OOOOU.S. SUPREME COURT OPINIONS
OOOOBuckley v. Valeo, 424 U.S. 1
OOOOSYLLABUS | OPINION
OOOOHOME | JUDICIARY | BURGER COURT | BUCKLEY v. VALEO
FROM THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT: No. 75-436
Argued: November 10, 1975
Decided: January 30, 1976
The Federal Election Campaign Act of 1971 (Act), as amended in 1974, (a) limits political contributions to candidates for federal elective office by an individual or a group to $1,000 and by a political committee to $5,000 to any single candidate per election, with an over-all annual limitation of $25,000 by an individual contributor; (b) limits expenditures by individuals or groups "relative to a clearly identified candidate" to $1,000 per candidate per election, and by a candidate from his personal or family funds to various specified annual amounts depending upon the federal office sought, and restricts over-all general election and primary campaign expenditures by candidates to various specified amounts, again depending upon the federal office sought; (c) requires political committees to keep detailed records of contributions and expenditures, including the name and address of each individual contributing in excess of $10, and his occupation and principal place of business if his contribution exceeds $100, and to file quarterly reports with the Federal Election Commission disclosing the source of every contribution exceeding $100 and the recipient and purpose of every expenditure over $100, and also requires every individual or group, other than a candidate or political committee, making contributions or expenditures exceeding $100 "other than by contribution to a political committee or candidate" to file a statement with the Commission; and (d) creates the eight-member Commission as the administering agency with recordkeeping, disclosure, and investigatory functions and extensive rulemaking, adjudicatory, and enforcement powers, and consisting of two members appointed by the President pro tempore of the Senate, two by the Speaker of the House, and two by the President (all subject to confirmation by both Houses of Congress), and the Secretary of the Senate and the Clerk of the House as ex officio nonvoting members. Subtitle H of the Internal Revenue Code of 1954 (IRC), as amended in 1974, provides for public financing of Presidential nominating conventions and general election and primary campaigns from general revenues and allocates such funding to conventions and general election campaigns by establishing three categories: (1) "major" parties (those whose candidate received 25% or more of the vote in the most recent election), which receive full funding; (2) "minor" parties (those whose candidate received at least 5% but less than 25% of the votes at the last election), which receive only a percentage of the funds to which the major parties are entitled; and (3) "new" parties (all other parties), which are limited to receipt of post-election funds or are not entitled to any funds if their candidate receives less than 5% of the vote. A primary candidate for the Presidential nomination by a political party who receives more than $5,000 from private sources (counting only the first $250 of each contribution) in each of at least 20 States is eligible for matching public funds. Appellants (various federal officeholders and candidates, supporting political organizations, and others) brought suit against appellees (the Secretary of the Senate, Clerk of the House, Comptroller General, Attorney General, and the Commission) seeking declaratory and injunctive relief against the above statutory provisions on various constitutional grounds. The Court of Appeals, on certified questions from the District Court, upheld all but one of the statutory provisions. A three-judge District Court upheld the constitutionality of Subtitle H.
1. This litigation presents an Art. III "case or controversy," since the complaint discloses that at least some of the appellants have a sufficient "personal stake" in a determination of the constitutional validity of each of the challenged provisions to present
a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.
Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241. Pp. 11-12
2. The Act's contribution provisions are constitutional, but the expenditure provisions violate the First Amendment. Pp. 12-59.
(a) The contribution provisions, along with those covering disclosure, are appropriate legislative weapons against the reality or appearance of improper influence stemming from the dependence of candidates on large campaign contributions, and the ceilings imposed accordingly serve the basic governmental interest in safeguarding the integrity of the electoral process without directly impinging upon the rights of individual citizens and candidates to engage in political debate and discussion. Pp. 23-38.
(b) The First Amendment requires the invalidation of the Act's independent expenditure ceiling, its limitation on a candidate's expenditures from his own personal funds, and its ceilings on over-all campaign expenditures, since those provisions place substantial and direct restrictions on the ability of candidates, citizens, and associations to engage in protected political expression, restrictions that the First Amendment cannot tolerate. Pp. 39-59.
3. The Act's disclosure and recordkeeping provisions are constitutional. Pp. 60-84.
(a) The general disclosure provisions, which serve substantial governmental interests in informing the electorate and preventing the corruption of the political process, are not overbroad insofar as they apply to contributions to minor parties and independent candidates. No blanket exemption for minor parties is warranted, since such parties, in order to prove injury as a result of application to them of the disclosure provisions, need show only a reasonable probability that the compelled disclosure of a party's contributors' names will subject them to threats, harassment, or reprisals in violation of their First Amendment associational rights. Pp. 64-74.
(b) The provision for disclosure by those who make independent contributions and expenditures, as narrowly construed to apply only (1) when they make contributions earmarked for political purposes or authorized or requested by a candidate or his agent to some person other than a candidate or political committee and (2) when they make an expenditure for a communication that expressly advocates the election or defeat of a clearly identified candidate is not unconstitutionally vague and does not constitute a prior restraint, but is a reasonable and minimally restrictive method of furthering First Amendment values by public exposure of the federal election system. Pp. 74-82.
(c) The extension of the recordkeeping provisions to contributions as small as those just above $10 and the disclosure provisions to contributions above $100 is not, on this record, overbroad, since it cannot be said to be unrelated to the informational and enforcement goals of the legislation. Pp. 82-84.
4. Subtitle H of the IRC is constitutional. Pp. 85-109.
(a) Subtitle H is not invalid under the General Welfare Clause but, as a means to reform the electoral process, was clearly a choice within the power granted to Congress by the Clause to decide which expenditures will promote the general welfare. Pp. 90-92.
(b) Nor does Subtitle H violate the First Amendment. Rather than abridging, restricting, or censoring speech, it represents an effort to use public money to facilitate and enlarge public discussion and participation in the electoral process. Pp. 92-93.
(c) Subtitle H, being less burdensome than ballot access regulations and having been enacted in furtherance of vital governmental interests in relieving major party candidates from the rigors of soliciting private contributions, in not funding candidates who lack significant public support, and in eliminating reliance on large private contributions for funding of conventions and campaigns, does not invidiously discriminate against minor and new parties in violation of the Due Process Clause of the Fifth Amendment. Pp. 93-108.
(d) Invalidation of the spending limit provisions of the Act does not render Subtitle H unconstitutional, but the Subtitle is severable from such provisions, and is not dependent upon the existence of a generally applicable expenditure limit. Pp. 108-109.
5. The Commission's composition as to all but its investigative and informative powers violates Art. II, § 2, cl. 2. With respect to the Commission's powers, all of which are ripe for review, to enforce the Act, including primary responsibility for bringing civil actions against violators, to make rules for carrying out the Act, to temporarily disqualify federal candidates for failing to file required reports, and to authorize convention expenditures in excess of the specified limits, the provisions of the Act vesting such powers in the Commission and the prescribed method of appointment of members of the Commission to the extent that a majority of the voting members are appointed by the President pro tempore of the Senate and the Speaker of the House, violate the Appointments Clause, which provides, in pertinent part, that the President shall nominate, and, with the Senate's advice and consent, appoint, all "Officers of the United States," whose appointments are not otherwise provided for, but that Congress may vest the appointment of such inferior officers as it deems proper in the President alone, in the courts, or in the heads of departments. Hence (though the Commission's past acts are accorded de facto validity and a stay is granted permitting it to function under the Act for not more than 30 days), the Commission, as presently constituted, may not, because of that Clause, exercise such powers, which can be exercised only by "Officers of the United States" appointed in conformity with the Appointments Clause, although it may exercise such investigative and informative powers as are in the same category as those powers that Congress might delegate to one of its own committees. Pp. 109-143.
Per curiam opinion, in the "case or controversy" part of which (post, pp. 11-12) all participating Members joined; and as to all other Parts of which BRENNAN, STEWART, and POWELL, JJ., joined; MARSHALL, J., joined in all but Part I-C-2; BLACKMUN, J., joined in all but Part I-B; REHNQUIST, J., joined in all but Part III-B-1; BURGER, C.J., joined in Parts I-C and IV (except insofar as it accords de facto validity for the Commission's past acts); and WHITE, J., joined in Part III. BURGER, C.J., post, p. 235, WHITE, J., post, p. 257, MARSHALL, J., post, p. 286, BLACKMUN, J., post, p. 290, and REHNQUIST, J., post, p. 290, filed opinions concurring in part and dissenting in part. STEVENS, J., took no part in the consideration or decision of the cases.
These appeals present constitutional challenges to the key provisions of the Federal Election Campaign Act of 1971 (Act), and related provisions of the Internal Revenue Code of 1954, all as amended in 1974. 1
The Court of Appeals, in sustaining the legislation in large part against various constitutional challenges, 2 viewed it as "by far the most comprehensive reform legislation [ever] passed by Congress concerning the election of the President, Vice-President, and members of Congress." 171 U.S.App.D.C. 172, 182, 519 F.2d 821, 831 (1975). The statutes at issue, summarized in broad terms, contain the following provisions: (a) individual political contributions are limited to $1,000 to any single candidate per election, with an over-all annual limitation of $25,000 by any contributor; independent expenditures by individuals and groups "relative to a clearly identified candidate" are limited to $1,000 a year; campaign spending by candidates for various federal offices and spending for national conventions by political parties are subject to prescribed limits; (b) contributions and expenditures above certain threshold levels must be reported and publicly disclosed; (c) a system for public funding of Presidential campaign activities is established by Subtitle H of the Internal Revenue Code; 3 and (d) a Federal Election Commission is established to administer and enforce the legislation.
This suit was originally filed by appellants in the United States District Court for the District of Columbia. Plaintiffs included a candidate for the Presidency of the United States, a United States Senator who is a candidate for reelection, a potential contributor, the Committee for a Constitutional Presidency McCarthy '76, the Conservative Party of the State of New York, the Mississippi Republican Party, the Libertarian Party, the New York Civil Liberties Union, Inc., the American Conservative Union, the Conservative Victory Fund, and Human Events, Inc. The defendants included the Secretary of the United States Senate and the Clerk of the United States House of Representatives, both in their official capacities and as ex officio members of the Federal Election Commission. The Commission itself was named as a defendant. Also named were the Attorney General of the United States and the Comptroller General of the United States.
Jurisdiction was asserted under 28 U.S.C. §§ 1331 2201, and 2202, and § 315(a) of the Act, 2 U.S.C. § 437h(a) (1970 ed., Supp. IV). 4 The complaint sought both a declaratory judgment that the major provisions of the Act were unconstitutional and an injunction against enforcement of those provisions. Appellants requested the convocation of a three-judge District Court as to all matters and also requested certification of constitutional questions to the Court of Appeals, pursuant to the terms of § 315(a). The District Judge denied the application for a three-judge court and directed that the case be transmitted to the Court of Appeals. That court entered an order stating that the case was "preliminarily deemed" to be properly certified under § 315(a). Leave to intervene was granted to various groups and individuals. 5 After considering matters regarding factfinding procedures, the Court of Appeals entered an order en banc remanding the case to the District Court to (1) identify the constitutional issues in the complaint; (2) take whatever evidence was found necessary in addition to the submissions suitably dealt with by way of judicial notice; (3) make findings of fact with reference to those issues; and (4) certify the constitutional questions arising from the foregoing steps to the Court of Appeals. 424 U.S. 1 6 On remand, the District Judge entered a memorandum order adopting extensive findings of fact and transmitting the augmented record back to the Court of Appeals.
On plenary review, a majority of the Court of Appeals rejected, for the most part, appellants' constitutional attacks. The court found "a clear and compelling interest," 171 U.S.App.D.C. at 192, 519 F.2d at 841, in preserving the integrity of the electoral process. On that basis, the court upheld, with one exception, 7 the substantive provisions of the Act with respect to contributions, expenditures, and disclosure. It also sustained the constitutionality of the newly established Federal Election Commission. The court concluded that, notwithstanding the manner of selection of its members and the breadth of its powers, which included nonlegislative functions, the Commission is a constitutionally authorized agency created to perform primarily legislative functions. 8 The provisions for public funding of the three stages of the Presidential selection process were upheld as a valid exercise of congressional power under the General Welfare Clause of the Constitution, Art. I, § 8.
In this Court, appellants argue that the Court of Appeals failed to give this legislation the critical scrutiny demanded under accepted First Amendment and equal protection principles. In appellants' view, limiting the use of money for political purposes constitutes a restriction on communication violative of the First Amendment, since virtually all meaningful political communications in the modern setting involve the expenditure of money. Further, they argue that the reporting and disclosure provisions of the Act unconstitutionally impinge on their right to freedom of association. Appellants also view the federal subsidy provisions of Subtitle H as violative of the General Welfare Clause, and as inconsistent with the First and Fifth Amendments. Finally, appellants renew their attack on the Commission's composition and powers.
At the outset, we must determine whether the case before us presents a "case or controversy" within the meaning of Art. III of the Constitution. Congress may not, of course, require this Court to render opinions in matters which are not "cases or controversies." Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-241 (1937). We must therefore decide whether appellants have the "personal stake in the outcome of the controversy" necessary to meet the requirements of Art. III. Baker v. Carr, 369 U.S. 186, 204 (1962). It is clear that Congress, in enacting 2 U.S.C. § 437h (1970 ed., Supp. IV), 9 intended to provide judicial review to the extent permitted by Art. III. In our view, the complaint in this case demonstrates that at least some of the appellants have a sufficient "personal stake" 10 in a determination of the constitutional validity of each of the challenged provisions to present
a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.
Aetna Life Ins. Co. v. Haworth, supra at 241. 11
I. CONTRIBUTION AND EXPENDITURE REQUIREMENTS
The intricate statutory scheme adopted by Congress to regulate federal election campaigns includes restrictions on political contributions and expenditures that apply broadly to all phases of and all participants in the election process. The major contribution and expenditure limitations in the Act prohibit individuals from contributing more than $25,000 in a single year or more than $1,000 to any single candidate for an election campaign 12 and from spending more than $1,000 a year "relative to a clearly identified candidate." 13 Other provisions restrict a candidate's use of personal and family resources in his campaign 14 and limit the over-all amount that can be spent by a candidate in campaigning for federal office. 15
The constitutional power of Congress to regulate federal elections is well established and is not questioned by any of the parties in this case. 16 Thus, the critical constitutional questions presented here go not to the basic power of Congress to legislate in this area, but to whether the specific legislation that Congress has enacted interferes with First Amendment freedoms or invidiously discriminates against nonincumbent candidates and minor parties in contravention of the Fifth Amendment.
A. General Principles
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, 484 (1957). Although First Amendment protections are not confined to "the exposition of ideas," Winters v. New York, 333 U.S. 507, 510 (1948),
there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs, . . . of course includ[ing] discussions of candidates. . . .
Mills v. Alabama, 384 U.S. 214, 218 (1966). 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, 270 (1964). In a republic where the people are sovereign, the ability of the citizenry to make informed choices among candidates for office is essential, for the identities of those who are elected will inevitably shape the course that we follow as a nation. As the Court observed in Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971),
it can hardly be doubted that the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office.
The First Amendment protects political association as well as political expression. The constitutional right of association explicated in NAACP v. Alabama, 357 U.S. 449, 460 (1958), stemmed from the Court's recognition that
[e]ffective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association.
Subsequent decisions have made clear that the First and Fourteenth Amendments guarantee "'freedom to associate with others for the common advancement of political beliefs and ideas,'" a freedom that encompasses "'[t]he right to associate with the political party of one's choice.'" Kusper v. Pontikes, 414 U.S. 51, 56, 57 (1973), quoted in Cousins v. Wigoda, 419 U.S. 477, 487 (1975).
It is with these principles in mind that we consider the primary contentions of the parties with respect to the Act's limitations upon the giving and spending of money in political campaigns. Those conflicting contentions could not more sharply define the basic issues before us. Appellees contend that what the Act regulates is conduct, and that its effect on speech and association is incidental, at most. Appellants respond that contributions and expenditures are at the very core of political speech, and that the Act's limitations thus constitute restraints on First Amendment liberty that are both gross and direct.
In upholding the constitutional validity of the Act's contribution and expenditure provisions on the ground that those provisions should be viewed as regulating conduct, not speech, the Court of Appeals relied upon United States v. O'Brien, 391 U.S. 367 (1968). See 171 U.S.App.D.C. at 191, 519 F.2d at 840. The O'Brien case involved a defendant's claim that the First Amendment prohibited his prosecution for burning his draft card because his act was "'symbolic speech'" engaged in as a "'demonstration against the war and against the draft.'" 391 U.S. at 376. On the assumption that "the alleged communicative element in O'Brien's conduct [was] sufficient to bring into play the First Amendment," the Court sustained the conviction because it found "a sufficiently important governmental interest in regulating the nonspeech element" that was "unrelated to the suppression of free expression" and that had an "incidental restriction on alleged First Amendment freedoms . . . no greater than [was] essential to the furtherance of that interest." Id. at 376-377. The Court expressly emphasized that O'Brien was not a case
where the alleged governmental interest in regulating conduct arises in some measure because the communication allegedly integral to the conduct is itself thought to be harmful.
Id. at 382.
We cannot share the view that the present Act's contribution and expenditure limitations are comparable to the restrictions on conduct upheld in O'Brien. The expenditure of money simply cannot be equated with such conduct as destruction of a draft card. Some forms of communication made possible by the giving and spending of money involve speech alone, some involve conduct primarily, and some involve a combination of the two. Yet this Court has never suggested that the dependence of a communication on the expenditure of money operates itself to introduce a nonspeech element or to reduce the exacting scrutiny required by the First Amendment. See Bigelow v. Virginia, 421 U.S. 809, 820 (1975); New York Times Co. v. Sullivan, supra at 266. For example, in Cox v. Louisiana, 379 U.S. 559 (1965), the Court contrasted picketing and parading with a newspaper comment and a telegram by a citizen to a public official. The parading and picketing activities were said to constitute conduct "intertwined with expression and association," whereas the newspaper comment and the telegram were described as a "pure form of expression" involving "free speech alone," rather than "expression mixed with particular conduct." Id. at 563-564.
Even if the categorization of the expenditure of money as conduct were accepted, the limitations challenged here would not meet the O'Brien test because the governmental interests advanced in support of the Act involve "suppressing communication." The interests served by the Act include restricting the voices of people and interest groups who have money to spend and reducing the over-all scope of federal election campaigns. Although the Act does not focus on the ideas expressed by persons or groups subject to its regulations, it is aimed in part at equalizing the relative ability of all voters to affect electoral outcomes by placing a ceiling on expenditures for political expression by citizens and groups. Unlike O'Brien, where the Selective Service System's administrative interest in the preservation of draft cards was wholly unrelated to their use as a means of communication, it is beyond dispute that the interest in regulating the alleged "conduct" of giving or spending money "arises in some measure because the communication allegedly integral to the conduct is itself thought to be harmful." 391 U.S. at 382.
Nor can the Act's contribution and expenditure limitations be sustained, as some of the parties suggest, by reference to the constitutional principles reflected in such decisions as Cox v. Louisiana, supra; Adderley v. Florida, 385 U.S. 39 (1966); and Kovacs v. Cooper, 336 U.S. 77 (1949). Those cases stand for the proposition that the government may adopt reasonable time, place, and manner regulations, which do not discriminate among speakers or ideas, in order to further an important governmental interest unrelated to the restriction of communication. See Erznoznik v. City of Jacksonville, 422 U.S. 205, 209 (1975). In contrast to O'Brien, where the method of expression was held to be subject to prohibition, Cox, Adderley, and Kovacs involved place or manner restrictions on legitimate modes of expression picketing, parading, demonstrating, and using a sound truck. The critical difference between this case and those time, place, and manner cases is that the present Act's contribution and expenditure limitations impose direct quantity restrictions on political communication and association by persons, groups, candidates, and political parties in addition to any reasonable time, place, and manner regulations otherwise imposed. 17
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 by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. 18 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.
The expenditure limitations contained in the Act represent substantial, rather than merely theoretical, restraints on the quantity and diversity of political speech. The $1,000 ceiling on spending "relative to a clearly identified candidate," 18 U.S.C. § 608(e)(1) (1970 ed., Supp. IV), would appear to exclude all citizens and groups except candidates, political parties, and the institutional press 19 from any significant use of the most effective modes of communication. 20 Although the Act's limitations on expenditures by campaign organizations and political parties provide substantially greater room for discussion and debate, they would have required restrictions in the scope of a number of past congressional and Presidential campaigns 21 and would operate to constrain campaigning by candidates who raise sums in excess of the spending ceiling.
By contrast with a limitation upon expenditures for political expression, a limitation upon the amount that any one person or group may contribute to a candidate or political committee entails only a marginal restriction upon the contributor's ability to engage in free communication. A contribution serves as a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support. The quantity of communication by the contributor does not increase perceptibly with the size of his contribution, since the expression rests solely on the undifferentiated, symbolic act of contributing. At most, the size of the contribution provides a very rough index of the intensity of the contributor's support for the candidate. 22 A limitation on the amount of money a person may give to a candidate or campaign organization thus involves little direct restraint on his political communication, for it permits the symbolic expression of support evidenced by a contribution but does not in any way infringe the contributor's freedom to discuss candidates and issues. While contributions may result in political expression if spent by a candidate or an association to present views to the voters, the transformation of contributions into political debate involves speech by someone other than the contributor.
Given the important role of contributions in financing political campaigns, contribution restrictions could have a severe impact on political dialogue if the limitations prevented candidates and political committees from amassing the resources necessary for effective advocacy. There is no indication, however, that the contribution limitations imposed by the Act would have any dramatic adverse effect on the funding of campaigns and political associations. 23 The over-all effect of the Act's contribution ceilings is merely to require candidates and political committees to raise funds from a greater number of persons and to compel people who would otherwise contribute amounts greater than the statutory limits to expend such funds on direct political expression, rather than to reduce the total amount of money potentially available to promote political expression.
The Act's contribution and expenditure limitations also impinge on protected associational freedoms. Making a contribution, like joining a political party, serves to affiliate a person with a candidate. In addition, it enables like-minded persons to pool their resources in furtherance of common political goals. The Act's contribution ceilings thus limit one important means of associating with a candidate or committee, but leave the contributor free to become a member of any political association and to assist personally in the association's efforts on behalf of candidates. And the Act's contribution limitations permit associations and candidates to aggregate large sums of money to promote effective advocacy. By contrast, the Act's $1,000 limitation on independent expenditures "relative to a clearly identified candidate" precludes most associations from effectively amplifying the voice of their adherents, the original basis for the recognition of First Amendment protection of the freedom of association. See NAACP v. Alabama, 357 U.S. at 460. The Act's constraints on the ability of independent associations and candidate campaign organizations to expend resources on political expression "is simultaneously an interference with the freedom of [their] adherents," Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957) (plurality opinion). See Cousins v. Wigoda, 419 U.S. at 487-488; NAACP v. Button, 371 U.S. 415, 431 (1963).
In sum, although the Act's contribution and expenditure limitations both implicate fundamental First Amendment interests, its expenditure ceilings impose significantly more severe restrictions on protected freedoms of political expression and association than do its limitations on financial contributions.
B. Contribution Limitations
1. The $1,000 Limitation on Contributions by Individuals and Groups to Candidates and Authorized Campaign Committees
Section 608(b) provides, with certain limited exceptions, that
no person shall make contributions to any candidate with respect to any election for Federal office which, in the aggregate, exceed $1,000.
The statute defines "person" broadly to include "an individual, partnership, committee, association, corporation or any other organization or group of persons." § 591(g). The limitation reaches a gift, subscription, loan, advance, deposit of anything of value, or promise to give a contribution, made for the purpose of influencing a primary election, a Presidential preference primary, or a general election for any federal office. 24 §§ 591(e)(1), (2). The $1,000 ceiling applies regardless of whether the contribution is given to the candidate, to a committee authorized in writing by the candidate to accept contributions on his behalf, or indirectly via earmarked gifts passed through an intermediary to the candidate. §§ 608(b)(4), (6). 25 The restriction applies to aggregate amounts contributed to the candidate for each election with primaries, runoff elections, and general elections counted separately, and all Presidential primaries held in any calendar year treated together as a single election campaign. § 608(b)(5).
Appellants contend that the $1,000 contribution ceiling unjustifiably burdens First Amendment freedoms, employs overbroad dollar limits, and discriminates against candidates opposing incumbent officeholders and against minor party candidates in violation of the Fifth Amendment. We address each of these claims of invalidity in turn.
As the general discussion in Part I-A, supra, indicated, the primary First Amendment problem raised by the Act's contribution limitations is their restriction of one aspect of the contributor's freedom of political association. The Court's decisions involving associational freedoms establish that the right of association is a "basic constitutional freedom," Kusper v. Pontikes, 414 U.S. at 57, that is "closely allied to freedom of speech and a right which, like free speech, lies at the foundation of a free society." Shelton v. Tucker, 364 U.S. 479, 486 (1960). See, e.g., Bates v. Little Rock, 361 U.S. 516, 522-523 (1960); NAACP v. Alabama, supra at 460-461; NAACP v. Button, supra at 452 (Harlan, J., dissenting). In view of the fundamental nature of the right to associate, governmental "action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny." NAACP v. Alabama, supra at 460-461. Yet, it is clear that "[n]either the right to associate nor the right to participate in political activities is absolute." CSC v. Letter Carriers, 413 U.S. 548, 567 (1973). Even a "'significant interference' with protected rights of political association" may be sustained if the State demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgment of associational freedoms. Cousins v. Wigoda, supra at 488; NAACP v. Button, supra at 438; Shelton v. Tucker, supra at 488.
