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The first statute prohibiting corporate contributions was enacted in 1907, prohibiting money contributions by corporations. Supra at 575. This Act was strengthened in 1925 by extending its coverage to in-kind as well as money contributions and penalizing the recipients of contributions as well as the contributors. Supra at 577. In 1943, Congress extended the prohibition on corporate contributions to unions. Supra at 579. Despite this provision, unions were reported to have made enormous financial outlays in connection with the 1944 national election. Supra at 581. Finally, fully aware of the problem, Congress extended the prohibition on corporate and union contribution to expenditures. In explaining the reason for the extension, Senator Taft, a member of the conference committee was quoted by the Supreme Court as having said:

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In this instance the words of the Smith-Connally Act have been somewhat changed in effect so as to plug up a loophole which obviously developed, and which, if the courts had permitted advantage to be taken of it, as a matter of fact, would absolutely have destroyed the prohibition against political advertising by corporations. If "contribution" does not mean "expenditure", then a candidate for office could have his corporation friends publish an advertisement for him in the newspapers every day for a month before election. I don't think the law contemplated such a thing, but it was claimed that it did, at least when it applied to labor organizations. So, all we are doing here is plugging up the hole which developed, following the recommendation by our own Elections Committee in the Ellender bill."

In distinguishing United States v. CIO, the Court observed that that case presented a different situation:

The decision in that case rested on the Court's reading of an indictment that charged defendants with having distributed only to union members or purchasers an issue, Vol. 10, No. 28, of "The C.I.O. News," a weekly newspaper owned and published by the CIO. That issue contained a statement by the CIO president urging all members of the CIO to vote for a certain candidate. Thus, unlike the union-sponsored political broadcast alleged in this case, the communication for which the defendants were indicted in the CIO was neither directed nor delivered to the public at large. The organization merely distributed its house organ ot its own people. The evil at which Congress has struck in § 313 is the use of corporation or union funds to influence the public at large to vote for a particular candidate or a particular party. (Emphasis added.)

Thus, as this discussion reveals, the Supreme Court was sensitive to the fact that since expenditures can be made in such a way as to circumvent contribution limitations, independent expenditures as well as contributions may be limited. Although the Court refrained from ruling on the constitutional issue, its opinions clearly reflect a recognition of the need for expenditure limitations.

The permissibility of regulating First Amendment rights varies with their mode of expression, and usually the nonverbal exercise of such rights, particularly when joined with acts which are not necessarily communicative, is more susceptible to regulation than is pure speech. Giving and spending money do not constitute acts of verbal communication. In the words of Professor Paul Freund of Harvard Law School, "We are dealing here not so much with the right of personal expression or even association, but with dollars and decibels. And just as the volume of sound may be limited without violating the First Amendment."

For First Amendment purposes, giving and spending money is communicative action with a potential for disrupting normal political processes; in this respect, it is analogous to picketing or demonstrating. As Justice Douglas stated in his dissent in Communist Party v. Subversives Activities Control Board, 367 U.S. 1 (1967):

"Picketing is free speech plus (citations omitted) and hence can be restricted in all instances and banned in some . . . Though the activities themselves are under the First Amendment, the manner of their exercise or their collateral aspects fall without it.

"Like reasons underlie our decisions which sustain laws that require various groups to register before engaging in specified activities. Thus, lobbyists who receive fees for attempting to influence the passage or defeat of legislation in Congress may be required to register. United States v. Harriss, 347 U.S. 612. Criminal sanctions for failure to report and to disclose all contributions made to political parties are permitted. Burroughs v. United States, 290 U.S. 534, ... In short, the exercise of First Amendment rights often involves business or commercial implications which Congress in its wisdom may desire to be disclosed. . . ." Supra at 173–74.

