The Presidential Election Campaign Fund Act (Fund Act) offers
the Presidential candidates of major political parties the option
of receiving public financing for their general election campaigns.
If the candidate elects public financing, the Act, in 26 U.S.C. §
9012(f), makes it a criminal offense for an independent "political
committee" to expend more than $1,000 to further that candidate's
election. Believing that § 9012(f) would prohibit appellee
independent political committees' intended substantial expenditures
in support of President Reagan's reelection in 1984, appellant
Democratic Party and appellant Democratic National Committee
(Democrats) filed an action in Federal District Court against
appellees, seeking a declaration that § 9012(f) is constitutional.
Appellant Federal Election Commission (FEC) brought a separate
action against the same defendants seeking the same relief, and the
two actions were consolidated. The District Court held that the
Democrats had standing under 26 U.S.C. § 9011(b)(1) -- which
authorizes the FEC, "the national committee of any political party,
and individuals eligible to vote for President" to institute such
actions "as may be appropriate to implement or con[s]true any
provisions of [the Fund Act]" -- to seek the requested declaratory
relief, but that the Democrats and the FEC were not entitled to a
declaration that § 9012(f) is constitutional. The court then held §
9012(f) unconstitutional on its face because it violated First
Amendment freedoms of speech and association.
Held:
1. The Democrats lack standing under § 9011(b)(1).
470 U.
S. 484-489.
(a) Contrary to the Democrats' assertion that there is no need
to resolve the issue of their standing, raised in the FEC's appeal,
because the FEC clearly has standing and the legal issues and
relief requested are the same in both actions, this Court will
decide the issue. It is squarely presented in the Democrats' appeal
from the District Court's
Page 470 U. S. 481
determination that § 9011(b)(1) is unconstitutional, and if the
District Court's decision that the Democrats have standing is
allowed to stand, it could seriously interfere with the FEC's
exclusive jurisdiction to determine how and when to enforce the
Fund Act. Pp.
470 U. S.
484-486.
(b) The plain language of § 9011(b)(1) and § 306(b)(1) of the
Federal Election Campaign Act of 1971 (FECA) -- which provides that
the FEC "shall administer, seek to obtain compliance with, and
formulate policy with respect to" the Fund Act and confers on the
FEC "exclusive jurisdiction with respect to the civil enforcement"
of the Act -- clearly shows that the Democrats have no standing to
bring a private action against another private party. The
Democratic Party is clearly not included within those authorized by
§ 9011(b)(1) to bring an action. And, while the Democratic National
Committee is authorized to bring an action, the action must be
"appropriate" to implement or construe the provision of the Fund
Act at issue. Reading § 306(b)(1) of the FECA and 26 U.S.C. §
9010(a) -- which authorizes the FEC to appear in and defend against
any action filed under § 9011 -- together with § 9011,
"appropriate" actions by private parties are those that do not
interfere with the FEC's responsibilities for administering and
enforcing the Fund Act. Accordingly, private suits to construe or
enforce the Act are inappropriate interference with those
responsibilities. Pp.
470 U. S.
486-489.
2. Section 9012(f) violates the First Amendment. Pp.
470 U. S.
490-501.
(a) The expenditures at issue are squarely prohibited by §
9012(f). And, as producing speech at the core of the First
Amendment and implicating the freedom of association, they are
entitled to full protection under that Amendment. Pp.
470 U. S.
490-496.
(b) Section 9012(f)'s limitation on independent expenditures by
political committees is constitutionally infirm, absent any
indication that such expenditures have a tendency to corrupt or to
give the appearance of corruption. But even assuming that Congress
could fairly conclude that large-scale political action committees
have a sufficient tendency to corrupt, § 9012(f) is a fatally
overbroad response to that evil. It is not limited to multimillion
dollar war chests, but applies equally to informal discussion
groups that solicit neighborhood contributions to publicize their
views about a particular Presidential candidate. Pp.
470 U. S.
496-500.
(c) Section 9012(f) cannot be upheld as a prophylactic measure
deemed necessary by Congress. The groups and associations in
question here, designed expressly to participate in political
debate, are quite different from the traditional organizations
organized for economic gain that may properly be prohibited from
making contributions to political candidates. P.
470 U. S.
500.
578 F.
Supp. 797, affirmed in part and reversed in part.
Page 470 U. S. 482
REHNQUIST, J., delivered the opinion of the Court, in which
BURGER, C.J., and BLACKMUN, POWELL, and O'CONNOR, JJ., joined, and
in Part II of which BRENNAN and STEVENS, JJ., joined. STEVENS, J.,
filed an opinion concurring in part and dissenting in part,
post, p.
470 U. S. 501.
WHITE, J., filed a dissenting opinion, in Part I of which BRENNAN
and MARSHALL, JJ., joined,
post, p.
470 U. S. 502.
MARSHALL, J., filed a dissenting opinion,
post, p.
470 U. S.
518.
JUSTICE REHNQUIST delivered the opinion of the Court.
The Presidential Election Campaign Fund Act (Fund Act), 26
U.S.C. § 9001
et seq., offers the Presidential candidates
of major political parties the option of receiving public financing
for their general election campaigns. If a Presidential candidate
elects public financing, § 9012(f) makes it a criminal offense for
independent "political committees," such as appellees National
Conservative Political Action Committee (NCPAC) and Fund For A
Conservative Majority (FCM), to expend more than $1,000 to further
that candidate's election. A three-judge District Court for the
Eastern District of Pennsylvania, in companion lawsuits brought
respectively by the Federal Election Commission (FEC) and by the
Democratic Party of the United States and the Democratic
National
Page 470 U. S. 483
Committee (DNC), held § 9012(f) unconstitutional on its face
because it violated the First Amendment to the United States
Constitution. These plaintiffs challenge that determination on this
appeal, and the FEC also appeals from that part of the judgment
holding that the Democratic Party and the DNC have standing under
26 U.S.C. § 9011(b)(1) to seek a declaratory judgment against
appellees upholding the constitutionality of § 9012(f). We noted
probable jurisdiction pursuant to the statutory appeal provision of
§ 9011(b)(2), which provides for a direct appeal to this Court from
three-judge district courts convened in proceedings under §
9011(b)(1). 466 U.S. 935 (1984). We reverse the judgment of the
District Court on the issue of the standing of the Democratic Party
and the DNC, but affirm its judgment as to the constitutional
validity of § 9012(f).
The present litigation began in May, 1983, when the Democratic
Party, the DNC, and Edward Mezvinsky, Chairman of the Pennsylvania
Democratic State Committee, in his individual capacity as a citizen
eligible to vote for President of the United States [
Footnote 1] (collectively, the Democrats),
filed suit against NCPAC and FCM (the PACs), who had announced
their intention to spend large sums of money to help bring about
the reelection of President Ronald Reagan in 1984. Their amended
complaint sought a declaration that § 9012(f), which they believed
would prohibit the PACs' intended expenditures, was constitutional.
The FEC intervened for the sole purpose of moving, along with the
PACs, to dismiss the complaint for lack of standing.
In June, 1983, the FEC brought a separate action against the
same defendants seeking identical declaratory relief. It was
referred to the same three-judge District Court, which consolidated
the two cases for all purposes. The parties submitted 201
stipulations and three books of exhibits as
Page 470 U. S. 484
the factual record. After extensive briefing and oral argument,
the court issued a comprehensive opinion, holding that the
Democrats had standing under § 9011(b)(1) and Art. III of the
Constitution to seek the requested declaratory relief, but that the
Democrats and the FEC were not entitled to a declaration that §
9012(f) is constitutional.
578 F.
Supp. 797 (1983). The court held that § 9012(f) abridges First
Amendment freedoms of speech and association, that it is
substantially overbroad, and that it cannot permissibly be given a
narrowing construction to cure the overbreadth. The court did not,
however, declare § 9012(f) unconstitutional, because the PACs had
not filed a counterclaim requesting such a declaration.
I
In their respective suits, the Democrats and the FEC relied upon
26 U.S.C. § 9011(b) to confer standing on them and subject matter
jurisdiction on the three-judge District Court. Section 9011(b)(1)
provides:
"The [FEC], the national committee of any political party, and
individuals eligible to vote for President are authorized to
institute such actions, including actions for declaratory judgment
or injunctive relief, as may be appropriate to implement or
con[s]true any provisions of [the Fund Act]."
Section 9011(b)(2) confers subject matter jurisdiction on the
district courts of the United States, sitting in panels of three
judges in accordance with 28 U.S.C. § 2284, to hear proceedings
instituted under § 9011(b)(1).
We do not doubt, nor do any of the parties in these cases
challenge, the standing of the FEC, which is specifically
identified in § 9011(b)(1), to bring a declaratory action to test
the constitutionality of a provision of the Fund Act. We think such
an action is "appropriate" within the meaning of that section,
because a favorable declaration would materially advance the FEC's
ability to expedite its enforcement of the
Page 470 U. S. 485
Fund Act against political committees such as NCPAC and FCM.
This is especially important because the relatively short duration
of the then-upcoming general election campaigns for President
allowed little time in which to prosecute an enforcement action
before it would become moot in whole or in part. We are fortified
in our conclusion by § 306(b)(1) of the Federal Election Campaign
Act of 1971 (FECA), as added, 88 Stat. 1281, and amended, 2 U.S.C.