Appellees argue that the Act's restrictions on large campaign contributions are justified by three governmental interests. According to the parties and amici, the primary interest served by the limitations and, indeed, by the Act as a whole, is the prevention of corruption and the appearance of corruption spawned by the real or imagined coercive influence of large financial contributions on candidates' positions and on their actions if elected to office. Two "ancillary" interests underlying the Act are also allegedly furthered by the $1,000 limits on contributions. First, the limits serve to mute the voices of affluent persons and groups in the election process and thereby to equalize the relative ability of all citizens to affect the outcome of elections. 26 Second, it is argued, the ceilings may to some extent act as a brake on the skyrocketing cost of political campaigns and thereby serve to open the political system more widely to candidates without access to sources of large amounts of money. 27
It is unnecessary to look beyond the Act's primary purpose to limit the actuality and appearance of corruption resulting from large individual financial contributions in order to find a constitutionally sufficient justification for the $1,000 contribution limitation. Under a system of private financing of elections, a candidate lacking immense personal or family wealth must depend on financial contributions from others to provide the resources necessary to conduct a successful campaign. The increasing importance of the communications media and sophisticated mass-mailing and polling operations to effective campaigning make the raising of large sums of money an ever more essential ingredient of an effective candidacy. To the extent that large contributions are given to secure a political quid pro quo from current and potential office holders, the integrity of our system of representative democracy is undermined. Although the scope of such pernicious practices can never be reliably ascertained, the deeply disturbing examples surfacing after the 1972 election demonstrate that the problem is not an illusory one. 28
Of almost equal concern as the danger of actual quid pro quo arrangements is the impact of the appearance of corruption stemming from public awareness of the opportunities for abuse inherent in a regime of large individual financial contributions. In CSC v. Letter Carriers, supra, the Court found that the danger to "fair and effective government" posed by partisan political conduct on the part of federal employees charged with administering the law was a sufficiently important concern to justify broad restrictions on the employees' right of partisan political association. Here, as there, Congress could legitimately conclude that the avoidance of the appearance of improper influence "is also critical . . . if confidence in the system of representative Government is not to be eroded to a disastrous extent." 413 U.S. at 565. 29
Appellants contend that the contribution limitations must be invalidated because bribery laws and narrowly drawn disclosure requirements constitute a less restrictive means of dealing with "proven and suspected quid pro quo arrangements." But laws making criminal the giving and taking of bribes deal with only the most blatant and specific attempts of those with money to influence governmental action. And while disclosure requirements serve the many salutary purposes discussed elsewhere in this opinion, 30 Congress was surely entitled to conclude that disclosure was only a partial measure, and that contribution ceilings were a necessary legislative concomitant to deal with the reality or appearance of corruption inherent in a system permitting unlimited financial contributions, even when the identities of the contributors and the amounts of their contributions are fully disclosed.
The Act's $1,000 contribution limitation focuses precisely on the problem of large campaign contributions the narrow aspect of political association where the actuality and potential for corruption have been identified while leaving persons free to engage in independent political expression, to associate actively through volunteering their services, and to assist to a limited but nonetheless substantial extent in supporting candidates and committees with financial resources. 31 Significantly, the Act's contribution limitations in themselves do not undermine to any material degree the potential for robust and effective discussion of candidates and campaign issues by individual citizens, associations, the institutional press, candidates, and political parties.
We find that, under the rigorous standard of review established by our prior decisions, 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.
Appellants' first overbreadth challenge to the contribution ceilings rests on the proposition that most large contributors do not seek improper influence over a candidate's position or an officeholder's action. Although the truth of that proposition may be assumed, it does not undercut the validity of the $1,000 contribution limitation. Not only is it difficult to isolate suspect contributions but, more importantly, Congress was justified in concluding that the interest in safeguarding against the appearance of impropriety requires that the opportunity for abuse inherent in the process of raising large monetary contributions be eliminated.
A second, related overbreadth claim is that the $1,000 restriction is unrealistically low because much more than that amount would still not be enough to enable an unscrupulous contributor to exercise improper influence over a candidate or officeholder, especially in campaigns for state-wide or national office. While the contribution limitation provisions might well have been structured to take account of the graduated expenditure limitations for congressional and Presidential campaigns, 32 Congress' failure to engage in such fine tuning does not invalidate the legislation. As the Court of Appeals observed,
[i]f it is satisfied that some limit on contributions is necessary, a court has no scalpel to probe, whether, say, a $2,000 ceiling might not serve as well as $1,000. 171 U.S.App.D.C. at 193, 519 F.2d at 842. Such distinctions in degree become significant only when they can be said to amount to differences in kind. Compare Kusper v. Pontikes, 414 U.S. 51 (1973), with Rosario v. Rockefeller, 410 U.S. 752 (1973).
Apart from these First Amendment concerns, appellants argue that the contribution limitations work such an invidious discrimination between incumbents and challengers that the statutory provisions must be declared unconstitutional on their face. 33 In considering this contention, it is important at the outset to note that the Act applies the same limitations on contributions to all candidates regardless of their present occupations, ideological views, or party affiliations. Absent record evidence of invidious discrimination against challengers as a class, a court should generally be hesitant to invalidate legislation which on its face imposes evenhanded restrictions. Cf. James v. Valtierra, 402 U.S. 137 (1971).
There is no such evidence to support the claim that the contribution limitations in themselves discriminate against major party challengers to incumbents. Challengers can and often do defeat incumbents in federal elections. 34 Major party challengers in federal elections are usually men and women who are well known and influential in their community or State. Often such challengers are themselves incumbents in important local, state, or federal offices. Statistics in the record indicate that major party challengers as well as incumbents are capable of raising large sums for campaigning. 35 Indeed, a small but nonetheless significant number of challengers have in recent elections outspent their incumbent rivals. 36 And, to the extent that incumbents generally are more likely than challengers to attract very large contributions, the Act's $1,000 ceiling has the practical effect of benefiting challengers as a class. 37 Contrary to the broad generalization drawn by the appellants, the practical impact of the contribution ceilings in any given election will clearly depend upon the amounts in excess of the ceilings that, for various reasons, the candidates in that election would otherwise have received and the utility of these additional amounts to the candidates. To be sure, the limitations may have a significant effect on particular challengers or incumbents, but the record provides no basis for predicting that such adventitious factors will invariably and invidiously benefit incumbents as a class. 38 Since the danger of corruption and the appearance of corruption apply with equal force to challengers and to incumbents, Congress had ample justification for imposing the same fundraising constraints upon both.
The charge of discrimination against minor party and independent candidates is more troubling, but the record provides no basis for concluding that the Act invidiously disadvantages such candidates. As noted above, the Act, on its face treats, all candidates equally with regard to contribution limitations. And the restriction would appear to benefit minor party and independent candidates relative to their major party opponents, because major party candidates receive far more money in large contributions. 39 Although there is some force tax appellants' response that minor party candidates are primarily concerned with their ability to amass the resources necessary to reach the electorate, rather than with their funding position relative to their major party opponents, the record is virtually devoid of support for the claim that the $1,000 contribution limitation will have a serious effect on the initiation and scope of minor party and independent candidacies. 40 Moreover, any attempt to exclude minor parties and independents en masse from the Act's contribution limitations overlooks the fact that minor party candidates may win elective office or have a substantial impact on the outcome of an election. 41
In view of these considerations, we conclude that the impact of the Act's $1,000 contribution limitation on major party challengers and on minor party candidates does not render the provision unconstitutional on its face.
2. The $5,000 Limitation on Contributions by Political Committees
Section 608(b)(2) permits certain committees, designated as "political committees," to contribute up to $5,000 to any candidate with respect to any election for federal office. In order to qualify for the higher contribution ceiling, a group must have been registered with the Commission as a political committee under 2 U.S.C. § 433 (1970 ed., Supp. IV) for not less than six months, have received contributions from more than 50 persons, and, except for state political party organizations, have contributed to five or more candidates for federal office. Appellants argue that these qualifications unconstitutionally discriminate against ad hoc organizations in favor of established interest groups and impermissibly burden free association. The argument is without merit. Rather than undermining freedom of association, the basic provision enhances the opportunity of bona fide groups to participate in the election process, and the registration, contribution, and candidate conditions serve the permissible purpose of preventing individuals from evading the applicable contribution limitations by labeling themselves committees.
3. Limitations on Volunteers' Incidental Expenses
The Act excludes from the definition of contribution
the value of services provided without compensation by individuals who volunteer a portion or all of their time on behalf of a candidate or political committee.
§ 591(e)(5)(A). Certain expenses incurred by persons in providing volunteer services to a candidate are exempt from the $1,000 ceiling only to the extent that they do not exceed $500. These expenses are expressly limited to (1) "the use of real or personal property and the cost of invitations, food, and beverages, voluntarily provided by an individual to a candidate in rendering voluntary personal services on the individual's residential premises for candidate-related activities," § 591(e)(5)(B); (2) "the sale of any food or beverage by a vendor for use in a candidate's campaign at a charge [at least equal to cost but] less than the normal comparable charge," § 591(e)(5)(C); and (3) "any unreimbursed payment for travel expenses made by an individual who on his own behalf volunteers his personal services to a candidate," § 591(e)(5)(D).
If, as we have held, the basic contribution limitations are constitutionally valid, then surely these provisions are a constitutionally acceptable accommodation of Congress' valid interest in encouraging citizen participation in political campaigns while continuing to guard against the corrupting potential of large financial contributions to candidates. The expenditure of resources at the candidate's direction for a fundraising event at a volunteer's residence or the provision of in-kind assistance in the form of food or beverages to be resold to raise funds or consumed by the participants in such an event provides material financial assistance to a candidate. The ultimate effect is the same as if the person had contributed the dollar amount to the candidate and the candidate had then used the contribution to pay for the fundraising event or the food. Similarly, travel undertaken as a volunteer at the direction of the candidate or his staff is an expense of the campaign and may properly be viewed as a contribution if the volunteer absorbs the fare. Treating these expenses as contributions when made to the candidate's campaign or at the direction of the candidate or his staff forecloses an avenue of abuse 42 without limiting actions voluntarily undertaken by citizens independently of a candidate's campaign. 43
4. The 25,000 Limitation on Total Contributions During any Calendar Year
In addition to the $1,000 limitation on the nonexempt contributions that an individual may make to a particular candidate for any single election, the Act contains an over-all $25,000 limitation on total contributions by an individual during any calendar year. § 608(b)(3). A contribution made in connection with an election is considered, for purposes of this subsection, to be made in the year the election is held. Although the constitutionality of this provision was drawn into question by appellants, it has not been separately addressed at length by the parties. The over-all $25,000 ceiling does impose an ultimate restriction upon the number of candidates and committees with which an individual may associate himself by means of financial support. But this quite modest restraint upon protected political activity serves to prevent evasion of the $1,000 contribution limitation by a person who might otherwise contribute massive amounts of money to a particular candidate through the use of unearmarked contributions to political committees likely to contribute to that candidate, or huge contributions to the candidate's political party. The limited, additional restriction on associational freedom imposed by the over-all ceiling is thus no more than a corollary of the basic individual contribution limitation that we have found to be constitutionally valid.
C. Expenditure Limitations
The Act's expenditure ceilings impose direct and substantial restraints on the quantity of political speech. The most drastic of the limitations restricts individuals and groups, including political parties that fail to place a candidate on the ballot, 44 to an expenditure of $1,000 "relative to a clearly identified candidate during a calendar year." § 608(e)(1). Other expenditure ceilings limit spending by candidates, § 608(a), their campaigns, § 608(c), and political parties in connection with election campaigns, § 608(f). It is clear that a primary effect of these expenditure limitations is to restrict the quantity of campaign speech by individuals, groups, and candidates. The restrictions, while neutral as to the ideas expressed, limit political expression "at the core of our electoral process and of the First Amendment freedoms." Williams v. Rhodes, 393 U.S. 23, 32 (1968).
1. The $1,000 Limitation on Expenditures "Relative to a Clearly Identified Candidate"
Section 608(e)(1) provides that
[n]o person may make any expenditure . . . relative to a clearly identified candidate during a calendar year which, when added to all other expenditures made by such person during the year advocating the election or defeat of such candidate, exceeds $1,000. 45
The plain effect of § 608(e)(1) is to prohibit all individuals, who are neither candidates nor owners of institutional press facilities, and all groups, except political parties and campaign organizations, from voicing their views "relative to a clearly identified candidate" through means that entail aggregate expenditures of more than $1,000 during a calendar year. The provision, for example, would make it a federal criminal offense for a person or association to place a single one-quarter page advertisement "relative to a clearly identified candidate" in a major metropolitan newspaper. 46
Before examining the interests advanced in support of § 608(e)(1)'s expenditure ceiling, consideration must be given to appellants' contention that the provision is unconstitutionally vague. 47 Close examination of the specificity of the statutory limitation is required where, as here, the legislation imposes criminal penalties in an area permeated by First Amendment interests. See Smith v. Goguen, 415 U.S. 566, 573 (1974); Cramp v. Board of Public Instruction, 368 U.S. 278, 287-288 (1961); Smith v. California, 361 U.S. 147, 151 (1959). 48 The test is whether the language of § 608(e)(1) affords the "[p]recision of regulation [that] must be the touchstone in an area so closely touching our most precious freedoms." NAACP v. Button, 371 U.S. at 438.
The key operative language of the provision limits "any expenditure . . . relative to a clearly identified candidate." Although "expenditure," "clearly identified," and "candidate" are defined in the Act, there is no definition clarifying what expenditures are "relative to" a candidate. The use of so indefinite a phrase as "relative to" a candidate fails to clearly mark the boundary between permissible and impermissible speech, unless other portions of § 608(e)(1) make sufficiently explicit the range of expenditures covered by the limitation. The section prohibits "any expenditure . . . relative to a clearly identified candidate during a calendar year which, when added to all other expenditures . . . advocation the election or defeat of such candidate, exceeds $1,000." (Emphasis added.) This context clearly permits, if indeed it does not require, the phrase "relative to" a candidate to be read to mean "advocating the election or defeat of" a candidate. 49 But while such a construction of § 608(e)(1) refocuses the vagueness question, the Court of Appeals was mistaken in thinking that this construction eliminates the problem of unconstitutional vagueness altogether. 171 U.S.App.D.C. at 204, 519 F.2d at 853. For the distinction between discussion of issues and candidates and advocacy of election or defeat of candidates may often dissolve in practical application. Candidates, especially incumbents, are intimately tied to public issues involving legislative proposals and governmental actions. Not only do candidates campaign on the basis of their positions on various public issues, but campaigns themselves generate issues of public interest. 50 In an analogous context, this Court in Thomas v. Collins, 323 U.S. 516 (1945), observed:
[W]hether words intended and designed to fall short of invitation would miss that mark is a question both of intent and of effect. No speaker, in such circumstances, safely could assume that anything he might say upon the general subject would not be understood by some as an invitation. In short, the supposedly clear-cut distinction between discussion, laudation, general advocacy, and solicitation puts the speaker in these circumstances wholly at the mercy of the varied understanding of his hearers and consequently of whatever inference may be drawn as to his intent and meaning.
Such a distinction offers no security for free discussion. In these conditions it blankets with uncertainty whatever may be said. It compels the speaker to hedge and trim.
Id. at 535. See also United States v. Auto. Workers, 352 U.S. 567, 595-596 (1957) (Douglas, J., dissenting); Gitlow v. New York, 268 U.S. 652, 673 (1925) (Holmes, J., dissenting).
The constitutional deficiencies described in Thomas v. Collins can be avoided only by reading § 608(e)(1) as limited to communications that include explicit words of advocacy of election or defeat of a candidate, much as the definition of "clearly identified" in § 608(e)(2) requires that an explicit and unambiguous reference to the candidate appear as part of the communication. 51 This is the reading of the provision suggested by the nongovernmental appellees in arguing that "[f]unds spent to propagate one's views on issues without expressly calling for a candidate's election or defeat are thus not covered." We agree that, in order to preserve the provision against invalidation on vagueness grounds, § 608(e)(1) must be construed to apply only to expenditures for communications that, in express terms advocate the election or defeat of a clearly identified candidate for federal office. 52
We turn then to the basic First Amendment question whether § 608(e)(1), even as thus narrowly and explicitly construed, impermissibly burdens the constitutional right of free expression. The Court of Appeals summarily held the provision constitutionally valid on the ground that "section 608(e) is a loophole-closing provision only" that is necessary to prevent circumvention of the contribution limitations. 171 U.S.App.D.C. at 204, 519 F.2d at 853. We cannot agree.
The discussion in Part I-A, supra, explains why the Act's expenditure limitations impose far greater restraints on the freedom of speech and association than do its contribution limitations. The markedly greater burden on basic freedoms caused by § 608(e)(1) thus cannot be sustained simply by invoking the interest in maximizing the effectiveness of the less intrusive contribution limitations. Rather, the constitutionality of § 608(e)(1) turns on whether the governmental interests advanced in its support satisfy the exacting scrutiny applicable to limitations on core First Amendment rights of political expression.
We find that the governmental interest in preventing corruption and the appearance of corruption is inadequate to justify § 608(e)(1)'s ceiling on independent expenditures. First, assuming, arguendo, that large independent expenditures pose the same dangers of actual or apparent quid pro quo arrangements as do large contributions, § 608(e)(1) does not provide an answer that sufficiently relates to the elimination of those dangers. Unlike the contribution limitations' total ban on the giving of large amounts of money to candidates, § 608(e)(1) prevents only some large expenditures. So long as persons and groups eschew expenditures that, in express terms advocate the election or defeat of a clearly identified candidate, they are free to spend as much as they want to promote the candidate and his views. The exacting interpretation of the statutory language necessary to avoid unconstitutional vagueness thus undermines the limitation's effectiveness as a loophole-closing provision by facilitating circumvention by those seeking to exert improper influence upon a candidate or officeholder. It would naively underestimate the ingenuity and resourcefulness of persons and groups desiring to buy influence to believe that they would have much difficulty devising expenditures that skirted the restriction on express advocacy of election or defeat, but nevertheless benefited the candidate's campaign. Yet no substantial societal interest would be served by a loophole-closing provision designed to check corruption that permitted unscrupulous persons and organizations to expend unlimited sums of money in order to obtain improper influence over candidates for elective office. Cf. Mills v. Alabama, 384 U.S. at 220.
Second, quite apart from the shortcomings of § 608(e)(1) in preventing any abuses generated by large independent expenditures, the independent advocacy restricted by the provision does not presently appear to pose dangers of real or apparent corruption comparable to those identified with large campaign contributions. The parties defending § 608(e)(1) contend that it is necessary to prevent would-be contributors from avoiding the contribution limitations by the simple expedient of paying directly for media advertisements or for other portions of the candidate's campaign activities. They argue that expenditures controlled by or coordinated with the candidate and his campaign might well have virtually the same value to the candidate as a contribution and would pose similar dangers of abuse. Yet such controlled or coordinated expenditures are treated as contributions, rather than expenditures under the Act. 53 Section 608(b)'s contribution ceilings, rather than § 608(e)(1)'s independent expenditure limitation, prevent attempts to circumvent the Act through prearranged or coordinated expenditures amounting to disguised contributions. By contrast, 608(e)(1) limits expenditures for express advocacy of candidates made totally independently of the candidate and his campaign. 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. Rather than preventing circumvention of the contribution limitations, § 608(e)(1) severely restricts all independent advocacy despite its substantially diminished potential for abuse.
While the independent expenditure ceiling thus fails to serve any substantial governmental interest in stemming the reality or appearance of corruption in the electoral process, it heavily burdens core First Amendment expression. For the First Amendment right to "'speak one's mind . . . on all public institutions'" includes the right to engage in "'vigorous advocacy' no less than 'abstract discussion.'" New York Times Co. v Sullivan, 376 U.S. at 269, quoting Bridges v. California, 314 U.S. 252, 270 (1941), and NAACP v. Button, 371 U.S. at 429. Advocacy of the election or defeat of candidates for federal office 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. 54 It is argued, however, that the ancillary governmental interest in equalizing the relative ability of individuals and groups to influence the outcome of elections serves to justify the limitation on express advocacy of the election or defeat of candidates imposed by § 608(e)(1)'s expenditure ceiling. But the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment, which was designed "to secure 'the widest possible dissemination of information from diverse and antagonistic sources,'" and "'to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.'" New York Times Co. v. Sullivan, supra at 266, 269, quoting Associated Press v. United States, 326 U.S. 1, 20 (1945), and Roth v. United States, 354 U.S. at 484. The First Amendment's protection against governmental abridgment of free expression cannot properly be made to depend on a person's financial ability to engage in public discussion. Cf. Eastern R. Conf. v. Noerr Motors, 365 U.S. 127, 13 (1961). 55
The Court's decisions in Mills v. Alabama, 384 U.S. 214 (1966), and Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), held that legislative restrictions on advocacy of the election or defeat of political candidates are wholly at odds with the guarantees of the First Amendment. In Mills, the Court addressed the question whether
a State, consistently with the United States Constitution, can make it a crime for the editor of a daily newspaper to write and publish an editorial on election day urging people to vote a certain way on issues submitted to them.
384 U.S. at 215 (emphasis in original). We held that "no test of reasonableness can save [such] a state law from invalidation as a violation of the First Amendment." Id. at 220. Yet the prohibition of election day editorials invalidated in Mills is clearly a lesser intrusion on constitutional freedom than a $1,000 limitation on the amount of money any person or association can spend during an entire election year in advocating the election or defeat of a candidate for public office. More recently, in Tornillo, the Court held that Florida could not constitutionally require a newspaper to make space available for a political candidate to reply to its criticism. Yet, under the Florida statute, every newspaper was free to criticize any candidate as much as it pleased so long as it undertook the modest burden of printing his reply. See 418 U.S. at 256-257. The legislative restraint involved in Tornillo thus also pales in comparison to the limitations imposed by § 608(e)(1). 56
For the reasons stated, we conclude that § 608(e)(1)'s independent expenditure limitation is unconstitutional under the First Amendment.
2. Limitation on Expenditures by Candidates from Personal or Family Resources
The Act also sets limits on expenditures by a candidate "from his personal funds, or the personal funds of his immediate family, in connection with his campaigns during any calendar year." § 608(a)(1). These ceilings vary from $50,000 for Presidential or Vice Presidential candidates to $35,000 for senatorial candidates, and $25,000 for most candidates for the House of Representatives. 57
The ceiling on personal expenditures by candidates on their own behalf, like the limitations on independent expenditures contained in § 608(e)(1), imposes a substantial restraint on the ability of persons to engage in protected First Amendment expression. 58 The candidate, no less than any other person, has a First Amendment right to engage in the discussion of public issues and vigorously and tirelessly to advocate his own election and the election of other candidates. Indeed, it is of particular importance that candidates have the unfettered opportunity to make their views known so that the electorate may intelligently evaluate the candidates' personal qualities and their positions on vital public issues before choosing among them on election day. Mr. Justice Brandeis' observation that, in our country "public discussion is a political duty," Whitney v. California, 274 U.S. 357, 375 (1927) (concurring opinion), applies with special force to candidates for public office. Section 608(a)'s ceiling on personal expenditures by a candidate in furtherance of his own candidacy thus clearly and directly interferes with constitutionally protected freedoms.
The primary governmental interest served by the Act the prevention of actual and apparent corruption of the political process does not support the limitation on the candidate's expenditure of his own personal funds. As the Court of Appeals concluded:
Manifestly, the core problem of avoiding undisclosed and undue influence on candidates from outside interests has lesser application when the monies involved come from the candidate himself or from his immediate family.
171 U.S.App.D.C. at 206, 519 F.2d at 855. Indeed, the use of personal funds reduces the candidate's dependence on outside contributions, and thereby counteracts the coercive pressures and attendant risks of abuse to which the Act's contribution limitations are directed. 59
The ancillary interest in equalizing the relative financial resources of candidates competing for elective office, therefore, provides the sole relevant rationale for § 608(a)'s expenditure ceiling. That interest is clearly not sufficient to justify the provision's infringement of fundamental First Amendment rights. First, the limitation may fail to promote financial equality among candidates. A candidate who spends less of his personal resources on his campaign may nonetheless outspend his rival as a result of more successful fundraising efforts. Indeed, a candidate's personal wealth may impede his efforts to persuade others that he needs their financial contributions or volunteer efforts to conduct an effective campaign. Second, and more fundamentally, the First Amendment simply cannot tolerate § 608(a)'s restriction upon the freedom of a candidate to speak without legislative limit on behalf of his own candidacy. We therefore hold that § 608(a)'s restriction on a candidate's personal expenditures is unconstitutional.
3. Limitations on Campaign Expenditures
Section 608(c) places limitations on over-all campaign expenditures by candidates seeking nomination for election and election to federal office. 60 Presidential candidates may spend $10,000,000 in seeking nomination for office, and an additional $20,000,000 in the general election campaign. §§ 608(c)(1)(A), (B). 61 The ceiling on senatorial campaigns is pegged to the size of the voting-age population of the State, with minimum dollar amounts applicable to campaigns in States with small populations. In senatorial primary elections, the limit is the greater of eight cents multiplied by the voting-age population or $100,000, and, in the general election, the limit is increased to 12 cents multiplied by the voting-age population, or $150,000. §§ 608(c)(1)(C), (D). The Act imposes blanket $70,000 limitations on both primary campaigns and general election campaigns for the House of Representatives, with the exception that the senatorial ceiling applies to campaigns in States entitled to only one Representative. §§ 608(c)(1)(C)(E). These ceilings are to be adjusted upwards at the beginning of each calendar year by the average percentage rise in the consumer price index for the 12 preceding months. § 608(d). 62
No governmental interest that has been suggested is sufficient to justify the restriction on the quantity of political expression imposed by § 608(c)'s campaign expenditure limitations. The major evil associated with rapidly increasing campaign expenditures is the danger of candidate dependence on large contributions. The interest in alleviating the corrupting influence of large contributions is served by the Act's contribution limitations and disclosure provisions, rather than by § 608(c)'s campaign expenditure ceilings. The Court of Appeals' assertion that the expenditure restrictions are necessary to reduce the incentive to circumvent direct contribution limits is not persuasive. See 171 U.S.App.D.C. at 210, 519 F.2d at 859. There is no indication that the substantial criminal penalties for violating the contribution ceilings, combined with the political repercussion of such violations, will be insufficient to police the contribution provisions. Extensive reporting, auditing, and disclosure requirements applicable to both contributions and expenditures by political campaigns are designed to facilitate the detection of illegal contributions. Moreover, as the Court of Appeals noted, the Act permits an officeholder or successful candidate to retain contributions in excess of the expenditure ceiling, and to use these funds for "any other lawful purpose." 2 U.S.C. § 439a (1970 ed., Supp. IV). This provision undercuts whatever marginal role the expenditure limitations might otherwise play in enforcing the contribution ceilings.
The interest in equalizing the financial resources of candidates competing for federal office is no more convincing a justification for restricting the scope of federal election campaigns. Given the limitation on the size of outside contributions, the financial resources available to a candidate's campaign, like the number of volunteers recruited, will normally vary with the size and intensity of the candidate's support. 63 There is nothing invidious, improper, or unhealthy in permitting such funds to be spent to carry the candidate's message to the electorate. 64 Moreover, the equalization of permissible campaign expenditures might serve not to equalize the opportunities of all candidates, but to handicap a candidate who lacked substantial name recognition or exposure of his views before the start of the campaign.
