides in relevant part:
"(A) Every campaign committee, political committee, and
political party which made or received a contribution or made an
expenditure in connection with the nomination or election of any
candidate at any election held in this state shall file, on a form
prescribed under this section, a full, true, and itemized
statement, made under penalty of election falsification, setting
forth in detail the contributions and expenditures. . . . "
* * * *
"(B) Each statement required by division (A) of this section
shall contain the following information:"
* * * *
"(4) A statement of contributions made or received, which shall
include:"
"(a) The month, day, and year of the contribution;"
"(b) The full name and address of each person, including any
chairman or treasurer thereof if other than an individual, from
whom contributions are received. The requirement of filing the full
address does not apply to any statement filed by a state or local
committee of a political party, to a finance committee of such
committee, or to a committee recognized by a state or local
committee as its fund-raising auxiliary."
"(c) A description of the contribution received, if other than
money;"
"(d) The value in dollars and cents of the contribution;"
"(e) All contributions and expenditures shall be itemized
separately regardless of the amount except a receipt of a
contribution from a person in the sum of twenty-five dollars or
less at one social or fund-raising activity. An account of the
total contributions from each such social or fund-raising activity
shall be listed separately, together with the expenses incurred and
paid in connection with such activity. No continuing association
which makes a contribution from funds which are derived solely from
regular dues paid by members of the association shall be required
to list the name or address of any members who paid such dues."
"(5) A statement of expenditures which shall include:"
"(a) The month, day, and year of expenditure;"
"(b) The full name and address of each person to whom the
expenditure was made, including any chairman or treasurer thereof
if a committee, association, or group of persons;"
"(c) The object or purpose for which the expenditure was
made;"
"(d) The amount of each expenditure."
"(C) . . ."
* * * *
". . . All such statements shall be open to public inspection in
the office where they are filed, and shall be carefully preserved
for a period of at least six years."
If the candidate is running for a statewide office, the
statement shall be filed with the Ohio Secretary of State;
otherwise, the statement shall be filed with the appropriate county
board of elections. § 3517.11(A).
[
Footnote 3]
§ 3517.10(B)(5)(c).
[
Footnote 4]
The order restrained various state officials from
"applying to or enforcing against plaintiffs . . . the
disclosure provisions of the Ohio Campaign Expense Reporting Law
and the penalty provision of that law, the effect of which will be
to postpone the beginning of any possible period of violation of
that law by plaintiffs, . . . until such time as the case is
decided by the three judge panel, which is hereby convened."
(Citations omitted.)
[
Footnote 5]
Apparently none of the parties throughout the 6-year period
questioned whether the extended duration of the temporary
restraining order conformed to the requirements of Rule 65(b) of
the Federal Rules of Civil Procedure.
[
Footnote 6]
Because it invalidated the Ohio statute as applied to the Ohio
SWP, the District Court did not decide appellees' claim that the
statute was facially invalid. The Ohio statute requires disclosure
of contributions and expenditures no matter how small the amount.
Ohio Rev.Code Ann. § 3517.10(B)(4)(e) (Supp.1981). Appellees
contended that the absence of a monetary threshold rendered the
statute facially invalid, since the compelled disclosure of nominal
contributions and expenditures lacks a substantial nexus with any
claimed government interest.
See Buckley v. Valeo, 424
U.S. at
424 U. S.
824.
The District Court's opinion is unreported.
[
Footnote 7]
Title 2 U.S.C. §§ 432, 434, and 438 (1976 ed., Supp. V) require
each political committee to keep detailed records of both
contributions and expenditures, including the names of campaign
contributors and recipients of campaign disbursements, and to file
reports with the Federal Election Commission which are made
available to the public.
[
Footnote 8]
The government interest in enforcing limitations is completely
inapplicable in this case, since the Ohio law imposes no
limitations on the amount of campaign contributions.
[
Footnote 9]
We believe that the question whether the
Buckley test
applies to the compelled disclosure of recipients of expenditures
is properly before us. Throughout this litigation, Ohio has
maintained that it can constitutionally require the SWP to disclose
the names of both campaign contributors and recipients of campaign
expenditures. In invalidating both aspects of the Ohio statute as
applied to the SWP, the District Court necessarily held (1) that
the
Buckley standard, which permits flexible proof of the
reasonable probability of threats, harassment, or reprisals,
applies to both contributions and expenditures, and (2) that the
evidence was sufficient to show a reasonable probability that
disclosure would subject both contributors and recipients to public
hostility and harassment. In their jurisdictional statement,
appellants appealed from the entire judgment entered below, and
presented the following question for review:
"Whether, under the standards set forth by this Court in
Buckley v. Valeo, 424 U. S. 1 (1976), the provisions
of Sections 3517.10 and 3517.11 of the Ohio Revised Code, which
require that the campaign committee of a candidate for public
office file a report disclosing the full names and addresses of
persons making contributions to or receiving expenditures from such
committee, are consistent with the right of privacy of association
guaranteed by the First and Fourteenth Amendments of the
Constitution of the United States when applied to the committees of
candidates of a minority party which can establish only isolated
instances of harassment directed toward the organization or its
members within Ohio during recent years."
Juris.Statement i.
