969 F.2d 1110 (D.C. Cir. 1992), 91-5013, Federal Election Com'n v. International Funding Institute, Inc.

Docket Nº:91-5013.
Citation:969 F.2d 1110
Case Date:July 10, 1992
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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969 F.2d 1110 (D.C. Cir. 1992)




No. 91-5013.

United States Court of Appeals, District of Columbia Circuit.

July 10, 1992

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[Copyrighted Material Omitted]

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As Amended Aug. 5, 1992.

Argued En Banc April 29, 1992.

Richard B. Bader, Associate General Counsel, Federal Election Com'n, with whom Lawrence Noble, General Counsel, and Vivien Clair, Attorney, Washington, D.C., were on the brief, for plaintiff.

David M. Kopstein, Washington, D.C., for defendants.

Thomas J. Casey and Richard L. Brusca were on the brief for amicus curiae Legi-Tech, Inc. Roberto Iraola and Andrew L. Sandler, Washington, D.C., also entered appearances, for amicus.


Opinion for the Court filed by Circuit Judge D.H. GINSBURG.

Concurring opinion filed by Circuit Judge RUTH BADER GINSBURG, in which Circuit Judge EDWARDS joins.

Concurring opinion filed by Circuit Judge EDWARDS.

Concurring opinion filed by Circuit Judge BUCKLEY.

Concurring opinion filed by Circuit Judge RANDOLPH.

D.H. GINSBURG, Circuit Judge:

The Federal Election Commission filed suit against the International Funding Institute, Inc., American Citizens for Political Action, Inc., and Robert Dolan (as treasurer of ACPA), alleging that the defendants violated the Federal Election Campaign Act, 2 U.S.C. § 438(a)(4), which provides that the list of contributors that a political committee must place on file with the FEC may not be sold or used by anyone else to solicit contributions or for a commercial purpose. The defendants moved to dismiss, arguing that the use restriction of § 438(a)(4) is unconstitutional, both on its face and as applied to their conduct, because it infringes upon their first amendment right to solicit contributions for a political cause.

The district court certified the constitutional question directly to this court en banc, as required by 2 U.S.C. § 437h. FEC v. International Funding Inst., C.A. No. 90-1623, Order Certifying Constitutional Question and Findings of Fact to the Court of Appeals (D.D.C. Jan. 25, 1991). We hold that the use restriction in § 438(a)(4) is subject to at most an intermediate level of scrutiny for consistency with the first amendment, and that it serves an important governmental interest and is no broader than necessary to serve that interest. Accordingly, we hold that the statute is constitutional on its face and as applied to the defendants' conduct.


    The Federal Election Campaign Act, 2 U.S.C. §§ 431-455, requires each political committee periodically to report to the FEC the name and mailing address of each "person ... who makes a contribution to the reporting committee ... [aggregating $200 or more] within the calendar year." Id. § 434(b)(3)(A). Section 438(a)(4) directs the FEC to make those reports

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    available for public inspection, and copying except that any information copied from such reports ... may not be sold or used by any person for the purpose of soliciting contributions or for commercial purposes.... A political committee may submit 10 pseudonyms on each report filed in order to protect against the illegal use of names and addresses of contributors....

    In 1986 IFI (through Dolan, its sole stockholder, director, and officer) subscribed to Campaign Contribution Tracking System, a commercial on-line data base service provided by amicus Legi-Tech, Inc., that compiles information from the political committee disclosure reports that the FEC makes public under § 438(a)(4). Using that information as its sole source, IFI developed a mailing list entitled "Active Republican Donors." IFI then contracted to market that list through a list broker who in turn rented the list to approximately five customers--including ACPA (through Dolan, its chairman and treasurer). ACPA used the list to conduct five test mailings, each of which solicited contributions from approximately 5000 persons whose names appear on the list.

    Based upon these facts, the FEC determined that there was probable cause to believe that IFI, ACPA, and Dolan had knowingly and willfully violated § 438(a)(4). After trying to settle the matter, the Commission brought this suit in the district court. The defendants moved to dismiss, arguing that the statute is unconstitutional on its face and as applied to their conduct, and the district court certified to us the following question:

    Do the provisions of 2 U.S.C. § 438(a)(4) which prohibit the sale or use of individual information copied from reports filed with the Commission for the purpose of soliciting contributions or for commercial purposes violate the First Amendment of the Constitution of the United States, either on their face or as applied to the defendants' conduct?