The limitations on independent expenditures contained in proposed federal legislation are simply a nondiscriminatory regulation of the manner in which First Amendment rights are exercised. Such limitations are neutral with respect to the content of political expression. They do not operate censorially to suppress unpopular views, and they do not single out persons who advocate particular political beliefs, or penalize anyone for association with persons or organizations oriented to such advocacy. If they did so, they would be unconstitutional. See e.g., United States v. Robel, 389 U.S. 258, 278 (1967); Keyishian v. Board of Regents, 385 U.S. 589, 604 (1967). Like the "Fairness” and “Equal Time” doctrines enforced by the Federal Communications Commission, the contribution/expenditure limitations apply in exactly the same way regardless of the viewpoint to be advocated or the beliefs of the person making the contribution or expenditure. See Red Lion Broadcasting Co. v. Federal Communications Commission, 395 U.S. 367, 392 (1969). These limitations do not represent a sweeping prohibition of all political expression, but instead assist in modulating the level of political discourse so that more voices may participate and so that weak voices may not be drowned out. In fact, they foster and protect the exercise of First Amendment freedoms in three ways: (1) they protect the rights of the less affluent to express themselves by running for office; (2) they help prevent the drowning out of all other political viewpoints by well-financed candidates and interest groups; and (3) they ensure the equality of the voting rights of each citizen by limiting the influence on candidates of the large contributions.

CONCLUSION

As the above cases, cited approvingly in ACLU v. Jennings, supra, reveal, the Supreme Court is aware of the need to limit independent expenditures advocating support of or in opposition to a specific candidate in order to avoid circumvention of contribution limitations. Thus, where there are no over-broad prior restraints of non-partisan expenditures and the statute is clearly limited to expenditures advocating support of or in opposition to a specific candidate, it will withstand a constitutional challenge.

Since the limitation upon independent activities proposed is restricted to expenditures advocating the election or defeat of specific candidates, it does not violate the proscription of ACLU v. Jennings, supra. In fact, it clearly falls within those political activity limitations found to be permissible in the Supreme Court cases cited approvingly by the ACLU court.

NOVEMBER 26, 1973.

COMMON CAUSE LEGAL MEMORAMDUN ON THE CONSTITUTIONALITY OF PUBLIC FINANCING FOR FEDERAL ELECTIONS

The fairness, honesty and basic integrity of elections and post-election decisionmaking by elected officials is of paramount concern in the democratic society. The disclosure requirements of the Federal Elections Campaign Act of 1971 and the amendments passed by the Senate this year were important steps toward more open and fair elections. Nevertheless, more fundamental reforms are necessary, however, if the electoral process in the United States is to be freed from the corrupting influence of campaign contributions.

The recent "Watergate" scandals have vividly illustrated the corrosive effect on the American political process of large secret campaign contributions. These assorted corruptions are only the latest and mose dramatic examples of a less obvious but chronic and systemic problem. In its report on the Federal Elections Campaign Act of 1971, a House Committee delcared that the present system of private financing of election campaign leads:

To a closed, insulated, self-perpetuating system, dominated by special interests and unresponsive to the public will. which often creates the impression that only the rich can run for public office, and that a candidate can buy an election by spending large amounts of money in a campaign. [It] works an inequitable hardship on the candidate who cannot compete with the resources of great wealth, but of even greater significance, it is unfair to the electorate which is entitled to have presented to it for its evaluation and judgment candidates from all walks of life and not just those persons who, because of their wealth, can conduct a campaign which resorts to techniques which are more appropriate to merchandizing a product than to familiarizing the public with a candidate's qualities as a potential public official and his program for the country. H.R. Rep. No. 92-564 at 4, 92 Cong., 1st Sess. (1971).

In a democratic society, to win an election is to win political and economic power. One commentator has recently written:

The citizen's act of voting and the election campaign which is designed to influence it are of central importance in a democracy. The rules governing elections are the primary rules by which we live together in society and by which the governed determine who their governors will be and what policies they will pursue. Elections are democracy's primary means of resolving group competition and of apportioning the costs and benefits of life in society among competing interests. They are the basic mechanism whereby the citizens make value judgments-the final and most authoritative means for democratic choice-making. No democratic process is more important or powerful, and, therefore no point of influence is more attractive to those who would skew postelection policy to their private advantage. In addition, no aspect of democracy is more vulnerable.1

Pending before this committee are a number of proposals for funding of campaign costs by the government and for establishing a ceiling on campaign contributions and expenditures in both primaries and general elections. Although each of the proposals differ on the specifics, they are basically similar in that they recognize the need for dramatic revision of the way campaigns are financed.