We think that the correctness of both holdings of the District
Court is "fairly included" in the question presented in the
jurisdictional statement. This Court's Rule 15.1(a).
See
Procunier v. Navarette, 434 U. S. 555,
434 U. S. 559,
n. 6 (1978) ("[O]ur power to decide is not limited by the precise
terms of the question presented").
[
Footnote 10]
This is one of three government interests identified in
Buckley. Appellants do not contend that the other two
interests, enhancing voters' ability to evaluate candidates and
enforcing contribution limitations, support the disclosure of the
names of recipients of campaign disbursements.
[
Footnote 11]
The partial dissent suggests that the government interest in the
disclosure of recipients of expenditures is not significantly
diminished in the case of minor political parties, since parties
with little likelihood of electoral success might nevertheless
finance improper campaign activities merely to gain recognition.
Post at
459 U. S.
109-110. The partial dissent relies on JUSTICE WHITE's
separate opinion in
Buckley, in which he pointed out that
"unlimited money tempts people to spend it on
whatever
money can buy to influence an election." 424 U.S. at
424 U. S. 265
(emphasis in original).
An examination of the context in which JUSTICE WHITE made this
observation indicates precisely why the state interest here is
insubstantial. JUSTICE WHITE was addressing the constitutionality
of ceilings on campaign expenditures applicable to all candidates.
His point was that such ceilings "could play a substantial role in
preventing unethical practices."
Ibid. In the case of
minor parties, however, their limited financial resources serve as
a built-in expenditure ceiling which minimizes the likelihood that
they will expend substantial amounts of money to finance improper
campaign activities.
See id. at
424 U. S. 271.
For example, far from having "unlimited money," the Ohio SWP has
had an average of roughly $15,000 available each year to spend on
its election efforts. Most of the limited resources of minor
parties will typically be needed to pay for the ordinary fixed
costs of conducting campaigns, such as filing fees, travel
expenses, and the expenses incurred in publishing and distributing
campaign literature and maintaining offices. Thus JUSTICE WHITE's
observation that "financing illegal activities is low on the
campaign organization's priority list,"
id. at
424 U. S. 265,
is particularly apposite in the case of minor parties. We cannot
agree, therefore, that minor parties are as likely as major parties
to make significant expenditures in funding dirty tricks or other
improper campaign activities.
See post at
459 U. S. 110.
Moreover, the expenditure by minor parties of even a substantial
portion of their limited funds on illegal activities would be
unlikely to have a substantial impact.
Furthermore, the mere possibility that minor parties will resort
to corrupt or unfair tactics cannot justify the substantial
infringement on First Amendment interests that would result from
compelling the disclosure of recipients of expenditures. In
Buckley, we acknowledged the possibility that supporters
of a major party candidate might channel money into minor parties
to divert votes from other major party contenders, 424 U.S. at
424 U. S. 70, and
that, as noted by the partial dissent,
post, at
459 U. S. 110,
and n. 5, occasionally minor parties may affect the outcomes of
elections. We thus recognized that the distorting influence of
large contributors on elections may not be entirely absent in the
context of minor parties. Nevertheless, because we concluded that
the government interest in disclosing contributors is substantially
reduced in the case of minor parties, we held that minor parties
are entitled to an exemption from requirements that contributors be
disclosed where they can show a reasonable probability of
harassment. 424 U.S. at
424 U. S. 70.
Because we similarly conclude that the government interest in
requiring the disclosure of recipients of expenditures is
substantially reduced in the case of minor parties, we hold that
the minor party exemption recognized in
Buckley applies to
compelled disclosure of expenditures as well.
[
Footnote 12]
For example, the expenditure statements filed by the SWP contain
a substantial percentage of entries designated as
per
diem, travel expenses, room rental, and so on. The Ohio
statute makes it particularly easy to identify these individuals,
since it requires disclosure of the
purpose of the
disbursements as well as the identity of the recipients. Ohio
Rev.Code Ann. § 3517.10(B)(5)(c) (Supp.1981).
[
Footnote 13]
"
[F]inancial transactions can reveal much about a person's
activities, associations, and beliefs.'" Buckley v. Valeo,
424 U.S. at 424 U. S. 66,
quoting California Bankers Assn. v. Shultz, 416 U. S.
21, 416 U. S. 78-79
(1974) (POWELL, J., concurring). The District Court found that the
Federal Bureau of Investigation (FBI), at least until 1976,
routinely investigated the financial transactions of the SWP and
kept track of the payees of SWP checks.
[
Footnote 14]
The fact that some or even many recipients of campaign
expenditures may not be exposed to the risk of public hostility
does not detract from the serious threat to the exercise of First
Amendment rights of those who are so exposed. We cannot agree with
the partial dissent's assertion that disclosures of disbursements
paid to campaign workers and supporters will not increase the
probability that they will be subjected to harassment and
hostility.
Post at
459 U. S.
111-112. Apart from the fact that individuals may work
for a candidate in a variety of ways without publicizing their
involvement, the application of a disclosure requirement results in
a dramatic increase in public exposure. Under Ohio law, a person's
affiliation with the party will be recorded in a document that must
be kept open to inspection by any one who wishes to examine it for
a period of at least six years. Ohio Rev.Code Ann. 3517. 10(C)
(Supp.1981). The preservation of unorthodox political affiliations
in public records substantially increases the potential for
harassment above and beyond the risk that an individual faces
simply as a result of having worked for an unpopular party at one
time.