§ 437c(b)(1), which provides that the FEC "shall have exclusive
jurisdiction with respect to the civil enforcement" of the Fund
Act. Article III standing exists by virtue of the facts that the
FEC and the PACs have adverse interests, the PACs threatened, and
now have made, substantial expenditures in apparent contravention
of 26 U.S.C. § 9012(f), and the declaratory relief the FEC requests
would aid its enforcement efforts against the PACs and others
similarly situated.
Despite the identity of the relief requested by the FEC and the
Democrats, the FEC asks this Court to reverse the District Court's
holding that the Democrats also have standing under § 9011(b)(1).
The Democrats maintain that there is no need to resolve this
question, because there is no doubt about the standing of the FEC
and the legal issues and relief requested are the same in the two
cases.
See McCulloch v. Sociedad Nacional de Marineros de
Honduras, 372 U. S. 10,
372 U. S. 16
(1963). The PACs have declined to renew or brief their
jurisdictional challenge in this Court because, in the present
procedural posture, they see the standing question as a "turf
fight" in which they do not wish to participate.
Though
McCulloch, supra, is authority on its somewhat
different facts for finessing a decision as to questions of
"jurisdiction" in one of two companion cases raising the same
substantive issues, we decline to follow that course here. The
statutory standing issue is squarely presented by the Democrats'
appeal, and, if the FEC is correct in its assertion as to lack of
standing, the decision of the District Court could seriously
interfere with the agency's exclusive jurisdiction to
Page 470 U. S. 486
determine how and when to enforce the Act. In the present cases,
for example, there is no indication that the FEC would have filed a
complaint against the PACs for a declaratory judgment if the
Democrats had not done so first. The FEC might have chosen to focus
its resources elsewhere, or to pursue an enforcement action at a
later date. The Democrats forced its hand; the subject of the
litigation was so central to the FEC's function that it had no
choice but to intervene once the action had been commenced.
The plain language of the Fund Act and the FECA suggests quite
emphatically that the Democrats do not have standing to bring a
private action against another private party. In addition to the
FEC, § 9011(b)(1) applies only to "the national committee of any
political party" and to "individuals eligible to vote for
President." Clearly the Democratic Party is not included; hence,
the District Court erred in permitting it to remain in the
proceedings. The DNC is a national committee of a political party,
and Edward Mezvinsky is an individual eligible to vote for
President; therefore, they are authorized to bring actions under §
9011(b)(1). But such actions must be "appropriate to implement or
construe" the provision of the Fund Act at issue. The District
Court's conclusion that the language of the statute "plainly"
authorizes a private suit to seek construction of § 9012(f) seems
to us to ignore the word "appropriate." That word would be
superfluous unless it restricts standing to suits which are
"appropriate" in light of the statutory scheme for interpreting and
enforcing the Act.
This scheme seems simple enough. Title 2 U.S.C. § 437c(b)(1)
provides that the FEC "shall administer, seek to obtain compliance
with, and formulate policy with respect to" the Fund Act, and
confers on the FEC "exclusive jurisdiction with respect to the
civil enforcement of" the Act. Title 26 U.S.C. § 9010(a) authorizes
the FEC "to appear in and defend against any action filed under
section 9011." Reading these two provisions together with § 9011,
"appropriate" actions
Page 470 U. S. 487
by private parties are actions that do not interfere with the
FEC's responsibilities for administering and enforcing the Act.
Common sense indicates that only one body can intelligently
formulate the policy necessary to administer an Act of this kind.
The decision to sue third parties to construe or enforce the Act
falls within these functions. Accordingly, private suits of this
kind are inappropriate interference with the FEC's
responsibilities.
Consistent with this statutory scheme, an "appropriate" role for
private parties under § 9011(b)(1) would be to bring suits against
the FEC to challenge its interpretations of various provisions of
the Act. For example, the defendant PACs might have instituted an
action challenging the FEC's interpretation of § 9012(f) to cover
the type of independent expenditures they planned to make. The
specific authorization in the adjacent § 9010(a) for the FEC to
appear in and defend actions under § 9011 implies that Congress
contemplated that private suits pursuant to the latter section
would be directed at the FEC. Lest one ask why the FEC is also
given standing under § 9011(b)(1), the obvious answer would be to
give it the benefit of a three-judge district court and direct
appeal to this Court under § 9011(b)(2), which procedures are not
available in ordinary § 437c(b)(1) enforcement actions.
See 2 U.S.C. §§ 437g(a)(6), (10).
This interpretation makes a good deal of sense. Suits to
construe the Fund Act and to bring about implementation of the Act
-- presumably implementation by the FEC, which has exclusive
authority to administer and enforce the Act -- raise issues that
are likely to be of great importance, and, in Congress' judgment,
justify a three-judge court, expedited review, and direct appeal to
this Court. Ordinary enforcement actions to obtain compliance with
the terms of the Act after they have been construed and implemented
would not justify such extraordinary procedures. Moreover, it seems
highly dubious that Congress intended every one of the millions of
eligible voters in this country to have the power to
Page 470 U. S. 488
invoke expedited review by a three-judge district court with
direct appeal to this Court in actions brought by them against
other private parties. The DNC is obviously not just another
private litigant, and it would undoubtedly be a worthy
representative of collective interests which would justify
expedited review had Congress so provided; but Congress simply did
not draft the statute in a way that distinguishes the DNC from any
individual voter.
Consistent with FEC's supervisory role, Congress provided an
administrative complaint procedure in 2 U.S.C. § 437g through which
the Democrats could have pursued their dispute with the PACs. The
Democrats could have filed a complaint expressing their belief that
"a violation [of the Fund Act] ha[d] occurred" based on the PACs'
independent expenditures in the 1980 Presidential election. §
437g(a)(1). If the FEC,
"upon receiving a complaint . . . or on the basis of information
ascertained in the normal course of carrying out its supervisory
responsibilities, determines . . . that it has reason to believe
that a person has committed, or is about to commit, a violation [of
the Fund Act],"
§ 437g(a)(2), it is obligated to investigate and, if it finds
"probable cause to believe that any person has committed, or is
about to commit, a violation," to pursue various corrective and
enforcement steps, which can ultimately involve civil and criminal
proceedings in district court.
If the FEC dismissed the complaint or failed to act on it in 120
days, the Democrats could petition the District Court for the
District of Columbia under § 437g(a)(8) for a declaration that the
FEC had acted contrary to law, and for an order directing the FEC
to pursue the complaint. If, and only if, the FEC failed to obey
such an order could the Democrats bring a civil action directly
against the PACs to remedy the violation charged in their
complaint.
Alternatively, the DNC or an individual voter could sue the FEC
under 26 U.S.C. § 9011(b) to implement or construe the Act. This
avenue, of course, is available to the
Page 470 U. S. 489
Democrats without first pursuing or exhausting the § 437g
administrative complaint procedure,
see § 9011(b)(2), but
it would be worth pursuing only if the disagreement between the
litigant and the FEC were over a matter of implementation or
construction, and not routine enforcement. However, that is a
judgment Congress made in establishing the statutory scheme.
We do not necessarily reject the District Court's conclusion
that the legislative history of the successive amendments to §
437c(b)(1) indicates an intention by the word "exclusive" to
centralize in one agency the civil enforcement responsibilities
previously fragmented among various governmental agencies. But
nowhere is there any indication that Congress previously expressed
any intention that anyone other than Government agencies have
enforcement responsibilities. Section 9011(b) certainly is not a
source of general private "enforcement"authority, as that word is
conspicuously absent from § 9011(b), which speaks only of suits to
"implement or construe." [
Footnote
2] We also do not believe that an intention to create a
so-called "maximum enforcement regime," calling for both Government
and private enforcement, can be inferred from the fact that other
congressional Acts, such as the Surface Mining Control and
Reclamation Act of 1977, 30 U.S.C. § 1270, the Energy Policy and
Conservation Act, 42 U.S.C. § 6305, and the Clean Air Act, 42
U.S.C. § 7604, expressly adopt such an enforcement scheme. Nor may
it be inferred from the fact that the related FECA has a different
enforcement scheme than the Fund Act.
Compare 2 U.S.C. §
437d(e) and 26 U.S.C. § 9011(b). Such speculative inferences do not
carry the day in the face of the contrary language of the Fund
Act.
In view of our conclusion that the Democrats lack standing under
the statute, there is no need to reach the Art. III issue
Page 470 U. S. 490
decided by the District Court. Therefore, we turn to the merits
of the FEC's appeal of its unsuccessful declaratory judgment action
against the PACs.
II
NCPAC is a nonprofit, nonmembership corporation formed under the
District of Columbia Nonprofit Corporation Act in August, 1975, and
registered with the FEC as a political committee. Its primary
purpose is to attempt to influence directly or indirectly the
election or defeat of candidates for federal, state, and local
offices by making contributions and by making its own expenditures.
It is governed by a three-member board of directors which is
elected annually by the existing board. The board's chairman and
the other two members make all decisions concerning which
candidates to support or oppose, the strategy and methods to
employ, and the amounts of money to spend. Its contributors have no
role in these decisions. It raises money by general and specific
direct mail solicitations. It does not maintain separate accounts
for the receipts from its general and specific solicitations, nor
is it required by law to do so.
FCM is incorporated under the laws of Virginia, and is
registered with the FEC as a multi-candidate political committee.
In all material respects it is identical to NCPAC.
