Fed. Election Com'n v. Hall-Tyner Election Campaign

• Decision Date: 22 September 1981
• Docket Number: No. 78 Civ. 3508.,78 Civ. 3508.
• Parties: FEDERAL ELECTION COMMISSION, Plaintiff, v. HALL-TYNER ELECTION CAMPAIGN COMMITTEE, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

524 F. Supp. 955

FEDERAL ELECTION COMMISSION, Plaintiff, v. HALL-TYNER ELECTION CAMPAIGN COMMITTEE, et al., Defendants.

No. 78 Civ. 3508.

United States District Court, S. D. New York.

September 22, 1981.

Charles N. Steele, Lawrence M. Noble, Hal Ponder, Deborah E. McFarland, Washington, D. C., for plaintiff.

John J. Abt, Jeffrey Schwartz, New York City, for defendants.

OPINION

GAGLIARDI, District Judge.

The Federal Election Commission (the "FEC") commenced this action for a civil penalty and declaratory and injunctive relief against the Hall-Tyner Election Campaign Committee (the "Committee") and the treasurer of the Committee, Frances Bordofsky. The action is based upon alleged violations of the Federal Election Campaign Act (the "FECA"), 2 U.S.C. § 431 et seq.,¹ during the 1976 presidential election campaign. Defendants admit to engaging in the conduct constituting the alleged violations, but assert that the relevant provisions of the FECA as applied to defendants deprive the supporters of the Committee of their First Amendment rights to privacy of association and belief. Both plaintiff and defendants have moved for summary judgment pursuant to Rule 56, Fed.R.Civ.P. For the reasons set forth below, the court has concluded that defendants' motion should be granted and the complaint dismissed.²

Background

Gus Hall and Jarvis Tyner were the candidates of the Communist Party, U.S.A. (the "Party") for the offices of President and Vice-President of the United States, respectively, in the 1976 election. The principal campaign committee³ supporting their candidacy was the defendant Committee. Defendant Bordofsky was treasurer of the Committee.

The FECA requirements at issue in this action imposed recordkeeping and disclosure responsibilities on the Committee and Bordofsky. Under the recordkeeping provisions, Bordofsky was required to maintain records identifying the name and address of each person contributing in excess of $50 to the Committee, and the name, address, occupation and principal place of business of each person contributing more than $100. 2 U.S.C. § 432(c). The FECA disclosure provisions required that the Committee include in filings with the FEC the recorded information pertaining to contributors of more than $100. 2 U.S.C. § 434(b)(2).

On March 5, 1976 the general counsel to the Committee rendered a written opinion to the defendants that these recordkeeping and disclosure provisions were unconstitutional as applied to the Committee and its treasurer, Bordofsky. Pursuant to this opinion, the Committee listed 424 contributors of more than $100 as "anonymous" in its reports filed with the FEC.⁴ In addition, defendant Bordofsky failed to comply with the FECA recordkeeping requirements with respect to any contributors who elected to remain anonymous.

Thereafter, following an unsuccessful attempt by the FEC to obtain compliance with the statute through informal methods of conference, conciliation, and persuasion, see 2 U.S.C. § 437g(a)(5)(A), the FEC instituted the instant civil enforcement action pursuant to 2 U.S.C. § 437g(a)(5)(B). The parties are agreed that the sole issue before this court is whether the above-cited FECA recordkeeping and disclosure requirements, as applied to the defendants, unconstitutionally abridge the associational rights guaranteed to the supporters of the Committee by the First Amendment.