[
Footnote 15]
See, e.g., Socialist Workers Party v. Attorney
General, 458 F.
Supp. 895, 904 (SDNY 1978) (FBI interference with SWP travel
arrangements and speaker hall rental),
vacated on other
grounds, 596 F.2d 58 (CA2),
cert. denied, 444 U.S.
903 (1979).
[
Footnote 16]
Moreover, it would be hard to think of many instances in which
the state interest in preventing vote-buying and improper campaign
activities would be furthered by the disclosure of payments for
routine commercial services.
[
Footnote 17]
The District Court was quoting from Part I of the Final Report
of Special Master Judge Breitel in
Socialist Workers Party v.
Attorney General of the United States, 73 Civ. 3160 (TPG)
(SDNY, Feb. 4, 1980), detailing the United States Government's
admissions concerning the existence and nature of the Government
surveillance of the SWP.
[
Footnote 18]
The District Court also found the following:
"The Government possesses about 8,000,000 documents relating to
the SWP, YSA . . . and their members. . . . Since 1960, the FBI has
had about 300 informants who were members of the SWP and/or YSA and
1,000 nonmember informants. Both the Cleveland and Cincinnati FBI
field offices had one or more SWP or YSA member informants.
Approximately 21 of the SWP member informants held local branch
offices. Three informants even ran for elective office as SWP
candidates. The 18 informants whose files were disclosed to Judge
Breitel received total payments of $358,648.38 for their services
and expenses."
(Footnotes omitted.)
[
Footnote 19]
After reviewing the evidence and the applicable law, the
District Court concluded:
"[T]he totality of the circumstances establishes that, in Ohio,
public disclosure that a person is a member of or has made a
contribution to the SWP would create a reasonable probability that
he or she would be subjected to threats, harassment or
reprisals."
The District Court then enjoined the compelled disclosures of
either contributors' or recipients' names. Although the District
Court did not expressly refer in the quoted passage to disclosure
of the names of recipients of campaign disbursements, it is evident
from the opinion that the District Court was addressing both
contributors and recipients.
[
Footnote 20]
Some of the recent episodes of threats, harassment, and
reprisals against the SWP and its members occurred outside of Ohio.
Anti-SWP occurrences in places such as Chicago (SWP office
vandalized) and Pittsburgh (shot fired at SWP building) are
certainly relevant to the determination of the public's attitude
toward the SWP in Ohio. In
Buckley, we stated that
"[n]ew parties that have no history upon which to draw may . . .
offer evidence of reprisals and threats directed against
individuals or organizations holding similar views."
424 U.S. at
424 U. S. 74.
Surely the Ohio SWP may offer evidence of the experiences of other
chapters espousing the same political philosophy.
See 1980
Illinois Socialist Workers Campaign v. State of Illinois Board of
Elections, 531 F.
Supp. 915, 921 (ND Ill.1981).
Appellants point to the lack of direct evidence linking the Ohio
statute's disclosure requirements to the harassment of campaign
contributors or recipients of disbursements. In
Buckley,
however, we rejected such "unduly strict requirements of proof " in
favor of "flexibility in the proof of injury." 424 U.S. at
424 U. S. 74. We
thus rejected requiring a minor party to "come forward with
witnesses who are too fearful to contribute but not too fearful to
testify about their fear" or prove that "chill and harassment [are]
directly attributable to the specific disclosure from which the
exemption is sought."
Ibid. We think that these
considerations are equally applicable to the proof required to
establish a reasonable probability that recipients will be
subjected to threats and harassment if their names are disclosed.
While the partial dissent appears to agree,
post at
459 U. S.
112-113, n. 7, its "separately focused inquiry,"
post at
459 U. S. 112,
and n. 7, in reality requires evidence of chill and harassment
directly attributable to the expenditure-disclosure
requirement.
JUSTICE BLACKMUN, concurring in part and concurring in the
judgment.
I join Parts I, III, and IV of the Court's opinion and agree
with much of what is said in Part II. But I cannot agree, with the
Court or with the partial dissent, that we should reach the issue
whether a standard of proof different from that applied to
disclosure of campaign contributions should be applied to
disclosure of campaign disbursements.
See ante at
459 U. S. 94, n.
9;
post at
459 U. S.
112-113, n. 7. [
Footnote
2/1] Appellants did not suggest in the District Court that
different standards might apply. Nor was the issue raised in
appellants' jurisdictional statement or in their brief on the
merits in this Court. Consequently, I would merely assume for
purposes of our present decision -- as appellants apparently have
assumed throughout this litigation and as the District Court
clearly assumed -- that the flexible proof rule of
Buckley v.
Valeo, 424 U. S. 1 (1976),
applies equally to forced disclosure of contributions and to forced
disclosure of expenditures. I would leave for another day, when the
issue is squarely presented, considered by the courts below, and
adequately briefed here, the significant question that now divides
the Court.