The campaign expenditure ceilings appear to be designed primarily to serve the governmental interests in reducing the allegedly skyrocketing costs of political campaigns. Appellees and the Court of Appeals stressed statistics indicating that spending for federal election campaigns increased almost 300% between 1952 and 1972 in comparison with a 57.6% rise in the consumer price index during the same period. Appellants respond that, during these years, the rise in campaign spending lagged behind the percentage increase in total expenditures for commercial advertising and the size of the gross national product. In any event, the mere growth in the cost of federal election campaigns, in and of itself, provides no basis for governmental restrictions on the quantity of campaign spending and the resulting limitation on the scope of federal campaigns. The First Amendment denies government the power to determine that spending to promote one's political views is wasteful, excessive, or unwise. In the free society ordained by our Constitution, it is not the government, but the people individually, as citizens and candidates, and collectively, as associations and political committees who must retain control over the quantity and range of debate on public issues in a political campaign. 65
For these reasons, we hold that § 608(c) is constitutionally invalid. 66
In sum, the provisions of the Act that impose a $1,000 limitation on contributions to a single candidate, § 608(b)(1), a $5,000 limitation on contributions by a political committee to a single candidate, § 608(b)(2), and a $25,000 limitation on total contributions by an individual during any calendar year, § 608(b)(3), are constitutionally valid. These limitations, along with the disclosure provisions, constitute the Act's primary weapons against the reality or appearance of improper influence stemming from the dependence of candidates on large campaign contributions. The contribution ceilings thus serve the basic governmental interest in safeguarding the integrity of the electoral process without directly impinging upon the rights of individual citizens and candidates to engage in political debate and discussion. By contrast, the First Amendment requires the invalidation of the Act's independent expenditure ceiling, § 608(e)(1), its limitation on a candidate's expenditures from his own personal funds, § 608(a), and its ceilings on over-all campaign expenditures, § 608(e). These provisions place substantial and direct restrictions on the ability of candidates, citizens, and associations to engage in protected political expression, restrictions that the First Amendment cannot tolerate. 67
II. REPORTING AND DISCLOSURE REQUIREMENTS
Unlike the limitations on contributions and expenditures imposed by 18 U.S.C. § 608 (1970 ed., Supp. IV), the disclosure requirements of the Act, 2 U.S.C. § 431 et seq. (1970 ed., Supp. IV), 68 are not challenged by appellants as per se unconstitutional restrictions on the exercise of First Amendment freedoms of speech and association. 69 Indeed, appellants argue that "narrowly drawn disclosure requirements are the proper solution to virtually all of the evils Congress sought to remedy." Brief for Appellants 171. The particular requirements embodied in the Act are attacked as overbroad both in their application to minor party and independent candidates and in their extension to contributions as small as $11 or $101. Appellants also challenge the provision for disclosure by those who make independent contributions and expenditures, § 434(e). The Court of Appeals found no constitutional infirmities in the provisions challenged here. 70 We affirm the determination on overbreadth and hold that § 434(e), if narrowly construed, also is within constitutional bounds.
The first federal disclosure law was enacted in 1910. Act of June 25, 1910, c. 392, 36 Stat. 822. It required political committees, defined as national committees and national congressional campaign committees of parties, and organizations operating to influence congressional elections in two or more States, to disclose names of all contributors of $100 or more; identification of recipients of expenditures of $10 or more was also required. §§ 1, 5-6, 36 Stat. 822-824. Annual expenditures of $50 or more "for the purpose of influencing or controlling, in two or more States, the result of" a congressional election had to be reported independently if they were not made through a political committee. § 7, 36 Stat. 824. In 1911, the Act was revised to include pre-nomination transactions such as those involved in conventions and primary campaigns. Act of Aug.19, 1911, § 2, 37 Stat. 26. See United States v. Auto. Workers, 352 U.S. at 575-576.
Disclosure requirements were broadened in the Federal Corrupt Practices Act of 1925 (Title III of the Act of Feb. 28, 1925), 43 Stat. 1070. That Act required political committees, defined as organizations that accept contributions or make expenditures "for the purpose of influencing or attempting to influence" the Presidential or Vice Presidential elections (a) in two or more States or (b) as a subsidiary of a national committee, § 302(c), 43 Stat. 1070, to report total contributions and expenditures, including the names and addresses of contributors of $100 or more and recipients of $10 or more in a calendar year. § 305(a), 43 Stat. 1071. The Act was upheld against a challenge that it infringed upon the prerogatives of the States in Burroughs v. United States, 290 U.S. 534 (1934). The Court held that it was within the power of Congress "to pass appropriate legislation to safeguard [a Presidential] election from the improper use of money to influence the result." Id. at 545. Although the disclosure requirements were widely circumvented, 71 no further attempts were made to tighten them until 1960, when the Senate passed a bill that would have closed some existing loopholes. S. 2436, 106 Cong.Rec. 1193. The attempt aborted because no similar effort was made in the House.
The Act presently under review replaced all prior disclosure laws. Its primary disclosure provisions impose reporting obligations on "political committees" and candidates. "Political committee" is defined in § 431(d) as a group of persons that receives "contributions" or makes "expenditures" of over $1,000 in a calendar year. "Contributions" and "expenditures" are defined in lengthy parallel provisions similar to those in Title 18, discussed above. 72 Both definitions focus on the use of money or other objects of value "for the purpose of . . . influencing" the nomination or election of any person to federal office. §§ 431(e)(1), (f)(1) Each political committee is required to register with the Commission, § 433, and to keep detailed records of both contributions and expenditures, §§ 432(c), (d). These records must include the name and address of everyone making a contribution in excess of $10, along with the date and amount of the contribution. If a person's contributions aggregate more than $100, his occupation and principal place of business are also to be included. § 432(c)(2). These files are subject to periodic audits and field investigations by the Commission. § 438(a)(8).
Each committee and each candidate also is required to file quarterly reports. § 434(a). The reports are to contain detailed financial information, including the full name, mailing address, occupation, and principal place of business of each person who has contributed over $100 in a calendar year, as well as the amount and date of the contributions. § 434(b). They are to be made available by the Commission "for public inspection and copying." § 438(a)(4). Every candidate for federal office is required to designate a "principal campaign committee," which is to receive reports of contributions and expenditures made on the candidate's behalf from other political committees and to compile and file these reports, together with its own statements, with the Commission. § 432(f).
Every individual or group, other than a political committee or candidate, who makes "contributions" or "expenditures" of over $100 in a calendar year "other than by contribution to a political committee or candidate" is required to file a statement with the Commission. § 434(e). Any violation of these recordkeeping and reporting provisions is punishable by a fine of not more than $1,000 or a prison term of not more than a year, or both. § 441(a).
A. General Principles
Unlike the over-all limitations on contributions and expenditures, the disclosure requirements impose no ceiling on campaign-related activities. But we have repeatedly found that compelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment. E.g., 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).
We long have recognized that significant encroachments on First Amendment rights of the sort that compelled disclosure imposes cannot be justified by a mere showing of some legitimate governmental interest. Since NAACP v. Alabama, we have required that the subordinating interests of the State must survive exacting scrutiny. 73 We also have insisted that there be a "relevant correlation" 74 or "substantial relation" 75 between the governmental interest and the information required to be disclosed. See Pollard v. Roberts, 283 F.Supp. 248, 257 (ED Ark.) (three-judge court), aff'd, 393 U.S. 14 (1968) (per curiam). This type of scrutiny is necessary even if any deterrent effect on the exercise of First Amendment rights arises not through direct government action, but indirectly, as an unintended but inevitable result of the government's conduct in requiring disclosure. NAACP v. Alabama, supra at 461. Cf. Kusper v. Pontikes, 414 U.S. at 57-58.
Appellees argue that the disclosure requirements of the Act differ significantly from those at issue in NAACP v. Alabama and its progeny, because the Act only requires disclosure of the names of contributors, and does not compel political organizations to submit the names of their members. 76
As we have seen, group association is protected because it enhances "[e]ffective advocacy." NAACP v. Alabama, supra at 460. The right to Join together "for the advancement of beliefs and ideas," ibid., is diluted if it does not include the right to pool money through contributions, for funds are often essential if "advocacy" is to be truly or optimally "effective." Moreover, the invasion of privacy of belief may be as great when the information sought concerns the giving and spending of money as when it concerns the joining of organizations, for "[f]inancial transactions can reveal much about a person's activities, associations, and beliefs." California Bankers Assn. v. Shultz, 416 U.S. 21, 78-79 (1974) (POWELL, J., concurring). Our past decisions have not drawn fine lines between contributors and members, but have treated them interchangeably. In Bates, for example, we applied the principles of NAACP v. Alabama and reversed convictions for failure to comply with a city ordinance that required the disclosure of "dues, assessments, and contributions paid, by whom and when paid." 361 U.S. at 518. See also United States v. Rumely, 34 U.S. 41 (1953) (setting aside a contempt conviction of an organization official who refused to disclose names of those who made bulk purchases of books sold by the organization).
The strict test established by NAACP v. Alabama is necessary because compelled disclosure has the potential for substantially infringing the exercise of First Amendment rights. But we have acknowledged that there are governmental interests sufficiently important to outweigh the possibility of infringement, particularly when the "free functioning of our national institutions" is involved. Communist Party v. Subversive Activities Control Bd., 367 U.S. 1, 97 (1961).
The governmental interests sought to be vindicated by the disclosure requirements are of this magnitude. They fall into three categories. First, disclosure provides the electorate with information "as to where political campaign money comes from and how it is spent by the candidate" 77 in order to aid the voters in evaluating those who seek federal office. It allows voters to place each candidate in the political spectrum more precisely than is often possible solely on the basis of party labels and campaign speeches. The sources of a candidate's financial support also alert the voter to the interests to which a candidate is most likely to be responsive, and thus facilitate predictions of future performance in office.
Second, disclosure requirements deter actual corruption and avoid the appearance of corruption by exposing large contributions and expenditures to the light of publicity. 78 This exposure may discourage those who would use money for improper purposes either before or after the election. A public armed with information about a candidate's most generous supporters is better able to detect any post-election special favors that may be given in return. 79 And, as we recognized in Burroughs v. United States, 290 U.S. at 548, Congress could reasonably conclude that full disclosure during an election campaign tends "to prevent the corrupt use of money to affect elections." In enacting these requirements, it may have been mindful of Mr. Justice Brandeis' advice:
Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman. 80
Third, and not least significant, recordkeeping, reporting, and disclosure requirements are an essential means of gathering the data necessary to detect violations of the contribution limitations described above.
The disclosure requirements, as a general matter, directly serve substantial governmental interests. In determining whether these interests are sufficient to justify the requirements, we must look to the extent of the burden that they place on individual rights.
It is undoubtedly true that public disclosure of contributions to candidates and political parties will deter some individuals who otherwise might contribute. In some instances, disclosure may even expose contributors to harassment or retaliation. These are not insignificant burdens on individual rights, and they must be weighed carefully against the interests which Congress has sought to promote by this legislation. In this process, we note and agree with appellants' concession 81 that disclosure requirements certainly in most applications appear to be the least restrictive means of curbing the evils of campaign ignorance and corruption that Congress found to exist. 82 Appellants argue, however, that the balance tips against disclosure when it is required of contributors to certain parties and candidates. We turn now to this contention.
B. Application to Minor Parties and Independents
Appellants contend that the Act's requirements are overbroad insofar as they apply to contributions to minor parties and independent candidates because the governmental interest in this information is minimal, and the danger of significant infringement on First Amendment rights is greatly increased.
1. Requisite Factual Showing
In NAACP v. Alabama, the organization had
made an uncontroverted showing that, on past occasions, revelation of the identity of its rank-and-file members [had] exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility,
357 U.S. at 462, and the State was unable to show that the disclosure it sought had a "substantial bearing" on the issues it sought to clarify, id. at 464. Under those circumstances, the Court held that "whatever interest the State may have in [disclosure] has not been shown to be sufficient to overcome petitioner's constitutional objections." Id. at 465.
The Court of Appeals rejected appellants' suggestion that this case fits into the NAACP v. Alabama mold. It concluded that substantial governmental interests in "informing the electorate and preventing the corruption of the political process" were furthered by requiring disclosure of minor parties and independent candidates, 171 U.S.App.D.C. at 218, 519 F.2d at 867, and therefore found no
tenable rationale for assuming that the public interest in minority party disclosure of contributions above a reasonable cutoff point is uniformly outweighed by potential contributors' associational rights,
id. at 219, 519 F.2d at 868. The court left open the question of the application of the disclosure requirements to candidates (and parties) who could demonstrate injury of the sort at stake in NAACP v. Alabama. No record of harassment on a similar scale was found in this case. 83 We agree with the Court of Appeals' conclusion that NAACP v. Alabama is inapposite where, as here, any serious infringement on First Amendment rights brought about by the compelled disclosure of contributors is highly speculative.
It is true that the governmental interest in disclosure is diminished when the contribution in question is made to a minor party with little chance of winning an election. As minor parties usually represent definite and publicized viewpoints, there may be less need to inform the voters of the interests that specific candidates represent. Major parties encompass candidates of greater diversity. In many situations, the label "Republican" or "Democrat" tells a voter little. The candidate who bears it may be supported by funds from the far right, the far left, or any place in between on the political spectrum. It is less likely that a candidate of, say, the Socialist Labor Party will represent interests that cannot be discerned from the party's ideological position.
The Government's interest in deterring the "buying" of elections and the undue influence of large contributors on officeholders also may be reduced where contributions to a minor party or an independent candidate are concerned, for it is less likely that the candidate will be victorious. But a minor party sometimes can play a significant role in an election. Even when a minor party candidate has little or no chance of winning, he may be encouraged by major party interests in order to divert votes from other major party contenders. 84
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 85 and without 86 the political arena.
There could well be a case, similar to those before the Court in NAACP v. Alabama and Bates, where the threat to the exercise of First Amendment rights is so serious, and the state interest furthered by disclosure so insubstantial, that the Act's requirements cannot be constitutionally applied. 87 But no appellant in this case has tendered record evidence of the sort proffered in NAACP v. Alabama. Instead, appellants primarily rely on "the clearly articulated fears of individuals, well experienced in the political process." Brief for Appellants 173. At best they offer the testimony of several minor party officials that one or two persons refused to make contributions because of the possibility of disclosure. 88 On this record, the substantial public interest in disclosure identified by the legislative history of this Act outweighs the harm generally alleged.
2. Blanket Exemption
Appellants agree that "the record here does not reflect the kind of focused and insistent harassment of contributors and members that existed in the NAACP cases." ibid. They argue, however, that a blanket exemption for minor parties is necessary lest irreparable injury be done before the required evidence can be gathered.
Those parties that would be sufficiently "minor" to be exempted from the requirements of § 434 could be defined, appellants suggest, along the lines used for public financing purposes, see Part III-A, infra, as those who received less than 25% of the vote in past elections. Appellants do not argue that this line is constitutionally required. They suggest as an alternative defining "minor parties" as those that do not qualify for automatic ballot access under state law. Presumably, other criteria, such as current political strength (measured by polls or petition), age, or degree of organization, could also be used. 89
The difficulty with these suggestions is that they reflect only a party's past or present political strength, and that is only one of the factors that must be considered. Some of the criteria are not precisely indicative of even that factor. Age, 90 or past political success, for instance, may typically be associated with parties that have a high probability of success. But not all long-established parties are winners some are consistent losers and a new party may garner a great deal of support if it can associate itself with an issue that has captured the public's imagination. None of the criteria suggested is precisely related to the other critical factor that must be considered, the possibility that disclosure will impinge upon protected associational activity.
An opinion dissenting in part from the Court of Appeals' decision concedes that no one line is "constitutionally required." 91 It argues, however, that a flat exemption for minor parties must be carved out, even along arbitrary lines, if groups that would suffer impermissibly from disclosure are to be given any real protection. An approach that requires minor parties to submit evidence that the disclosure requirements cannot constitutionally be applied to them offers only an illusory safeguard, the argument goes, because the "evils" of "chill and harassment . . . are largely incapable of formal proof." 92 This dissent expressed its concern that a minor party, particularly a new party, may never be able to prove a substantial threat of harassment, however real that threat may be, because it would be required to come forward with witnesses who are too fearful to contribute but not too fearful to testify about their fear. A strict requirement that chill and harassment be directly attributable to the specific disclosure from which the exemption is sought would make the task even more difficult.
We recognize that unduly strict requirements of proof could impose a heavy burden, but it does not follow that a blanket exemption for minor parties is necessary. Minor parties must be allowed sufficient flexibility in the proof of injury to assure a fair consideration of their claim. 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. 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 able to offer evidence of reprisals and threats directed against individuals or organizations holding similar views.
Where it exists, the type of chill and harassment identified in NAACP v. Alabama can be shown. We cannot assume that courts will be insensitive to similar showings when made in future cases. We therefore conclude that a blanket exemption is not required.
C. Section 434(e)
Section 434(e) requires "[e]very person (other than a political committee or candidate) who makes contributions or expenditures" aggregating over $100 in a calendar year "other than by contribution to a political committee or candidate" to file a statement with the Commission. 93 Unlike the other disclosure provisions, this section does not seek the contribution list of any association. Instead, it requires direct disclosure of what an individual or group contributes or spends.
In considering this provision, we must apply the same strict standard of scrutiny, for the right of associational privacy developed in NAACP v. Alabama derives from the rights of the organization's members to advocate their personal points of view in the most effective way. 357 U.S. at 458, 460. See also NAACP v. Button, 371 U.S. at 429, 431; Sweezy v. New Hampshire, 354 U.S. at 250.
Appellants attack § 434(e) as a direct intrusion on privacy of belief, in violation of Talley v. California, 362 U.S. 60 (1960), and as imposing "very real, practical burdens . . . certain to deter individuals from making expenditures for their independent political speech" analogous to those held to be impermissible in Thomas v. Collins, 323 U.S. 516 (1945).
1. The Role of § 434(e)
The Court of Appeals upheld § 434(e) as necessary to enforce the independent expenditure ceiling imposed by 18 U.S.C. § 608(e)(1) (1970 ed., Supp. IV). It
If . . . Congress has both the authority and a compelling interest to regulate independent expenditures under section 608(e), surely it can require that there be disclosure to prevent misuse of the spending channel.
171 U.S.App.D.C. at 220 519 F.2d at 869. We have found that § 608(e)(1) unconstitutionally infringes upon First Amendment rights. 94 If the sole function of § 434(e) were to aid in the enforcement of that provision, it would no longer serve any governmental purpose.
But the two provisions are not so intimately tied. The legislative history on the function of § 434(e) is bare, but it was clearly intended to stand independently of § 608(e)(1). It was enacted with the general disclosure provisions in 1971 as part of the original Act, 95 while § 608(e)(1) was part of the 1974 amendments. 96 Like the other disclosure provisions, § 434(e) could play a role in the enforcement of the expanded contribution and expenditure limitations included in the 1974 amendments, but it also has independent functions. Section 434(e) is part of Congress' effort to achieve "total disclosure" by reaching "every kind of political activity" 97 in order to insure that the voters are fully informed and to achieve through publicity the maximum deterrence to corruption and undue influence possible. The provision is responsive to the legitimate fear that efforts would be made, as they had been in the past, 98 to avoid the disclosure requirements by routing financial support of candidates through avenues not explicitly covered by the general provisions of the Act.
2. Vagueness Problems
In its effort to be all-inclusive, however, the provision raises serious problems of vagueness, particularly treacherous where, as here, the violation of its terms carries criminal penalties 99 and fear of incurring these sanctions may deter those who seek to exercise protected First Amendment rights.
Section 434(e) applies to "[e]very person. . . who makes contributions or expenditures." "Contributions" and "expenditures" are defined in parallel provisions in terms of the use of money or other valuable assets "for the purpose of . . . influencing" the nomination or election of candidates for federal office. 100 It is the ambiguity of this phrase that poses constitutional problems.
Due process requires that a criminal statute provide adequate notice to a person of ordinary intelligence that his contemplated conduct is illegal, for "no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed." United States v. Harriss, 347 U.S. 612, 617 (1954). See also Papachristou v. City of Jacksonville, 405 U.S. 156 (1972). Where First Amendment rights are involved, an even "greater degree of specificity" is required. Smith v. Goguen, 415 U.S. at 573. See Grayned v. City of Rockford, 408 U.S. 104, 109 (1972); Kunz v. New York, 340 U.S. 290 (1951).
There is no legislative history to guide us in determining the scope of the critical phrase "for the purpose of . . . influencing." It appears to have been adopted without comment from earlier disclosure Acts. 101 Congress "has voiced its wishes in [most] muted strains," leaving us to draw upon "those common sense assumptions that must be made in determining direction without a compass." Rosado v. Wyman, 397 U.S. 397, 412 (1970). Where the constitutional requirement of definiteness is at stake, we have the further obligation to construe the statute, if that can be done consistent with the legislature's purpose, to avoid the shoals of vagueness. United States v. Harris, supra at 618; United States v. Rumely, 345 U.S. at 45.
In enacting the legislation under review, Congress addressed broadly the problem of political campaign financing. It wished to promote full disclosure of campaign-oriented spending to insure both the reality and the appearance of the purity and openness of the federal election process. 102 Our task is to construe "for the purpose of . . . influencing," incorporated in § 434(e) through the definitions of "contributions" and "expenditures," in a manner that precisely furthers this goal.
In Part I, we discussed what constituted a "contribution" for purposes of the contribution limitations set forth in 18 U.S.C. § 608(b) (1970 ed., Supp. IV). 103 We construed that term to include not only contributions made directly or indirectly to a candidate, political party, or campaign committee, and contributions made to other organizations or individuals but earmarked for political purposes, but also all expenditures placed in cooperation with or with the consent of a candidate, his agents, or an authorized committee of the candidate. The definition of "contribution" in § 431(e), for disclosure purposes, parallels the definition in Title 18 almost word for word, and we construe the former provision as we have the latter. So defined, "contributions" have a sufficiently close relationship to the goals of the Act, for they are connected with a candidate or his campaign.
When we attempt to define "expenditure" in a similarly narrow way, we encounter line-drawing problems of the sort we faced in 18 U.S.C. § 608(e)(1) (1970 ed., Supp. IV). Although the phrase, "for the purpose of . . . influencing" an election or nomination, differs from the language used in § 608(e)(1), it shares the same potential for encompassing both issue discussion and advocacy of a political result. 104 The general requirement that "political committees" and candidates disclose their expenditures could raise similar vagueness problems, for "political committee" is defined only in terms of amount of annual "contributions" and "expenditures," 105 and could be interpreted to reach groups engaged purely in issue discussion. The lower courts have construed the words "political committee" more narrowly. 106 To fulfill the purposes of the Act, they need only encompass organizations that are under the control of a candidate or the major purpose of which is the nomination or election of a candidate. Expenditures of candidates and of "political committees," so construed, can be assumed to fall within the core area sought to be addressed by Congress. They are, by definition, campaign-related.
But when the maker of the expenditure is not within these categories when it is an individual other than a candidate or a group other than a "political committee" 107 the relation of the information sought to the purposes of the Act may be too remote. To insure that the reach of § 434(e) is not impermissibly broad, we construe "expenditure" for purposes of that section in the same way we construed the terms of § 608(e) to reach only funds used for communications that expressly advocate 108 the election or defeat of a clearly identified candidate. This reading is directed precisely to that spending that is unambiguously related to the campaign of a particular federal candidate.
In summary, § 434(e), as construed, imposes independent reporting requirements on individuals and groups that are not candidates or political committees only in the following circumstances: (1) when they make contributions earmarked for political purposes or authorized or requested by a candidate or his agent, to some person other than a candidate or political committee, and (2) when they make expenditures for communications that expressly advocate the election or defeat of a clearly identified candidate.
Unlike 18 U.S.C. § 608(e)(1) (1970 ed., Supp. IV), § 434(e), as construed, bears a sufficient relationship to a substantial governmental interest. As narrowed, § 434(e), like § 608(e)(1), does not reach all partisan discussion, for it only requires disclosure of those expenditures that expressly advocate a particular election result. This might have been fatal if the only purpose of § 434(e) were to stem corruption or its appearance by closing a loophole in the general disclosure requirements. But the disclosure provisions, including § 434(e), serve another, informational interest, and, even as construed, § 434(e) increases the fund of information concerning those who support the candidates. It goes beyond the general disclosure requirements to shed the light of publicity on spending that is unambiguously campaign-related, but would not otherwise be reported because it takes the form of independent expenditures or of contributions to an individual or group not itself required to report the names of its contributors. By the same token, it is not fatal that § 434(e) encompasses purely independent expenditures uncoordinated with a particular candidate or his agent. The corruption potential of these expenditures may be significantly different, but the informational interest can be as strong as it is in coordinated spending, for disclosure helps voters to define more of the candidates' constituencies.
Section 434(e), as we have construed it, does not contain the infirmities of the provisions before the Court in Talley v. California, 362 U.S. 60 (1960), and Thomas v. Collins, 323 U.S. 516 (1945). The ordinance found wanting in Talley forbade all distribution of handbills that did not contain the name of the printer, author, or manufacturer, and the name of the distributor. The city urged that the ordinance was aimed at identifying those responsible for fraud, false advertising, and libel, but the Court found that it was "in no manner so limited." 362 U.S. at 64. Here, as we have seen, the disclosure requirement is narrowly limited to those situations where the information sought has a substantial connection with the governmental interests sought to be advanced. Thomas held unconstitutional a prior restraint in the form of a registration requirement for labor organizers. The Court found the State's interest insufficient to justify the restrictive effect of the statute. The burden imposed by § 434(e) is no prior restraint, but a reasonable and minimally restrictive method of furthering First Amendment values by opening the basic processes of our federal election system to public view. 109
Appellants' third contention, based on alleged overbreadth, is that the monetary thresholds in the recordkeeping and reporting provisions lack a substantial nexus with the claimed governmental interests, for the amounts involved are too low even to attract the attention of the candidate, much less have a corrupting influence.
The provisions contain two thresholds. Records are to be kept by political committees of the names and addresses of those who make contributions in excess of $10, § 432(c)(2), and these records are subject to Commission audit, § 438(a)(8). If a person's contributions to a committee or candidate aggregate more than $100, his name and address, as well as his occupation and principal place of business, are to be included in reports filed by committees and candidates with the Commission, § 434(b)(2), and made available for public inspection, § 438(a)(4).
The Court of Appeals rejected appellants' contention that these thresholds are unconstitutional. It found the challenge on First Amendment grounds to the $10 threshold to be premature, for it could "discern no basis in the statute for authorizing disclosure outside the Commission . . . ; and hence no substantial 'inhibitory effect' operating upon" appellants. 171 U.S.App.D.C. at 216, 519 F.2d at 865. The $100 threshold was found to be within the "reasonable latitude" given the legislature "as to where to draw the line." ibid. We agree.
The $10 and $100 thresholds are indeed low. Contributors of relatively small amounts are likely to be especially sensitive to recording or disclosure of their political preferences. These strict requirements may well discourage participation by some citizens in the political process, a result that Congress hardly could have intended. Indeed, there is little in the legislative history to indicate that Congress focused carefully on the appropriate level at which to require recording and disclosure. Rather, it seems merely to have adopted the thresholds existing in similar disclosure laws since 1910. 110 But we cannot require Congress to establish that it has chosen the highest reasonable threshold. The line is necessarily a judgmental decision, best left in the context of this complex legislation to congressional discretion. We cannot say, on this bare record, that the limits designated are wholly without rationality. 111
We are mindful that disclosure serves informational functions, as well as the prevention of corruption and the enforcement of the contribution limitations. Congress is not required to set a threshold that is tailored only to the latter goals. In addition, the enforcement goal can never be well served if the threshold is so high that disclosure becomes equivalent to admitting violation of the contribution limitations.