Both NCPAC and FCM are self-described ideological organizations
with a conservative political philosophy. They solicited funds in
support of President Reagan's 1980 campaign, and they spent money
on such means as radio and television advertisements to encourage
voters to elect him President. On the record before us, these
expenditures were "independent" in that they were not made at the
request of or in coordination with the official Reagan election
campaign committee or any of its agents. Indeed, there are
indications that the efforts of these organizations were at times
viewed with disfavor by the official campaign as counterproductive
to its chosen strategy. NCPAC and FCM expressed their intention to
conduct similar activities in support of President
Page 470 U. S. 491
Reagan's reelection in 1984, and we may assume that they did
so.
As noted above, both the Fund Act and FECA play a part in
regulating Presidential campaigns. The Fund Act comes into play
only if a candidate chooses to accept public funding of his general
election campaign, and it covers only the period between the
nominating convention and 30 days after the general election. In
contrast, FECA applies to all Presidential campaigns, as well as
other federal elections, regardless of whether publicly or
privately funded. Important provisions of these Acts have already
been reviewed by this Court in
Buckley v. Valeo,
424 U. S. 1 (1976).
Generally, in that case we upheld as constitutional the limitations
on
contributions to candidates, and struck down as
unconstitutional
limitations on independent expenditures.
[
Footnote 3]
In these cases, we consider provisions of the Fund Act that make
it a criminal offense for political committees such as NCPAC and
FCM to make independent expenditures in support of a candidate who
has elected to accept public financing. Specifically, § 9012(f)
provides:
"(1) . . . it shall be unlawful for any political committee
which is not an authorized committee with respect to the eligible
candidates of a political party for President and Vice President in
a presidential election knowingly and willfully to incur
expenditures to further the election of such candidates, which
would constitute qualified campaign expenses if incurred by an
authorized committee of such candidates, in an aggregate amount
exceeding $1,000."
The term "political committee" is defined to mean
"any committee, association, or organization (whether or not
incorporated) which accepts contributions or makes expenditures
for
Page 470 U. S. 492
the purpose of influencing, or attempting to influence, the
nomination or election of one or more individuals to Federal,
State, or local elective public office."
26 U.S.C. § 9002(9). The term "qualified campaign expense"
simply means an otherwise lawful expense by a candidate or his
authorized committee "to further his election" incurred during the
period between the candidate's nomination and 30 days after
election day. §§ 9002(11), 9002(12). The term "eligible candidates"
means those Presidential and Vice Presidential candidates who are
qualified under the Act to receive public funding and have chosen
to do so. §§ 9002(4), 9003. Two of the more important
qualifications are that a candidate and his authorized committees
not incur campaign expenses in excess of his public funding and not
accept contributions to defray campaign expenses. §§ 9003(b),
9012(b).
There is no question that NCPAC and FCM are political committees
and that President Reagan was a qualified candidate, and it seems
plain enough that the PACs' expenditures fall within the term
"qualified campaign expense." The PACs have argued in this Court,
though apparently not below, that § 9012(f) was not intended to
cover truly independent expenditures such as theirs, but only
coordinated expenditures. But
"expenditures in cooperation, consultation, or concert, with, or
at the request or suggestion of, a candidate, his authorized
political committees, or their agents,"
are considered "contributions" under the FECA, 2 U.S.C. §
441a(a)(7)(B)(i), and as such are already subject to FECA's $1,000
and $5,000 limitations in §§ 441a(a)(1), (2). Also, as noted above,
one of the requirements for public funding is the candidate's
agreement not to accept such contributions. Under the PACs'
construction, § 9012(f) would be wholly superfluous, and we find no
support for that construction in the legislative history. We
conclude that the PACs' independent expenditures at issue in this
case are squarely prohibited by § 9012(f), and we proceed to
consider whether that prohibition violates the First Amendment.
Page 470 U. S. 493
There can be no doubt that the expenditures at issue in this
case produce speech at the core of the First Amendment. We said in
Buckley v. Valeo, supra, at
424 U. S. 14:
"The Act's contribution and expenditure limitations operate in
an area of the most fundamental First Amendment activities.
Discussion of public issues and debate on the qualifications of
candidates are integral to the operation of the system of
government established by our Constitution. The First Amendment
affords the broadest protection to such political expression in
order 'to assure [the] unfettered interchange of ideas for the
bringing about of political and social changes desired by the
people.'
Roth v. United States, 354 U. S.
476,
354 U. S. 484 (1957). . . .
This no more than reflects our 'profound national commitment to the
principle that debate on public issues should be uninhibited,
robust, and wide-open,'
New York Times Co. v. Sullivan,
376 U. S.
254,
376 U. S. 270 (1964)."
The PACs in this case, of course, are not lone pamphleteers or
street corner orators in the Tom Paine mold; they spend substantial
amounts of money in order to communicate their political ideas
through sophisticated media advertisements. And of course the
criminal sanction in question is applied to the expenditure of
money to propagate political views, rather than to the propagation
of those views unaccompanied by the expenditure of money. But for
purposes of presenting political views in connection with a
nationwide Presidential election, allowing the presentation of
views while forbidding the expenditure of more than $1,000 to
present them is much like allowing a speaker in a public hall to
express his views while denying him the use of an amplifying
system. The Court said in
Buckley v. Valeo, supra:
"A restriction on the amount of money a person or group can
spend on political communication during a campaign necessarily
reduces the quantity of expression
Page 470 U. S. 494
by restricting the number of issues discussed, the depth of
their exploration, and the size of the audience reached. This is
because virtually every means of communicating ideas in today's
mass society requires the expenditure of money. The distribution of
the humblest handbill or leaflet entails printing, paper, and
circulation costs. Speeches and rallies generally necessitate
hiring a hall and publicizing the event. The electorate's
increasing dependence on television, radio, and other mass media
for news and information has made these expensive modes of
communication indispensable instruments of effective political
speech."
424 U.S. at
424 U. S. 19.
We also reject the notion that the PACs' form of organization or
method of solicitation diminishes their entitlement to First
Amendment protection. The First Amendment freedom of association is
squarely implicated in these cases. NCPAC and FCM are mechanisms by
which large numbers of individuals of modest means can join
together in organizations which serve to "amplif[y] the voice of
their adherents."
Buckley v. Valeo, 424 U.S. at
424 U. S. 22;
NAACP v. Alabama, 357 U. S. 449,
357 U. S. 460
(1958);
Citizens Against Rent Control v. Berkeley,
454 U. S. 290,
454 U. S.
295-296 (1981). It is significant that, in 1979-1980,
approximately 101,000 people contributed an average of $75 each to
NCPAC, and in 1980, approximately 100,000 people contributed an
average of $25 each to FCM.
The FEC urges that these contributions do not constitute
individual speech, but merely "speech by proxy,"
see California
Medical Assn. v. FEC, 453 U. S. 182,
453 U. S. 196
(1981) (MARSHALL, J.) (plurality opinion), because the contributors
do not control or decide upon the use of the funds by the PACs or
the specific content of the PACs' advertisements and other speech.
The plurality emphasized in that case, however, that nothing in the
statutory provision in question
"limits the amount [an unincorporated association] or any of its
members may independently expend in order to advocate political
views,"
but only the amount it may contribute to
Page 470 U. S. 495
a multi-candidate political committee.
Id. at
453 U. S. 195.
Unlike
California Medical Assn., the present cases involve
limitations on expenditures by PACs, not on the contributions they
receive; and in any event, these contributions are predominantly
small, and thus do not raise the same concerns as the sizable
contributions involved in
California Medical Assn.
Another reason the "proxy speech" approach is not useful in this
case is that the contributors obviously like the message they are
hearing from these organizations, and want to add their voices to
that message; otherwise they would not part with their money. To
say that their collective action in pooling their resources to
amplify their voices is not entitled to full First Amendment
protection would subordinate the voices of those of modest means as
opposed to those sufficiently wealthy to be able to buy expensive
media ads with their own resources.
Our decision in
FEC v. National Right to Work
Committee, 459 U. S. 197
(1982) (
NRWC), is not to the contrary. That case turned on
the special treatment historically accorded corporations. In return
for the special advantages that the State confers on the corporate
form, individuals acting jointly through corporations forgo some of
the rights they have as individuals.
Id. at
459 U. S.
209-210. We held in
NRWC that a rather
intricate provision of the FECA dealing with the prohibition of
corporate campaign contributions to political candidates did not
violate the First Amendment. The prohibition excepted corporate
solicitation of contributions to a segregated fund established for
the purpose of contributing to candidates, but in turn limited such
solicitations to stockholders or members of a corporation without
capital stock. We upheld this limitation on solicitation of
contributions as applied to the National Right to Work Committee, a
corporation without capital stock, in view of the well-established
constitutional validity of legislative regulation of corporate
contributions to candidates for public office.
NRWC is
consistent with this Court's earlier holding that a
corporation's
Page 470 U. S. 496
expenditures to propagate its views on issues of general public
interest are of a different constitutional stature than corporate
contributions to candidates.
First National Bank of Boston v.
Bellotti, 435 U. S. 765,
435 U. S.
789-790 (1978). In
Bellotti, of course, we did
not reach, nor do we need to reach in these cases, the question
whether a corporation can constitutionally be restricted in making
independent expenditures to influence elections for public office.
Id. at
435 U. S. 788,
n. 26.
Like the National Right to Work Committee, NCPAC and FCM are
also formally incorporated; however, these are not "corporations"
cases because § 9012(f) applies not just to corporations but to any
"committee, association, or organization (whether or not
incorporated)" that accepts contributions or makes expenditures in
connection with electoral campaigns. The terms of § 9012(f)'s
prohibition apply equally to an informal neighborhood group that
solicits contributions and spends money on a Presidential election
as to the wealthy and professionally managed PACs involved in these
cases.