This Court's Rule 15.1(a) states: "Only the questions set forth
in the jurisdictional statement or fairly included therein
Page 459 U. S. 103
will be considered by the Court." Appellants' jurisdictional
statement presented a single question:
"Whether, under the standards set forth by this Court in
Buckley v. Valeo,
424 U. S. 1 (1976), the provisions
of Sections 3517.10 and 3517.11 of the Ohio Revised Code, which
require that the campaign committee of a candidate for public
office file a report disclosing the full names and addresses of
persons making contributions to or receiving expenditures from such
committee, are consistent with the right of privacy of association
guaranteed by the First and Fourteenth Amendments of the
Constitution of the United States when applied to the committees of
candidates of a minority party which can establish only isolated
instances of harassment directed toward the organization or its
members within Ohio during recent years."
Juris.Statement i. The question assumes the applicability of
Buckley to the entire case, and asks this Court to decide
only whether the evidence presented to and facts found by the
District Court were sufficient to support that court's conclusion
that the
Buckley test was satisfied.
Absent extraordinary circumstances, this Court does not decide
issues beyond those it has agreed to review.
Mayor v.
Educational Equality League, 415 U. S. 605,
415 U. S. 623
(1974);
United States v. Bass, 404 U.
S. 336,
404 U. S. 339,
n. 4 (1971);
General Talking Pictures Co. v. Western Electric
Co., 304 U. S. 175,
304 U. S.
178-179 (1938). According to the Court, however, the
issue whether the flexible standard of proof established in
Buckley applies to recipients of expenditures is
"
fairly included' in the question presented." Ante at
459 U. S. 94, n.
9. But appellants' failure to present the issue was not a mere
oversight in phrasing that question. That appellants did not invoke
this Court's jurisdiction to review specifically the proper
standard for disclosure of campaign expenditures is also apparent
from appellants' arguments in their jurisdictional statement and
their brief on the merits. In their jurisdictional
Page 459 U. S. 104
statement, under the heading "The Question is Substantial,"
appellants stated:
"The standards governing the resolution of actions involving
challenges to reporting requirements by minority parties were set
forth by this Court in the case of
Buckley v. Valeo,
424 U. S.
1 (1976). In
Buckley, the Court held that, in
order to receive relief from reporting requirements such as those
at issue in this action, a minority party must establish"
". . . a reasonable probability that the compelled disclosure of
a party's contributors' names will subject them to threats,
harassment or reprisals from either Government officials or private
parties."
"424 U.S. at
424 U. S. 74."
Juris.Statement 10. Appellants went on to state that the
flexible standard of proof of injury established in
Buckley applied to "disclosure requirements."
Juris.Statement 12-13. Similar assertions are found in appellants'
brief on the merits.
See Brief for Appellants 12 ("Summary
of Argument");
id. at 18 ("While refusing to grant
minority parties a blanket exemption from financial disclosure
requirements, the Court in
Buckley established a standard
under which they may obtain relief . . .").
Thus, appellants' exclusive theme in the initial presentation of
their case here was that the District Court erred in finding that
the
Buckley standard was satisfied. They did not suggest
that the standard was inapplicable, or applied differently, to
campaign expenditure requirements. It was not until their reply
brief, submitted eight years after this suit was instituted and at
a time when appellees had no opportunity to respond in writing,
that appellants sought to inject this new issue into the case.
See Irvine v. California, 347 U.
S. 128,
347 U. S. 129
(1954) (plurality opinion of Jackson, J.). In my view, it simply
cannot be said that it was "fairly included" in the jurisdictional
statement.
Moreover, "[w]here issues are neither raised before nor
considered [by the court below], this Court will not ordinarily
Page 459 U. S. 105
consider them."
Adickes v. S. H. Kress & Co.,
398 U. S. 144,
398 U. S. 147,
n. 2 (1970);
Lawn v. United States, 355 U.
S. 339,
355 U. S.
362-363, n. 16 (1958). The District Court did not
address the question whether some standard other than that
developed in
Buckley should apply to disclosure of
campaign expenditures. The reason for this was that appellants
conceded in the District Court, as they concede here, that the
"flexibility in the proof of injury" applicable to disclosure of
contributors governed the entire case. In their post-trial
memorandum, for example, appellants did not even hint that a
different standard should govern disclosure of the identities of
recipients of expenditures. Instead, they quoted the
Buckley test and granted that "evidence of past harassment
may be presented by plaintiffs in cases such as the instant one."
Defendants' Post-Trial Memorandum 4-5.
This case presents no extraordinary circumstances justifying
deviation from this Court's Rule 15.1(a) and its long-established
practice respecting issues not presented below. We have deviated
from the Rule when jurisdictional issues have been omitted by the
parties and lower courts,
see, e.g., United States v. Storer
Broadcasting Co., 351 U. S. 192,
351 U. S. 197
(1956), or when the Court has noticed "plain error" not assigned,
see Carpenters v. United States, 330 U.