The $10 recordkeeping threshold, in a somewhat similar fashion, facilitates the enforcement of the disclosure provisions by making it relatively difficult to aggregate secret contributions in amounts that surpass the $100 limit. We agree with the Court of Appeals that there is no warrant for assuming that public disclosure of contributions between $10 and $100 is authorized by the Act. Accordingly, we do not reach the question whether information concerning gifts of this size can be made available to the public without trespassing impermissibly on First Amendment rights. Cf. California Bankers Assn. v. Shultz, 416 U.S. at 56-57. 112
In summary, we find no constitutional infirmities in the recordkeeping, reporting, and disclosure provisions of the Act. 113
III. PUBLIC FINANCING OF PRESIDENTIAL ELECTION CAMPAIGNS
A series of statutes 114 for the public financing of Presidential election campaigns produced the scheme now found in § 6096 and Subtitle H of the Internal Revenue Code of 1954, 26 U.S.C. §§ 6096 9001-9012, 9031-9042 (1970 ed., Supp. IV). 115 Both the District Court, 401 F.Supp. 1235, and the Court of Appeals, 171 U.S.App.D.C. at 229-238, 519 F.2d at 878-887, sustained Subtitle H against a constitutional attack. 116 Appellants renew their challenge here, contending that the legislation violates the First and Fifth Amendments. We find no merit in their claims and affirm.
A. Summary of Subtitle H
Section 9006 establishes a Presidential Election Campaign Fund (Fund), financed from general revenues in the aggregate amount designated by individual taxpayers, under § 6096, who on their income tax returns may authorize payment to the Fund of one dollar of their tax liability in the case of an individual return or two dollars in the case of a joint return. The Fund consists of three separate accounts to finance (1) party nominating conventions, § 9008(a), (2) general election campaigns, § 9006(a), and (3) primary campaigns, § 9037(a). 117
Chapter 95 of Title 26 which concerns financing of party nominating conventions and general election campaigns, distinguishes among "major," "minor," and "new" parties. A major party is defined as a party whose candidate for President in the most recent election received 25% or more of the popular vote. § 9002(6). A minor party is defined as a party whose candidate received at least 5% but less than 25% of the vote at the most recent election. § 9002(7). All other parties are new parties, § 9002(8), including both newly created parties and those receiving less than 5% of the vote in the last election. 118
Major parties are entitled to $2,000,000 to defray their national committee Presidential nominating convention expenses, must limit total expenditures to that amount, § 9008(d), 119 and may not use any of this money to benefit a particular candidate or delegate, § 9008(c). A minor party receives a portion of the major party entitlement determined by the ratio of the votes received by the party's candidate in the last election to the average of the votes received by the major parties' candidates. § 9008(b)(2). The amounts given to the parties and the expenditure limit are adjusted for inflation, using 1974 as the base year. § 9008(b)(5). No financing is provided for new parties, nor is there any express provision for financing independent candidates or parties not holding a convention.
For expenses in the general election campaign, § 9004(a)(1) entitles each major party candidate to $20,000,000. 120 This amount is also adjusted for inflation. See § 9004(a)(1). To be eligible for funds the candidate 121 must pledge not to incur expenses in excess of the entitlement under § 9004(a)(1) and not to accept private contributions except to the extent that the fund is insufficient to provide the full entitlement. § 9003(b). Minor party candidates are also entitled to funding, again based on the ratio of the vote received by the party's candidate in the preceding election to the average of the major party candidates. § 9004(a)(2)(A). Minor party candidates must certify that they will not incur campaign expenses in excess of the major party entitlement and that they will accept private contributions only to the extent needed to make up the difference between that amount and the public funding grant. § 9003(c). New party candidates receive no money prior to the general election, but any candidate receiving 5% or more of the popular vote in the election is entitled to post-election payments according to the formula applicable to minor party candidates. § 9004(a)(3). Similarly, minor party candidates are entitled to post-election funds if they receive a greater percentage of the average major party vote than their party's candidate did in the preceding election; the amount of such payments is the difference between the entitlement based on the preceding election and that based on the actual vote in the current election. § 9004(a)(3). A further eligibility requirement for minor and new party candidates is that the candidate's name must appear on the ballot, or electors pledged to the candidate must be on the ballot, in at least 10 States. § 9002(2)(b).
Chapter 96 establishes a third account in the Fund, the Presidential Primary Matching Payment Account. § 9037(a). This funding is intended to aid campaigns by candidates seeking Presidential nomination "by a political party," § 9033(b)(2), in "primary elections," § 9032(7). 122 The threshold eligibility requirement is that the candidate raise at least $5,000 in each of 20 States, counting only the first $250 from each person contributing to the candidate. §§ 9033(b)(3), (4). In addition, the candidate must agree to abide by the spending limits in § 9035. See § 9033(b)(1). 123 Funding is provided according to a matching formula: each qualified candidate is entitled to a sum equal to the total private contributions received, disregarding contributions from any person to the extent that total contributions to the candidate by that person exceed $250. § 9034(a). Payments to any candidate under Chapter 96 may not exceed 50% of the over-all expenditure ceiling accepted by the candidate. § 9034(b).
B. Constitutionality of Subtitle H
Appellants argue that Subtitle H is invalid (1) as "contrary to the 'general welfare,'" Art. I, § 8, (2) because any scheme of public financing of election campaigns is inconsistent with the First Amendment, and (3) because Subtitle H invidiously discriminates against certain interests in violation of the Due Process Clause of the Fifth Amendment. We find no merit in these contentions.
Appellants' "general welfare" contention erroneously treats the General Welfare Clause as a limitation upon congressional power. It is rather a grant of power, the scope of which is quite expansive, particularly in view of the enlargement of power by the Necessary and Proper Clause. M'Culloch v. Maryland, 4 Wheat. 316, 420 (1819). Congress has power to regulate Presidential elections and primaries, United States v. Classic, 313 U.S. 299 (1941); Burroughs v. United States, 290 U.S. 534 (1934); and public financing of Presidential elections as a means to reform the electoral process was clearly a choice within the granted power. It is for Congress to decide which expenditures will promote the general welfare:
[T]he power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.
United States v. Butler, 297 U.S. 1, 66 (1936). See Helvering v. Davis, 301 U.S. 619, 640-641 (1937). Any limitations upon the exercise of that granted power must be found elsewhere in the Constitution. In this case, Congress was legislating for the "general welfare" 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. See S.Rep. No. 9689, pp. 1-10 (1974). Whether the chosen means appear "bad," "unwise," or "unworkable" to us is irrelevant; Congress has concluded that the means are "necessary and proper" to promote the general welfare, and we thus decline to find this legislation without the grant of power in Art. I, § 8.
Appellants' challenge to the dollar check-off provision (§ 6096) fails for the same reason. They maintain that Congress is required to permit taxpayers to designate particular candidates or parties as recipients of their money. But the appropriation to the Fund in § 9006 is like any other appropriation from the general revenue except that its amount is determined by reference to the aggregate of the one- and two-dollar authorization on taxpayers' income tax returns. This detail does not constitute the appropriation any less an appropriation by Congress. 124 The fallacy of appellants' argument is therefore apparent; every appropriation made by Congress uses public money in a manner to which some taxpayers object. 125 Appellants next argue that, "by analogy" to the Religion Clauses of the First Amendment, public financing of election campaigns, however meritorious, violates the First Amendment. We have, of course, held that the Religion Clauses "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" require Congress, and the States through the Fourteenth Amendment, to remain neutral in matters of religion. E.g., Abington School Dist. v. Schempp, 374 U.S. 203, 222-226 (1963). The government may not aid one religion to the detriment of others or impose a burden on one religion that is not imposed on others, and may not even aid all religions. E.g., Everson v. Board of Education, 330 U.S. 1, 15-16 (1947). See Kurland, Of Church and State and the Supreme Court, 29 U.Chi.L.Rev. 1, 96 (1961). But the analogy is patently inapplicable to our issue here. Although "Congress shall make no law . . . abridging the freedom of speech, or of the press," Subtitle H is a congressional effort not to abridge, restrict, or censor speech, but rather to use public money to facilitate and enlarge public discussion and participation in the electoral process, goals vital to a self-governing people. 126 Thus, Subtitle H furthers, not abridges, pertinent First Amendment values. 127 Appellants argue, however, that as constructed public financing invidiously discriminates in violation of the Fifth Amendment. We turn therefore to that argument.
Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment. Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n. 2 (1975), and cases cited. In several situations concerning the electoral process, the principle has been developed that restrictions on access to the electoral process must survive exacting scrutiny. The restriction can be sustained only if it furthers a "vial" governmental interest, American Party of Texas v. White, 415 U.S. 767, 780-781 (1974), that is
achieved by a means that does not unfairly or unnecessarily burden either a minority party's or an individual candidate's equally important interest in the continued availability of political opportunity.
Lubin v. Panish, 415 U.S. 709, 716 (1974). See American Party of Texas v. White, supra, at 780; Storer v. Brown, 415 U.S. 724, 729-730 (1974). These cases, however, dealt primarily with state laws requiring a candidate to satisfy certain requirements in order to have his name appear on the ballot. These were, of course, direct burdens not only on the candidate's ability to run for office, but also on the voter's ability to voice preferences regarding representative government and contemporary issues. In contrast, the denial of public financing to some Presidential candidates is not restrictive of voters' rights and less restrictive of candidates'. 128 Subtitle H does not prevent any candidate from getting on the ballot or any voter from casting a vote for the candidate of his choice; the inability, if any, of minor party candidates to wage effective campaigns will derive not from lack of public funding but from their inability to raise private contributions. Any disadvantage suffered by operation of the eligibility formulae under Subtitle H is thus limited to the claimed denial of the enhancement of opportunity to communicate with the electorate that the formulae afford eligible candidates. But eligible candidates suffer a countervailing denial. As we more fully develop later, acceptance of public financing entails voluntary acceptance of an expenditure ceiling. Noneligible candidates are not subject to that limitation. 129 Accordingly, we conclude that public financing is generally less restrictive of access to the electoral process than the ballot-access regulations dealt with in prior cases. 130 In any event, Congress enacted Subtitle H in furtherance of sufficiently important governmental interests and has not unfairly or unnecessarily burdened the political opportunity of any party or candidate.
It cannot be gainsaid that public financing as a means of eliminating the improper influence of large private contributions furthers a significant governmental interest. S.Rep. No. 93-689, pp. 4-5 (1974). In addition, the limits on contributions necessarily increase the burden of fundraising, and Congress properly regarded public financing as an appropriate means of relieving major party Presidential candidates from the rigors of soliciting private contributions. See id. at 5. The States have also been held to have important interests in limiting places on the ballot to those candidates who demonstrate substantial popular support. E.g., Storer v. Brown, supra at 736; Lubin v. Panish, supra at 718-719; Jenness v. Fortson, 403 U.S. 431, 442 (1971); Williams v. Rhodes, 393 U.S. at 31-33. Congress' interest in not funding hopeless candidacies with large sums of public money, S.Rep. No. 93-689, supra at 7, necessarily justifies the withholding of public assistance from candidates without significant public support. Thus, Congress may legitimately require "some preliminary showing of a significant modicum of support," Jenness v. Fortson, supra at 442, as an eligibility requirement for public funds. This requirement also serves the important public interest against providing artificial incentives to "splintered parties and unrestrained factionalism." Storer v. Brown, supra at 736; S.Rep. No. 93-689, supra at 8; H.R.Rep. No. 93-1239, p. 13 (1974). Cf. Bullock v. Carter, 405 U.S. 134, 145 (1972).
At the same time Congress recognized the constitutional restraints against inhibition of the present opportunity of minor parties to become major political entities if they obtain widespread support. S.Rep. No. 93-689, supra at 8-10; H.R.Rep. No. 93-1239, supra, at 13. As the Court of Appeals said,
provisions for public funding of Presidential campaigns . . . could operate to give an unfair advantage to established parties, thus reducing, to the nation's detriment, . . . the "potential fluidity of American political life."
171 U.S.App.D.C. at 231, 519 F.2d at 880, quoting from Jenness v. Fortson, supra at 439.
1. General Election Campaign Financing
Appellants insist that Chapter 95 falls short of the constitutional requirement in that its provisions supply larger, and equal, sums to candidates of major parties, use prior vote levels as the sole criterion for pre-election funding, limit new party candidates to post-election funds, and deny any funds to candidates of parties receiving less than 5% of the vote. These provisions, it is argued, are fatal to the validity of the scheme, because they work invidious discrimination against minor and new parties in violation of the Fifth Amendment. We disagree. 131
As conceded by appellants, the Constitution does not require Congress to treat all declared candidates the same for public financing purposes. As we said in Jenness v. Fortson,
there are obvious differences in kind between the needs and potentials of a political party with historically established broad support, on the one hand, and a new or small political organization on the other. . . . Sometimes the grossest discrimination can lie in treating things that are different as though they were exactly alike, a truism well illustrated in Williams v. Rhodes, supra.
403 U.S. at 441-442. Since the Presidential elections of 1856 and 1860, when the Whigs were replaced as a major party by the Republicans, no third party has posed a credible threat to the two major parties in Presidential elections. 132 Third parties have been completely incapable of matching the major parties' ability to raise money and win elections. Congress was, of course, aware of this fact of American life, and thus was justified in providing both major parties full funding and all other parties only a percentage of the major party entitlement. 133 Identical treatment of all parties, on the other hand, "would not only make it easy to raid the United States Treasury, it would also artificially foster the proliferation of splinter parties." 171 U.S.App.D.C. at 231, 519 F.2d at 881. The Constitution does not require the Government to "finance the efforts of every nascent political group," American Party of Texas v. White, 415 U.S. at 794, merely because Congress chose to finance the efforts of the major parties.
Furthermore, appellants have made no showing that the election funding plan disadvantages nonmajor parties by operating to reduce their strength below that attained without any public financing. First, such parties are free to raise money from private sources, 134 and, by our holding today, new parties are freed from any expenditure limits, although admittedly those limits may be a largely academic matter to them. But since any major party candidate accepting public financing of a campaign voluntarily assents to a spending ceiling, other candidates will be able to spend more in relation to the major party candidates. The relative position of minor parties that do qualify to receive some public funds because they received 5% of the vote in the previous Presidential election is also enhanced. Public funding for candidates of major parties is intended as a substitute for private contributions; but for minor party candidates 135 such assistance may be viewed as a supplement to private contributions since these candidates may continue to solicit private funds up to the applicable spending limit. Thus, we conclude that the general election funding system does not work an invidious discrimination against candidates of nonmajor parties.
Appellants challenge reliance on the vote in past elections as the basis for determining eligibility. That challenge is foreclosed, however, by our holding in Jenness v. Fortson, 403 U.S. at 439-440, that popular vote totals in the last election are a proper measure of public support. And Congress was not obliged to select instead from among appellants' suggested alternatives. Congress could properly regard the means chosen as preferable, since the alternative of petition drives presents cost and administrative problems in validating signatures, and the alternative of opinion polls might be thought inappropriate, since it would involve a Government agency in the business of certifying polls or conducting its own investigation of support for various candidates, in addition to serious problems with reliability. 136
Appellants next argue, relying on the ballot access decisions of this Court, that the absence of any alternative means of obtaining pre-election funding renders the scheme unjustifiably restrictive of minority political interests. Appellants' reliance on the ballot access decisions is misplaced. To be sure, the regulation sustained in Jenness v. Fortson, for example, incorporated alternative means of qualifying for the ballot, 403 U.S. at 440, and the lack of an alternative was a defect in the scheme struck down in Lubin v. Panish, 415 U.S. at 718. To suggest, however, that the constitutionality of Subtitle H therefore hinges solely on whether some alternative is afforded overlooks the rationale of the operative constitutional principles. Our decisions finding a need for an alternative means turn on the nature and extent of the burden imposed in the absence of available alternatives. We have earlier stated our view that Chapter 95 is far less burdensome upon and restrictive of constitutional rights than the regulations involved in the ballot access cases. See supra at 94-95. Moreover, expenditure limits for major parties and candidates may well improve the chances of nonmajor parties and their candidates to receive funds and increase their spending. Any risk of harm to minority interests is speculative due to our present lack of knowledge of the practical effects of public financing and cannot overcome the force of the governmental interests against use of public money to foster frivolous candidacies, create a system of splintered parties, and encourage unrestrained factionalism. Appellants' reliance on the alternative means analyses of the ballot access cases generally fails to recognize a significant distinction from the instant case. The primary goal of all candidates is to carry on a successful campaign by communicating to the voters persuasive reasons for electing them. In some of the ballot access cases, the States afforded candidates alternative means for qualifying for the ballot, a step in any campaign that, with rare exceptions, is essential to successful effort. Chapter 95 concededly provides only one method of obtaining pre-election financing; such funding is, however, not as necessary as being on the ballot. See n. 128, supra. Plainly, campaigns can be successfully carried out by means other than public financing; they have been up to this date, and this avenue is still open to all candidates. And, after all, the important achievements of minority political groups in furthering the development of American democracy 137 were accomplished without the help of public funds. Thus, the limited participation or nonparticipation of nonmajor parties or candidates in public funding does not unconstitutionally disadvantage them.
Of course, nonmajor parties and their candidates may qualify for post-election participation in public funding and in that sense the claimed discrimination is not total. Appellants contend, however that the benefit of any such participation is illusory due to § 9004(c), which bars the use of the money for any purpose other than paying campaign expenses or repaying loans that had been used to defray such expenses. The only meaningful use for post-election funds is thus to repay loans; but loans, except from national banks, are "contributions" subject to the general limitations on contributions, 18 U.S.C. § 591(e) (1970 ed., Supp. IV). Further, they argue, loans are not readily available to nonmajor parties or candidates before elections to finance their campaigns. Availability of post-election funds therefore assertedly gives them nothing. But, in the nature of things, the willingness of lenders to make loans will depend upon the pre-election probability that the candidate and his party will attract 5% or more of the voters. When a reasonable prospect of such support appears, the party and candidate may be an acceptable loan risk, since the prospect of post-election participation in public funding will be good. 138
Finally, appellants challenge the validity of the 50% threshold requirement for general election funding. They argue that, since most state regulations governing ballot access have threshold requirements well below 50%, and because, in their view, the 50% requirement here is actually stricter than that upheld in Jenness v. Fortson, 403 U.S. 431 (1971), 139 the requirement is unreasonable. We have already concluded that the restriction under Chapter 95 is generally less burdensome than ballot access regulations. supra at 94-95. Further, the Georgia provision sustained in Jenness required the candidate to obtain the signatures of 70% of all eligible voters, without regard to party. To be sure, the public funding formula does not permit anyone who voted for another party in the last election to be part of a candidate's 5%. But, under Chapter 95, a Presidential candidate needs only 5% or more of the actual vote, not the larger universe of eligible voters. As a result, we cannot say that Chapter 95 is numerically more, or less, restrictive than the regulation in Jenness. In any event, the choice of the percentage requirement that best accommodates the competing interests involved was for Congress to make. See Louisville Gas Co. v. Coleman, 277 U.S. 32, 41 (1928) (Holmes, J., dissenting); n. 111, supra. Without any doubt, a range of formulations would sufficiently protect the public fisc and not foster factionalism, and would also recognize the public interest in the fluidity of our political affairs: we cannot say that Congress' choice falls without the permissible range. 140
2. Nominating Convention Financing
The foregoing analysis and reasoning sustaining general election funding apply in large part to convention funding under Chapter 95 and suffice to support our rejection of appellants' challenge to these provisions. Funding of party conventions has increasingly been derived from large private contributions, see H.R.Rep. No. 93-1239, p. 14 (1974), and the governmental interest in eliminating this reliance is as vital as in the case of private contributions to individual candidates. The expenditure limitations on major parties participating in public financing enhance the ability of nonmajor parties to increase their spending relative to the major parties; further, in soliciting private contributions to finance conventions, parties are not subject to the $1,000 contribution limit pertaining to candidates. 141 We therefore conclude that appellants' constitutional challenge to the provisions for funding nominating conventions must also be rejected.
3. Primary Election Campaign Financing
Appellants' final challenge is to the constitutionality of Chapter 96, which provides funding of primary campaigns. They contend that these provisions are constitutionally invalid (1) because they do not provide funds for candidates not running in party primaries 142 and (2) because the eligibility formula actually increases the influence of money on the electoral process. In not providing assistance to candidates who do not enter party primaries, Congress has merely chosen to limit at this time the reach of the reforms encompassed in Chapter 96. This Congress could do without constituting the reforms a constitutionally invidious discrimination. The governing principle was stated in Katzenbach v. Morgan, 384 U.S. 641, 657 (1966):
[I]n deciding the constitutional propriety of the limitations in such a reform measure, we are guided by the familiar principles that a "statute is not invalid under the Constitution because it might have gone farther than it did," Roschen v. Ward, 279 U.S. 337, 339, that a legislature need not "strike at all evils at the same time," Semler v. Dental Examiners, 294 U.S. 608, 610, and that "reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind," Williamson v. Lee Optical Co., 348 U.S. 483, 489. 143 The choice to limit matching funds to candidates running in primaries may reflect that concern about large private contributions to candidates centered on primary races and that there is no historical evidence of similar abuses involving contributions to candidates who engage in petition drives to qualify for state ballots. Moreover, assistance to candidates and nonmajor parties forced to resort to petition drives to gain ballot access implicates the policies against fostering frivolous candidacies, creating a system of splintered parties, and encouraging unrestrained factionalism.
The eligibility requirements in Chapter 96 are surely not an unreasonable way to measure popular support for a candidate, accomplishing the objective of limiting subsidization to those candidates with a substantial chance of being nominated. Counting only the first $250 of each contribution for eligibility purposes requires candidates to solicit smaller contributions from numerous people. Requiring the money to come from citizens of a minimum number of States eliminates candidates whose appeal is limited geographically; a President is elected not by popular vote, but by winning the popular vote in enough States to have a majority in the Electoral College. 144
We also reject as without merit appellants' argument that the matching formula favors wealthy voters and candidates. The thrust of the legislation is to reduce financial barriers 145 and to enhance the importance of smaller contributions. 146 Some candidates undoubtedly could raise large sums of money, and thus have little need for public funds, but candidates with lesser fundraising capabilities will gain substantial benefits from matching funds. In addition, one eligibility requirement for matching funds is acceptance of an expenditure ceiling, and candidates with little fundraising ability will be able to increase their spending relative to candidates capable of raising large amounts in private funds.
For the reasons stated, we reject appellants' claims that Subtitle H is facially unconstitutional. 147
The only remaining issue is whether our holdings invalidating 18 U.S.C. §§ 608(a), (c), and ()(1) (1970 ed., Supp. IV) require the conclusion that Subtitle H is unconstitutional. There is, of course, a relationship between the spending limits in § 608(c) and the public financing provisions; the expenditure limits accepted by a candidate to be eligible for public funding are identical to the limits in § 608(c). But we have no difficulty in concluding that Subtitle H is severable.
Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.
Champlin Refining Co. v. Corporation Commission, 286 U.S. 210, 234 (1932). Our discussion of "what is left" leaves no doubt that the value of public financing is not dependent on the existence of a generally applicable expenditure limit. We therefore hold Subtitle H severable from those portions of the legislation today held constitutionally infirm.
IV. THE FEDERAL ELECTION COMISSION
The 1974 amendments to the Act create an eight-member Federal Election Commission (Commission) and vest in it primary and substantial responsibility for administering and enforcing the Act. The question that we address in this portion of the opinion is whether, in view of the manner in which a majority of its members are appointed, the Commission may, under the Constitution, exercise the powers conferred upon it. We find it unnecessary to parse the complex statutory provisions in order to sketch the full sweep of the Commission's authority. It will suffice for present purposes to describe what appear to be representative examples of its various powers.
Chapter 14 of Title 2 makes the Commission the principal repository of the numerous reports and statements which are required by that chapter to be filed by those engaging in the regulated political activities. Its duties under § 438(a) with respect to these reports and statements include filing and indexing, making them available for public inspection, preservation, and auditing and field investigations. It is directed to "serve as a national clearinghouse for information in respect to the administration of elections." § 438(b).
Beyond these recordkeeping, disclosure, and investigative functions, however, the Commission is given extensive rulemaking and adjudicative powers. Its duty under § 438(a)(10) is "to prescribe suitable rules and regulations to carry out the provisions of . . . chapter ." 148 Under § 437d(a)(8), the Commission is empowered to make such rules "as are necessary to carry out the provisions of this Act." 149 Section 437d(a)(9) authorizes it to "formulate general policy with respect to the administration of this Act" and enumerated sections of Title 18's Criminal Code, 150 as to all of which provisions the Commission "has primary jurisdiction with respect to [their] civil enforcement." § 437c(b). 151 The Commission is authorized under § 437f(a) to render advisory opinions with respect to activities possibly violating the Act, the Title 18 sections, or the campaign funding provisions of Title 26, 152 the effect of which is that,
[n]otwithstanding any other provision of law, any person with respect to whom an advisory opinion is rendered . . . who acts in good faith in accordance with the provisions and findings [thereof] shall be presumed to be in compliance with the [statutory provision] with respect to which such advisory opinion is rendered.
§ 437f(b). In the course of administering the provisions for Presidential campaign financing, the Commission may authorize convention expenditures which exceed the statutory limits. 26 U.S.C. § 9008(d)(3) (1970 ed., Supp. IV).
The Commission's enforcement power is both direct and wide-ranging. It may institute a civil action for (i) injunctive or other relief against "any acts or practices which constitute or will constitute a violation of this Act," § 437g(a)(5); (ii) declaratory or injunctive relief "as may be appropriate to implement or con[s]true any provisions" of Chapter 95 of Title 26, governing administration of funds for Presidential election campaigns and national party conventions, 26 U.S.C. § 9011(b)(1) (1970 ed., Supp. IV); and (iii) "such injunctive relief as is appropriate to implement any provision" of Chapter 96 of Title 26, governing the payment of matching funds for Presidential primary campaigns, 26 U.S.C. § 9040(c) (1970 ed., Supp. IV). If, after the Commission's post-disbursement audit of candidates receiving payments under Chapter 95 or 96, it finds an overpayment, it is empowered to seek repayment of all funds due the Secretary of the Treasury. 26 U.S.C. §§ 9010(b), 9040(b) (1970 ed., Supp. IV). In no respect do the foregoing civil actions require the concurrence of or participation by the Attorney General; conversely, the decision not to seek judicial relief in the above respects would appear to rest solely with the Commission. 153 With respect to the referenced Title 18 sections, § 437g(a)(7) provides that, if, after notice and opportunity for a hearing before it, the Commission finds an actual or threatened criminal violation, the Attorney General, "upon request by the Commission . . . , shall institute a civil action for relief." Finally, as "[a]dditional enforcement authority," § 456(a) authorizes the Commission, after notice and opportunity for hearing, to make "a finding that a person . . . while a candidate for Federal office, failed to file" a required report of contributions or expenditures. If that finding is made within the applicable limitations period for prosecutions, the candidate is thereby
disqualified from becoming a candidate in any future election for Federal office for a period of time beginning on the date of such finding and ending one year after the expiration of the term of the Federal office for which such person was a candidate. 154
The body in which this authority is reposed consists of eight members. 155 The Secretary of the Senate and the Clerk of the House of Representatives are ex officio members of the Commission without the right to vote. Two members are appointed by the President pro tempore of the Senate "upon the recommendations of the majority leader of the Senate and the minority leader of the Senate." 156 Two more are to be appointed by the Speaker of the House of Representatives, likewise upon the recommendations of its respective majority and minority leaders. The remaining two members are appointed by the President. Each of the six voting members of the Commission must be confirmed by the majority of both Houses of Congress, and each of the three appointing authorities is forbidden to choose both of their appointees from the same political party.