See Citizens Against Rent Control v. Berkeley,
supra, at
454 U. S. 300
(REHNQUIST, J., concurring).
Having concluded that the PACs' expenditures are entitled to
full First Amendment protection, we now look to see if there is a
sufficiently strong governmental interest served by § 9012(f)'s
restriction on them, and whether the section is narrowly tailored
to the evil that may legitimately be regulated. The restriction
involved here is not merely an effort by the Government to regulate
the use of its own property, such as was involved in
United
States Postal Service v. Greenburgh Civic Assns., 453 U.
S. 114 (1981), or the dismissal of a speaker from
Government employment, such as was involved in
Connick v.
Myers, 461 U. S. 138
(1983). It is a flat, across-the-board criminal sanction applicable
to any "committee, association, or organization" which spends more
than $1,000 on this particular type of political speech.
We held in
Buckley and reaffirmed in
Citizens
Against Rent Control that preventing corruption or the
appearance of corruption are the only legitimate and compelling
government
Page 470 U. S. 497
interests thus far identified for restricting campaign finances.
In
Buckley, we struck down the FECA's limitation on
individuals' independent expenditures because we found no tendency
in such expenditures, uncoordinated with the candidate or his
campaign, to corrupt or to give the appearance of corruption. For
similar reasons, we also find § 9012(f)'s limitation on independent
expenditures by political committees to be constitutionally
infirm.
Corruption is a subversion of the political process. Elected
officials are influenced to act contrary to their obligations of
office by the prospect of financial gain to themselves or infusions
of money into their campaigns. The hallmark of corruption is the
financial
quid pro quo: dollars for political favors. But
here the conduct proscribed is not contributions to the candidate,
but independent expenditures in support of the candidate. The
amounts given to the PACs are overwhelmingly small contributions,
well under the $1,000 limit on contributions upheld in
Buckley; and the contributions are, by definition, not
coordinated with the campaign of the candidate. The Court concluded
in
Buckley that there was a fundamental constitutional
difference between money spent to advertise one's views
independently of the candidate's campaign and money contributed to
the candidate to be spent on his campaign. We said there:
"Unlike contributions, such independent expenditures may well
provide little assistance to the candidate's campaign, and indeed
may prove counterproductive. The absence of prearrangement and
coordination of an expenditure with the candidate or his agent not
only undermines the value of the expenditure to the candidate but
also alleviates the danger that expenditures will be given as a
quid pro quo for improper commitments from the
candidate."
424 U.S. at
424 U. S. 47.
We think the same conclusion must follow here. It is contended
that, because the PACs may, by the breadth of their organizations,
spend larger amounts than the individuals in
Page 470 U. S. 498
Buckley, the potential for corruption is greater. But
precisely what the "corruption" may consist of we are never told
with assurance. The fact that candidates and elected officials may
alter or reaffirm their own positions on issues in response to
political messages paid for by the PACs can hardly be called
corruption, for one of the essential features of democracy is the
presentation to the electorate of varying points of view. It is of
course hypothetically possible here, as in the case of the
independent expenditures forbidden in
Buckley, that
candidates may take notice of and reward those responsible for PAC
expenditures by giving official favors to the latter in exchange
for the supporting messages. But here, as in
Buckley, the
absence of prearrangement and coordination undermines the value of
the expenditure to the candidate, and thereby alleviates the danger
that expenditures will be given as a
quid pro quo for
improper commitments from the candidate. On this record, such an
exchange of political favors for uncoordinated expenditures remains
a hypothetical possibility, and nothing more.
Even were we to determine that the large pooling of financial
resources by NCPAC and FCM did pose a potential for corruption or
the appearance of corruption, § 9012(f) is a fatally overbroad
response to that evil. It is not limited to multimillion dollar war
chests; its terms apply equally to informal discussion groups that
solicit neighborhood contributions to publicize their views about a
particular Presidential candidate.
Several reasons suggest that we are not free to adopt a limiting
construction that might isolate wealthy PACs, even if such a
construction might save the statute. First, Congress plainly
intended to prohibit just what § 9012(f) prohibits -- independent
expenditures over $1,000 by all political committees, large and
small. Even if it did not intend to cover small neighborhood
groups, there is also no evidence in the statute or the legislative
history that it would have looked
Page 470 U. S. 499
favorably upon a construction of the statute limiting § 9012(f)
only to very successful PACs. Secondly, we cannot distinguish in
principle between a PAC that has solicited 1,000 $25 contributions
and one that has solicited 100,000 $25 contributions. Finally, it
has been suggested that § 9012(f) could be narrowed by limiting its
prohibition to political committees in which the contributors have
no voice in the use to which the contributions are put. Again,
there is no indication in the statute or the legislative history
that Congress would be content with such a construction. More
importantly, as observed by the District Court, such a construction
is intolerably vague. At what point, for example, does a
neighborhood group that solicits some outside contributions fall
within § 9012(f)? How active do the group members have to be in
setting policy to satisfy the control test? Moreover, it is
doubtful that the members of a large association in which each have
a vote on policy have substantially more control in practice than
the contributors to NCPAC and FCM: the latter will surely cease
contributing when the message those organizations deliver ceases to
please them.
In the District Court, the FEC attempted to show actual
corruption or the appearance of corruption by offering evidence of
high-level appointments in the Reagan administration of persons
connected with the PACs and newspaper articles and polls
purportedly showing a public perception of corruption. The District
Court excluded most of the proffered evidence as irrelevant to the
critical elements to be proved: corruption of candidates or public
perception of corruption of candidates. A tendency to demonstrate
distrust of PACs is not sufficient. We think the District Court's
finding that "the evidence supporting an adjudicative finding of
corruption or its appearance is evanescent," 587 F. Supp. at 830,
was clearly within its discretion, and we will not disturb it here.
If the matter offered by the FEC in the District Court be treated
as addressed to what the District Court
Page 470 U. S. 500
referred to as "legislative facts," we nonetheless agree with
the District Court that the evidence falls far short of being
adequate for this purpose.
Finally, the FEC urges us to uphold § 9012(f) as a prophylactic
measure deemed necessary by Congress, which has far more expertise
than the Judiciary in campaign finance and corrupting influences.
In
NRWC, 459 U.S. at
459 U. S. 210,
we stated:
"While [2 U.S.C.] § 441b restricts the solicitation of
corporations and labor unions without great financial resources, as
well as those more fortunately situated, we accept Congress'
judgment that it is the potential for such influence that demands
regulation. Nor will we second-guess a legislative determination as
to the need for prophylactic measures where corruption is the evil
feared."
Here, however, the groups and associations in question, designed
expressly to participate in political debate, are quite different
from the traditional corporations organized for economic gain. In
NRWC, we rightly concluded that Congress might include,
along with labor unions and corporations traditionally prohibited
from making contributions to political candidates, membership
corporations, though contributions by the latter might not exhibit
all of the evil that contributions by traditional economically
organized corporations exhibit. But this proper deference to a
congressional determination of the need for a prophylactic rule
where the evil of potential corruption had long been recognized
does not suffice to establish the validity of § 9012(f), which
indiscriminately lumps with corporations any "committee,
association or organization." Indeed, the FEC, in its briefs to
this Court, does not even make an effort to defend the statute
under a construction limited in reach to corporations.
While in
NRWC we held that the compelling governmental
interest in preventing corruption supported the restriction
Page 470 U. S. 501
of the influence of political war chests funneled through the
corporate form, in the present cases, we do not believe that a
similar finding is supportable: when the First Amendment is
involved, our standard of review is "rigorous,"
Buckley v.
Valeo, 424 U.S. at
424 U. S. 29, and
the effort to link either corruption or the appearance of
corruption to independent expenditures by PACs, whether large or
small, simply does not pass this standard of review. Even assuming
that Congress could fairly conclude that large-scale PACs have a
sufficient tendency to corrupt, the overbreadth of § 9012(f) in
these cases is so great that the section may not be upheld. We are
not quibbling over fine-tuning of prophylactic limitations, but are
concerned about wholesale restriction of clearly protected conduct.
See Broadrick v. Oklahoma, 413 U.
S. 601 (1973).
The judgment of the District Court is affirmed as to the
constitutionality of § 9012(f), but is reversed on the issue of the
Democrats' standing, with instructions to dismiss their complaint
for lack of standing.
It is so ordered.
* Together with No. 83-1122,
Democratic Party of the United
States et al. v. National Conservative Political Action Committee
et al., also on appeal from the same court.
[
Footnote 1]
Mezvinsky did not pursue an appeal in this Court, though his
name was inadvertently included in the notice of appeal filed by
the Democratic Party and the DNC.
[
Footnote 2]
The Democrats implicitly conceded as much by amending their
complaint to delete their initial request for injunctive
relief.
[
Footnote 3]
In
Buckley, THE CHIEF JUSTICE and JUSTICE BLACKMUN
would have struck down the limitations on contributions along with
the limitations on independent expenditures. JUSTICE WHITE would
have upheld both limitations.
JUSTICE STEVENS, concurring in part and dissenting in part.