Enactment of public finance legislation poses a number of constitutional questions, relating primarily to the possible infringemet of the First Amendment's freedom-of-speech and freedom-of-association guarantees. In order to be effective and still withstand these challenges, public financing legislation should contain certain basic provisions. Candidates should be provided with an adequate amount of money to finance campaigns and a realistic ceiling on campaign expenditures determined by the number of voting age residents in the relevant area should be imposed in order to insure against the freezing out of the political process nonincumbents and their supporters. Candidates of major parties should be given an unencumbered federal subsidy large enough to cover their necessary expenses, while candidates of minor parties should be allotted a lesser amount of federal support based on their strength in the last election or their showing in the present election. Both types of candidates should then be free to raise additional money in small private contributions up to the specified maximums for the election. Certain threshold eligibilty requirements, such as a certain amount of privately raised funds would have to be met to qualify for federal subsidies at the primary stage, although a candidate ineligible for government funds would still be free to raise campaign funds in small private contributions up to the relevant ceiling. The total amount any individual should be allowed to contribute for the use of any Presidential, Senate, and House candidate in primary and general elections should be limited. Organized interest groups should be prohibited from using any method to amass sums of money above the individual contributors limit to support candidates for political office although organizations should still be allowed to spend money to lobby, communicate with their members, and publicize the need for legislation as long as their actions did not constitute endorsement of a candidate. All expenditures which a candidate controls, either directly or indirectly, should be charged arainst the candidate's allowable total.

If a citizen desired to engage in political activity for a candidate independently of the candidate, he should be allowed to spend up to the allowable limit on contributions to a candidate in that election, but he should not then be able to make a direct donation to the candidate as well. The limit on contributions should not apply to time voluntarily spent working for a candidate. Citizens engaging in independent political activity for a candidate should not be able to pool their contributions to fund an "independent" organization. Political parties should be allowed to raise funds from the general public which could be used by the party to provide up to the entire amount of private funding allowed to a candidate in the general election.

1 Fleishman, "Freedom of Speech and Equality of Political Opportunity: The Constitutionality of the Federal Election Campaign Act of 1971," 51 N.C. L. Rev. 389, 466 (1973).

2 For a discussion of the constitutional issues involved in the regulation of election campaign practices, see Lobel, "Federal Control of Campaign Contributions," 51 Minn. L. Rev. 1 (1966); Fleishman, "Freedom of Speech and Equality of Political Opportunity: The Constitutionality of the Federal Election Campaign Act of 1971," 51 N. Car. L. Rev. 389 (1973); Rosenthal, Federal Regulations of Campaign Finance; Some Constitutional Questins (1971); Redish, "Campaign Spending Laws and the First Amendment," 46 N.Y.U. L. Rev. 900 (1971); Court & Harris, "Free Speech Implications of Campaign Expenditures Ceilings," 7 Harv. Civ. R.-Civ. Lib. Rev. 214 (1972). See also Court & Harris, "Campaign Spending Regulation: Failure of the First Step," 8 Harv. J. Leg. 640 (1971); Berry & Goldman, "Congress and Public Policy: A Study of the Federal Election Campaign Act of 1971," 10 Harv. J. Leg. 331 (1973); Roady, "Ten Years of Florida's 'Who Gave It-Who Got it' Law, 27 Law & Contemp. Prob. 434 (1962); Note, "Statutory Regulation of Political Campaign Funds," 66 Harv. L. Rev. 1259 (1953).

The issues raised by these proposals may be grouped for purposes of discussion into two categories. The limitations on individual contributions or upon expenditures on behalf of a candidate, and the prohibitions against organizational pooling of contributions in excess of the individual limitations and independent partisan political activity raise the issue of the constitutionality of contribution limitations and prohibitions. The limitation upon the amount a candidate may spend on his campaign raises separate issues.