Appellants argue that given the Commission's extensive powers the method of choosing its members under § 437c(a)(1) runs afoul of the separation of powers embedded in the Constitution, and urge that, as presently constituted, the Commission's "existence be held unconstitutional by this Court." Before embarking on this or any related inquiry, however, we must decide whether these issues are properly before us. Because of the Court of Appeals' emphasis on lack of "ripeness" of the issue relating to the method of appointment of the members of the Commission, we find it necessary to focus particularly on that consideration in this section of our opinion.
We have recently recognized the distinction between jurisdictional limitations imposed by Art. III and "[p]roblems of prematurity and abstractness" that may prevent adjudication in all but the exceptional case. Socialist Labor Party v. Gilligan, 406 U.S. 583, 588 (1972). In Regional Rail Reorganization Act Cases, 419 U.S. 102, 140 (1974), we stated that "ripeness is peculiarly a question of timing," and therefore the passage of months between the time of the decision of the Court of Appeals and our present ruling is, of itself, significant. We likewise observed in the Reorganization Act Cases:
Thus, occurrence of the conveyance allegedly violative of Fifth Amendment rights is in no way hypothetical or speculative. Where the inevitability of the operation of a statute against certain individuals is patent, it is irrelevant to the existence of a justiciable controversy that there will be a time delay before the disputed provisions will come into effect.
Id. at 143.
The Court of Appeals held that of the five specific certified questions directed at the Commission's authority, only its powers to render advisory opinions and to authorize excessive convention expenditures were ripe for adjudication. The court held that the remaining aspects of the Commission's authority could not be adjudicated, because, "[in] its present stance, this litigation does not present the court with the concrete facts that are necessary to an informed decision." 157 171 U.S.App.D.C. at 244, 519 F.2d at 893.
Since the entry of judgment by the Court of Appeals, the Commission has undertaken to issue rules and regulations under the authority of § 438(a)(10). While many of its other functions remain as yet unexercised, the date of their all but certain exercise is now closer by several months than it was at the time the Court of Appeals ruled. Congress was understandably most concerned with obtaining a final adjudication of as many issues as possible litigated pursuant to the provisions of § 437h. Thus, in order to decide the basic question whether the Act's provision for appointment of the members of the Commission violates the Constitution, we believe we are warranted in considering all of those aspects of the Commission's authority which have been presented by the certified questions. 158
Party litigants with sufficient concrete interests at stake may have standing to raise constitutional questions of separation of powers with respect to an agency designated to adjudicate their rights. Palmore v. United States, 411 U.S. 389 (1973); Glidden Co. v. Zdanok, 370 U.S. 530 (1962); Coleman v. Miller, 307 U.S. 433 (1939). In Glidden, of course, the challenged adjudication had already taken place, whereas in this case appellants' claim is of impending future rulings and determinations by the Commission. But this is a question of ripeness, rather than lack of case or controversy under Art. III, and, for the reasons to which we have previously adverted we hold that appellants' claims as they bear upon the method of appointment of the Commission's members may be presently adjudicated.
B. The Merits
Appellants urge that, since Congress has given the Commission wide-ranging rulemaking and enforcement powers with respect to the substantive provisions of the Act, Congress is precluded under the principle of separation of powers from vesting in itself the authority to appoint those who will exercise such authority. Their argument is based on the language of Art. II, § 2, cl. 2, of the Constitution, which provides in pertinent part as follows:
[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
Appellants' argument is that this provision is the exclusive method by which those charged with executing the laws of the United States may be chosen. Congress, they assert, cannot have it both ways. If the Legislature wishes the Commission to exercise all of the conferred powers, then its members are, in fact, "Officers of the United States," and must be appointed under the Appointments Clause. But if Congress insists upon retaining the power to appoint, then the members of the Commission may not discharge those many functions of the Commission which can be performed only by "Officers of the United States," as that term must be construed within the doctrine of separation of powers.
Appellee Commission and amici in support of the Commission urge that the Framers of the Constitution, while mindful of the need for checks and balances among the three branches of the National Government, had no intention of denying to the Legislative Branch authority to appoint its own officers. Congress, either under the Appointments Clause or under its grants of substantive legislative authority and the Necessary and Proper Clause in Art. I, is, in their view, empowered to provide for the appointment to the Commission in the manner which it did because the Commission is performing "appropriate legislative functions."
The majority of the Court of Appeals recognized the importance of the doctrine of separation of powers which is at the heart of our Constitution, and also recognized the principle enunciated in Springer v. Philippine Islands, 277 U.S. 189 (1928), that the Legislative Branch may not exercise executive authority by retaining the power to appoint those who will execute its laws. But it described appellants' argument based upon Art. II, § 2, cl. 2 as "strikingly syllogistic," and concluded that Congress had sufficient authority under the Necessary and Proper Clause of Art. I of the Constitution not only to establish the Commission but to appoint the Commission's members. As we have earlier noted, it upheld the constitutional validity of congressional vesting of certain authority in the Commission, and concluded that the question of the constitutional validity of the vesting of its remaining functions was not yet ripe for review. The three dissenting judges in the Court of Appeals concluded that the method of appointment for the Commission did violate the doctrine of separation of powers.
We do not think appellants' arguments based upon Art. II, § 2, cl. 2, of the Constitution may be so easily dismissed as did the majority of the Court of Appeals. Our inquiry, of necessity, touches upon the fundamental principles of the Government established by the Framers of the Constitution, and all litigants and all of the courts which have addressed themselves to the matter start on common ground in the recognition of the intent of the Framers that the powers of the three great branches of the National Government be largely separate from one another.
James Madison, writing in the Federalist No. 47, 159 defended the work of the Framers against the charge that these three governmental powers were not entirely separate from one another in the proposed Constitution. He asserted that, while there was some admixture, the Constitution was nonetheless true to Montesquieu's well known maxim that the legislative, executive, and judicial departments ought to be separate and distinct:
The reasons on which Montesquieu grounds his maxim are a further demonstration of his meaning. "When the legislative and executive powers are united in the same person or body," says he,
there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner.
Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor.
Some of these reasons are more fully explained in other passages; but, briefly stated as they are here, they sufficiently establish the meaning which we have put on this celebrated maxim of this celebrated author. 160
Yet it is also clear from the provisions of the Constitution itself, and from the Federalist Papers, that the Constitution by no means contemplates total separation of each of these three essential branches of Government. The President is a participant in the lawmaking process by virtue of his authority to veto bills enacted by Congress. The Senate is a participant in the appointive process by virtue of its authority to refuse to confirm persons nominated to office by the President. The men who met in Philadelphia in the summer of 1787 were practical statesmen, experienced in politics, who viewed the principle of separation of powers as a vital check against tyranny. But they likewise saw that a hermetic sealing off of the three branches of Government from one another would preclude the establishment of a Nation capable of governing itself effectively.
Mr. Chief Justice Taft, writing for the Court in Hampton & Co. v. United States, 276 U.S. 394 (1928), after stating the general principle of separation of powers found in the United States Constitution, went on to observe:
[T]he rule is that, in the actual administration of the government, Congress or the Legislature should exercise the legislative power, the President or the State executive, the Governor, the executive power, and the Courts or the judiciary the judicial power, and in carrying out that constitutional division into three branches, it is a breach of the National fundamental law if Congress gives up its legislative power and transfers it to the President, or to the Judicial branch, or if, by law, it attempts to invest itself or its members with either executive power or judicial power. This is not to say that the three branches are not coordinate parts of one government, and that each, in the field of its duties, may not invoke the action of the two other branches insofar as the action invoked shall not be an assumption of the constitutional field of action of another branch. In determining what it may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the governmental coordination.
Id. at 406.
More recently, Mr. Justice Jackson, concurring in the opinion and the judgment of the Court in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952), succinctly characterized this understanding:
While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.
The Framers regarded the checks and balances that they had built into the tripartite Federal Government as a self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of the other. As Madison put it in Federalist No. 51:
This policy of supplying, by opposite and rival interests, the defect of better motives might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State. 161
This Court has not hesitated to enforce the principle of separation of powers embodied in the Constitution when its application has proved necessary for the decisions of cases or controversies properly before it. The Court has held that executive or administrative duties of a nonjudicial nature may not be imposed on judges holding office under Art. III of the Constitution. United States v. Ferreira, 13 How. 40 (1852); Hayburn's Case, 2 Dall. 409 (1792). The Court has held that the President may not execute and exercise legislative authority belonging only to Congress. Youngstown Sheet & Tube Co. v. Sawyer, supra. In the course of its opinion in that case, the Court said:
In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. The first section of the first article says that "All legislative Powers herein granted shall be vested in a Congress of the United States. . . ."
343 U.S. at 587-588.
More closely in point to the facts of the present case is this Court's decision in Springer v. Philippine Islands, 277 U.S. 189 (1928), where the Court held that the legislature of the Philippine Islands could not provide for legislative appointment to executive agencies.
2. The Appointments Clause
The principle of separation of powers was not simply an abstract generalization in the minds of the Framers: it was woven into the document that they drafted in Philadelphia in the summer of 1787. Article I, § 1, declares: "All legislative Powers herein granted shall be vested in a Congress of the United States." Article II, § 1, vests the executive power "in a President of the United States of America," and Art. III, § 1, declares that
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.
The further concern of the Framers of the Constitution with maintenance of the separation of powers is found in the so-called "Ineligibility" and "Incompatibility" Clauses contained in Art. I, § 6:
No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.
It is in the context of these cognate provisions of the document that we must examine the language of Art. II. § 2, cl. 2, which appellants contend provides the only authorization for appointment of those to whom substantial executive or administrative authority is given by statute. Because of the importance of its language, we again set out the provision:
[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers as they think proper in the President alone, in the Courts of Law, or in the Heads of Departments.
The Appointments Clause could, of course, be read as merely dealing with etiquette or protocol in describing "Officers of the United States," but the drafters had a less frivolous purpose in mind. This conclusion is supported by language from United States v. Germaine, 99 U.S. 508, 509-510 (1879):
The Constitution, for purposes of appointment, very clearly divides all its officers into two classes. The primary class requires a nomination by the President and confirmation by the Senate. But foreseeing that, when offices became numerous, and sudden removals necessary, this mode might be inconvenient, it was provided that, in regard to officers inferior to those specially mentioned, Congress might, by law, vest their appointment in the President alone, in the courts of law, or in the heads of departments. That all persons who can be said to hold an office under the government about to be established under the Constitution were intended to be included within one or the other of these modes of appointment there can be but little doubt.
(Emphasis supplied.) We think that the term "Officers of the United States," as used in Art. II, defined to include "all persons who can be said to hold an office under the government" in United States v. Germaine, supra, is a term intended to have substantive meaning. We think its fair import is that any appointee exercising significant authority pursuant to the laws of the United States is an "Officer of the United States," and must, therefore, be appointed in the manner prescribed by § 2, cl. 2, of that Article.
If "all persons who can be said to hold an office under the government about to be established under the Constitution were intended to be included within one or the other of these modes of appointment," United States v. Germaine, supra, it is difficult to see how the members of the Commission may escape inclusion. If a postmaster first class, Myers v. United States, 272 U.S. 52 (1926), and the clerk of a district court, Ex parte Hennen, 13 Pet. 230 (1839), are inferior officers of the United States within the meaning of the Appointments Clause, as they are, surely the Commissioners before us are, at the very least, such "inferior Officers" within the meaning of that Clause. 162
Although two members of the Commission are initially selected by the President, his nominations are subject to confirmation not merely by the Senate, but by the House of Representatives as well. The remaining four voting members of the Commission are appointed by the President pro tempore of the Senate and by the Speaker of the House. While the second part of the Clause authorizes Congress to vest the appointment of the officers described in that part in "the Courts of Law, or in the Heads of Departments," neither the Speaker of the House nor the President pro tempore of the Senate comes within this language.
The phrase "Heads of Departments," used as it is in conjunction with the phrase "Courts of Law," suggests that the Departments referred to are themselves in the Executive Branch or at least have some connection with that branch. While the Clause expressly authorizes Congress to vest the appointment of certain officers in the "Courts of Law," the absence of similar language to include Congress must mean that neither Congress nor its officers were included within the language "Heads of Departments" in this part of cl. 2.
Thus, with respect to four of the six voting members of the Commission, neither the President, the head of any department, nor the Judiciary has any voice in their selection.
The Appointments Clause specifies the method of appointment only for "Officers of the United States" whose appointment is not "otherwise provided for" in the Constitution. But there is no provision of the Constitution remotely providing any alternative means for the selection of the members of the Commission or for anybody like them. Appellee Commission has argued, and the Court of Appeals agreed, that the Appointments Clause of Art. II should not be read to exclude the "inherent power of Congress" to appoint its own officers to perform functions necessary to that body as an institution. But there is no need to read the Appointments Clause contrary to its plain language in order to reach the result sought by the Court of Appeals. Article I, § 3, cl. 5, expressly authorizes the selection of the President pro tempore of the Senate, and § 2, cl. 5, of that Article provides for the selection of the Speaker of the House. Ranking nonmembers, such as the Clerk of the House of Representatives, are elected under the internal rules of each House, 163 and are designated by statute as "officers of the Congress." 164 There is no occasion for us to decide whether any of these member officers are "Officers of the United States" whose "appointment" is otherwise provided for within the meaning of the Appointments Clause, since, even if they were such officers, their appointees would not be. Contrary to the fears expressed by the majority of the Court of Appeals, nothing in our holding with respect to Art. II, § 2, cl. 2, will deny to Congress "all power to appoint its own inferior officers to carry out appropriate legislative functions." 165
Appellee Commission and amici contend somewhat obliquely that, because the Framers had no intention of relegating Congress to a position below that of the coequal Judicial and Executive Branches of the National Government, the Appointments Clause must somehow be read to include Congress or its officers as among those in whom the appointment power may be vested. But the debates of the Constitutional Convention, and the Federalist Papers, are replete with expressions of fear that the Legislative Branch of the National Government will aggrandize itself at the expense of the other two branches. 166 The debates during the Convention, and the evolution of the draft version of the Constitution, seem to us to lend considerable support to our reading of the language of the Appointments Clause itself.
An interim version of the draft Constitution had vested in the Senate the authority to appoint Ambassadors, public Ministers, and Judges of the Supreme Court, and the language of Art. II as finally adopted is a distinct change in this regard. We believe that it was a deliberate change made by the Framers with the intent to deny Congress any authority itself to appoint those who were "Officers of the United States." The debates on the floor of the Convention reflect at least in part the way the change came about.
On Monday, August 6, 1787, the Committee on Detail to which had been referred the entire draft of the Constitution reported its draft to the Convention, including the following two articles that bear on the question before us: 167
Article IX, § 1: "The Senate of the United States shall have power . . . to appoint Ambassadors, and Judges of the Supreme Court." Article X, § 2: "[The President] shall commission all the officers of the United States, and shall appoint officers in all cases not otherwise provided for by this Constitution."
It will be seen from a comparison of these two articles that the appointment of Ambassadors and Judges of the Supreme Court was confided to the Senate, and that the authority to appoint not merely nominate, but to actually appoint all other officers was reposed in the President.
During a discussion of a provision in the same draft from the Committee on Detail which provided that the "Treasurer" of the United States should be chosen by both Houses of Congress, Mr Read moved to strike out that clause, "leaving the appointment of the Treasurer as of other officers to the Executive." 168 Opposition to Read's motion was based not on objection to the principle of executive appointment, but on the particular nature of the office of the "Treasurer." 169
On Thursday, August 23, the Convention voted to insert after the word "Ambassadors" in the text of draft Art. IX the words "and other public Ministers." Immediately afterwards, the section as amended was referred to the "Committee of Five." 170 The following day, the Convention took up Art. X. Roger Sherman objected to the draft language of § 2 because it conferred too much power on the President, and proposed to insert after the words "not otherwise provided for by this Constitution" the words "or by law." This motion was defeated by a vote of nine States to one. 171 On September 3, the Convention debated the Ineligibility and Incompatibility Clauses which now appear in Art. I, and made the Ineligibility Clause somewhat less stringent. 172
Meanwhile, on Friday, August 31, a motion had been carried without opposition to refer such parts of the Constitution as had been postponed or not acted upon to a Committee of Eleven. Such reference carried with it both Arts. IX and X. The following week, the Committee of Eleven made its report to the Convention, in which the present language of Art. II, § 2, cl. 2, dealing with the authority of the President to nominate is found, virtually word for word, as § 4 of Art. X. 173 The same Committee also reported a revised article concerning the Legislative Branch to the Convention. The changes are obvious. In the final version, the Senate is shorn of its power to appoint Ambassadors and Judges of the Supreme Court. The President is given not the power to appoint public officers of the United States, but only the right to nominate them, and a provision is inserted by virtue of which Congress may require Senate confirmation of his nominees.
It would seem a fair surmise that a compromise had been made. But no change was made in the concept of the term "Officers of the United States," which, since it had first appeared in Art. X, had been taken by all concerned to embrace all appointed officials exercising responsibility under the public laws of the Nation. Appellee Commission and amici urge that, because of what they conceive to be the extraordinary authority reposed in Congress to regulate elections, this case stands on a different footing than if Congress had exercised its legislative authority in another field. There is, of course, no doubt that Congress has express authority to regulate congressional elections, by virtue of the power conferred in Art. I, § 4. 174 This Court has also held that it has very broad authority to prevent corruption in national Presidential elections. Burroughs v. United States, 290 U.S. 534 (1934). But Congress has plenary authority in all areas in which it has substantive legislative jurisdiction, M'Culloch v. Maryland, 4 Wheat. 316 (1819), so long as the exercise of that authority does not offend some other constitutional restriction. We see no reason to believe that the authority of Congress over federal election practices is of such a wholly different nature from the other grants of authority to Congress that it may be employed in such a manner as to offend well established constitutional restrictions stemming from the separation of powers.
The position that, because Congress has been given explicit and plenary authority to regulate a field of activity, it must therefore have the power to appoint those who are to administer the regulatory statute is both novel and contrary to the language of the Appointments Clause. Unless their selection is elsewhere provided for, all officers of the United States are to be appointed in accordance with the Clause. Principal officers are selected by the President with the advice and consent of the Senate. Inferior officers Congress may allow to be appointed by the President alone, by the heads of departments, or by the Judiciary. No class or type of officer is excluded because of its special functions. The President appoints judicial, as well as executive, officers. Neither has it been disputed and apparently it is not now disputed that the Clause controls the appointment of the members of a typical administrative agency even though its functions, as this Court recognized in Humphrey's Executor v. United States, 295 U.S. 602, 624 (1935), may be "predominantly quasi-judicial and quasi-legislative," rather than executive. The Court in that case carefully emphasized that, although the members of such agencies were to be independent of the Executive in their day-to-day operations, the Executive was not excluded from selecting them. Id. at 625-626.
Appellees argue that the legislative authority conferred upon the Congress in Art. I, § 4, to regulate "the Times, Places and Manner of holding Elections for Senators and Representatives" is augmented by the provision in § 5 that "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members." Section 5 confers, however, not a general legislative power upon the Congress, but rather a power "judicial in character" upon each House of the Congress. Barry v. United States ex rel. Cunningham, 279 U.S. 597, 613 (1929). The power of each House to judge whether one claiming election as Senator or Representative has met the requisite qualifications, Powell v. McCormack, 395 U.S. 486 (1969), cannot reasonably be translated into a power granted to the Congress itself to impose substantive qualifications on the right to so hold such office. Whatever power Congress may have to legislate, such qualifications must derive from § 4, rather than § 5, of Art. I.
Appellees also rely on the Twelfth Amendment to the Constitution insofar as the authority of the Commission to regulate practices in connection with the Presidential election is concerned. This Amendment provides that certificates of the votes of the electors be "sealed [and] directed to the President of the Senate," and that the "President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted." The method by which Congress resolved the celebrated disputed Hayes-Tilden election of 1876, reflected in 19 Stat. 227, supports the conclusion that Congress viewed this Amendment as conferring upon its two Houses the same sort of power "judicial in character," Barr v. United States ex rel. Cunningham, supra at 613, as was conferred upon each House by Art. I, § 5, with respect to elections of its own members.
We are also told by appellees and amici that Congress had good reason for not vesting in a Commission composed wholly of Presidential appointees the authority to administer the Act, since the administration of the Act would undoubtedly have a bearing on any incumbent President's campaign for reelection. While one cannot dispute the basis for this sentiment as a practical matter, it would seem that those who sought to challenge incumbent Congressmen might have equally good reason to fear a Commission which was unduly responsive to members of Congress whom they were seeking to unseat. But such fears, however rational, do not, by themselves, warrant a distortion of the Framers' work.
Appellee Commission and amici finally contend, and the majority of the Court of Appeals agreed with them, that, whatever shortcomings the provisions for the appointment of members of the Commission might have under Art. II, Congress had ample authority under the Necessary and Proper Clause of Art. I to effectuate this result. We do not agree. The proper inquiry when considering the Necessary and Proper Clause is not the authority of Congress to create an office or a commission, which is broad indeed, but rather its authority to provide that its own officers may make appointments to such office or commission.
So framed, the claim that Congress may provide for this manner of appointment under the Necessary and Proper Clause of Art. I stands on no better footing than the claim that it may provide for such manner of appointment because of its substantive authority to regulate federal elections. Congress could not, merely because it concluded that such a measure was "necessary and proper" to the discharge of its substantive legislative authority, pass a bill of attainder or ex post facto law contrary to the prohibitions contained in § 9 of Art. I. No more may it vest in itself, or in its officers, the authority to appoint officers of the United States when the Appointments Clause, by clear implication, prohibits it from doing so.
The trilogy of cases from this Court dealing with the constitutional authority of Congress to circumscribe the President's power to remove officers of the United States is entirely consistent with this conclusion. In Myers v. United States, 272 U.S. 52 (1926), the Court held that Congress could not, by statute, divest the President of the power to remove an officer in the Executive Branch whom he was initially authorized to appoint. In explaining its reasoning in that case, the Court said:
The vesting of the executive power in the President was essentially a grant of the power to execute the laws. But the President, alone and unaided, could not execute the laws. He must execute them by the assistance of subordinates. . . . As he is charged specifically to take care that they be faithfully executed, the reasonable implication, even in the absence of express words, was that, as part of his executive power, he should select those who were to act for him under his direction in the execution of the laws.
* * * *
Our conclusion on the merits, sustained by the arguments before stated, is that Article II grants to the President the executive power of the Government, i.e., the general administrative control of those executing the laws, including the power of appointment and removal of executive officers a conclusion confirmed by his obligation to take care that the laws be faithfully executed. . . .
Id. at 117, 163-164.
In the later case of Humphrey's Executor, where it was held that Congress could circumscribe the President's power to remove members of independent regulatory agencies, the Court was careful to note that it was dealing with an agency intended to be independent of executive authority "except in its selection." 295 U.S. at 625 (emphasis in original). Wiener v. United States, 357 U.S. 349 (1958), which applied the holding in Humphrey's Executor to a member of the War Claims Commission, did not question in any respect that members of independent agencies are not independent of the Executive with respect to their appointments.
This conclusion is buttressed by the fact that Mr. Justice Sutherland, the author of the Court's opinion in Humphrey's Executor, likewise wrote the opinion for the Court in Springer v. Philippine Islands, 277 U.S. 189 (1928), in which it was said:
Not having the power of appointment, unless expressly granted or incidental to its powers, the legislature cannot engraft executive duties upon a legislative office, since that would be to usurp the power of appointment by indirection; though the case might be different if the additional duties were devolved upon an appointee of the executive.
Id. at 202.
3. The Commission's Powers
Thus, on the assumption that all of the powers granted in the statute may be exercised by an agency whose members have been appointed in accordance with the Appointments Clause, 175 the ultimate question is which, if any, of those powers may be exercised by the present voting Commissioners, none of whom was appointed as provided by that Clause. Our previous description of the statutory provisions, see supra at 109-113, disclosed that the Commission's powers fall generally into three categories: functions relating to the flow of necessary information receipt, dissemination, and investigation; functions with respect to the Commission's task of fleshing out the statute rulemaking and advisory opinions; and functions necessary to ensure compliance with the statute and rules informal procedures, administrative determinations and hearings, and civil suits.
Insofar as the powers confided in the Commission are essentially of an investigative and informative nature, falling in the same general category as those powers which Congress might delegate to one of its own committees, there can be no question that the Commission as presently constituted may exercise them. Kilbourn v. Thompson, 103 U.S. 168 (1881); McGrain v. Daugherty, 273 U.S. 135 (1927); Eastland v. United States Servicemen's Fund, 421 U.S. 491 (1975). As this Court stated in McGrain, supra, at 175:
A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information which not infrequently is true recourse must be had to others who do possess it. Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain what is needed. All this was true before and when the Constitution was framed and adopted. In that period, the power of inquiry with enforcing process was regarded and employed as a necessary and appropriate attribute of the power to legislate indeed, was treated as inhering in it.
But when we go beyond this type of authority to the more substantial powers exercised by the Commission, we reach a different result. The Commission's enforcement power, exemplified by its discretionary power to seek judicial relief, is authority that cannot possibly be regarded as merely in aid of the legislative function of Congress. A lawsuit is the ultimate remedy for a breach of the law, and it is to the President, and not to the Congress, that the Constitution entrusts the responsibility to "take Care that the Laws be faithfully executed." Art. II, § 3
Congress may undoubtedly under the Necessary and Proper Clause create "offices" in the generic sense and provide such method of appointment to those "offices" as it chooses. But Congress' power under that Clause is inevitably bounded by the express language of Art. II, § 2, cl. 2, and, unless the method it provides comports with the latter, the holders of those offices will not be "Officers of the United States." They may, therefore, properly perform duties only in aid of those functions that Congress may carry out by itself, or in an area sufficiently removed from the administration and enforcement of the public law as to permit their being performed by persons not "Officers of the United States."