As I read it, the plain language of 26 U.S.C. § 9011(b)(1)
confers standing on the Democratic National Committee. The fact
that the Federal Election Commission also has standing is not, in
my opinion, a sufficient reason for concluding that it was not
appropriate for DNC to commence this action regardless of whether
or not the FEC elected to participate. This, however, is just my
tentative opinion, because it really is not necessary to decide the
issue discussed in
470 U. S.
83-1122 is controlled by our decision in No. 83-1032.
McCulloch
v. Sociedad Nacional de Marineros de Honduras, 372 U. S.
10,
372 U. S. 16
(1963).
Accordingly, I join only Part II of the Court's opinion.
Page 470 U. S. 502
JUSTICE WHITE, with whom JUSTICE BRENNAN and JUSTICE MARSHALL
join as to Part I, dissenting.
I
Section 9011(b)(1) of the Internal Revenue Code authorizes the
Federal Election Commission (FEC), "the national committee of any
political party, and individuals eligible to vote for President" to
institute actions "to implement or construe" the Fund Act. Relying
on this provision, both the FEC and the Democratic National
Committee (DNC) brought suit to enjoin expenditures by appellees
that violated § 9012(f). Despite the identity of the issues raised
and the relief sought by the plaintiffs, the majority holds that
only the FEC properly invoked the jurisdiction of the District
Court, because only its action is "appropriate." I disagree.
A
By its plain terms, § 9011(b)(1) confers standing on the DNC.
[
Footnote 2/1] The DNC's suit is an
"actio[n] for declaratory judgment or injunctive relief," brought
by "the national committee of [a] political party," in order "to
implement or construe" a provision of the Fund Act.
See §
9011(b)(1). Therefore, the only possible reason for not allowing
the suit is that, as the majority holds, it is inconsistent with
the statute's limitation to "such actions . . . as may be
appropriate."
The majority exalts the requirement of appropriateness by
ignoring the term's context. Section 9011(b)(1) does not impose a
free-floating requirement that any action brought thereunder meet
some undefined standard of sound policy. Rather it merely refers to
"such actions . . . as may be appropriate to implement or
con[s]true" the Fund Act. The term "appropriate" limits the type of
suit permissible to those aimed at implementing or construing the
Act. Thus, the
Page 470 U. S. 503
named plaintiffs cannot bring just any action for declaratory
judgment or injunctive relief, but only those that would be
"appropriate to implement or con[s]true" the Act. [
Footnote 2/2] The DNC's present suit satisfies that
standard. The focus is the nature of the lawsuit, not the identity
of the plaintiff. To read more into the term than this is to treat
it as an invitation to unconstrained judicial policymaking.
By placing a greater burden on the term "appropriate" than it
can bear, the majority reaches a result that also conflicts with
the rest of the provision. Section 9011(b)(1) itself draws no
distinction between the FEC and other plaintiffs. To the contrary,
by listing them together, it implies that they enjoy an equal
capacity to bring suit. Indeed, the majority seems to agree.
Acknowledging that a suit by the DNC might be "appropriate," it
finds its hands tied by the statute's failure to distinguish
between possible plaintiffs: "Congress simply did not draft the
statute in a way that distinguishes the DNC from any individual
voter."
Ante at
470 U. S. 488.
This statement is perplexing, for the statute does not distinguish
either from the FEC -- though the majority does so anyway.
Page 470 U. S. 504
It is not clear why the majority feels free to ignore the
statutory language in order to separate the FEC from other
plaintiffs, but obliged to adhere to it so as not to distinguish
party committees from individual voters.
Rather than applying the statute's plain words, the majority
examines the overall election law scheme to discover what it thinks
Congress would consider "appropriate." But Congress does not
usually operate by such complex hidden meanings, and if Congress
had intended what the majority says it did, it chose the least
helpful way of saying so. It is surprising to learn that, while the
FEC, a national committee, and an individual may each sue under the
Act, the latter two may sue only the first. Surely if this is what
Congress had intended, it would have chosen a more convenient way
of saying it. [
Footnote 2/3]
The majority relies primarily on 2 U.S.C. § 437c(b)(1), which
grants the FEC "exclusive jurisdiction with respect to the civil
enforcement of " the Act. When it adopted this provision, Congress
did not change § 9011, which had already been in existence for five
years. Indeed, except for the 1974 substitution of the Commission
for the Comptroller General, § 9011 has never been amended, despite
the frequent changes to the FECA and to other Fund Act provisions.
By basing its argument on § 437c(b)(1), the majority contends, in
effect, that § 9011 was repealed by implication. Absent a clear
indication that such a repeal was intended, we should not infer
Page 470 U. S. 505
it.
Kaiser Steel Corp. v. Mullins, 455 U. S.
72,
455 U. S. 88
(1982);
Posadas v. National City Bank, 296 U.
S. 497,
296 U. S. 503
(1936).
Here, all indications are to the contrary. When enacted as part
of the 1974 amendments to the FECA, § 437c(b)(1) provided the
Commission with "primary jurisdiction with respect to the civil
enforcement of" that Act. S.Conf.Rep. No. 93-1237, p. 22 (1974).
There was no reference to the Fund Act at that time, or to the
FEC's "exclusive" jurisdiction. Those were added in 1976. Pub.L.
94-283, § 101(c)(2), 90 Stat. 476. Two points must be made about
the 1976 Amendments. First, the reference to "exclusive"
jurisdiction was designed to centralize all
governmental
enforcement authority in the FEC.
See H.R.Rep. No. 94-917,
pp. 3-4 (1976). [
Footnote 2/4] The
majority does not deny this, but states that there is no indication
that anyone other than the Government agencies ever had any
enforcement authority.
Ante at
470 U. S. 489.
The indication that the majority overlooks is § 9011(b)(1) itself.
[
Footnote 2/5]
The second significant aspect of the 1976 Amendments is the
addition of 2 U.S.C. § 437d(e). That section provides:
"Except as provided in section 437g(a)(8) of this title, the
power of the Commission to initiate civil actions under subsection
(a)(6) of this section shall be the exclusive civil remedy for the
enforcement of the provisions of this Act.
Page 470 U. S. 506
'This Act' is specifically defined as the FECA. § 431 (19).
See also H.R.Rep. No. 94-917, p. 61 (1976). The reference
to 'this Act' in § 437d(e) is in marked contrast to the repeated
references to 'the provisions of this Act and chapter 95 and
chapter 96 of title 26' (
i.e., the Fund Act), also added
in 1976, found throughout these provisions.
See, e.g., §§
437d(a)(6), (8); § 437f(c)(2); §§ 437g(a)(1), (2), (5), (6). The
conspicuous absence of any reference to the Fund Act in § 437d(e)
indicates that Congress intentionally made the FEC's litigating
authority exclusive only as to the FECA. This section makes it
quite clear that actions under § 437g(a)(8) are the only
permissible suits a private party may bring to implement or
construe the FECA, but, by negative implication, it also suggests
that private suits are not so limited under the Fund Act."
B
The majority places no reliance on the legislative history of §
9011. Admittedly, little is to be found. But what there is suggests
that the DNC has standing to bring this action. Section 9011 was
part of the Revenue Act of 1971. Pub.L. 92-178, § 801, 85 Stat.
570. It was in neither the House nor the Senate bill. In their
joint explanatory statement, the conferees wrote that they had
added
"a provision to allow the Comptroller General or other
interested parties to bring court actions in order to implement or
construe the new provisions."
S. Conf. Rep. No. 92-553, p. 58 (1971). This description
provides no basis for distinguishing the Comptroller General (in
the amended statute, the FEC) from the "other interested parties."
Rather, it implies equal and independent authority to go to
court.
The Conference Report goes on to note that,
"[b]ecause the provisions of this title will have a direct and
immediate effect on the actions of individuals, organizations, and
political parties . . . [who] must know"
what candidates and parties will receive what funding, the bill
provides for "expeditious disposition of legal proceedings brought
with respect to these
Page 470 U. S. 507
provisions."
Id. at 58-59. This desire for speedy
determinations explains why Congress provided the private right of
action today's holding eliminates. It also undermines the
majority's conclusion that it is "appropriate" to require those
other than the FEC to file a complaint with the FEC and wait for it
to act, or not act, sue to compel it to do so, and only then, if
the FEC ignores a court order, bring suit themselves. That is a
prescription for delay. The conferees' concern for the expeditious
resolution of suits brought by "other interested parties" indicates
that they did not want to restrict implementation of the Fund Act
to a Government agency.
C
"Appropriate" is not an ideal statutory term. But its vagueness
should not be taken advantage of in order to read the provision in
which it appears out of the United States Code. It is not an
invitation to judicial legislation. A more restrained reading,
consistent with congressional intent, the surrounding provisions,
and, most important, the terms of the statute itself, is strongly
indicated.
II
Section 9012(f) of the Internal Revenue Code limits to $1,000
the annual independent expenditures a PAC can make to further the
election of a candidate receiving public funds. Because these
expenditures "produce speech at the core of the First Amendment,"
ante at
470 U. S. 493,
the majority concludes that they can only be regulated in order to
avoid real or apparent corruption. Perceiving no such danger, since
the money does not go directly to political candidates or their
committees, it strikes down § 9012(f).