Discussion

I. The Disclosure Requirements

It is well established that the compelled disclosure of members in or contributors to an organization "can seriously infringe on privacy of association and belief guaranteed by the First Amendment." Buckley v. Valeo, 424 U.S. 1, 64, 96 S.Ct. 612, 656, 46 L.Ed.2d 659 (1976); see, e. g., Baird v. State Bar of Arizona, 401 U.S. 1, 91 S.Ct. 702, 27 L.Ed.2d 639 (1970); Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960); Bates v. Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480 (1960); NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). Accordingly, governmental regulations requiring such disclosure must survive exacting judicial scrutiny. Id. Under this standard the government must show that the regulations further compelling governmental interests sufficient to justify the burden that compelled disclosure places on constitutionally protected rights. NAACP v. Alabama, supra, 357 U.S. at 463, 78 S.Ct. at 1172; Pollard v. Roberts, 283 F.Supp. 248, 256-57 (E.D.Ark.) (three-judge court), aff'd mem., 393 U.S. 14, 89 S.Ct. 47, 21 L.Ed.2d 14 (1968).

In Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), the Supreme Court applied these principles in analyzing a constitutional overbreadth attack on the FECA disclosure provisions at issue in the instant case.⁵ The attack focused, in part, on the application of the disclosure requirements to minor political parties. The Court identified three substantial governmental interests generally served by the disclosure requirements. First, disclosure permits the electorate to more accurately determine the position of the candidates in the political spectrum, and alerts voters to the obligations of the candidates to special interests. Second, the requirements deter corruption by publicizing large contributions and expenditures. Finally, disclosure along with recordkeeping provides an essential means for detecting violations of the FECA contribution limitations. 424 U.S. at 66-68, 96 S.Ct. at 657-658.

The Court concluded that these important governmental interests are less substantial when the disclosure requirements are applied to minor parties:

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. ...

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 ... are concerned, for it is less likely that the candidate will be victorious.

Id. at 70, 96 S.Ct. at 659. The Court also recognized that the disclosure requirements create a more onerous threat to First Amendment rights when applied to minor parties:

These movements are less likely to have a sound financial base and thus are more vulnerable to falloffs 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 and without the political arena.

Id. at 71, 96 S.Ct. at 659 (footnotes omitted).

Although the Court held that a blanket exemption for minor parties is not constitutionally required, it concluded that the disclosure requirements of the FECA cannot be constitutionally applied where the record demonstrates that disclosure will expose contributors and members of the organization to a substantial threat of harassment, which would impermissibly impinge upon protected associational activity. Id. at 72-74, 96 S.Ct. at 660-661. The standard for determining whether the demonstrated impact on First Amendment rights is sufficient to require an exemption from the disclosure requirements was set forth as follows:

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.

Id. at 74, 96 S.Ct. at 661.

Accordingly, this court must determine whether the undisputed evidence in the record establishes, as a matter of law, "a reasonable probability" that compelled disclosure of the names of contributors to the defendant Committee "will subject them to threats, harassment, or reprisals from either Government officials or private parties." Defendants rely on five essential items of proof in order to satisfy the Buckley standard. Each of these is analyzed below.

1. Defendants cite an extensive body of state and federal legislation which purports to subject members of the Communist Party to both civil disabilities and criminal liability. This legislation clearly manifests the pervasive public hostility that has been, and continues to be, directed towards the Communist Party. See, e. g., Communist Control Act, 50 U.S.C. § 841 et seq.⁶ 2. Defendants submitted to this court a summary of the Final Report of the Select Committee to Study Governmental Operations with Respect to Intelligence Activities, S.Rep.No. 94-755, 94th Cong., 2d Sess. (1976) (the "Senate Report").⁷ This report sets forth a detailed history of extensive programs of governmental surveillance and harassment directed at the Party and its members by government agencies. These programs include, for example, the "counterintelligence program" implemented by the Federal Bureau of Investigation ("FBI"), known as "CPUSA COINTELPRO", which involved mailing anonymous letters to employers and spouses of suspected Party members, and provoking IRS investigations of their federal tax returns.⁸ Other operations included the extensive use of informants, surreptitious mail opening, and electronic surveillance programs.

3. The record includes an affidavit filed by the Assistant Director of the Intelligence Division of the FBI indicating that the Communist Party, USA is under active investigation by the FBI.⁹ The affidavit asserts that the investigation is being conducted in full compliance with "the procedures, requirements...