This Court observed more than a century ago with respect to litigation conducted in the courts of the United States:
Whether tested, therefore, by the requirements of the Judiciary Act, or by the usage of the government, or by the decisions of this court, it is clear that all such suits, so far as the interests of the United States are concerned, are subject to the direction, and within the control of, the Attorney General.
Confiscation Cases, 7 Wall. 454, 458-459 (1869).
The Court echoed similar sentiments 59 years later in Springer v. Philippine Islands, 277 U.S. at 202, saying:
Legislative power, as distinguished from executive power, is the authority to make laws, but not to enforce them or appoint the agents charged with the duty of such enforcement. The latter are executive functions. It is unnecessary to enlarge further upon the general subject, since it has so recently received the full consideration of this Court. Myers v. United States, 272 U.S. 52.
Not having the power of appointment unless expressly granted or incidental to its powers, the legislature cannot engraft executive duties upon a legislative office, since that would be to usurp the power of appointment by indirection, though the case might be different if the additional duties were devolved upon an appointee of the executive.
We hold that these provisions of the Act, vesting in the Commission primary responsibility for conducting civil litigation in the courts of the United States for vindicating public rights, violate Art. II, § 2, cl. 2, of the Constitution. Such functions may be discharged only by persons who are "Officers of the United States" within the language of that section.
All aspects of the Act are brought within the Commission's broad administrative powers: rulemaking, advisory opinions, and determinations of eligibility for funds and even for federal elective office itself. These functions, exercised free from day-to-day supervision of either Congress 176 or the Executive Branch, are more legislative and judicial in nature than are the Commission's enforcement powers, and are of kinds usually performed by independent regulatory agencies or by some department in the Executive Branch under the direction of an Act of Congress. Congress viewed these broad powers as essential to effective and impartial administration of the entire substantive framework of the Act. Yet each of these functions also represents the performance of a significant governmental duty exercised pursuant to a public law. While the President may not insist that such functions be delegated to an appointee of his removable at will, Humphrey's Executor v. United States, 295 U.S. 602 (1935), none of them operates merely in aid of congressional authority to legislate or is sufficiently removed from the administration and enforcement of public law to allow it to be performed by the present Commission. These administrative functions may therefore be exercised only by persons who are "Officers of the United States." 177
It is also our view that the Commission's inability to exercise certain powers because of the method by which its members have been selected should not affect the validity of the Commission's administrative actions and determinations to this date, including its administration of those provisions, upheld today, authorizing the public financing of federal elections. The past acts of the Commission are therefore accorded de facto validity, just as we have recognized should be the case with respect to legislative acts performed by legislators held to have been elected in accordance with an unconstitutional apportionment plan. Connor v. Williams, 404 U.S. 549, 559-551 (1972). See Ryan v. Tinsley, 316 F.2d 430, 431-432 (CA10 1963); Schaefer v. Thomson, 251 F.Supp. 450, 453 (Wyo.1965), aff'd sub nom. Harrison v. Schaeffer, 383 U.S. 269 (1966). Cf. City of Richmond v. United States, 422 U.S. 358, 379 (1975) (BRENNAN, J., dissenting). We also draw on the Court's practice in the apportionment and voting rights cases and stay, for a period not to exceed 30 days, the Court's judgment insofar as it affects the authority of the Commission to exercise the duties and powers granted it under the Act. This limited stay will afford Congress an opportunity to reconstitute the Commission by law or to adopt other valid enforcement mechanisms without interrupting enforcement of the provisions the Court sustains, allowing the present Commission in the interim to function de facto in accordance with the substantive provisions of the Act. Cf. Georgia v. United States, 411 U.S. 526, 541 (1973); Fortson v. Morris, 385 U.S. 231, 235 (1966); Maryland Comm. v. Tawes, 377 U.S. 656, 675-676 (1964).
In summary, 178 we sustain the individual contribution limits, the disclosure and reporting provisions, and the public financing scheme. We conclude, however, that the limitations on campaign expenditures, on independent expenditures by individuals and groups, and on expenditures by a candidate from his personal funds are constitutionally infirm. Finally, we hold that most of the powers conferred by the Act upon the Federal Election Commission can be exercised only by "Officers of the United States," appointed in conformity with Art. II, § 2, cl. 2, of the Constitution, and therefore cannot be exercised by the Commission as presently constituted.
In No. 75-436, the judgment of the Court of Appeals is affirmed in part and reversed in part. The judgment of the District Court in No. 75-437 is affirmed. The mandate shall issue forthwith, except that our judgment is stayed, for a period not to exceed 30 days, insofar as it affects the authority of the Commission to exercise the duties and powers granted it under the Act.
MR. JUSTICE STEVENS took no part in the consideration or decision of these cases.
* Together with No. 75-437, Buckley et al. v. Valeo, Secretary of the United States Senate, et al., on appeal from the United States District Court for the District of Columbia.
1. Federal Election Campaign Act of 1971, 86 Stat. 3, as amended by the Federal Election Campaign Act Amendments of 1974, 88 Stat. 1263. The pertinent portions of the legislation are set forth in the Appendix to this opinion.
2. 171 U.S.App.D.C. 172, 519 F.2d 821 (1975).
3. The Revenue Act of 1971, Title VIII, 85 Stat. 562, as amended, 87 Stat. 138, and further amended by the Federal Election Campaign Act Amendments of 1974, § 403 et seq., 88 Stat. 1291. This Subtitle consists of two parts: Chapter 95 deals with funding national party conventions and general election campaigns for President, and Chapter 96 deals with matching funds for Presidential primary campaigns.
4. § 437h. Judicial review.
(a) . . .
The Commission, the national committee of any political party, or any individual eligible to vote in any election for the office of President of the United States may 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 this Act or of section 608, 610, 611, 613, 614, 615, 616, or 617 of Title 18. The district court immediately shall certify all questions of constitutionality of this Act or of section 608, 610, 611, 613, 614, 615, 616, or 617 of Title 18, to the United States court of appeals for the circuit involved, which shall hear the matter sitting en banc.
(b) . . .
Notwithstanding any other provision of law, any decision on a matter certified under subsection (a) of this section shall be reviewable by appeal directly to the Supreme Court of the United States. Such appeal shall be brought no later than 20 days after the decision of the court of appeals.
(c) . . .
It shall be the duty of the court of appeals and of the Supreme Court of the United States to advance on the docket and to expedite to the greatest possible extent the disposition of any matter certified under subsection (a) of this section.
5. Center for Public Financing of Elections, Common Cause, the League of Women Voters of the United States, Chellis O'Neal Gregory, Norman F. Jacknis, Louise D. Wides, Daniel R. Noyes, Mrs. Edgar B. Stern, Charles P. Taft, John W. Gardner, and Ruth Clusen.
6. The Court of Appeals also suggested in its en banc order that the issues arising under Subtitle H (relating to the public financing of Presidential campaigns) might require, under 26 U.S.C. § 9011(b) (1970 ed., Supp. IV), a different mode of review from the other issues raised in the case. The court suggested that a three-judge District Court should consider the constitutionality of these provisions in order to protect against the contingency that this Court might eventually hold these issues to be subject to determination by a three-judge court, either under § 9011(b), or 28 U.S.C. §§ 2282 2284. 171 U.S.App.D.C. 168, 170, 519 F.2d 817, 819 (1975). The case was argued simultaneously to both the Court of Appeals, sitting en banc, and a three-judge District Court. The three-judge court limited its consideration to issues under Subtitle H. The three-judge court adopted the Court of Appeals' opinion on these questions in toto, and simply entered an order with respect to those matters. 401 F.Supp. 1235. Thus, two judgments are before us -- one from each court -- upholding the constitutionality of Subtitle H, though the two cases before the Court will generally be referred to hereinafter in the singular. Since the jurisdiction of this Court to hear at least one of the appeals is clear, we need not resolve the jurisdictional ambiguities that occasioned the joint sitting of the Court of Appeals and the three-judge court.
7. The court held one provision, § 437a, unconstitutionally vague and overbroad on the ground that the provision is
"susceptible to a reading necessitating reporting by groups whose only connection with the elective process arises from completely nonpartisan public discussion of issues of public importance."
171 U.S.App.D.C. at 183, 519 F.2d at 832. No appeal has been taken from that holding.
8. The court recognized that some of the powers delegated to the Commission, when exercised in a concrete context, may be predominantly executive or judicial or unrelated to the Commission's legislative function; however, since the Commission had not yet exercised most of these challenged powers, consideration of the constitutionality of those grants of authority was postponed. See n. 157, infra.
9. See n. 4, supra.
10. This Court has held, for instance, that an organization "may assert, on behalf of its members, a right personal to them to be protected from compelled disclosure . . . of their affiliation." NAACP v. Alabama, 357 U.S. 449, 458 (1958). See also Bates v. Little Rock, 361 U.S. 516, 523 n. 9 (1960). Similarly, parties with sufficient concrete interests at stake have been held to have standing to raise constitutional questions of separation of powers with respect to an agency designated to adjudicate their rights. Palmore v. United States, 411 U.S. 389 (1973); Glidden Co. v. Zdanok, 370 U.S. 530 (1962); Coleman v. Miller, 307 U.S. 433 (1939).
11. Accordingly, the two relevant certified questions are answered as follows:
1. Does the first sentence of § 315(a) of the Federal Election Campaign Act, as amended, 2 U.S.C. § 437h(a) (1970 ed., Supp. IV), in the context of this action, require courts of the United States to render advisory opinions in violation of the "case or controversy" requirement of Article III, § 2, of the Constitution of the United States? NO.
2. Has each of the plaintiffs alleged sufficient injury to his constitutional rights enumerated in the following questions to create a constitutional "case or controversy" within the judicial power under Article III? YES.
12. See 18 U.S.C. §§ 608(b)(1), (3) (1970 ed., Supp. IV), set forth in the Appendix, infra at 189. An organization registered as a political committee for not less than six months which has received contributions from at least 50 persons and made contributions to at least five candidates may give up to $5,000 to any candidate for any election. 18 U.S.C. § 608(b)(2) (1970 ed., Supp. IV), set forth in the Appendix, infra at 189. Other groups are limited to making contributions of $1,000 per candidate per election.
13. See 18 U.S.C. § 608(e) (1970 ed., Supp. IV), set forth in the Appendix, infra at 193-194.
14. See 18 U.S.C. § 608(a) (1970 ed., Supp. IV), set forth in the Appendix, infra at 187-189.
15. See 18 U.S.C. § 608(c) (1970 ed., Supp. IV), set forth in the Appendix, infra at 190-192.
16. Article I, § 4, of the Constitution grants Congress the power to regulate elections of members of the Senate and House of Representatives. See Smiley v. Holm, 285 U.S. 355 (1932); Ex parte Yarbrough, 110 U.S. 651 (1884). Although the Court at one time indicated that party primary contests were not "elections" within the meaning of Art. I, § 4, Newberry v. United States, 256 U.S. 232 (1921), it later held that primary elections were within the Constitution's grant of authority to Congress. United States v. Classic, 313 U.S. 299 (1941). The Court has also recognized broad congressional power to legislate in connection with the elections of the President and Vice President. Burroughs v. United States, 290 U.S. 534 (1934). See Part III, infra.
17. The nongovernmental appellees argue that, just as the decibels emitted by a sound truck can be regulated consistently with the First Amendment, Kovacs v. Cooper, 336 U.S. 77 (1949), the Act may restrict the volume of dollars in political campaigns without impermissibly restricting freedom of speech. See Freund, Commentary in A. Rosenthal, Federal Regulation of Campaign Finance: Some Constitutional Questions 72 (1971). This comparison underscores a fundamental misconception. The decibel restriction upheld in Kovacs limited the manner of operating a sound truck, but not the extent of its proper use. By contrast, the Act's dollar ceilings restrict the extent of the reasonable use of virtually every means of communicating information. As the Kovacs Court emphasized, the nuisance ordinances only barred sound trucks from broadcasting "in a loud and raucous manner on the streets," 336 U.S. at 89, and imposed "no restriction upon the communications of ideas or discussion of issues by the human voice, by newspapers, by pamphlets, by dodgers," or by sound trucks operating at a reasonable volume. ibid. See Saia v. New York, 334 U.S. 558, 561-562 (1948).
18. Being free to engage in unlimited political expression subject to a ceiling on expenditures is like being free to drive an automobile as far and as often as one desires on a single tank of gasoline.
19. Political parties that fail to qualify a candidate for a position on the ballot are classified as "persons," and are subject to the $1,000 independent expenditure ceiling. See 18 U.S.C. §§ 591(g), (i), 608(e)(1), (f) (1970 ed., Supp. IV). Institutional press facilities owned or controlled by candidates or political parties are also subject to expenditure limits under the Act. See 18 U.S.C. §§ 591(f)(4)(A), 608(c)(2)(b), (e)(1) (1970 ed., Supp. IV).
Unless otherwise indicated, all subsequent statutory citations in Part I of this opinion are to Title 18 of the United States Code, 1970 edition, Supplement IV.
20. The record indicates that, as of January 1, 1975, one full-page advertisement in a daily edition of a certain metropolitan newspaper cost $6,971.04 -- almost seven times the annual limit on expenditures "relative to" a particular candidate imposed on the vast majority of individual citizens and associations by § 608(e)(1).
21. The statistical findings of fact agreed to by the parties in the District Court indicate that 17 of 65 major-party senatorial candidates in 1974 spent more than the combined primary election, general election, and fund-raising limitations imposed by the Act. §§ 591(f)(4)(H), 608(c)(1)(C), (D). The 1972 senatorial figures showed that 18 of 66 major party candidates exceeded the Act's limitations. This figure may substantially underestimate the number of candidates who exceeded the limits provided in the Act, since the Act imposes separate ceilings for the primary election, the general election, and fund-raising, and does not permit the limits to be aggregated. § 608(c)(3). The data for House of Representatives elections are also skewed, since statistics reflect a combined $168,000 limit instead of separate $70,000 ceilings for primary and general elections with up to an additional 20% permitted for fund-raising. §§ 591(f)(4)(H), 608(c)(1)(E). Only 22 of the 810 major-party House candidates in 1974 and 20 of the 816 major party candidates in 1972 exceeded the $168,000 figure. Both Presidential candidates in 1972 spent in excess of the combined Presidential expenditure ceilings. §§ 608(c)(1)(A), (B).
22. Other factors relevant to an assessment of the "intensity" of the support indicated by a contribution include the contributor's financial ability and his past contribution history.
23. Statistical findings agreed to by the parties reveal that approximately 5.1% of the $73,483,613 raised by the 1,161 candidates for Congress in 1974 was obtained in amounts in excess of $1,000. In 1974, two major-party senatorial candidates, Ramsey Clark and Senator Charles Mathias, Jr., operated large-scale campaigns on contributions raised under a voluntarily imposed $100 contribution limitation.
24. The Act exempts from the contribution ceiling the value of all volunteer services provided by individuals to a candidate or a political committee and excludes the first $500 spent by volunteers on certain categories of campaign-related activities. §§ 591(e)(5)(A)-(D). See infra at 36-37.
The Act does not define the phrase -- "for the purpose of influencing" an election -- that determines when a gift, loan, or advance constitutes a contribution. Other courts have given that phrase a narrow meaning to alleviate various problems in other contexts. See United States v. National Comm. for Impeachment, 469 F.2d 1135, 1139-1142 (CA2 1972); American Civil Liberties Union v. Jennings, 366 F.Supp. 1041, 1055-1057 (DC 1973) (three-judge court), vacated as moot sub nom. Staats v. American Civil Liberties Union, 422 U.S. 1030 (1975). The use of the phrase presents fewer problems in connection with the definition of a contribution because of the limiting connotation created by the general understanding of what constitutes a political contribution. Funds provided to a candidate or political party or campaign committee either directly or indirectly through an intermediary constitute a contribution. In addition, dollars given to another person or organization that are earmarked for political purposes are contributions under the Act.
25. Expenditures by persons and associations that are "authorized or requested" by the candidate or his agents are treated as contributions under the Act. See n. 53, infra.
26. Contribution limitations alone would not reduce the greater potential voice of affluent persons and well financed groups, who would remain free to spend unlimited sums directly to promote candidates and policies they favor in an effort to persuade voters.
27. Yet, a ceiling on the size of contributions would affect only indirectly the costs of political campaigns by making it relatively more difficult for candidates to raise large amounts of money. In 1974, for example, 94.9% of the funds raised by candidates for Congress came from contributions of $1,000 or less, see n. 23, supra. Presumably, some or all of the contributions in excess of $1,000 could have been replaced through efforts to raise additional contributions from persons giving less than $1,000. It is the Act's campaign expenditure limitations, § 608(c), not the contribution limits, that directly address the over-all scope of federal election spending.
28. The Court of Appeals' opinion in this case discussed a number of the abuses uncovered after the 1972 elections. See 171 U.S.App.D.C. at 190-191, and nn. 36-38, 519 F.2d at 839-840, and nn. 36-38.
29. Although the Court in Letter Carriers found that this interest was constitutionally sufficient to justify legislation prohibiting federal employees from engaging in certain partisan political activities, it was careful to emphasize that the limitations did not restrict an employee's right to express his views on political issues and candidates. 413 U.S. at 561, 568, 575-576, 579. See n. 54, infra.
30. The Act's disclosure provisions are discussed in Part II, infra.
31. While providing significant limitations on the ability of all individuals and groups to contribute large amounts of money to candidates, the Act's contribution ceilings do not foreclose the making of substantial contributions to candidates by some major special interest groups through the combined effect of individual contributions from adherents or the proliferation of political funds each authorized under the Act to contribute to candidates. As a prime example, § 610 permits corporations and labor unions to establish segregated funds to solicit voluntary contributions to be utilized for political purposes. Corporate and union resources without limitation may be employed to administer these funds and to solicit contributions from employees, stockholders, and union members. Each separate fund may contribute up to $5,000 per candidate per election so long as the fund qualifies as a political committee under § 608(b)(2). See S.Rep. No. 93-1237, pp. 50-52 (1974); Federal Election Commission, Advisory Opinion 1975-23, 40 Fed.Reg. 56584 (1975).
The Act places no limit on the number of funds that may be formed through the use of subsidiaries or divisions of corporations, or of local and regional units of a national labor union. The potential for proliferation of these sources of contributions is not insignificant. In 1972, approximately 1,824,000 active corporations filed federal income tax returns. Internal Revenue Service, Preliminary Statistics of Income 1972, Corporation Income Tax Returns, p. 1 (Pub. 159 (11-74)). (It is not clear whether this total includes subsidiary corporations where the parent filed a consolidated return.) In the same year, 71,409 local unions were chartered by national unions. Department of Labor, Bureau of Labor Statistics, Directory of National Unions and Employee Associations 1973, p. 87 (1974).
The Act allows the maximum contribution to be made by each unit's fund provided the decision or judgment to contribute to particular candidates is made by the fund independently of control or direction by the parent corporation or the national or regional union. See S.Rep. No. 93-1237, pp. 51-52 (1974).
32. The Act's limitations applicable to both campaign expenditures and a candidate's personal expenditures on his own behalf are scaled to take account of the differences in the amounts of money required for congressional and Presidential campaigns. See §§ 608(a)(1), (c)(1)(A)-(E)
33. In this discussion, we address only the argument that the contribution limitations alone impermissibly discriminate against nonincumbents. We do not address the more serious argument that these limitations, in combination with the limitation on expenditures by individuals and groups, the limitation on a candidate's use of his own personal and family resources, and the over-all ceiling on campaign expenditures invidiously discriminate against major party challengers and minor party candidates.
Since an incumbent is subject to these limitations to the same degree as his opponent, the Act, on its face, appears to be evenhanded. The appearance of fairness, however, may not reflect political reality. Although some incumbents are defeated in every congressional election, it is axiomatic that an incumbent usually begins the race with significant advantages. In addition to the factors of voter recognition and the status accruing to holding federal office, the incumbent has access to substantial resources provided by the Government. These include local and Washington offices, staff support, and the franking privilege. Where the incumbent has the support of major special interest groups which have the flexibility described in n. 31, supra, and is further supported by the media, the over-all effect of the contribution and expenditure limitations enacted by Congress could foreclose any fair opportunity of a successful challenge.
However, since we decide in Part I-C, infra that the ceilings on independent expenditures, on the candidate's expenditures from his personal funds, and on over-all campaign expenditures are unconstitutional under the First Amendment, we need not express any opinion with regard to the alleged invidious discrimination resulting from the full sweep of the legislation as enacted.
34. In 1974, for example, 40 major party challengers defeated incumbent members of the House of Representatives in the general election. Four incumbent Senators were defeated by major party challengers in the 1974 primary and general election campaigns.
35. In the 1974 races for the House of Representatives, three of the 22 major party candidates exceeding the combined expenditure limits contained in the Act were challengers to incumbents and nine were candidates in races not involving incumbents. The comparable 1972 statistics indicate that 14 of the 20 major party candidates exceeding the combined limits were nonincumbents.
36. In 1974, major party challengers outspent House incumbents in 22% of the races, and 22 of the 40 challengers who defeated House incumbents outspent their opponents. In 1972, 24% of the major party challengers in senatorial elections outspent their incumbent opponents. The 1974 statistics for senatorial contests reveal substantially greater financial dominance by incumbents.
37. Of the $3,781,254 in contributions raised in 1974 by congressional candidates over and above a $1,000-per-contributor limit, almost twice as much money went to incumbents as to major party challengers.
38. Appellants contend that the Act discriminates against challengers, because, while it limits contributions to all candidates, the Government makes available other material resources to incumbents. See n. 33, supra. Yet, taking cognizance of the advantages and disadvantages of incumbency, there is little indication that the $1,000 contribution ceiling will consistently harm the prospects of challengers relative to incumbents.
39. Between September 1, 1973, and December 31, 1974, major party candidates for the House and Senate raised over $3,725,000 in contributions over and above $1,000 compared to $55,000 raised by minor party candidates in amounts exceeding the $1,000 contribution limit.
40. Appellant Libertarian Party, according to estimates of its national chairman, has received only 10 contributions in excess of $1,000 out of a total of 4,000 contributions. Even these 10 contributions would have been permissible under the Act if the donor did not earmark the funds for a particular candidate and did not exceed the over-all $25,000 contribution ceiling for the calendar year. See § 608(b). Similarly, appellants Conservative Victory Fund and American Conservative Union have received only an insignificant portion of their funding through contributions in excess of $1,000. The affidavit of the executive director of the Conservative Victory Fund indicates that, in 1974, a typical fund-raising year, the Fund received approximately $152,000 through over 9,500 individual contributions. Only one of the 9,500 contributions, an $8,000 contribution earmarked for a particular candidate, exceeded $1,000. In 1972, the Fund received only three contributions in excess of $1,000, all of which might have been legal under the Act if not earmarked. And between April 7, 1972, and February 28, 1975, the American Conservative Union did not receive any aggregate contributions exceeding $1,000. Moreover, the Committee for a Constitutional Presidency -- McCarthy '76, another appellant, engaged in a concerted effort to raise contributions in excess of $1,000 before the effective date of the Act, but obtained only five contributions in excess of $1,000.
Although appellants claim that the $1,000 ceiling governing contributions to candidates will prevent the acquisition of seed money necessary to launch campaigns, the absence of experience under the Act prevents us from evaluating this assertion. As appellees note, it is difficult to assess the effect of the contribution ceiling on the acquisition of seed money since candidates have not previously had to make a concerted effort to raise start-up funds in small amounts.
41. Appellant Buckley was a minor party candidate in 1970 when he was elected to the United States Senate from the State of New York.
42. Although expenditures incidental to volunteer services would appear self-limiting, it is possible for a worker in a candidate's campaign to generate substantial travel expenses. An affidavit submitted by Stewart Mott, an appellant, indicates that he "expended some $50,000 for personal expenses" in connection with Senator McGovern's 1972 Presidential campaign.
43. The Act contains identical, parallel provisions pertaining to incidental volunteer expenses under the definitions of contribution and expenditure. Compare §§ 591(e)(5)(B)-(D) with §§ 591(f)(4)(D), (E). The definitions have two effects. First, volunteer expenses that are counted as contributions by the volunteer would also constitute expenditures by the candidate's campaign. Second, some volunteer expenses would qualify as contributions whereas others would constitute independent expenditures. The statute distinguishes between independent expenditures by individuals and campaign expenditures on the basis of whether the candidate, an authorized committee of the candidate, or an agent of the candidate "authorized or requested" the expenditure. See §§ 608(c)(2)(B)(ii), (e)(1); S.Rep. No. 93-689, p. 18 (1974); H.R.Rep. No. 93-1239, p. 6 (1974). As a result, only travel that is "authorized or requested" by the candidate or his agents would involve incidental expenses chargeable against the volunteer's contribution limit and the candidate's expenditure ceiling. See n. 53, infra. Should a person independently travel across the country to participate in a campaign, any unreimbursed travel expenses would not be treated as a contribution. This interpretation is not only consistent with the statute and the legislative history, but is also necessary to avoid the administrative chaos that would be produced if each volunteer and candidate had to keep track of amounts spent on unsolicited travel in order to comply with the Act's contribution and expenditure ceilings and the reporting and disclosure provisions. The distinction between contributions and expenditures is also discussed at n. 53, infra and in Part II-2, infra.
44. See n. 19, supra.
45. The same broad definition of "person" applicable to the contribution limitations governs the meaning of "person" in § 608(e)(1). The statute provides some limited exceptions through various exclusions from the otherwise comprehensive definition of "expenditure." See § 591(f). The most important exclusions are: (1) "any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication, unless such facilities are owned or controlled by any political party, political committee, or candidate," § 591(f)(4)(A), and (2) "any communication by any membership organization or corporation to its members or stockholders, if such membership organization or corporation is not organized primarily for the purpose of influencing the nomination for election, or election, of any person to Federal office," § 591(f)(4)(C). In addition, the Act sets substantially higher limits for personal expenditures by a candidate in connection with his own campaign, § 608(a), expenditures by national and state committees of political parties that succeed in placing a candidate on the ballot, §§ 591(i), 608(f), and total campaign expenditures by candidates, § 608(c).
46. Section 608(i) provides that any person convicted of exceeding any of the contribution or expenditure limitations "shall be fined not more than $25,000 or imprisoned not more than one year, or both."
47. Several of the parties have suggested that problems of ambiguity regarding the application of § 608(e)(1) to specific campaign speech could be handled by requesting advisory opinions from the Commission. While a comprehensive series of advisory opinions or a rule delineating what expenditures are "relative to a clearly identified candidate" might alleviate the provision's vagueness problems, reliance on the Commission is unacceptable because the vast majority of individuals and groups subject to criminal sanctions for violating § 608(e)(1) do not have a right to obtain an advisory opinion from the Commission. See 2 U.S.C. § 437f (1970 ed., Supp. IV). Section 437f(a) of Title 2 accords only candidates, federal officeholders, and political committees the right to request advisory opinions and directs that the Commission "shall render an advisory opinion, in writing, within a reasonable time" concerning specific planned activities or transactions of any such individual or committee. The powers delegated to the Commission thus do not assure that the vagueness concerns will be remedied prior to the chilling of political discussion by individuals and groups in this or future election years.