S. 395,
330 U. S. 412
(1947). Obviously, the issue that divides the Court from the
partial dissent is not jurisdictional. Nor, as the Court's opinion
persuasively demonstrates, is application of the
Buckley
test to disclosure of campaign disbursements "plain error." Indeed,
I consider it quite possible that, after full consideration, the
Court would adopt the
Buckley standard in this context for
the reasons stated by the Court. I also consider it quite possible
that, after full consideration, the Court might wish to revise the
Buckley standard as applied to campaign disbursements --
perhaps to take account of the different types of expenditures
covered and their differing impacts on associational rights, or
perhaps along the lines suggested in the partial dissent. But this
significant constitutional
Page 459 U. S. 106
decision should not be made until the question is properly
presented, so that the record includes data and arguments adequate
to inform the Court's judgment.
The Court's apparent reliance on
Procunier v.
Navarette, 434 U. S. 555,
434 U. S. 560,
n. 6 (1978), does not provide a rationale for deciding this issue
at this time. The petitioner there had included in his petition for
certiorari all the questions we eventually decided. Notwithstanding
the fact that the Court limited its grant of the petition to a
single question, the parties fully briefed the questions on which
review had been denied. Deciding those questions, therefore, was
neither unwise nor unfair. In this case, in contrast, appellants
affirmatively excluded the point at issue in their jurisdictional
statement and in their brief on the merits. By failing to raise it
until their reply brief, appellants prevented appellees from
responding to the argument in writing. There can be no question
that, as the Court observes, "
our power to decide is
not limited by the precise terms of the question presented.'"
Ante at 459 U. S. 94, n.
9 (quoting Procunier v. Navarette, 434 U.S. at
434 U. S. 560,
n. 6) (emphasis supplied). But Rule 15.1(a) is designed, as a
prudential matter, to prevent the possibility that such tactics
will result in ill-considered decisions. It is cases like this one
that show the wisdom of the Rule.
Thus, for purposes of this case, I would
assume, as
appellants' jurisdictional statement and brief on the merits
assume, that the
Buckley standard applies to campaign
expenditures just as it applies to contributions. [
Footnote 2/2] Appellees
Page 459 U. S. 107
presented "specific evidence of past or present harassment of
members due to their associational ties, or of harassment directed
against the organization itself," sufficient under the rule in
Buckley to establish a "reasonable probability" that the
Ohio law would trigger "threats, harassment, or reprisals" against
contributors. 424 U.S. at
424 U. S. 74. On
this basis, I would affirm the judgment of the District Court in
its entirety.
[
Footnote 2/1]
Although the partial dissent agrees that this issue is not
properly presented, and therefore that the question should not be
decided,
post at
459 U. S. 112,
n. 7, its result and reasoning endorse a different standard of
proof.
See 459 U.S.
87fn2/2|>n. 2,
infra.
[
Footnote 2/2]
The partial dissent says it agrees that "this is not the
appropriate case to determine whether a different test or standard
of proof should be employed in determining the constitutional
validity of required disclosure of expenditures."
Post at
459 U. S. 112,
n. 7. If that is so, however, appellees' proof, which the partial
dissent agrees established a reasonable probability of threats,
harassment, or reprisals against contributors, likewise allowed the
District Court to find a reasonable probability of threats,
harassment, or reprisals against recipients of expenditures. The
Buckley standard permits proof that a particular
disclosure creates the requisite likelihood of harassment to be
based on a showing of harassment directed at members of the party
or at the organization itself. 424 U.S. at
424 U. S. 74.
Thus, I do not understand how the partial dissent's "separately
focused inquiry" can "plainly require a different result,"
post at
459 U. S. 113,
n. 7, or how it possibly can lead to the conclusion that "appellees
did not carry their burden of production and persuasion insofar as
they challenge the expenditure disclosure provisions,"
post at
459 U. S. 115
-- unless, despite the partial dissent's uncertain disclaimer,
post at
459 U. S. 113,
n. 7, its "separate focus" alters
Buckley's "reasonable
probability" and "flexible proof" standards in the context of
expenditures.
JUSTICE O'CONNOR, with whom JUSTICE REHNQUIST and JUSTICE
STEVENS join, concurring in part and dissenting in part.
I concur in the judgment that the Socialist Workers Party (SWP)
has sufficiently demonstrated a reasonable probability that
disclosure of contributors will subject those persons to threats,
harassment, or reprisals, and thus, under
Buckley v.
Valeo, 424 U. S. 1 (1976),
the State of Ohio cannot constitutionally compel the disclosure.
Further, I agree that the broad concerns of
Buckley apply
to the required disclosure of recipients of campaign expenditures.
But, as I view the record presented here, the SWP has failed to
carry its burden of showing that there is a reasonable probability
that disclosure of recipients of expenditures will subject the
recipients themselves or the SWP to threats, harassment, or
reprisals. Moreover, the strong public interest in fair and honest
elections outweighs any damage done to the associational rights of
the party and its members by application of the State's expenditure
disclosure law.
Page 459 U. S. 108
I
Buckley upheld the validity of the Federal Election
Campaign Act of 1971, which requires the disclosure of names of
both contributors to a campaign and recipients of expenditures from
the campaign.
Buckley recognized three major governmental
interests in disclosure requirements: deterrence of corruption;
enhancement of voters' knowledge about a candidate's possible
allegiances and interests; and provision of the data and means
necessary to detect violations of any statutory limitations on
contributions or expenditures. The precise challenge that the
Buckley Court faced, however, was the overbreadth of the
Act's requirements "insofar as they apply to
contributions
to minor parties and independent candidates."