    For the reasons set out below, we answer that question in the negative.


    The defendants argue that the use restriction of § 438(a)(4) is subject to strict scrutiny because it is a direct infringement upon activity protected by the first amendment, or, in the alternative, because it prohibits speech in a way that is not content-neutral. The FEC (which asserts that § 438(a)(4) would withstand strict scrutiny) argues that it is subject only to intermediate scrutiny, in part because the statute regulates commercial speech, which is entitled to less protection than political speech. We think that neither party has it quite right.

    The defendants' primary argument here is that soliciting contributions for a political cause is protected first amendment activity, United States v. Kokinda, 497 U.S. 720, 110 S.Ct. 3115, 3118, 111 L.Ed.2d 571 (1990), and "[s]tatutory restrictions on such conduct are ... 'always subject to exacting judicial review,' " quoting Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290, 294, 102 S.Ct. 434, 436, 70 L.Ed.2d 492 (1981). The implicit premise of this argument is that the FECA in some way infringes upon the defendants' right to solicit contributions for a political cause. But that is not at all the case.

    Prior to enactment of the FECA, the defendants had no right even to inspect another political committee's list of contributors. Section 438(a)(4) grants the defendants (and the public) access to the contributor list of another political committee, but at the same time the statute restricts their use of such a list. In no way does § 438(a)(4) impose any new burden upon the defendants, however. Rather, the statute simply leaves undisturbed a pre-existing barrier to the defendants' use of another committee's list to solicit contributions: In order for the defendants to use the list to solicit, they must, as before the passage of the FECA, obtain the other committee's permission, perhaps at a price. Thus, the Act cannot be said in any sensible way to infringe upon the defendants' first amendment right to solicit contributions for a political cause. See Regan v. Taxation With Representation, 461 U.S. 540, 549-

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    50, 103 S.Ct. 1997, 2002-03, 76 L.Ed.2d 129 (1983) ("Although government may not place obstacles in the path of a [person's] exercise of ... freedom of [speech], it need not remove those obstacles not of its own creation") (quoting Harris v. McRae, 448 U.S. 297, 316, 100 S.Ct. 2671, 2688, 65 L.Ed.2d 784 (1980)) (alterations in original); see also id. at 549 ("a legislature's decision not to subsidize the exercise of a fundamental right does not infringe the right"); Cammarano v. United States, 358 U.S. 498, 515, 79 S.Ct. 524, 535, 3 L.Ed.2d 462 (1959) (Douglas, J., concurring) (rejecting the "notion that First Amendment rights are somehow not fully realized unless they are subsidized by the State").

    The defendants are in a position similar to that of the newspaper in Seattle Times Co. v. Rhinehart, 467 U.S. 20, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984), which challenged a trial court order prohibiting it from publishing certain information that it had obtained through civil discovery. In part because the newspaper in that case had obtained the information "pursuant to a court order that both granted [the newspaper] access to that information and placed restraints on the way in which the information might be used," the Supreme Court rejected the newspaper's claim that the use restriction was subject to strict scrutiny. Id. at 32, 104 S.Ct. at 2207. Instead, the Court applied intermediate scrutiny, requiring only that the restriction further "an important or substantial governmental interest unrelated to the suppression of expression" and be "no greater than is necessary or essential to the protection of the particular governmental interest involved." Id. (quoting Procunier v. Martinez, 416 U.S. 396, 413, 94 S.Ct. 1800, 1811, 40 L.Ed.2d 224 (1974), overruled in part by Thornburgh v. Abbott, 490 U.S. 401, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989)).

    Both in Seattle Times and here, the Government compelled disclosure of information for a particular purpose and prohibited use of that information for other purposes; like the newspaper in Seattle Times, the defendants here have no claim of right to the benefit of the compelled disclosure apart from the measure in which the concomitant use restriction is found. Because the defendants had no pre-existing right to use another committee's contributor lists to solicit contributions, we do not believe that the use restriction of § 438(a)(4) directly restricts the defendants' first amendment right to solicit contributions for a political cause. We hold therefore that § 438(a)(4) is not subject to strict scrutiny upon the first ground asserted by the defendants. [*]

    The defendants appear to argue as a fall-back position that even if § 438(a)(4) does not newly restrict their...

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