My disagreements with this analysis, which continues this
Court's dismemberment of congressional efforts to regulate campaign
financing, are many. First, I continue to believe that
Buckley
v. Valeo, 424 U. S. 1 (1976),
was wrongly decided. Congressional regulation of the amassing and
spending
Page 470 U. S. 508
of money in political campaigns without doubt involves First
Amendment concerns, but restrictions such as the one at issue here
are supported by governmental interests -- including, but not
limited to, the need to avoid real or apparent corruption --
sufficiently compelling to withstand scrutiny. Second, even were
Buckley correct, I consider today's holding a mistaken
application of that precedent. The provision challenged here more
closely resembles the contribution limitations that were upheld in
Buckley and later cases than the limitations on
uncoordinated individual expenditures that were struck down.
Finally, even if
Buckley requires that in general PACs be
allowed to make independent expenditures, I do not think that that
proposition applies to § 9012(f). As part of an integrated and
complex system of public funding for Presidential campaigns, §
9012(f) is supported by governmental interests that were absent in
Buckley, which was premised on a system of private
campaign financing.
A
In
Buckley, I explained at some length why I am quite
sure that regulations of campaign spending similar to that at issue
here are constitutional.
See 424 U.S. at
424 U. S.
257-266. I adhere to those views. The First Amendment
protects the right to speak, not the right to spend, and
limitations on the amount of money that can be spent are not the
same as restrictions on speaking. I agree with the majority that
the expenditures in this case "produce" core First Amendment
speech.
See ante at
470 U. S. 493.
But that is precisely the point: they produce such speech; they are
not speech itself. At least in these circumstances, I cannot accept
the identification of speech with its antecedents. Such a
house-that-Jack-built approach could equally be used to find a
First Amendment right to a job or to a minimum wage to "produce"
the money to "produce" the speech.
The burden on actual speech imposed by limitations on the
spending of money is minimal and indirect. All rights of
Page 470 U. S. 509
direct political expression and advocacy are retained. Even
under the campaign laws as originally enacted, everyone was free to
spend as much as they chose to amplify their views on general
political issues, just not specific candidates. The restrictions,
to the extent they do affect speech, are viewpoint-neutral, and
indicate no hostility to the speech itself or its effects.
[
Footnote 2/6]
If the elected Members of the Legislature, who are surely in the
best position to know, conclude that large-scale expenditures are a
significant threat to the integrity and fairness of the electoral
process, we should not second-guess that judgment.
FEC v.
National Right to Work Committee, 459 U.
S. 197,
459 U. S. 210
(1982). Like the expenditure limitations struck down in
Buckley, § 9012(f) serves to back up the limitations on
direct campaign contributions, eliminate the danger of corruption,
maintain public confidence in the integrity of federal elections,
equalize the resources available to the candidates, and hold the
overall amount of money devoted to political campaigning down to a
reasonable level. I consider these purposes both legitimate and
substantial, and more than sufficient to support the challenged
provision's incidental and minor burden on actual speech.
In short, as I said in
Buckley, 424 U.S. at
424 U. S. 262, I
cannot accept the cynic's "money talks" as a proposition of
constitutional law. Today's holding also rests on a second aspect
of the
Buckley holding with which I disagree,
viz., its distinction between "independent" and
"coordinated" expenditures. The Court was willing to accept that
expenditures undertaken in consultation with a candidate or his
committee should be viewed as contributions.
Id. at
424 U. S. 46. But
it rejected Congress' judgment that independent expenditures were
matters of equal concern, concluding that they did not
Page 470 U. S. 510
pose the danger of real or apparent corruption that supported
limits on contributions. [
Footnote
2/7] The distinction is not tenable. "Independent" PAC
expenditures function as contributions. Indeed, a significant
portion of them no doubt would be direct contributions to campaigns
had the FECA not limited such contributions to $5,000.
See
2 U.S.C. § 441a(a)(2)(A). The growth of independent PAC spending
has been a direct and openly acknowledged response to the
contribution limits in the FECA.
See, e.g., Brief for
Appellees 3-4. In general, then, the reasons underlying limits on
contributions equally underly limits on such "independent"
expenditures. The credulous acceptance of the formal distinction
between coordinated and independent expenditures blinks political
reality. That the PACs' expenditures are not formally "coordinated"
is too slender a reed on which to distinguish them from actual
contributions to the campaign. The candidate cannot help but know
of the extensive efforts "independently" undertaken on his behalf.
In this realm of possible tacit understandings and implied
agreements, I see no reason
Page 470 U. S. 511
not to accept the congressional judgment that so-called
independent expenditures must be closely regulated. [
Footnote 2/8]
The PACs do not operate in an anonymous vacuum. There are
significant contacts between an organization like NCPAC and
candidates for, and holders of, public office. In addition,
personnel may move between the staffs of candidates or
officeholders and those of PACs.
See generally App. 30-40,
Joint Stipulations of Fact Nos. 40-103. This is not to say that
there has in the past been any improper coordination or political
favors. We need not evaluate the accuracy of reports of such
activities, or of the perception that large-scale independent PAC
expenditures mean "the return of the big spenders whose money talks
and whose gifts are not forgotten."
See N.Y. Times, June
15, 1980, section 4, p. 20E, col. 1. It is enough to note that
there is ample support for the congressional determination that the
corrosive effects of large campaign contributions -- not least
among these a public perception of business as usual -- are not
eliminated solely because the "contribution" takes the form of an
"independent expenditure." "Preserving the integrity of the
electoral process [and] the individual citizen's confidence in
government" "are interests of the highest importance."
First
National Bank of Boston v. Bellotti, 435 U.
S. 765,
435 U. S.
788-789 (1978).
As in
Buckley, I am convinced that it is pointless to
limit the amount that can be contributed to a candidate or spent
with his approval without also limiting the amounts that can be
spent on his behalf. [
Footnote 2/9]
In the Fund Act, Congress limited
Page 470 U. S. 512
contributions, direct or coordinated, to zero. It is nonsensical
to allow the purposes of this limitation to be entirely defeated by
allowing the sort of "independent" expenditures at issue here, and
the First Amendment does not require us to do so.
B
Even if I accepted
Buckley as binding precedent, I
nonetheless would uphold § 9012(f).
Buckley distinguished
"direct political expression," which could not be curtailed, from
financial contributions, which could. 424 U.S. at
424 U. S. 21-22.
Limitations on expenditures were considered direct restraints on
the right to speak one's mind on public issues and to engage in
advocacy protected by the First Amendment.
Id. at
424 U. S. 48. The
majority views the challenged provision as being in that category.
I disagree.
The majority never explicitly identifies whose First Amendment
interests it believes it is protecting. However, its concern for
rights of association and the effective political speech of those
of modest means,
ante at
470 U. S.
494-495, indicates that it is concerned with the
interests of the PACs' contributors. But the "contributors" are
exactly that -- contributors, rather than speakers. Every reason
the majority gives for treating § 9012(f) as a restraint on speech
relates to the effectiveness with which the donors can make their
voices heard. In other
Page 470 U. S. 513
words, what the majority purports to protect is the right of the
contributors to make contributions.
But the contributors are not engaging in speech; at least, they
are not engaging in speech to any greater extent than are those who
contribute directly to political campaigns.
Buckley
explicitly distinguished between, on the one hand, using one's own
money to express one's views and, on the other, giving money to
someone else in the expectation that that person will use the money
to express views with which one is in agreement. This case falls
within the latter category. As the
Buckley Court stated
with regard to contributions to campaigns, "the transformation of
contributions into political debate involves speech by someone
other than the contributor." 424 U.S. at
424 U. S. 21. The
majority does not explain the metamorphosis of donated dollars from
money into speech by virtue of the identity of the donee.
It is true that regulating PACs may not advance the Government's
interest in combating corruption as directly as limiting
contributions to a candidate's campaign.
See Buckley, 424
U.S. at
424 U. S. 46. But
this concern relates to the governmental interest supporting the
regulation, not to the nature of the conduct regulated. Even if
spending money is to be considered speech, I fail to see how giving
money to an independent organization to use as it wishes is also
speech. I had thought the holding in
Buckley was exactly
the opposite. Certainly later cases would so indicate.
See FEC
v. National Right to Work Committee, 459 U.
S. 197 (1982);
California Medical Assn. v. FEC,
453 U. S. 182
(1981).
The Court strikes down § 9012(f) because it prevents PAC donors
from effectively speaking by proxy. But appellees are not simply
mouthpieces for their individual contributors. The PAC operates
independently of its contributors.
See App. 26, Joint
Stipulation No. 13. Donations go into the committee's general
accounts.
See App. 28-29, Joint Stipulations Nos. 27-30.
It can safely be assumed that each contributor does not fully
support every one of the variety of
Page 470 U. S. 514
activities undertaken and candidates supported by the PAC to
which he contributes. It is true, as the majority points out, that,
in general, the contributors presumably like what they hear.
However, "this sympathy of interests alone does not convert" the
PACs' speech into that of its contributors.
California Medical
Assn. v. FEC, supra, at
453 U. S. 196.
[
Footnote 2/10]
Finally, the burden imposed by § 9012(f) is slight. Exactly like
the contributions limits upheld in
Buckley, § 9012(f)
"does not in any way infringe the contributor's freedom to discuss
candidates and issues." 424 U.S. at
424 U. S. 21. And
because it does not limit personal expenditures, it does not
"reduce the total amount of money potentially available to promote
political expression."
Id. at
424 U. S. 22.
Accordingly,
Buckley indicates that the decision below
should be reversed.
C
These cases are, in any event, different enough from
Buckley that that decision is not dispositive. The
challenged provision is not part of the FECA, whose expenditure
limitations were struck down in
Buckley. Rather, it is
part of the Fund Act, which was, to the extent it was before the
Court, upheld.