At times in the discussion which follows, the right of a political contributor to donate money to a candidate is grouped, for purposes of analysis, with the right of a political candidate to spend money for his election or reelection; although the right to give and the right to spend obviously entail different acts; the First Amendment questions arising from government limitations of these two rights are essentially similar. Moreover, a number of subsidiary issues are subsumed under the basic question of the power to Congress to impose ceilings on contributions and expenditures. For example, in order to be effective, a public financing system such as Common Cause advocates would necessarily entail prohibiting a candidate's spending an unlimited amount of his own personal funds in an election campaign. Since expenditure ceilings could otherwise be easily evaded by wealthy candidates, it appears to be a fortiori within the power of Congress to enact such a prohibition on the use of personal funds if the overall expenditure ceiling is constitutional.

Until the enactment of the Federal Election Campaign Act of 1971, federal law had contained contribution and expenditure limitations for approximately 60 years, and 29 states now have some form of these ceilings in their corrupt practices acts. These laws had as their primary function the dual goals of (1) reducing the corrupting influence of large campaign contributions, and (2) reducing the costs of campaigns thus reducing the pressures to secretly evade the limit on contributions. Due to virtual nonenforcement in the past of laws containing contribution and spending ceilings, there is no federal case ruling indirectly on the constitutionality of such limits, and there is only one state case construing the validity of such ceilings, State v. Kohler, 200 Wis. 518, 228 N.W. 895 (1930), in which the Wisconsin Supreme Court upheld against constitutional attack a statute limiting the amount which might be spent by candidates and their personal campaign committees. Although these constitutional questions merit serious discussion and careful analysis, we believe that public financing of campaigns and contribution and expenditure limits clearly pass constitutional muster under existing precedents. In fact, they foster and protect the exercise of First Amendment freedoms in three ways: (1) they protect the rights of the less affluent to express themselves by running for office; (2) they help prevent the drowning out of all other political viewpoints by well financed candidates and interest groups; and (3) they ensure the equality of the voting rights of each citizen by limiting the influence on candidates of the large contributions.

I. Despite certain communicative aspects, contributions of money to, and expenditures of money by, political candidates partake more of action than of speech and may be reasonably regulated under the police power of the federal government.

The proposition that only "speech" and not "action" is protected by the First Amendment is now discredited, and it is clear that the Amendment at times covers more than sheer verbal communications. See e.g., West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943) (right to refuse to salute flag); Stromberg v. California, 283 U.S. 359 (1931) (right to display a red flag); NAACP v. Button, 371 U.S. 415 (1963) (right to solicit legal business). It is still true, however, that the permissibility of regulating First Amendment rights varies with their mode of expression, and that usually the nonverbal exercise of such rights, particularly when joined with acts which are not necessarily communicative, is more susceptible to regulation than is pure speech. Giving and spending money do not constitute acts

3 Fleishman, "Freedom of Speech and Equality of Political Opportunity: The Constitutionality of the Federal Election Campaign Act of 1971," 51 N.C. L. Rev. 389, 450 (1973). 4 Wisconsin Supreme Court declared: "It is a matter of common knowledge that men of limited financial resources aspire to public office. It is equally well known that successful candidacy often requires them to put themselves under obligation to those who contribute financial support. If such a candidate is successful, these obligations may be carried over so that they color and sometimes control official action. The evident purpose of the act is to free the candidates from the temptation to accept support on such terms and to place candidates during this period upon a basis of equality so far as their personal ambitions are concerned, permitting them, however, to make an appeal on behalf of the principles for which they stand, so that such support as may voluntarily be tendered to the candidacy of a person will be a support of principle rather than a personal claim upon the candidate's consideration should he be elected. It may be replied that the act seeks to throw democracy back upon itself, and so induce spontaneous political action in place of that which is produced by powerful political and group organizations." State ex rel. La Follette v. Kohler, 200 Wis. 518, 228 N.W. 895, 912 (1930).

