519 F.2d 821 (D.C. Cir. 1975), 75-1061, Buckley v. Valeo

Docket Nº:75-1061.
Citation:519 F.2d 821
Party Name:James L. BUCKLEY, United States Senator from the State of New York, et al., Plaintiffs, v. Honorable Francis R. VALEO, Secretary, United States Senate, et al., Defendants. Center for Public Financing of Elections, et al., James C. Calaway of Houston, Texas, Intervenors.
Case Date:August 15, 1975
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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519 F.2d 821 (D.C. Cir. 1975)

James L. BUCKLEY, United States Senator from the State of

New York, et al., Plaintiffs,


Honorable Francis R. VALEO, Secretary, United States Senate,

et al., Defendants.

Center for Public Financing of Elections, et al., James C.

Calaway of Houston, Texas, Intervenors.

No. 75-1061.

United States Court of Appeals, District of Columbia Circuit

August 15, 1975

Argued June 13, 1975.

As Amended Aug. 29, 1975.

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Brice M. Clagett, Washington, D. C., and Ralph K. Winter, Jr., New Haven,

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Conn., of the bar of the Supreme Court of Connecticut, pro hac vice, by special leave of court, with whom John R. Bolton and Arthur F. Fergenson, Washington, D. C., were on the brief, for plaintiffs Buckley and others.

Joel Gora, New York City, for plaintiff New York Civil Liberties Union.

Ralph S. Spritzer, Sp. Counsel to the Federal Election Commission, Philadelphia, Pa., with whom John G. Murphy, Jr., Gen. Counsel, Washington, D. C., and Paul Bender, Sp. Counsel, Philadelphia, Pa., were on the brief, for defendant Federal Election Commission.

Lloyd N. Cutler and Paul J. Mode, Jr., with whom William T. Lake, Roger M. Witten, Washington, D. C., and Patricia D. Douglass, San Francisco, Cal., were on the brief, for intervening defendants Center for Public Financing of Elections, League of Women Voters of the United States, and others.

Kenneth J. Guido, Jr., with whom Fred Wertheimer, Washington, D. C., was on the brief, for intervening defendants Common Cause and John W. Gardner.

Dennis G. Linder, Atty., Dept. of Justice, with whom Rex E. Lee, Asst. Atty. Gen., and Morton Hollander and David J. Anderson, Attys., Dept. of Justice, were on the brief, for defendants Atty. Gen. of the United States and Federal Election Commission.

G. Roger King, Washington, D. C., for Senator Lee Metcalf as amicus curiae.

Stuart M. Nelkin, Houston, Tex., and Al J. Daniel, Jr., Washington, D. C., entered appearances for intervening plaintiff Calaway.

Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKINNON and WILKEY, Circuit Judges, sitting en banc.

BAZELON, Chief Judge, filed a separate opinion dissenting from Part V-A-2 of the per curiam opinion.

TAMM, Circuit Judge, joined by WILKEY, Circuit Judge, dissenting from the per curiam opinion, and concurring in the result only of Part V.

MacKINNON, Circuit Judge, filed a separate opinion dissenting from Part VII of the per curiam opinion.


This case presents for review the latest, and by far the most comprehensive, reform legislation passed by Congress concerning the election of the President, Vice-President and members of Congress. The plaintiffs have asked this court to enter a declaratory judgment holding unconstitutional key provisions of the Federal Election Campaign Act of 1971, as amended by the Federal Election Campaign Act Amendments of 1974.

Under the challenged legislative scheme, contributions are limited to $1000 per candidate with an overall limitation of $25,000 per contributor. The statute also establishes an overall ceiling on campaign spending by candidates and convention spending by political parties. There are also elaborate requirements for disclosure of contributions and expenditures to a newly established full-time agency the Federal Election Commission. Finally, the legislative scheme provides public funding for qualified candidates and political parties.

Under a special statutory provision for expedited judicial review, the plaintiffs' challenge to the key provisions of the Act reached this court in the form of twenty-eight certified constitutional questions. After subjecting the issues to "exacting judicial scrutiny," the court today upholds the core provisions of the legislative scheme, holds one incidental provision unconstitutional, and declines to rule on other provisions for lack of a ripe controversy.