The Fund Act provides major party candidates the option of
accepting public financing, drawn from a fund composed of voluntary
checkoffs from federal income tax payments, and forgoing all
private contributions. In upholding this system
Page 470 U. S. 515
in
Buckley, we accepted Congress' judgment that it
would go far
"to reduce the deleterious influence of large contributions on
our political process, to facilitate communication by candidates
with the electorate, and to free candidates from the rigors of
fundraising."
424 U.S. at
424 U. S. 91.
Indeed, we were of the view that the Fund Act "furthers, not
abridges, pertinent First Amendment values" by using "public money
to facilitate and enlarge public discussion and participation in
the electoral process."
Id. at
424 U. S.
92-93.
It is quite clear from the statutory scheme and the legislative
history that the public financing alternative was to be
comprehensive and exclusive -- a total substitution for private
financing. If the public funding merely supplements, rather than
supplants, the private, its benefits are nil. Indeed, early
proposals for public financing came to grief on exactly this
problem. For example, Congress passed a public funding scheme in
1966, Foreign Investors Tax Act of 1966, Pub.L. 89-809, 80 Stat.
1539, only to repeal it a year later. One of the reasons for
abandoning that effort was, in the words of the sponsor of the
repealing legislation, that it failed to limit the "raising and
spending of private funds on behalf of presidential candidates or
any other candidates," and would permit fundraising and spending to
proceed as it had. 113 Cong.Rec. 8062-8063 (1967) (remarks of Sen.
Gore). The same objection was voiced with regard to other
proposals.
See id. at 30772-30773; Political Campaign
Financing Proposals, Hearings before the Senate Committee on
Finance, 90th Cong., 1st Sess., 169, 364, 389-390 (1967)
(statements of Sens. Williams and Cannon). It is precisely this
defect that § 9012(f) is designed to avoid.
Because it is an indispensable component of the public funding
scheme, § 9012(f) is supported by governmental interests absent in
Buckley. Rather than forcing Congress to abandon public
financing because it is unworkable without constitutionally
prohibited restrictions on independent spending, I would hold that
§ 9012(f) is permissible precisely
Page 470 U. S. 516
because it is a necessary, narrowly drawn [
Footnote 2/11] means to a constitutional end. The
need to make public financing, with its attendant benefits,
workable is a constitutionally sufficient additional justification
for the burden on First Amendment rights.
The existence of the public financing scheme changes the picture
in other ways as well. First, it heightens the danger of corruption
discounted by the majority. If a candidate accepts public
financing, private contributions are limited to zero. 26 U.S.C. §§
9003(b)(2), 9012(b). Where there are no contributions being made
directly to the candidate or his committee, and no expenditures of
private funds subject to his direct control, "independent"
expenditures are thrown into much starker relief. If those are the
only private expenditures, their independence is little assurance
that they will not be noticed, appreciated, and, perhaps,
repaid.
The majority argues that there is no danger here of direct
political favors -- the paradigmatic ambassadorship in exchange
Page 470 U. S. 517
for a large contribution. Accepting,
arguendo, this
assertion, I still do not share the majority's equanimity about the
infusion of massive PAC expenditures into the political process.
The candidate may be forced to please the spenders, rather than the
voters, and the two groups are not identical. The majority concedes
that aggregations of wealth influence the candidate for political
office. [
Footnote 2/12] It is
exactly this influence that Congress sought to escape in providing
for public financing of Presidential elections, and that supports
the limitations it imposed.
The provision for exclusive public funding not only enhances the
danger of real or perceived corruption posed by independent
expenditures, it also gives more weight to the interest in holding
down the overall cost of political campaigns. In
Buckley,
this concern was partly ignored, and partly rejected as not
achieved by the means chosen.
See 424 U.S. at
424 U. S. 25-26,
and n. 27,
424 U. S. 48-49.
Neither course is possible here. The Fund Act was a response not
merely to "the influence of excessive private political
contributions," but also to the "dangers of spiraling campaign
expenditures." H.R.Rep. No. 93-1239, p. 13 (1974). I am unwilling
to discount the latter concern, particularly in the context of a
scheme where public financing is supposed to replace private
financing and cap total expenditures. Certainly there can be no
concern that communication will suffer for want of money spent on
the campaigns. [
Footnote 2/13]
Finally, in the context of the public
Page 470 U. S. 518
financing scheme, the apparent congressional desire that
elections should be between equally well-financed candidates, and
not turn on the amount of money spent for one or the other, is all
the more compelling, and the danger of funding disparities more
serious.
D
By striking down one portion of an integrated and comprehensive
statute, the Court has once again transformed a coherent regulatory
scheme into a nonsensical, loophole-ridden patchwork. As THE CHIEF
JUSTICE pointed out with regard to the similar outcome in
Buckley,
"[b]y dissecting the Act bit by bit, and casting off vital
parts, the Court fails to recognize that the whole of this Act is
greater than the sum of its parts."
424 U.S. at
434 U. S. 235.
Without § 9012(f), Presidential candidates enjoy extensive public
financing, while those who would otherwise have worked for or
contributed to a campaign, had there been no such funding, will
pursue the same ends through "independent" expenditures. The result
is that the old system remains essentially intact, but that much
more money is being spent. In overzealous protection of attenuated
First Amendment values, the Court has once again managed to assure
us the worst of both worlds. I respectfully dissent.
[
Footnote 2/1]
I agree with the majority that, under the plain terms of §
9011(b)(1), the Democratic Party has no cause of action.
[
Footnote 2/2]
Section 9011(b)(1) mirrors 2 U.S.C. § 437h(a), which allows the
same plaintiffs to
"institute such actions in the appropriate district court of the
United States, including actions for declaratory judgment, as may
be appropriate to construe the constitutionality of any provision
of"
the FECA. That section provides for certification of the
constitutional question to the en banc court of appeals, and
expedited review in this Court. I would read the word "appropriate"
in both provisions identically, that is, as referring to the sort
of controversy as to which the court's jurisdiction may be
invoked.
I also note that individuals are unquestionably able to invoke
the rather drastic provisions for expedited review provided by §
437h.
See Bread Political Action Committee v. FEC,
455 U. S. 577
(1982); 120 Cong.Rec. 35140 (1974) (statement of Rep. Frenzel). In
light of the clear intent behind § 437h, I have less difficulty
than does the majority in believing that Congress similarly
"intended every one of the millions of eligible voters in this
country to have the power to invoke expedited review by a
three-judge district court with direct appeal to this Court in
actions brought"
under § 9011(b)(1).
See ante at
470 U. S.
487-488.
[
Footnote 2/3]
The majority points to § 9010(a), which authorizes the FEC to
"appear in and defend against any action filed under section 9011,"
as evidence that § 9011 suits "would be directed at the FEC."
Ante at
470 U. S. 487.
At most, this provision indicates that § 9011 suits
could
be directed against the Commission. In any event, the "defend
against" language is fully explained by § 9011(a), which authorizes
suits by "any interested person" to review "[a]ny certification,
determination, or other action by the Commission." It is likely
that § 9010(a) was designed merely to give the FEC authority to
defend itself in these actions.
Cf. 26 U.S.C. § 9040(a).
It is also worth noting that, if Congress really intended that
private parties be able to sue only the FEC, it essentially
accomplished that purpose in § 9011(a).
[
Footnote 2/4]
Prior to 1976, the FECA included criminal proscriptions, found
in Title 18 of the United States Code, whose enforcement was left
to the Attorney General. In addition, civil enforcement authority
was granted to both the FEC and the Attorney General.
"The result was that enforcement responsibility was fragmented,
and the line between improper conduct remediable in civil
proceedings and conduct punishable as a crime blurred."
H.R.Rep. No. 94-917, p. 3 (1976). The 1976 Amendments were
designed to centralize enforcement authority in the Commission.
Id. at 3-4; S.Rep. No. 94-677, p. 7 (1976).
[
Footnote 2/5]
The majority states that § 9011(b)(1) has nothing to do with
"enforcement."
Ante at
470 U. S. 489.
If true, this assertion undermines the majority's reliance on §
437c(b)(1) in the first place. That section grants the FEC
"exclusive jurisdiction with respect to . . . civil enforcement";
it says nothing about "exclusive jurisdiction" to bring suits to
implement or construe.
[
Footnote 2/6]
The situation might be different if the regulation significantly
favored incumbents; for example, if Congress had imposed
unreasonably low spending limits that placed a particular burden on
challengers. There is no indication that is the case.
[
Footnote 2/7]
I note that the actual rationale of the
Buckley Court
was that
"independent advocacy . . .
does not presently appear
to pose dangers of real or apparent corruption comparable to those
identified with large campaign contributions."
424 U.S. at
424 U. S. 46
(emphasis added). The possibility was thus left open, and remains
open, that unforeseen developments in the financing of campaigns
might make the need for restrictions on "independent" expenditures
more compelling.
See also First National Bank of Boston v.
Bellotti, 435 U. S. 765,
435 U. S.
789-790 (1978). The exponential growth in PAC
expenditures, accompanied by an equivalent growth in public and
congressional concern, suggests that independent expenditures may
well prove to be more serious threats than they appeared in 1976.
See generally Hearings on S. 85
et al. before the
Senate Committee on Rules and Administration, 98th Cong., 1st Sess.