48. In such circumstances, vague laws may not only "trap the innocent by not providing fair warning" or foster "arbitrary and discriminatory application," but also operate to inhibit protected expression by inducing "citizens to 'steer far wider of the unlawful zone' . . . than if the boundaries of the forbidden areas were clearly marked.'" Grayned v. City of Rockford, 408 U.S. 104, 108-109 (1972), quoting Baggett v. Bullitt, 377 U.S. 360, 372 (1964), quoting Speiser v. Randall, 357 U.S. 513, 526 (1958). "Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity." NAACP v. Button, 371 U.S. 415, 433 (1963).
49. This interpretation of "relative to a clearly identified candidate" is supported by the discussion of § 608(e)(1) in the Senate Report S.Rep. No. 93-689, p. 19 (1974), the House Report H.R.Rep. No. 93-1239, p. 7 (1974), the Conference Report, S.Conf.Rep. No. 93-1237, pp. 56-57 (1974), and the opinion of the Court of Appeals, 171 U.S.App.D.C. at 203-204, 519 F.2d at 852-853.
50. In connection with another provision containing the same advocacy language appearing in § 608(e)(1), the Court of Appeals concluded:
Public discussion of public issues which also are campaign issues readily and often unavoidably draws in candidates and their positions, their voting records and other official conduct. Discussions of those issues, and as well more positive efforts to influence public opinion on them, tend naturally and inexorably to exert some influence on voting at elections.
171 U.S.App.D.C. at 226, 519 F.2d at 875.
51. Section 608(e)(2) defines "clearly identified" to require that the candidate's name, photograph or drawing, or other unambiguous reference to his identity appear as part of the communication. Such other unambiguous reference would include use of the candidate's initials (e.g., FDR), the candidate's nickname (e.g., Ike), his office (e.g., the President or the Governor of Iowa), or his status as a candidate (e.g., the Democratic Presidential nominee, the senatorial candidate of the Republican Party of Georgia).
52. This construction would restrict the application of § 608(e)(1) to communications containing express words of advocacy of election or defeat, such as "vote for," "elect," "support," "cast your ballot for," "Smith for Congress," "vote against," "defeat," "reject."
53. Section 608(e)(1) does not apply to expenditures "on behalf of a candidate" within the meaning of § 608(c)(2)(B). The latter subsection provides that expenditures "authorized or requested by the candidate, an authorized committee of the candidate, or an agent of the candidate" are to be treated as expenditures of the candidate and contributions by the person or group making the expenditure. The House and Senate Reports provide guidance in differentiating individual expenditures that are contributions and candidate expenditures under § 608(c)(2)(b) from those treated as independent expenditures subject to the § 608(e)(1) ceiling. The House Report speaks of independent expenditures as costs "incurred without the request or consent of a candidate or his agent." H.R.Rep. No. 93-1239, p. 6 (1974). The Senate Report addresses the issue in greater detail. It provides an example illustrating the distinction between "authorized or requested" expenditures excluded from § 608(e)(1) and independent expenditures governed by § 608(e)(1):
[A] person might purchase billboard advertisements endorsing a candidate. If he does so completely on his own, and not at the request or suggestion of the candidate or his agent's, [sic] that would constitute an "independent expenditure on behalf of a candidate" under section 614(c) of the bill. The person making the expenditure would have to report it as such.
However, if the advertisement was placed in cooperation with the candidate's campaign organization, then the amount would constitute a gift by the supporter and an expenditure by the candidate -- just as if there had been a direct contribution enabling the candidate to place the advertisement, himself. It would be so reported by both.
S.Rep. No. 93-689, p. 18 (1974). The Conference substitute adopted the provision of the Senate bill dealing with expenditures by any person "authorized or requested" to make an expenditure by the candidate or his agents. S.Conf.Rep. No. 93-1237, p. 55 (1974). In view of this legislative history and the purposes of the Act, we find that the "authorized or requested" standard of the Act operates to treat all expenditures placed in cooperation with or with the consent of a candidate, his agents, or an authorized committee of the candidate as contributions subject to the limitations set forth in § 608(b).
54. Appellees mistakenly rely on this Court's decision in CSC v. Letter Carriers as supporting § 608(e)(1)'s restriction on the spending of money to advocate the election or defeat of a particular candidate. In upholding the Hatch Act's broad restrictions on the associational freedoms of federal employees, the Court repeatedly emphasized the statutory provision and corresponding regulation permitting an employee to "'[e]xpress his opinion as an individual privately and publicly on political subjects and candidates.'" 413 U.S. at 579, quoting 5 CFR § 733.111(a)(2). See 413 U.S. at 561, 568, 575-576. Although the Court "unhesitatingly" found that a statute prohibiting federal employees from engaging in a wide variety of "partisan political conduct" would "unquestionably be valid," it carefully declined to endorse provisions threatening political expression. See id. at 556, 579-581. The Court did not rule on the constitutional questions presented by the regulations forbidding partisan campaign endorsements through the media and speechmaking to political gatherings, because it found that these restrictions did not "make the statute substantially overbroad and so invalid on its face." Id. at 581.
55. Neither the voting rights cases nor the Court's decision upholding the Federal Communications Commission's fairness doctrine lends support to appellees' position that the First Amendment permits Congress to abridge the rights of some persons to engage in political expression in order to enhance the relative voice of other segments of our society.
Cases invalidating governmentally imposed wealth restrictions on the right to vote or file as a candidate for public office rest on the conclusion that wealth "is not germane to one's ability to participate intelligently in the electoral process," and is therefore an insufficient basis on which to restrict a citizen's fundamental right to vote. Harper v. Virginia Bd. of Elections, 383 U.S. 663, 668 (1966). See Lubin v. Panish, 415 U.S. 709 (1974); Bullock v. Carter, 405 U.S. 134 (1972); Phoenix v. Kolodziejski, 399 U.S. 204 (1970). These voting cases and the reapportionment decisions serve to assure that citizens are accorded an equal right to vote for their representatives regardless of factors of wealth or geography. But the principles that underlie invalidation of governmentally imposed restrictions on the franchise do not justify governmentally imposed restrictions on political expression. Democracy depends on a well informed electorate, not a citizenry legislatively limited in its ability to discuss and debate candidates and issues.
In Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969), the Court upheld the political editorial and personal attack portions of the Federal Communications Commission's fairness doctrine. That doctrine requires broadcast licensees to devote programing time to the discussion of controversial issues of public importance and to present both sides of such issues. Red Lion "makes clear that the broadcast media pose unique and special problems not present in the traditional free speech case," by demonstrating that
"it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish."
Columbia Broadcasting v. Democratic Comm., 412 U.S. 94, 101 (1973), quoting Red Lion Broadcasting Co., supra, at 388. Red Lion therefore undercuts appellees' claim that § 608(e)(1)'s limitations may permissibly restrict the First Amendment rights of individuals in this "traditional free speeh case." Moreover, in contrast to the undeniable effect of § 608(e)(1), the presumed effect of the fairness doctrine is one of "enhancing the volume and quality of coverage" of public issues. 395 U.S. at 393.
56. The Act exempts most elements of the institutional press, limiting only expenditures by institutional press facilities that are owned or controlled by candidates and political parties. See § 591(f)(4)(A). But whatever differences there may be between the constitutional guarantees of a free press and of free speech, it is difficult to conceive of any principled basis upon which to distinguish § 608(e)(1)'s limitations upon the public at large and similar limitations imposed upon the press specifically.
57. The $35,000 ceiling on expenditures by candidates for the Senate also applies to candidates for the House of Representatives from States entitled to only one Representative. § 608(a)(1)(b).
The Court of Appeals treated § 608(a) as relaxing the $1,000 per candidate contribution limitation imposed by § 608(b)(1) so as to permit any member of the candidate's immediate family -- spouse, child, grandparent, brother, sister, or spouse of such persons to contribute up to the $25,000 over-all annual contribution ceiling to the candidate. See 171 U.S.App.D.C. at 205, 519 F.2d at 854. The Commission has recently adopted a similar interpretation of the provision. See Federal Election Commission, Advisory Opinion 1975-65 (Dec. 5, 1975), 40 Fed.Reg. 58393. However, both the Court of Appeals and the Commission apparently overlooked the Conference Report accompanying the final version of the Act which expressly provides for a contrary interpretation of § 608(a):
It is the intent of the conferees that members of the immediate family of any candidate shall be subject to the contribution limitations established by this legislation. If a candidate for the office of Senator, for example, already is in a position to exercise control over funds of a member of his immediate family before he becomes a candidate, then he could draw upon these funds up to the limit of $35,000. If, however, the candidate did not have access to or control over such funds at the time he became a candidate, the immediate family member would not be permitted to grant access or control to the candidate in amounts up to $35,000, if the immediate family member intends that such amounts are to be used in the campaign of the candidate. The immediate family member would be permitted merely to make contributions to the candidate in amounts not greater than $1,000 for each election involved.
S.Conf.Rep. No. 93-1237, p. 58 (1974).
58. The Court of Appeals evidently considered the personal funds expended by the candidate on his own behalf as a contribution, rather than an expenditure. See 171 U.S.App.D.C. at 205, 519 F.2d at 854. However, unlike a person's contribution to a candidate, a candidate's expenditure of his personal funds directly facilitates his own political speech.
59. The legislative history of the Act clearly indicates that § 608(a) was not intended to suspend the application of the $1,000 contribution limitation of § 608(b)(1) for members of the candidate's immediate family. See n. 57, supra. Although the risk of improper influence is somewhat diminished in the case of large contributions from immediate family members, we cannot say that the danger is sufficiently reduced to bar Congress from subjecting family members to the same limitations as nonfamily contributors.
The limitation on a candidate's expenditure of his own funds differs markedly from a limitation on family contributions both in the absence of any threat of corruption and the presence of a legislative restriction on the candidate's ability to fund his own communication with the voters.
60. Expenditures made by an authorized committee of the candidate or any other agent of the candidate, as well as any expenditure by any other person that is "authorized or requested" by the candidate or his agent, are charged against the candidate's spending ceiling. § 608(c)(2)(b).
61. Expenditures made by or on behalf of a Vice Presidential candidate of a political party are considered to have been made by or on behalf of the party's Presidential candidate. § 608(c)(2)(A).
62. The campaign ceilings contained in § 608(c) would have required a reduction in the scope of a number of previous congressional campaigns and substantially limited the over-all expenditures of the two major party Presidential candidates in 1972. See n. 21, supra.
63. This normal relationship may not apply where the candidate devotes a large amount of his personal resources to his campaign.
64. As an opinion dissenting in part from the decision below noted:
If a senatorial candidate can raise $1 from each voter, what evil is exacerbated by allowing that candidate to use all that money for political communication? I know of none.
171 U.S.App.D.C. at 268, 519 F.2d at 917 (Tamm, J.).
65. For the reasons discussed in Part III, infra, Congress may engage in public financing of election campaigns, and may condition acceptance of public funds on an agreement by the candidate to abide by specified expenditure limitations. Just as a candidate may voluntarily limit the size of the contributions he chooses to accept, he may decide to forgo private fundraising and accept public funding.
66. Subtitle H of the Internal Revenue Code also established separate limitations for general election expenditures by national and state committees of political parties, § 608(f), and for national political party conventions for the nomination of Presidential candidates. 26 U.S.C. § 9008(d) (1970 ed., Supp. IV). Appellants do not challenge these ceilings on First Amendment grounds. Instead, they contend that the provisions discriminate against independent candidates and regional political parties without national committees, because they permit additional spending by political parties with national committees. Our decision today holding § 608(e)(1)'s independent expenditure limitation unconstitutional and § 608(c)'s campaign expenditure ceilings unconstitutional removes the predicate for appellants' discrimination claim by eliminating any alleged advantage to political parties with national committees.
67. Accordingly, the answers to the certified constitutional questions pertaining to the Act's contribution and expenditure limitations are as follows:
3. Does any statutory limitation, or do the particular limitations in the challenged statutes, on the amounts that individuals or organizations may contribute or expend in connection with elections for federal office violate the rights of one or more of the plaintiffs under the First, Fifth, or Ninth Amendment or the Due Process Clause of the Fifth Amendment of the Constitution of the United States ?
(a) Does 18 U.S.C. § 608(a) (1970 ed., Supp. IV) violate such rights, in that it forbids a candidate or the members of his immediate family from expending personal funds in excess of the amounts specified in 18 U.S.C. § 608(a)(1) (1970 ed., Supp. IV)?
(b) Does 18 U.S.C. § 608(b) (1970 ed., Supp. IV) violate such rights, in that it forbids the solicitation, receipt or making of contributions on behalf of political candidates in excess of the amounts specified in 18 U.S.C. § 608(b) (1970 ed., Supp. IV)?
(c) Do 18 U.S.C. §§ 591(e) and 608(b) (1970 ed., Supp. IV) violate such rights, in that they limit the incidental expenses which volunteers working on behalf of political candidates may incur to the amounts specified in 18 U.S.C. §§ 591(e) and 608(b) (1970 ed., Supp. IV)?
(d) Does 18 U.S.C. § 608(e) (1970 ed., Supp. IV) violate such rights, in that it limits to $1,000 the independent (not on behalf of a candidate) expenditures of any person relative to an identified candidate?
(e) Does 18 U.S.C. § 608(f) (1970 ed., Supp. IV) violate such rights, in that it limits the expenditures of national or state committees of political parties in connection with general election campaigns for federal office?
Answer: NO, as to the Fifth Amendment challenge advanced by appellants.
(f) Does § 9008 of the Internal Revenue Code of 1954 violate such rights, in that it limits the expenditures of the national committee of a party with respect to presidential nominating conventions?
Answer: NO, as to the Fifth Amendment challenge advanced by appellants.
(h) Does 18 U.S.C. § 608(b)(2) (1970 ed., Supp. IV) violate such rights, in that it excludes from the definition of "political committee" committees registered for less than the period of time prescribed in the statute?
4. Does any statutory limitation, or do the particular limitations in the challenged statutes, on the amounts that candidates for elected federal office may expend in their campaigns violate the rights of one or more of the plaintiffs under the First or Ninth Amendment or the Due Process Clause of the Fifth Amendment?
(a) Does 18 U.S.C. § 608(c) (1970 ed., Supp. IV) violate such rights, in that it forbids expenditures by candidates for federal office in excess of the amounts specified in 18 U.S.C. § 608(c) (1970 ed., Supp. IV) ?
68. Unless otherwise indicated, all statutory citations in Part II of this opinion are to Title 2 of the United States Code, 1970 edition, Supplement IV.
69. Appellants do contend that there should be a blanket exemption from the disclosure provisions for minor parties. See Part II-2, infra.
70. The Court of Appeals' ruling that § 437a is unconstitutional was not appealed. See n. 7, supra.
71. Past disclosure laws were relatively easy to circumvent, because candidates were required to report only contributions that they had received themselves or that were received by others for them with their knowledge or consent. § 307, 43 Stat. 1072. The data that were reported were virtually impossible to use, because there were no uniform rules for the compiling of reports or provisions for requiring corrections and additions. See Redish, Campaign Spending Laws and the First Amendment, 46 N.Y.U.L.Rev. 900, 905 (1971).
72. See Part I, supra. The relevant provisions of Title 2 are set forth in the Appendix to this opinion, infra at 144 et seq.
73. NAACP v. Alabama, 357 U.S. at 463. See also Gibson v. Florida Legislative Comm., 372 U.S. 539, 546 (1963); :NAACP v. Button, 371 U.S. at 438; Bates v. Little Rock, 361 U.S. at 524.
74. Id. at 525.
75. Gibson v. Florida Legislative Comm., supra at 546.
76. The Court of Appeals held that the applicable test for evaluating the Act's disclosure requirements is that adopted in United States v. O'Brien, 391 U.S. 367 (1968), in which "'speech' and 'nonspeech' elements [were] combined in the same course of conduct." Id. at 376. O'Brien is appropriate, the Court of Appeals found, because the Act is directed toward the spending of money, and money introduces a nonspeech element. As the discussion in Part I-A, supra, indicates, O'Brien is inapposite, for money is a neutral element not always associated with speech, but a necessary and integral part of many, perhaps most, forms of communication. Moreover, the O'Brien test would not be met, even if it were applicable. O'Brien requires that "the governmental interest [be] unrelated to the suppression of free expression." Id. at 377. The governmental interest furthered by the disclosure requirements is not unrelated to the "suppression" of speech insofar as the requirements are designed to facilitate the detection of violations of the contribution and expenditure limitations set out in 18 U.S.C. § 608 (1970 ed., Supp. IV).
77. H.R.Rep. No. 92-564, p. 4 (1971).
78. ibid.; S.Rep. No. 93-689, p. 2 (1974).
79. We have said elsewhere that "informed public opinion is the most potent of all restraints upon misgovernment." Grosjean v. American Press Co., 297 U.S. 233, 250 (1936). Cf. United States v. Harriss, 347 U.S. 612, 625 (1954) (upholding disclosure requirements imposed on lobbyists by the Federal Regulation of Lobbying Act, Title III of the Legislative Reorganization Act of 1946, 60 Stat. 839).
80. L. Brandeis, Other People's Money 62 (National Home Library Foundation ed.1933).
81. See supra at 60.
82. Post-election disclosure by successful candidates is suggested as a less restrictive way of preventing corrupt pressures on officeholders. Delayed disclosure of this sort would not serve the equally important informational function played by pre-election reporting. Moreover, the public interest in sources of campaign funds is likely to be at its peak during the campaign period; that is the time when improper influences are most likely to be brought to light.
83. Nor is this a case comparable to Pollard v. Roberts, 283 F.Supp. 248 (ED Ark.) (three-judge court), aff'd, 393 U.S. 14 (1968), in which an Arkansas prosecuting attorney sought to obtain, by a subpoena duces tecum, the records of a checking account (including names of individual contributors) established by a specific party, the Republican Party of Arkansas.
84. See Developments in the Law -- Elections, 88 Harv.L.Rev. 1111, 1247 n. 75 (1975).
85. See Williams v. Rhodes, 393 U.S. 23, 32 (1968) ("There is, of course, no reason why two parties should retain a permanent monopoly on the right to have people vote for or against them. Competition in ideas and governmental policies is at the core of our electoral process and of the First Amendment freedoms"); Sweezy v. New Hampshire, 354 U.S. 234, 250-251 (1957) (plurality opinion).
86. Cf. Talley v. California, 362 U.S. 60, 64-65 (1960).
87. Allegations made by a branch of the Socialist Workers Party in a civil action seeking to declare the District of Columbia disclosure and filing requirements unconstitutional as applied to its records were held to be sufficient to withstand a motion to dismiss in Doe v. Martin, 404 F.Supp. 753 (1975) (three-judge court). The District of Columbia provisions require every political committee to keep records of contributions of $10 or more and to report contributors of $50 or more.
88. For example, a campaign worker who had solicited campaign funds for the Libertarian Party in New York testified that two persons solicited in a Party campaign "refused to contribute because they were unwilling for their names to be disclosed or published." None of the appellants offers stronger evidence of threats or harassment.
89. These criteria were suggested in an opinion concurring in part and dissenting in part from the decision below. 171 U.S.App.D.C. at 258 n. 1, 519 F.2d at 907 n. 1 (Bazelon, C.J.).
90. Age is also underinclusive, in that it would presumably leave long-established but unpopular parties subject to the disclosure requirements. The Socialist Labor Party, which is not a party to this litigation but which has filed an amicus brief in support of appellants, claims to be able to offer evidence of "direct suppression, intimidation, harassment, physical abuse, and loss of economic sustenance" relating to its contributors. Brief for Socialist Labor Party as Amicus Curiae 6. The Party has been in existence since 1877.
91. 171 U.S.App.D.C. at 258, 519 F.2d at 907 n. 1 (Bazelon C.J.).
92. Id. at 260, 519 F.2d at 909. See also Developments in the Law -- Elections, 88 Harv.L.Rev. 1111, 1247-1249 (1975).
93. See Appendix to this opinion, infra at 160.
94. See Part I-C-1, supra.
95. § 305, 86 Stat. 16.
96. 88 Stat. 1265.
97. S.Rep. No. 92-229, p. 57 (1971)
98. See n. 71, supra.
99. Section 441(a) provides: Any person who violates any of the provisions of this subchapter shall be fined not more than $1,000 or imprisoned not more than one year, or both.
100. §§ 431(e), (f). See Appendix to this opinion, infra at 145-149. See supra at 61-63.
101. S.Rep. No. 92-96, p. 33 (1971); S.Rep. No. 93-689, pp. 1-2 (1974).
102. See supra at 61-63.
103. See n. 53, supra.
104. See Part I-C-1, supra.
105. Section 431(d) defines "political committee"
as any committee, club, association, or other group of persons which receives contributions or makes expenditures during a calendar year in an aggregate amount exceeding $1,000.
106. At least two lower courts, seeking to avoid questions of unconstitutionality, have construed the disclosure requirements imposed on "political committees" by § 434(a) to be nonapplicable to nonpartisan organizations. United States v. National Comm. for Impeachment, 469 F.2d at 1139-1142; American Civil Liberties Union v. Jennings, 366 F.Supp. at 1055-1057. See also 171 U.S.App.D.C. at 214 n. 112, 519 F.2d at 863 n. 112.
107. Some partisan committees -- groups within the control of the candidate or primarily organized for political activities -- will fall within § 434(e) because their contributions and expenditures fall in the $100-to-$1,000 range. Groups of this sort that do not have contributions and expenditures over $1,000 are not "political committees" within the definition in § 431(d); those whose transactions are not as great as $100 are not required to file statements under § 434(e).
108. See n. 52, supra.
109. Of course, independent contributions and expenditures made in support of the campaigns of candidates of parties that have been found to be exempt from the general disclosure requirements because of the possibility of consequent chill and harassment would be exempt from the requirements of § 434(e).
110. See supra at 61-63.
Looked at by itself without regard to the necessity behind it the line or point seems arbitrary. It might as well or nearly as well be a little more to one side or the other. But when it is seen that a line or point there must be, and that there is no mathematical or logical way of fixing it precisely, the decision of the legislature must be accepted unless we can say that it is very wide of any reasonable mark.
Louisville Gas Co. v. Coleman, 277 U.S. 32, 41 (1928) (Holmes, J., dissenting).
112. Appellants' final argument is directed against § 434(d), which exempts from the reporting requirements certain "photographic, matting, or recording services" furnished to Congressmen in nonelection years. See Appendix to this opinion, infra at 159. Although we are troubled by the considerable advantages that this exemption appears to give to incumbents, we agree with the Court of Appeals that, in the absence of record evidence of misuse or undue discriminatory impact, this provision represents a reasonable accommodation between the legitimate and necessary efforts of legislators to communicate with their constituents and activities designed to win elections by legislators in their other role as politicians.
113. Accordingly, we respond to the certified questions, as follows:
7. Do the particular requirements in the challenged statutes that persons disclose the amounts that they contribute or expend in connection with elections for federal office or that candidates for such office disclose the amounts that they expend in their campaigns violate the rights of one or more of the plaintiffs under the First, Fourth, or Ninth Amendment or the Due Process Clause of the Fifth Amendment?
(a) Do 2 U.S.C. §§ 432(b), (c), and (d) and 438(a)(8) (1970 ed., Supp. IV) violate such rights, in that they provide, through auditing procedures, for the Federal Election Commission to inspect lists and records required to be kept by political committees of individuals who contribute more than $10?
(b) Does 2 U.S.C. §§ 434(b)(1)-(8) (1970 ed., Supp. IV) violate such rights, in that it requires political committees to register and disclose the names, occupations, and principal places of business (if any) of those of their contributors who contribute in excess of $100?
(c) Does 2 U.S.C. § 434(d) (1970 ed., Supp. IV) violate such rights, in that it neither requires disclosure of nor treats as contribution to or expenditure by incumbent officeholders the resources enumerated in 2 U.S.C. § 434(d) (1970 ed., Supp. IV)?
(d) Does 2 U.S.C. § 434(e) (1970 ed., Supp. IV) violate such rights, in that it provides that every person contributing or expending more than $100 other than by contribution to a political committee or candidate (including volunteers with incidental expenses in excess of $600) must make disclosure to the Federal Election Commission ?
114. The Presidential Election Campaign Fund Act of 1966, Title IV of Pub.L. 89-909, §§ 301-305, 80 Stat. 1587, was the first such provision. This Act also initiated the dollar check-off provision now contained in 26 U.S.C. § 6096 (1970 ed., Supp. IV). The Act was suspended, however, by a 1967 provision barring any appropriations until Congress adopted guidelines for the distribution of money from the Fund. Pub.L. 90-26, § 5, 81 Stat. 58. In 1971, Congress added Subtitle H to the Internal Revenue Code. Pub.L. 92-178, § 801, 85 Stat. 562. Chapter 95 thereof provided public financing of general election campaigns for President; this legislation was to become effective for the 1976 election and is substantially the same as the present scheme. Congress later amended the dollar check-off provision, deleting the taxpayers' option to designate specific parties as recipients of their money. Pub.L. 93-53, § 6, 87 Stat. 138. Finally, the 1974 amendments added to Chapter 95 provisions for financing nominating conventions and enacted a new Chapter 96 providing matching funds for campaigns in Presidential primaries. Pub.L. 93-443, §§ 403-408, 88 Stat. 1291.
115. Unless otherwise indicated all statutory citations in this Part III are to the Internal Revenue Code of 1954, Title 26 of the United States Code, 1970 edition, Supplement IV.
116. See n. 6, supra.
117. Priorities are established when the Fund is insufficient to satisfy all entitlements in any election year: the amount in the Fund is first allocated to convention funding, then to financing the general election, and finally to primary matching assistance. See §§ 9008(a), 9037(a). But the law does not specify how funds are to be allocated among recipients within these categories. Cf. § 9006(d).
118. Independent candidates might be excluded from general election funding by Chapter 95. See §§ 9002(2)(B), 9003(a), (c), 9004(a)(2), (c), 9005(a), 9006(c). Serious questions might arise as to the constitutionality of excluding from free annual assistance candidates not affiliated with a "political party" solely because they lack such affiliation. Storer v. Brown, 415 U.S. 724, 745-746 (1974). But we have no occasion to address that question in this case. The possibility of construing Chapter 95 as affording financial assistance to independent candidates was remarked by the Court of Appeals. 171 U.S.App.D.C. at 238, 519 F.2d at 887. The only announced independent candidate for President before the Court -- former Senator McCarthy -- has publicly announced that he will refuse any public assistance. Moreover, he is affiliated with the Committee for a Constitutional Presidency -- McCarthy '76, and there is open the question whether it would qualify as a "political party" under Subtitle:.