Limitations on Contributions and Expenditures

As to the statutory limitations on contributions and expenditures, the court finds that "the power of Congress to regulate federal elections embraces, in our view, the power to adopt per candidate and overall limitations on the

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amount that an individual or political committee may contribute in the context of federal elections and primaries." Its review of the history of campaign abuses and the evolution of a comprehensive legislative scheme designed to "preserve the purity" of the electoral process leads the court to conclude that there is a "compelling governmental interest, both as to need and public perception of need, that justifies any incidental impact on First Amendment freedoms" that results from the statutory limitations. As to the contention that disclosure requirements combined with limits on contributions are sufficient to solve the problem of campaign abuses, the court finds that a number of factors, especially the fact that "limitations on contributions and disclosure requirements pose almost insuperable enforcement problems if not supplemented by limits on expenditures," provide a "validating context for the judgment of Congress that expenditures must be subject to reasonable regulation." --- U.S.App.D.C. pp. --- - ---, 519 F.2d pp. 851-862.

Disclosure Requirements

In considering the certified questions concerning the disclosure requirements, the court, relying on the Supreme Court's opinions in Burroughs and Cannon v. United States and Harriss v. United States, finds that the "governmental interest in preserving the democratic process" justifies the particular disclosure scheme enacted by the Congress. The court recognizes that disclosure has an "impact on personal privacy in political association," but concludes that this is "outweighed" by the compelling state interest. "It is pertinent to the political process, as elsewhere in the marketplace of ideas, that meaningful competition depends on openness." The court also considered the argument that minor parties are constitutionally exempt from disclosure requirements since they need to be protected from presumed oppression and retaliation from the party which wins the election and from the public generally. The court concludes, however, that the provision requiring disclosure by all parties is constitutional on its face, noting that a minor party may in the future "demonstrate such harassment to itself or to its supporters as to underpin a ruling that disclosure in those circumstances cannot constitutionally be required."

But the court does find unconstitutionally vague and overbroad a statutory provision (Section 437a of Title 2 of the United States Code) that 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." The court sustains the other disclosure provisions of the Act because the government has demonstrated a substantial and legitimate interest in protecting the integrity of its elections, "an interest closely connected to and plainly advanced by those provisions." But section 437a seeks to compel disclosure by groups that do no more than discuss issues of public importance on a wholly nonpartisan basis, a point at which the nexus between the governmental interest and the challenged provisions may be more tenuous. The court attempted to construe the statute narrowly, but it is unable "to supply the precision essential to constitutionality." Since "the terms of the statute inhibit free and robust discussion of issues," the court holds Section 437a unconstitutional. --- U.S.App.D.C. pp. --- - ---, 519 F.2d pp. 862-879.

Public Financing Provisions

The court considered a number of challenges to the public financing provisions of the Act, which establish a Fund derived from voluntary tax "check-offs" by individual taxpayers, who may, but need not, direct that one dollar of their tax liability go to the Fund. The court holds that Congress acted within its power when it "determined that providing public funding for the three stages of the Presidential selection process would advance the general welfare of the nation by reducing the reliance of

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Presidential candidates on large contributors, thus reducing their influence on the outcome of elections and on the operation of government." The court also finds no constitutional infirmity in the fact that the taxpayer has no freedom to designate which party or candidate will receive his checked-off dollar. "If the taxpayer wants to avoid any conception that some part of 'his' tax money will benefit candidates he does not favor, then he can simply refrain from checking off his dollar for the Fund."

The court recognizes that "provisions for public funding of Presidential campaigns, like provisions regulating access to the ballot, could operate to give an unfair advantage to the established parties, thus reducing, to the nation's detriment, what the Supreme Court has called the 'potential fluidity of American political life.' " But after careful consideration of the public financing scheme, the court does not find it to be invidiously discriminatory. Nevertheless, it also recognizes the "necessity for all concerned to maintain a careful scrutiny as the provisions are implemented." --- U.S.App.D.C. pp. --- - ---, 519 F.2d pp. 879-887.

The Federal Election Commission

In the final part of its opinion, the court considers the constitutional challenge to the newly-established Federal Election Commission. The court recognizes that, "as might be expected in an...

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