of verbal communication. In the words of Professor Freund, "We are dealing here not so much with the right of personal expression or even association, but with dollars and decibels. And just as the volume of sound may be limited by law, so the volume of dollars may be limited without violating the First Amendment." For First Amendment purposes, giving and spending money is communicative action with a potential for disrupting normal political processes; in this respect, it is analogous to picketing or demonstrating. In Cox v. Louisiana, 379 U.S. 536, 555 (1965), the Supreme Court "emphatically" rejected the notion that the First Amendment afforded the same kind of freedom to those who "communicate ideas by patrolling, marching, and picketing on streets and highways" as it offers those "who communicate ideas by pure speech." The Court upheld the facial constitutionality of a Mississippi statute which banned picketing in such a manner as to obstruct or interfere with free entrance to and exit from public buildings. In Cameron v. Johnson, 390 U.S. 611 (1968), it declared that such communicative activity was sufficiently "intertwined" with action to be regulable, and it emphasized that such a statute was "a valid law dealing with conduct subject to regulation so as to vindicate important interests of society[;] . . . the fact that free speech is intermingled with such conduct does not bring it within constitutional protection." 390 U.S. at 617. In a second Cox v. Louisiana case, 379 U.S. 559 (1965), the Court upheld against First Amendment attack the convictions of defendants for violating State statutes prohibiting breach of the peace, obstructing public passages, and picketing near a court house: "The conduct which is the subject of this statute-picketing and parading—is subject to regulation even though intertwined with expression and association." 379 U.S. at 563. The Court's explanation of its rationale in this case is applicable to the question of the permissibility of limiting campaign contributions and expenditures: "We are not concerned here with such a pure form of expression as newspaper comment or a telegram by a citizen to a public official. We deal in this case not with free speech alone, but with expression mixed with particular conduct." 379 U.S. at 564. See also Central Hardware Co. v. National Labor Relations Board, 407 U.S. 539 (1972); Lloyd Corp. v. Tanner, 407 U.S. 551 (1972).

That not all communicative conduct is protected by the First Amendment is clear from the Supreme Court's decision in United States v. O'Brien, 391 U.S. 367 (1968), upholding the constitutionality of a provision of the Selective Service Act which made it a crime to knowingly destroy a Selective Service registration certificate. The Court held that draft card burning was not "symbolic speech" protected by the First Amendment: "We cannot accept the view that an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea." 391 U.S. at 376. Campaign contributions and expenditures are communicative only in the sense that burning a draft card is communicative; all such acts are subject to regulation because, in the words of the O'Brien Court," speech' and 'nonspeech' elements are combined in the same course of conduct." 391 U.S. at 376. The Court recently held that a State's prohibition of various forms of explicit sexual entertainment by live performers in establishments selling liquor did not violate the First Amendment:

"[A]s the mode of expression moves from the printed page to the commission of public acts which may themselves violate valid penal statutes, the scope of permissible state regulations significantly increases. States may sometimes proscribe expression which is directed to the accomplishment of an end which the State has declared to be illegal when such expression consists, in part, of 'conduct' or 'action'." California v. LaRue, 41 U.S.L. W. 4039, 4042 (1972).

Many kinds of "communications," such as deceptive advertising, certain kinds of libels, the false activation of a burglar alarm, the shouting of "fire" in a crowded theatre (c.f. Schenk v. United States, 249 U.S. 47, 51 (1919) (Holmes J.)) may be criminalized without violating the First Amendment because they cause

5 Commentary of Prof. Paul A. Freund, the Harvard Law School, in Rosenthal, Federal Regulation of Campaign Finance; Some Constitutional Questions, 72 (5971).

The Court has held that "purely commercial advertising" is subject to much greater regulation than communication which is not inspired by a profit motive, Valentine v. Chrestensen, 316 U.S. 56, 54 (1942); Breard v. City of Alexandria, 341 U.S. 622, 642, 643 (1951), although the fact that the dissemination of a communication takes place under commercial auspices does not remove it from all First Amendment protection. Smith v. California, 361 U.S. 147, 150 (1959); New York Times Co. v. Sullivan, 376 U.S. 254, 665–266 (1964). The power of the FCC to ban cigarette advertising from television has been upheld, Banzhaf v. FCC, 405 F.2d 1082 (CA DC 1968), cert. denied, 396 U.S. 842 (1969). These cases imply that the federal government has power to require that political advertising on television and radio be for certain minimum periods (e.g., 30 seconds), on the theory that very short "spot" ads are (like commercial advertising) intended simply to condition rather than inform and are likely to be somewhat deceptive because they convey a simplistic "image" of a candidate.

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