119. No party to this case has challenged the constitutionality of this expenditure limit.
120. This amount is the same as the expenditure limit provided in 18 U.S.C. § 608(c)(1)(b) (1970 ed., Supp. IV). The Court of Appeals viewed the provisions as "complementary stratagems." 171 U.S.App.D.C. at 201, 519 F.2d at 850. Since the Court today holds § 608(c)(1) to be unconstitutional, the question of the severability of general election funding as now constituted arises. We hold that the provisions are severable for the reasons stated in Part III-C, infra.
121. No separate pledge is required from the candidate's party, but if the party organization is an "authorized committee" or "agent," expenditures by the party may be attributed to the candidate. 18 U.S.C. § 608(c)(2)(b) (1970 ed., Supp. IV). See § 608(b)(4)(A).
122. As with Chapter 95, any constitutional question that may arise from the exclusion of independent candidates from any assistance, such as funds to defray expenses of getting on state ballots by petition drives, need not be addressed in this case. See n. 118, supra.
123. As with general election funding, this limit is the same as the candidate expenditure limit of 18 U.S.C. § 608(c)(1) (1970 ed., Supp. IV). See n. 120, supra, and Part III-C, infra.
124. The scheme involves no compulsion upon individuals to finance the dissemination of ideas with which they disagree, Lathrop v. Donohue, 367 U.S. 820, 871 (1961) (Black, J., dissenting); id. at 882 (Douglas, J., dissenting); Machinists v. Street, 367 U.S. 740, 778 (1961) (Douglas, J., concurring); id. at 788-792 (Black, J., dissenting). The § 6096 check-off is simply the means by which Congress determines the amount of its appropriation.
125. Some proposals for public financing would give taxpayers the opportunity to designate the candidate or party to receive the dollar, and § 6096 initially offered this choice. See n. 114, supra. The voucher system proposed by Senator Metcalf, as amicus curiae here, also allows taxpayers this option. But Congress need not provide a mechanism for allowing taxpayers to designate the means in which their particular tax dollars are spent. See n. 124, supra. Further, insofar as these proposals are offered as less restrictive means, Congress had legitimate reasons for rejecting both. The designation option was criticized on privacy grounds, 119 Cong.Rec. 22598, 22396 (1973), and also because the identity of all candidates would not be known by April 15, the filing day for annual individual and joint tax returns. Senator Metcalf's proposal has also been criticized as possibly leading to black markets and to coercion to obtain vouchers, and as administratively impractical.
126. Appellants voice concern that public funding will lead to governmental control of the internal affairs of political parties, and thus to a significant loss of political freedom. The concern is necessarily wholly speculative and hardly a basis for invalidation of the public financing scheme on its face. Congress has expressed its determination to avoid the possibility. S.Rep. No. 93-689, pp. 910 (1974).
127. The historical bases of the Religion and Speech Clauses are markedly different. Intolerable persecutions throughout history led to the Framers' firm determination that religious worship -- both in method and belief -- must be strictly protected from government intervention.
Another purpose of the Establishment Clause rested upon an awareness of the historical fact that governmentally established religions and religious persecutions go hand in hand.
Engel v. Vitale, 370 U.S. 421, 432 (1962) (footnote omitted). See Everson v. Board of Education, 330 U.S. 1, 8-15 (1947). But the central purpose of the Speech and Press Clauses was to assure a society in which "uninhibited, robust, and wide-open" public debate concerning matters of public interest would thrive, for only in such a society can a healthy representative democracy flourish. New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). Legislation to enhance these First Amendment values is the rule, not the exception. Our statute books are replete with laws providing financial assistance to the exercise of free speech, such as aid to public broadcasting and other forms of educational media, 47 U.S.C. §§ 390-399, and preferential postal rates and antitrust exemptions for newspapers, 39 CFR § 132.2 (1975); 15 U.S.C. §§ 1801-1804.
128. Appellants maintain that denial of funding is a more severe restriction than denial of access to the ballot, because write-in candidates can win elections, but candidates without funds cannot. New parties will be unfinanced, however, only if they are unable to get private financial support, which presumably reflects a general lack of public support for the party. Public financing of some candidates does not make private fundraising for others any more difficult; indeed, the elimination of private contributions to major party Presidential candidates might make more private money available to minority candidates.
129. Appellants dispute the relevance of this answer to their argument on the ground that they will not be able to raise money to equal major party spending. As a practical matter, however, Subtitle H does not enhance the major parties' ability to campaign; it substitutes public funding for what the parties would raise privately and additionally imposes an expenditure limit. If a party cannot raise funds privately, there are legitimate reasons not to provide public funding, which would effectively facilitate hopeless candidacies.
130. Our only prior decision dealing with a system of public financing, American Party of Texas v. White, 415 U.S. 767 (1974), also recognized that such provisions are less restrictive than regulation of ballot access. Texas required major parties -- there called "political parties" -- to nominate candidates by primaries, and the State reimbursed the parties for some of the expenses incurred in holding the primaries. But Texas did not subsidize other parties for the expenses involved in qualifying for the ballot, and this denial was claimed to be a denial of equal protection of the laws. We said that we were
unconvinced . . . that this financing law is an "exclusionary mechanism" which "tends to deny some voters the opportunity to vote for a candidate of their choosing" or that it has "a real and appreciable impact on the exercise of the franchise."
Id. at 794, quoting from Bullock v. Carter, 405 U.S. at 144. That the aid in American Party was provided to parties and not to candidates, as is most of the Subtitle H funding, is immaterial.
131. The allegations of invidious discrimination are based on the claim that Subtitle H is facially invalid; since the public financing provisions have never been in operation, appellants are unable to offer factual proof that the scheme is discriminatory in its effect. In rejecting appellants' arguments, we of course do not rule out the possibility of concluding in some future case, upon an appropriate factual demonstration, that the public financing system invidiously discriminates against nonmajor parties.
132. In 1912, Theodore Roosevelt ran as the candidate of the Progressive Party, which had split off from the Republican Party, and he received more votes than William H. Taft, the Republican candidate. But this third-party "threat" was short-lived; in 1916, the Progressives came back into the Republican Party when the party nominated Charles Evans Hughes as its candidate for the Presidency. With the exception of 1912, the major party candidates have outpolled all others in every Presidential election since 1856.
133. Appellants suggest that a less discriminatory formula would be to grant full funding to the candidate of the party getting the most votes in the last election and then give money to candidates of other parties based on their showing in the last election relative to the "leading" party. That formula, however, might unfairly favor incumbents, since their major party challengers would receive less financial assistance. See S.Rep. No. 93-689, p. 10 (1974).
134. Appellants argue that this effort to "catch up" is hindered by the contribution limits in 18 U.S.C. § 608(b) (1970 ed., Supp. IV) and that therefore the public financing provisions are unconstitutional. Whatever merit the point may have, which is questionable on the basis of the record before the Court, it is answered in our treatment of the contribution limits. See Part I-B, supra.
135. There will, however, be no minor party candidates in the 1976 Presidential election, since no 1972 candidate other than those of the major parties received 5% of the popular vote.
136. Another suggested alternative is Senator Metcalf's voucher scheme, but we have previously mentioned problems presented by that deice. See n. 125, supra. The United States suggests that a matching formula could be used for general election funding, as it is for funding primary campaigns, in order to relate current funding to current support more closely. Congress could readily have concluded, however, that the matching formula was inappropriate for the general election. The problems in determining the relative strength of candidates at the primaries stage of the campaign are far greater than after a candidate has obtained the nomination of a major party. See S.Rep. No. 93 689, p. 6 (1974). It might be eminently reasonable, therefore, to employ a matching formula for primary elections related to popular support evidenced by numerous smaller contributions, yet inappropriate for general election financing as inconsistent with the congressional effort to remove the influence of private contributions and to relieve candidates of the burden of fundraising. ibid.
137. Williams v. Rhodes, 393 U.S. 23, 31-32 (1968); Sweezy v. New Hampshire, 354 U.S. 234, 250-251 (1957) (plurality opinion). Cf. Talley v. California, 362 U.S. 60, 64 (1960).
138. Apart from the adjustment for inflation, and assuming a major party entitlement of $20,000,000, a candidate getting 5% of the popular vote, when the balance is divided between two major parties, would be entitled to a post-election payment of more than $2,100,000 if that sum remains after priority allocations from the fund.
139. It is also argued that Storer v. Brown, 415 U.S. 724 (1974), is a better analogy than Jenness. In Storer, a candidate could qualify for the ballot by obtaining the signatures of 5% of the voters, but the signatures could not include any voters who voted for another candidate at the primary election. 415 U.S. at 739. The analogy, however, is no better than Jenness. The Chapter 95 formula is not more restrictive than that sustained in the two cases, since for the reasons stated earlier, supra at 94-95, it burdens minority interests less than ballot access regulations.
140. On similar grounds, we sustain the 10-state requirement in § 9002(2). Success in Presidential elections depends on winning electoral votes in States, not solely popular votes, and the requirement is plainly not unreasonable in light of that fact.
141. As with primary campaigns, Congress could reasonably determine that there was no need for reforms as to minor party conventions. See infra at 105-106. This contribution limit applies to "contributions to any candidate," 18 U.S.C. § 608(b)(1) (1970 ed., Supp. IV), and thus would not govern gifts to a party for general purposes, such as convention funding. Although "contributions to a named candidate made to any political committee" are within § 608(b)(1) if the committee is authorized in writing by a candidate to accept contributions, § 608(b)(4)(A), contributions to a party not for the benefit of any specific candidate would apparently not be subject to the $1,000 ceiling. Moreover, § 608(b)(4)(A) governs only party organizations authorized by a candidate in writing to accept contributions.
142. With respect to the denial of funds to candidates who may not be affiliated with a "political party" for the purposes of public financing, See n. 118, supra.
143. Appellants argue that this reasoning from Katzenbach v. Morgan is inapplicable to this case involving First Amendment guarantees. But the argument as to the denial of funds to certain candidates primarily claims invidious discrimination and hence presents Fifth Amendment questions, though with First Amendment overtones, as in Katzenbach v. Morgan.
144. Appellants contend that the 20-state requirement directly conflicts with Moore v. Ogilvie, 394 U.S. 814 (1969), but that case is distinguishable. Only 7% of the Illinois voters could have blocked a candidate from qualifying for the ballot, even though the state-wide elections were decided by straight majority vote. The clear purpose was to keep any person from being nominated without support in downstate counties making up only 7% of the vote, but those same voters could not come close to defeating a candidate in the general election. There is no similar restriction here on the opportunity to vote for any candidate, and the 20-state requirement is not an unreasonable method of measuring a candidate's breadth of support. See supra at 103-105.
145. The fear that barriers would be reduced too much was one reason for rejecting a matching formula for the general election financing system. See n. 136, supra.
146. By offering a single hypothetical situation, appellants try to prove that the matching formula gives wealthy contributors an advantage. Taxpayers are entitled to a deduction from ordinary income for political contributions up to $100, or $200 on a joint return. § 218. Appellants note that a married couple in the 70% tax bracket could give $500 to a candidate and claim the full deduction allowed by § 218, thus reducing their tax liability by $140. The matching funds increase the effective contribution to $1,000, and the total cost to the contributors is $360. But the appellants have disregarded a myriad of other possibilities. For example, taxpayers also have the option of claiming a tax credit up to $25, or $50 on a joint return, for one-half of their political contributions. § 41. Any married couple could give $100 to a candidate, claim the full $50 credit, and matching thus allows a contribution of $200 at a cost of only $50 to the contributors. Because this example and others involve greater subsidization -- 75% against 64% -- of smaller contributions than is involved in appellants' hypothesis, one cannot say that the matching formula unfairly favors wealthy interests or large contributors. Moreover, the effect noted by appellants diminishes as the size of individual contributions approaches $1,000.
Finally, these examples clearly reveal that §§ 41 and 218 afford public subsidies for candidates, but appellants have raised no constitutional challenge to the provisions, either on First or Fifth Amendment grounds.
147. Our responses to the certified constitutional questions pertaining to public financing of Presidential election campaigns are:
5. Does any statutory provision for the public financing of political conventions or campaigns for nomination or election to the Presidency or Vice Presidency violate the rights of one or more of the plaintiffs under the First or Ninth Amendment, the Due Process Clause of the Fifth Amendment, or Article I, Section 8, Clause 1, of the Constitution of the United States?
6. Do the particular provisions of Subtitle H and § 6096 of the Internal Revenue Code of 1954 deprive one or more of the plaintiffs of such rights under the First or Ninth Amendment or Article 1, Section 8, Clause 1, in that they provide federal tax money to support certain political candidates, parties, movements, and organizations or in the manner that they so provide such federal tax money?
148. Unless otherwise indicated, all statutory citations in Part IV are to Title 2 of the United States Code, 1970 edition, Supplement IV, the relevant provisions of which are set forth in the Appendix to this opinion, infra at 144 -180.
149. In administering Chapters 95 and 96 of Title 26, which provide for funding of Presidential election and primary campaigns, respectively, the Commission is empowered, inter alia, "to prescribe such rules and regulations . . . as it deems necessary to carry out the functions and duties imposed on it" by each chapter. 26 U.S.C. § 9009(b) (1970 ed., Supp. IV). See also 26 U.S.C. § 9039(b) (1970 ed., Supp. IV).
150. The sections from Title 18, incorporated by reference into several of the provisions relating to the Commission's powers, were either enacted or amended by the 1971 Act or the 1974 amendments. They are codified at 18 U.S.C. §§ 608 610, 611, 613, 614, 615, 616, and 617 (1970 ed., Supp. IV) (hereinafter referred to as Title 18 sections).
151. Section 437c(b) also provides, somewhat redundantly, that the Commission "shall administer, seek to obtain compliance with, and formulate policy with respect to this Act" and the Title 18 sections.
152. The Commission is charged with the duty under each Act to receive and pass upon requests by eligible candidates for campaign money and certify them to the Secretary of the Treasury for the latter's disbursement from the Fund. See 26 U.S.C. §§ 9003-9007, 9033-9038 (1970 ed., Supp. IV).
153. This conclusion seems to follow from the manner in which the subsections of § 437g interrelate. Any person may file, and the Clerk of the House or the Secretary of the Senate shall refer, believed or apparent civil or criminal violations to the Commission. Upon receipt of a complaint or referral, as the case may be, the Commission is directed to notify the person involved and to report the violation to the Attorney General or to make an investigation. § 437g(a)(2). The Commission shall conduct a hearing at that person's request. § 437g(a)(4). If, after its investigation, the Commission "determines . . . that there is reason to believe" that a "violation of this Act," i.e., a civil violation, has occurred or is about to occur, it "may endeavor to correct such violation by informal methods," failing which, the Commission "may institute a civil action for relief." § 437g(a)(5). Finally, paragraph (6) provides as follows:
The Commission shall refer apparent violations to the appropriate law enforcement authorities to the extent that violations of provisions of chapter 29 of Title 18 are involved, or if the Commission is unable to correct apparent violations of this Act under the authority given it by paragraph (5), or if the Commission determines that any such referral is appropriate.
§ 437g(a)(6) (emphasis added). While it is clear that the Commission has a duty to refer apparent criminal violations either upon their initial receipt or after an investigation, it would appear at the very least that the Commission, which has "primary jurisdiction" with respect to civil enforcement, § 437c(b), has the sole discretionary power "to determine" whether or not a civil violation has occurred or is about to occur, and consequently whether or not informal or judicial remedies will be pursued.
154. Such a finding is subject to judicial review under the Administrative Procedure Act, 5 U.S.C. § 701 et seq.
155. § 437c(a)(1), set forth in the Appendix to this opinion, infra at 161-162.
156. § 437c(a)(1)(A)
157. The Court of Appeals, following the sequence of the certified questions, adopted a piecemeal approach to the six questions, reproduced below, concerning the method of appointment and powers of the Commission. Its basic holding, in answer to question 8(a), was that "Congress has the constitutional authority to establish and appoint [the Commission] to carry out appropriate legislative functions." 171 U.S.App.D.C. at 244, 519 F.2d at 890. Appellants' claim, embodied in questions 8(b) through 8(f), that the Commission's powers go well beyond "legislative functions" and are facially invalid was, in an overarching sense, not ripe, since
[w]hether particular powers are predominantly executive or judicial, or insufficiently related to the exercise of appropriate legislative power is an abstract question . . . better decided in the context of a particular factual controversy.
Id. at 243, 519 F.2d at 892. While some of the statutory grants such as civil enforcement and candidate disqualification powers (questions 8(c) and 8(e)) raised, in the court's view, "very serious constitutional questions," only the power of the Commission to issue advisory opinions under § 437f(a) was ripe in the context of an attack on Congress' method of appointment. Even then, beyond the Commission's power to inform the public of its interpretations, the question whether Congress under § 437f(b) could validly give substantive effect to the Commission's opinions in later civil and criminal enforcement proceedings should, the Court of Appeals held, await a case in which a defense based on § 437f(b) was asserted. Finally, the question of the Commission's power under 26 U.S.C. § 9008(d)(3) (1970 ed., Supp. IV) to authorize nominating convention expenditures in excess of the statutory limits (question 8(f)) was found ripe because appellants had not challenged it in relation to the method of appointment, but had asserted only that 26 U.S.C. § 9008(d)(3) (1970 ed., Supp. IV) vested excessive discretion in the Commission. The Court of Appeals found that Congress had provided sufficient guidelines to withstand that attack.
The Court of Appeals accordingly answered the six certified questions as follows:
8. Do the provisions in the challenged statutes concerning the powers and method of appointment of the Federal Election Commission violate the rights of one or more of the plaintiffs under the constitutional separation of powers, the First, Fourth, Fifth, Sixth, or Ninth Amendment, Article I, Section 2, Clause 6, Article I, Section 5, Clause 1, or Article III?
(a) Does 2 U.S.C. § 437c(a) violate such rights by the method of appointment of the Federal Election Commission? . . .
(b) Do 2 U.S.C. §§ 437d and 437g violate such rights, in that they entrust administration and enforcement of the FECA to the Federal Election Commission? . . .
Answer: NO as to the power to issue advisory opinions; UNRIPE as to all else.
(c) Does 2 U.S.C. § 437g(a) violate such rights, in that it empowers the Federal Election Commission and the Attorney General to bring civil actions (including proceedings for injunctions) against any person who has engaged or who may engage in acts or practices which violate the Federal Election Campaign Act, as amended, or §§ 608, 610, 611, 613, 614, 615, 616, or 617 of Title 18? . . .
Answer: UNRIPE FOR RESOLUTION
(d) Does 2 U.S.C. § 438(c) violate such rights, in that it empowers the Federal Election Commission to make rules under the FECA in the manner specified therein? . . .
Answer: UNRIPE FOR RESOLUTION
(e) Does 2 U.S.C. § 456 violate such rights, in that it imposes a temporary disqualification on any candidate for election to federal office who is found by the Federal Election Commission to have failed to file a report required by Title III of the Federal Election Campaign Act, a amended . . .
Answer: UNRIPE FOR RESOLUTION
(f) Does § 9008 of the Internal Revenue Code of 1954 violate such rights, in that it empowers the Federal Election Commission to authorize expenditures of the national committee of a party with respect to presidential nominating conventions in excess of the limits enumerated therein? . . .
158. With respect to the Commission's power under 26 U.S.C. § 9008(d)(3) (1970 ed., Supp. IV) to authorize excessive convention expenditures (question 8(f)), the fact that appellants in the Court of Appeals may have focused their attack primarily or even exclusively upon the asserted lack of standards attendant to that power, See n. 157, supra, does not foreclose them from challenging that power in relation to Congress' method of appointment of the Commission's members. Question 8(f) asks whether vesting the Commission with this power under 26 U.S.C. § 9008 (1970 ed., Supp. IV) violates "such rights," which, by reference to question 8, includes "the rights of [appellants] under the constitutional separation of powers." Since the certified questions themselves provide our jurisdictional framework, § 437h(b), the separation of powers aspect of appellants' attack on 26 U.S.C. § 9008(d)(3) (1970 ed., Supp. IV) is properly before this Court.
159. The Federalist No. 47, p. 299 (G. P. Putnam's Sons ed.1908).
160. Id. at 302-303 (emphasis in original).
161. The Federalist No. 51, pp. 323-324 (G. P. Putnam's Sons ed.1908).
162. "Officers of the United States" does not include all employees of the United States, but there is no claim made that the Commissioners are employees of the United States, rather than officers. Employees are lesser functionaries subordinate to officers of the United States, see Auffmordt v. Hedden, 137 U.S. 310, 327 (1890); United States v. Germaine, 99 U.S. 508 (1879), whereas the Commissioners, appointed for a statutory term, are not subject to the control or direction of any other executive, judicial, or legislative authority.
163. Rule II of the Rules of the House of Representatives, the earliest form of which was adopted in 1789, provides for the election by the House, at the commencement of each Congress of a Clerk, Sergeant at Arms, Doorkeeper, Postmaster, and Chaplain, each of whom, in turn, is given appointment power over the employees of his department. Jefferson's Manual and Rules of the House of Representatives §§ 635-636. While there is apparently no equivalent rule on the Senate side, one of the first orders of business at the first session of the Senate, April, 1789, was to elect a Secretary and a Doorkeeper. Senate Journal 10 (1st & 2d Congress 1789-1793).
164. 2 U.S.C. § 60-1(b).
165. Appellee Commission has relied for analogous support on the existence of the Comptroller General, who, as a "legislative officer," had significant duties under the 1971 Act. § 308, 86 Stat. 16. But irrespective of Congress' designation, cf. 31 U.S.C. § 65(d), the Comptroller General is appointed by the President in conformity with the Appointments Clause. 31 U.S.C. § 42.
166. 2 M. Farrand, The Records of the Federal Convention of 1787, pp. 74, 76 (1911); The Federalist No. 48, pp. 308-310 (G. P. Putnam's Sons ed.1908) (J. Madison); The Federalist No. 71, pp. 447 448 (G. P. Putnam's Sons ed.1908) (A. Hamilton). See generally Watson, Congress Steps Out: A Look at Congressional Control of the Executive, 63 Calif.L.Rev. 983, 1029-1048 (1975).
167. J. Madison, Notes of Debates in the Federal Convention of 1787, p. 385 (Ohio Univ. Press ed.1966).
168. Id. at 472 (emphasis added).
Col. Mason in opposition to Mr. Read's motion desired it might be considered to whom the money would belong; if to the people, the legislature representing the people ought to appoint the keepers of it.
170. Id. at 521
171. Id. at 527.
172. Id. at 571-573.
173. Id. at 575
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.
175. Since, in future legislation that may be enacted in response to today's decision, Congress might choose not to confer one or more of the powers under discussion to a properly appointed agency, our assumption is arguendo only. Considerations of ripeness prevent us from deciding, for example, whether such an agency could, under § 456, disqualify a candidate for federal election consistently with Art. I, § 5, cl. 1. With respect to this and other powers discussed infra this page and 138-141, we need pass only upon their nature in relation to the Appointments Clause, and not upon their validity vel non.
176. Before a rule or regulation promulgated by the Commission under § 438(a)(10) may go into effect, it must be transmitted either to the Senate or House of Representatives together with "a detailed explanation and justification of such rule or regulation." § 438 (G)(1). If the House of Congress to which the rule is required to be transmitted disapproves the proposed regulation within the specified period of time, it may not be promulgated by the Commission. Appellants make a separate attack on this qualification of the Commission's rulemaking authority, which is but the most recent episode in a long tug of war between the Executive and Legislative Branches of the Federal Government respecting the permissible extent of legislative involvement in rulemaking under statutes which have already been enacted. The history of these episodes is described in Ginnane, The Control of Federal Administration by Congressional Resolutions and Committees, 66 Harv.L.Rev. 569 (1953); in Newman & Keaton, Congress and the Faithful Execution of Laws -- Should Legislators Supervise Administrators?, 41 Calif.L.Rev. 565 (1953); and in Watson, supra, n. 166. Because of our holding that the manner of appointment of the members of the Commission precludes them from exercising the rulemaking powers in question, we have no occasion to address this separate challenge of appellants.
177. The subsidiary questions certified by the District Court relating to the composition of the Federal Election Commission, together with our answers thereto, are as follows:
Question 8(a). Does 2 U.S.C. § 437c(a) (1970 ed., Supp. IV) violate [the rights of one or more of the plaintiffs under the constitutional separation of powers, the First, Fourth, Fifth, Sixth, or Ninth Amendment, Art. I, § 2, cl. 6, Art. I, § 5, cl. 1, or Art. III] by the method of appointment of the Federal Election Commission?
With respect to the powers referred to in Questions 8(b)-8(f), the method of appointment violates Art. II, § 2, cl. 2, of the Constitution.
Question 8(b). Do 2 U.S.C. §§ 437d and 437g (1970 ed., Supp. IV) violate such rights, in that they entrust administration and enforcement of the FECA to the Federal Election Commission?
Question 8(c). Does 2 U.S.C. § 437g(a) (1970 ed., Supp. IV) violate such rights, in that it empowers the Federal Election Commission and the Attorney General to bring civil action (including proceedings for injunctions) against any person who has engaged or who may engage in acts or practices which violate the Federal Election Campaign Act, as amended, or §§ 608, 610, 611, 613, 614, 615, 616, or 617 of Title 18 (1970 ed., Supp. IV)?
Question 8(d). Does 2 U.S.C. § 438(c) (1970 ed., Supp. IV) violate such rights in that it empowers the Federal Election Commission to make rules under the FECA in the manner specified therein?
Question 8(e). Does 2 U.S.C. § 456 (1970 ed., Supp. IV) violate such rights, in that it imposes a temporary disqualification on any candidate for election to federal office who is found by the Federal Election Commission to have failed to file a report required by Title III of the Federal Election Campaign Act, as amended?
Question 8(f). Does § 9008 of the Internal Revenue Code of 1954 violate such rights, in that it empowers the Federal Election Commission to authorize expenditures of the national committee of a party with respect to Presidential nominating conventions in excess of the limits enumerated therein?
The Federal Election Commission, as presently constituted, may not, under Art. II, § 2, cl. 2, of the Constitution, exercise the powers referred to in Questions 8(b)-8(f).
178. We have not set forth specific answers to some of the certified questions. Question 9, dealing with alleged vagueness in several provisions, 171 U.S.App.D.C. at 252, 519 F.2d at 901 (Appendix A), is resolved in the opinion to the extent urged by the parties. We need not respond to questions 3(g), 3(i), 4(b), and 7(f), id. at 250-251, 519 F.2d at 899-900 (Appendix A), to resolve the issues presented.
* Based upon Federal Election Campaign Laws, compiled by the Senate Library for the Subcommittee on Privileges and Elections of the Senate Committee on Rules and Administration (1975).
* So in original.