Id. at
424 U. S. 68-69
(emphasis added). [
Footnote 3/1]
Since the appellants in
Buckley did not challenge the
application to minor parties of requirements of disclosure of
expenditures, the Court had no occasion to consider directly the
First Amendment interests of a minor political party in preventing
disclosure of expenditures, much less to weigh them against the
governmental interests in disclosure. The test adopted by
Buckley, quoted by the majority,
ante at
459 U. S. 93,
reflects this limitation, for it contemplates only assessing
possible harassment of
contributors, without a word about
considering the harassment of recipients of expenditures if their
names are disclosed or any effects this harassment may have on the
party.
This is not to say that
Buckley provides no guidance
for resolving this claim. I agree with the majority that
appellants
Page 459 U. S. 109
have overstated their argument in declaring that
Buckley has no application to the disclosure of recipients
of expenditures. Certainly,
Buckley enunciates the general
governmental interest in regulating minor parties, who, although
unlikely to win, can often affect the outcome of an election. 424
U.S. at
424 U. S. 70.
Buckley also emphasizes the sensitive associational rights
of minor parties.
Nevertheless, there are important differences between disclosure
of contributors and disclosure of recipients of campaign
expenditures -- differences that the
Buckley Court had no
occasion to address, but that compel me to conclude that the
balance should not necessarily be calibrated identically. First,
unlike the government's interest in disclosure of contributions,
its interest in disclosure of expenditures does not decrease
significantly for small parties. The Court in
Buckley
recognized that knowing the identity of contributors would not
significantly increase the voters' ability to determine the
political ideology of the minor party candidate, for the stance of
the minor party candidate is usually well known.
Ibid.
[
Footnote 3/2] Nor would
identifying a minor party's contributors further the interest in
preventing the "buying" of a candidate, because of the
improbability of the minor party candidate's winning the election.
Ibid. Thus, these two major government interests in
disclosure of contributions are significantly reduced for minor
parties. [
Footnote 3/3]
In sharp contrast, however, the governmental interest in
disclosure of expenditures remains significant for minor parties.
The purpose of requiring parties to disclose expenditures is to
deter improper influencing of voters. Corruption
Page 459 U. S. 110
of the electoral process can take many forms: the actual buying
of votes; the use of "slush funds;" dirty tricks; and bribes of
poll watchers and other election officials. Certainly, a
"persuasive" campaign worker on election day can corral voters for
his minor party candidate with even a modest "slush fund."
[
Footnote 3/4] Even though such
improper practices are unlikely to be so successful as to attract
enough votes to elect the minor party candidate, a minor party,
whose short-term goal is merely recognition, may be as tempted to
resort to impermissible methods as are major parties, and the
resulting deflection of votes can determine the outcome of the
election of other candidates. [
Footnote
3/5] The requirement of a full and
verifiable report
of expenditures is important in deterring such practices, for
otherwise the party could hide the improper transactions through an
accounting sleight of hand. [
Footnote
3/6]
On the other side of the balance, disclosure of recipients of
expenditures will have a lesser impact on a minority party's First
Amendment interests than will disclosure of contributors.
Page 459 U. S. 111
As the majority states,
ante at
459 U. S. 91,
the First Amendment interest here is "[t]he right to privacy in
one's political associations and beliefs." We have never drawn
sharp distinctions between members and contributors,
Buckley, 424 U.S. at
424 U. S. 66. As
we recognized in
Buckley, the privacy rights of
contributors are especially sensitive, since many seek to express
their political views privately through their pocketbook, rather
than publicly through other means. Disclosure of contributors
directly implicates the contributors' associational rights.
The impact on privacy interests arising from disclosure of
expenditures is of a quite different -- and generally lesser --
dimension. Many expenditures of the minority party will be for
quite mundane purposes to persons not intimately connected with the
organization. Payments for such things as office supplies,
telephone service, bank charges, printing and photography costs
would generally fall in this category. The likelihood that such
business transactions would dry up if disclosed is remote, at best.
Unlike silent contributors, whom disclosure would reveal to the
public as supporters of the party's ideological positions, persons
providing business services to a minor party are not generally
perceived by the public as supporting the party's ideology, and
thus are unlikely to be harassed if their names are disclosed.
Consequently, the party's associational interests are unlikely to
be affected by disclosure of recipients of such expenditures.
Other recipients of expenditures may have closer ideological
ties to the party. The majority suggests that campaign workers
receiving
per diem, travel, or room expenses may fit in
this category.
Ante at
459 U. S. 97, n.
12. It is certainly conceivable that such persons may be harassed
or threatened for their conduct. Laws requiring disclosure of
recipients of expenditures, however, are not likely to contribute
to this harassment. Once an individual has openly shown his close
ties to the organization by campaigning for it, disclosure of
receipt of expenditures is unlikely to increase the degree of
Page 459 U. S. 112
harassment so significantly as to deter the individual from
campaigning for the party. Further, in striking the balance, the
governmental concerns are greatest precisely for the actions of
campaign workers that might improperly influence voters. Thus,
whatever marginal deterrence that may arise from disclosure of
expenditures is outweighed by the heightened governmental
interest.