(1983) (hereinafter 1983 Hearings); Contribution Limitations and
Independent Expenditures, Hearings before the Task Force on
Elections of the House Committee on House Administration, 97th
Cong., 2d Sess., 151-437 (1982). The time may come when the
governmental interests in restricting such expenditures will be
sufficiently compelling to satisfy not only Congress, but a
majority of this Court as well.
[
Footnote 2/8]
In opposing an early version of campaign spending legislation,
Senator Gore objected to the bill because
"expenditures would be outside the so-called restriction as long
as the candidate had no 'control' over the organization, and lack
of 'control' is very easy to manage."
113 Cong.Rec. 10201 (1967).
See also 1983 Hearings, at
56 (statement of Sen. Bentsen).
[
Footnote 2/9]
In a discussion with which I entirely agree, the Senate
Committee supported the 1974 limits on "independent expenditures"
as follows:
"[S]uch controls are imperative if Congress is to enact
meaningful limits on direct contributions. Otherwise, wealthy
individuals limited to a $3,000 direct contribution could also
purchase one hundred thousand dollars' worth of advertisements for
a favored candidate. Such a loophole would render direct
contribution limits virtually meaningless."
"Admittedly, expenditures made directly by an individual to urge
support of a candidate pose First Amendment issues more vividly
than do financial contributions to a campaign fund. Nevertheless,
to prohibit a $60,000 direct contribution to be used for a TV spot
commercial, but then to permit the would-be contributor to purchase
the time himself, and place a commercial endorsing the candidate,
would exalt constitutional form over substance. Your Committee does
not believe the First Amendment requires such a wooden
construction."
S.Rep. No. 93-689, pp. 18-19 (1974).
[
Footnote 2/10]
It is unclear whether the majority views § 9012(f) as an
unconstitutional restriction on the First Amendment rights of
appellees themselves. To the extent it does, I would have thought
that such a conclusion was foreclosed by the Court's unanimous
holding in
FEC v. National Right to Work Committee,
459 U. S. 197
(1982). That decision cannot be explained away as merely a
corporations case.
Ante at
470 U. S.
495-496. The respondent in that case resembled appellees
here far more closely than it resembled the traditional business
corporation. In any event, the opinion referred broadly to "unions,
corporations, and similar organizations," citing to a case
involving a PAC, 459 U.S. at
459 U. S.
210-211, and its reasoning applies equally here.
[
Footnote 2/11]
Congress debated proposals to extend § 9012(f) to other
organized groups or even individuals.
See H.R.Rep. No.
92-708, p. 58 (1971); 117 Cong.Rec. 42397-42402, 42626-42627
(1971). It rejected such proposals in part out of concern for the
constitutionality of any more sweeping restriction.
See
id. at 42626. In light of Congress' careful balancing of First
Amendment concerns against the integrity and effectiveness of
public funding, I would be especially cautious before striking down
its compromise.
Despite the restricted reach of § 9012(f), the majority
announces that it is overbroad. I do not think these are
appropriate cases for the "strong medicine" of overbreadth
analysis, which "has been employed by the Court sparingly and only
as a last resort,"
Broadrick v. Oklahoma, 413 U.
S. 601,
413 U. S. 613
(1973), and which assumes a chilling effect that, frankly, does not
seem to be a problem here. In any event, the statute withstands
scrutiny. It is carefully limited to those organizations, spending
that amount of money, that Congress believed threatened the
integrity of the electoral process. I fully share the majority's
inability to "distinguish in principle between a PAC that has
solicited 1,000 $25 contributions and one that has solicited
100,000 $25 contributions."
Ante at
470 U. S. 499.
But that is exactly why the statute is
not overbroad.
See Members of City Council of Los Angeles v. Taxpayers for
Vincent, 466 U. S. 789,
466 U. S.
801-802 (1984).
[
Footnote 2/12]
One Senator has stated with regard to congressional
campaigning:
"[T]he current system of financing congressional elections . . .
virtually forces Members of Congress to go around hat in hand,
begging for money from Washington-based special interest groups,
political action committees whose sole purpose for existing is to
seek a
quid pro quo. . . . We see the degrading spectacle
of elected representatives completing detailed questionnaires on
their positions on special interest issues, knowing that the
monetary reward of PAC support depends on the correct answers."
1983 Hearings, at 49 (statement of Sen. Eagleton).
[
Footnote 2/13]
During the 1984 general election campaign, each major party
candidate received $40.4 million in public funds, and each national
committee was permitted to spend another $6.9 million on its
candidate's behalf. N.Y. Times, Aug. 29, 1984, p. A20, col. 1.
JUSTICE MARSHALL, dissenting.
In
Buckley v. Valeo, 424 U. S. 1 (1976)
(per curiam), this Court upheld congressional limitations on
contributions to candidates for federal office, but struck down
limitations on independent expenditures made on behalf of such
candidates. In upholding the former, the Court stated that
"the weighty interests served by restricting the size of
financial contributions to political candidates are sufficient to
justify the limited effect upon First Amendment freedoms caused by
the $1,000 contribution ceiling."
Id. at
424 U. S. 29. In
striking down
Page 470 U. S. 519
the latter, the Court noted that an expenditure limitation
"fails to serve any substantial interest in stemming the reality or
appearance of corruption in the electoral process," and that "it
heavily burdens core First Amendment expression."
Id. at
424 U. S. 47-48.
Relying on
Buckley, the Court today strikes down a
limitation on expenditures by "political committees." Although I
joined the portion of the
Buckley per curiam that
distinguished contributions from independent expenditures for First
Amendment purposes, I now believe that the distinction has no
constitutional significance.
The contribution/expenditure distinction in
Buckley was
grounded on two factors. First, the Court reasoned that independent
expenditures offer significantly less potential for abuse than
contributions:
"Unlike contributions, such independent expenditures may well
provide little assistance to the candidate's campaign, and may
indeed prove counterproductive. The absence of prearrangement and
coordination of an expenditure with the candidate or his agent not
only undermines the value of the expenditure to the candidate, but
also alleviates the danger that expenditures will be given as a
quid pro quo for improper commitments from the
candidate."
Id. at
424 U. S. 47.
Undoubtedly, when an individual interested in obtaining the
proverbial ambassadorship had the option of either contributing
directly to a candidate's campaign or doing so indirectly through
independent expenditures, he gave money directly. It does not take
great imagination, however, to see that, when the possibility for
direct financial assistance is severely limited, as it is in light
of
Buckley's decision to uphold the contribution
limitation, such an individual will find other ways to financially
benefit the candidate's campaign. It simply belies reality to say
that a campaign will not reward massive financial assistance
provided in the only way that is legally available. And the
possibility of such a reward provides a powerful incentive to
channel an independent expenditure
Page 470 U. S. 520
into an area that a candidate will appreciate. Surely an eager
supporter will be able to discern a candidate's needs and desires;
similarly, a willing candidate will notice the supporter's efforts.
To the extent that individuals are able to make independent
expenditures as part of a
quid pro quo, they succeed in
undermining completely the first rationale for the distinction made
in
Buckley.
The second factor supporting the distinction between
contributions and expenditures was the relative magnitude of the
First Amendment interest at stake. The Court found that the
constitutional interest implicated in the limitation on
expenditures was the right to advocate the election or defeat of a
particular candidate. This right, the Court reasoned,
"is no less entitled to protection under the First Amendment
than the discussion of political policy generally or advocacy of
the passage or defeat of legislation."
Id. at
424 U. S. 48. In
contrast, the Court found that the limitation on contributions
primarily implicated "the contributor's freedom of political
association."
Id. at
424 U. S. 24-25.
Although the Court acknowledged that this right was a "fundamental"
one,
id. at
424 U. S. 25, it
concluded that the expenditure ceiling imposed significantly more
severe restrictions on political freedoms than the contribution
limitation,
id. at
424 U. S. 23.
I disagree that the limitations on contributions and
expenditures have significantly different impacts on First
Amendment freedoms. First, the underlying rights at issue --
freedom of speech and freedom of association -- are both core First
Amendment rights. Second, in both cases, the regulation is of the
same form: it concerns the amount of money that can be spent for
political activity. Thus, I do not see how one interest can be
deemed more compelling than the other.*
Page 470 U. S. 521
In summary, I am now unpersuaded by the distinction established
in
Buckley. I have come to believe that the limitations on
independent expenditures challenged in that case and here are
justified by the congressional interests in promoting "the reality
and appearance of equal access to the political arena,"
id. at
424 U. S. 287
(opinion of MARSHALL, J.), and in eliminating political corruption
and the appearance of such corruption. Therefore, I dissent,
substantially for the reasons expressed in Parts
470 U.
S. 470 U. S. and
470 U. S. from
the Court's decision today to strike down § 9012(f)'s limitation on
independent expenditures by "political committees."
Also, I join
470 U. S.
which concerns the standing of the Democratic National
Committee.
* At the time
Buckley was decided, three of the eight
Members who heard that case agreed that contributions and
expenditures should be treated in the same manner for First
Amendment purposes.
See 424 U.S. at
424 U. S. 241
(opinion of BURGER, C.J.) ("For me, contributions and expenditures
are two sides of the same First Amendment coin");
id. at
424 U. S. 261
(opinion of WHITE, J.) ("For constitutional purposes, it is
difficult to see the difference between the two situations");
id. at
424 U. S. 290
(opinion of BLACKMUN, J.) ("I am not persuaded that the Court
makes, or indeed is able to make, a principled constitutional
distinction between the contribution limitations, on the one hand,
and the expenditure limitations, on the other, that are involved
here").