In sum, the heightened governmental interest in disclosure of
expenditures and the reduced marginal deterrent effect on
associational interests demand a separately focused inquiry into
whether there exists a reasonable probability that disclosure will
subject recipients or the party itself to threats, harassment, or
reprisals. [
Footnote 3/7]
Page 459 U. S. 113
II
Turning to the evidence in this case, it is important to
remember that, even though proof requirements must be flexible,
Buckley, supra, at
424 U. S. 74, the
minor party carries the burden of production and persuasion to show
that its First Amendment interests outweigh the governmental
interests. Additionally, the application of the
Buckley
standard to the historical evidence is most properly characterized
as a mixed question of law and fact, for which we normally assess
the record independently to determine if it supports the conclusion
of unconstitutionality as applied. [
Footnote 3/8]
Here, there is no direct evidence of harassment of either
contributors or recipients of expenditures. Rather, as the majority
accurately represents it, the evidence concerns harassment and
reprisals of visible party members, including violence at party
headquarters and loss of jobs. I concur in the majority's
conclusion that this evidence, viewed in its entirety, supports the
conclusion that there will be a reasonable probability of
harassment of contributors if their names are disclosed. This
evidence is sufficiently linked to disclosure of contributors in
large part because any person publicly known to support the SWP's
unpopular ideological position may suffer the reprisals that this
record shows active party members suffer, and the disclosure of
contributors may lead the public to presume these people support
the party's ideology.
Page 459 U. S. 114
In contrast, the record, read in its entirety, does not suggest
that disclosure of recipients of expenditures would lead to
harassment of recipients or reprisals to the party or its members.
Appellees gave no breakdown of the types of expenditures they
thought would lead to harassment if disclosed. The record does
contain the expenditure statements of the SWP, which itemize each
expenditure with its purpose while usually omitting the name and
address of the recipient. The majority of expenditures, both in
number and dollar amount, are for business transactions such as
office supplies, food, printing, photographs, telephone service,
and books. There is virtually no evidence that disclosure of the
recipients of these expenditures will impair the SWP's ability to
obtain needed services. [
Footnote
3/9] Even if we assume that a portion
Page 459 U. S. 115
of expenditures went to temporary campaign workers or others
whom the public might identify as supporting the party's ideology,
[
Footnote 3/10] these persons
have already publicly demonstrated their support by their campaign
work. There is simply no basis for inferring that such persons
would thereafter be harassed or threatened or otherwise deterred
from working for the party by virtue of inclusion of their names in
later expenditure reports, or that, if any such remote danger
existed, it would outweigh the concededly important governmental
interests in disclosure of recipients of expenditures.
It is plain that appellees did not carry their burden of
production and persuasion insofar as they challenge the expenditure
disclosure provisions. I would therefore uphold the
constitutionality of those portions of the Ohio statute that
require the SWP to disclose the recipients of expenditures.
[
Footnote 3/11]
[
Footnote 3/1]
Of course, the plaintiffs in
Buckley challenged many
aspects of the federal Act, including expenditure limitations and
the disclosure requirements for
independent contributions
and expenditures. The Court upheld all disclosure requirements,
including disclosure of independent expenditures "for
communications that expressly advocate the election or defeat of a
clearly identified candidate." 424 U.S. at
424 U. S. 80. The
plaintiffs in
Buckley did not challenge, however, the
federal requirement that all political parties, including minor
political parties, disclose the recipients of their
expenditures.
[
Footnote 3/2]
Certainly, that is true in this instance. The general political
stance of the SWP and its candidates is readily discernible from
the most cursory glance at its constitution or literature.
[
Footnote 3/3]
The majority is obviously correct in noting that the third
governmental interest articulated in
Buckley -- using
disclosures to police limitations on contributions and expenditures
-- has no application to either contributions or expenditures in
Ohio, since the Ohio statute sets no limitations on them.
[
Footnote 3/4]
As JUSTICE WHITE noted in partial dissent in
Buckley,
424 U.S. at
424 U. S. 264
265, citing
Burroughs v. United States, 290 U.
S. 534 (1934):
"[T]he corrupt use of money by candidates is as much to be
feared as the corrosive influence of large contributions. There are
many illegal ways of spending money to influence elections. One
would be blind to history to deny that unlimited money tempts
people to spend it on
whatever money can buy to influence
an election."
(Emphasis in original.)
[
Footnote 3/5]
Certainly the SWP could have this effect. For example,
appellants noted at oral argument that the SWP candidate in the
1974 Ohio gubernatorial election received some 95,000 votes. The
Republican candidate's margin of victory over the Democratic
candidate was only some 13,500 votes. Tr. of Oral Arg. 18. The
impact of minor parties on elections in the United States is well
documented.
See generally W. Hesseltine, Third-Party
Movements in the United States (1962).
[
Footnote 3/6]
I therefore disagree with the majority's suggestion,
ante at
459 U. S. 98-99,
n. 16, that the government interest in deterring corruption is not
furthered by disclosure of all expenditures, including those for
commercial services. Even if improprieties are unlikely to occur in
expenditures for commercial services, full and verifiable
disclosure is needed to ensure that other, improper expenditures
are not hidden in commercial accounts.
[
Footnote 3/7]
According to the majority, "the question whether the
Buckley test applies to the compelled disclosure of
recipients of expenditures is properly before us."
Ante at
459 U. S. 94, n.
9. The majority declares that, in answering this question,
"the District Court necessarily
held (1) that the
Buckley standard, which permits flexible proof of the
reasonable probability of threats, harassment, or reprisals,
applies to both contributions and expenditures, and (2) that the
evidence was sufficient to show a reasonable probability that
disclosure would subject both contributors and recipients to public
hostility and harassment."
Ibid. (emphasis added).
JUSTICE BLACKMUN,
ante at
459 U. S. 102,
however, more accurately characterizes the District Court's action
as
assuming that the
Buckley standard applies to
disclosure of expenditures, and
holding the evidence
sufficient to meet this standard. The District Court's assumption
is understandable, since appellants did not question it below.
Thus, this is not the appropriate case to determine whether a
different test or standard of proof should be employed in
determining the constitutional validity of required disclosure of
expenditures.
Even assuming the general applicability of the
Buckley
standard, though, the question presented here requires us to
inquire whether the evidence of harassment establishes a
"reasonable probability" that the Ohio law would trigger "threats,
harassment, or reprisals" against recipient of expenditures that,
in turn, may harm the party's associational interests. This inquiry
is necessarily distinct from the inquiry whether the evidence
establishes a reasonable probability that disclosure would trigger
threats, harassment, or reprisals against
contributors.
Although the proof requirements guiding this separate inquiry
remain flexible, and direct proof of harm from disclosure is not
required, ultimately the party must prove that the harm to it from
disclosure of recipients outweighs the governmental interest in
disclosure. This separately focused inquiry does not necessarily
alter
Buckley's "reasonable probability" test or "flexible
proof" standard. It does, however, plainly require a different
result.
[
Footnote 3/8]
See Pullman-Standard v. Swint, 456 U.
S. 273,
456 U. S. 289,
n.19 (1982). The majority does not clearly articulate the standard
of review it is applying. By determining that the District Court
"properly concluded" that the evidence established a reasonable
probability of harassment,
ante at
459 U. S. 100,
the majority seems to apply an independent review standard.
[
Footnote 3/9]
The District Court admitted Exhibit 129 into the record, which
is a certified copy of findings of fact made by the Federal
Election Commission pursuant to a 1977 court order in
Socialist
Workers 1974 National Campaign Committee v. Jennings, No.
74-1338 (DC, stipulated judgment entered Jan. 3, 1979). The FEC in
that case analyzed affidavits submitted by SWP members and other
documentary evidence of public and private harassment of SWP
members. In finding No. 126, the FEC accepted the SWP's proposed
finding that, in 1971, a landlady in San Francisco rejected the
application of two SWP members for an apartment because the FBI had
visited the landlady and warned her of the dangers of the SWP. In
finding No. 127, the FEC accepted the SWP's proposed finding that,
in 1974, a landlady in Chicago evicted a SWP member from her
apartment. The landlady explained, "they told me all about you,"
refusing to identify who "they" were.
These two incidents are, of course, remote in time and place,
and do not suggest that the party itself has had difficulty in
finding office space. Nor do they suggest that the general public
is likely to engage in similar activity. Moreover, the FBI's
actions against the SWP have long been ended,
see Final
Report of the Select Committee to Study Governmental Operations
with Respect to Intelligence Activities, S.Rep. No. 94-755, Vol. 4,
pp. 3-4 (1976), and Congress has since instituted more rigorous
oversight of FBI and other intelligence activities,
see 50
U.S.C. § 413 (1976 ed., Supp. IV). An inference from these two
incidents that disclosure of recipients of expenditures would
increase any difficulty the party might have in obtaining office
space would be tenuous, and is plainly outweighed by the
"substantial public interest in disclosure,"
Buckley, 424
U.S. at
424 U. S. 72.
[
Footnote 3/10]
As the majority notes,
ante at
459 U. S. 97, n.
12, some entries in the expenditure forms are designated as
per
diem, travel expenses, and room rental. At least until 1978,
the expenditure statements gave the names of persons receiving
per diem funds from the SWP. Apparently, party treasurers
and party candidates received
per diem payments. There is
no evidence that filing these statements with the Ohio Secretary of
State caused any harassment of the named persons, and indeed it is
highly unlikely that this disclosure would increase the exposure of
persons already so publicly identified with the party.
[
Footnote 3/11]
In holding a state statute unconstitutional as applied, a court
must sever and apply constitutional portions unless the legislature
would not have intended to have applied "
those provisions which
are within its power, independently of that which is not . . . ,'"
Buckley, supra, at 424 U. S. 108
(severing constitutional portions of Federal Election Campaign Act
after holding other portions unconstitutional on their face),
quoting Champlin Refining Co. v. Corporation Comm'n of
Okla., 286 U. S. 210,
286 U. S. 234
(1932). Clearly, the expenditure disclosure requirements of the
Ohio statute should be severed and applied even though the
contribution disclosure requirements cannot be applied in this
instance, for the two requirements are analytically and practically
distinct.