Mariani v. USA.

• Decision Date: 16 February 2000
• Citation: 212 F.3d 761
• Parties: (3rd Cir. 2000) RENATO P. MARIANI, Plaintiff v. UNITED STATES OF AMERICA, Defendant FEDERAL ELECTION COMMISSION (Intervenor in D.C.) NO. 99-3875 Argued En Banc:
• Court: U.S. Court of Appeals — Third Circuit

Page 761

212 F.3d 761 (3rd Cir. 2000)

RENATO P. MARIANI, Plaintiff v. UNITED STATES OF AMERICA, Defendant

FEDERAL ELECTION COMMISSION (Intervenor in D.C.)

NO. 99-3875

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued En Banc: February 16, 2000

Filed May 18, 2000

On Appeal From the United States District Court For the Middle District of Pennsylvania (D.C. Civ. No. 98-cv-01701) District Judge: Honorable Thomas I. Vanaskie, Chief Judge

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FLOYD ABRAMS, ESQUIRE (ARGUED) SUSAN BUCKLEY, ESQUIRE Cahill, Gordon & Reindel 80 Pine Street New York, NY 10005, THOMAS COLAS CARROLL, ESQUIRE MARK E. CEDRONE, ESQUIRE Carroll & Cedrone Suite 940 - Public Ledger Building 150 So. Independence Mall West Philadelphia, PA 19106, for Plaintiff Renato P. Mariani

LAWRENCE M. NOBLE, ESQUIRE General Counsel RICHARD B. BADER, ESQUIRE Associate General Counsel DAVID KOLKER, ESQUIRE (ARGUED) Federal Election Commission 999 E Street, NW Washington, DC 20463, for Intervenor Federal Election Commission

DAVID W. OGDEN, ESQUIRE Acting Assistant Attorney General DAVID M. BARASCH, ESQUIRE United States Attorney BRUCE BRANDLER, ESQUIRE Assistant United States Attorney Federal Building 228 Walnut Street P.O. Box 11754 Harrisburg, PA 17108, DOUGLAS N. LETTER, ESQUIRE MICHAEL S. RABB, ESQUIRE (ARGUED) Attorneys, Appellate Staff Civil Division United States Department of Justice 601 D Street, NW - Room 9530 Washington, DC 20530, Counsel for United States of America

GLEN J. MORAMARCO, ESQUIRE Brennan Center for Justice at NYU School of Law 161 Avenue of the Americas, 5th Floor New York, NY 10013, FRED WERTHEIMER, ESQUIRE Democracy 21 Suite 400 1825 I Street, NW Washington, DC 20006, DONALD J. SIMON, ESQUIRE Sonosky, Chambers, Sachse & Endreson Suite 1000 1250 I Street, NW Washington, DC 20005, for Amici Curiae Brennan Center for Justice at NYU School of Law, Common Cause, and Democracy 21

Before: BECKER, Chief Judge, SLOVITER, MAN SMANN, GREENBERG, SCIRICA, NYGAARD, ALITO, ROTH, McKEE, and BARRY, Circuit Judges.

OPINION OF THE COURT

BECKER, Chief Judge.

This proceeding is before us pursuant to 2 U.S.C.S 437h, which channels constitutional challenges to the Federal Election Campaign Act, 2 U.S.C. S 431 et seq. ("FECA"), as amended, directly to the en banc Court of Appeals. The present challenge was filed in the District Court for the Middle District of Pennsylvania by Renato P. Mariani. A criminal indictment pending in that court charges Mariani and other officers of Empire Sanitary Landfill, Inc., and Danella Environmental Technologies, Inc., with violating the FECA, 2 U.S.C. SS 441b(a) and 441f, by making campaign contributions to a number of candidates for federal office through enlisting company employees and others to forward contributions to the candidates that were thereafter reimbursed by one of the companies. Mariani argues that SS 441b(a) and 441f violate the First Amendment to the United States Constitution.

Mariani's principal argument regards "soft money," or funds lawfully raised by national and congressional political party organizations for party-building activities from corporations, labor unions, and individuals who have reached their federal direct contribution limits. Soft money is sometimes used to fund so-called "issue advocacy," advertisements that advocate a candidate's positions or criticize his opponents without specifically urging viewers to vote for or defeat the candidate. Issue ads are often only marginally distinguishable from ads directly supporting a candidate, which corporations cannot lawfully fund under the FECA.

Mariani contends that S 441b(a), which proscribes corporate contributions made directly to candidates for federal office, has been completely undermined by the staggering increase in recent years of the amount of corporate soft money donations. In Mariani's submission, this avalanche of soft money has made S 441b(a) so underinclusive, and so incapable of materially advancing the intended purpose of the federal election statute, that it must be struck down. Alternatively, because the bellwether cases in this area, including Buckley v. Valeo , 424 U.S. 1 (1976) (per curiam), validate statutes limiting campaign contributions, but not banning them outright, and recognize that corporate speech is protected under the First Amendment, see First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978), Mariani challenges the total ban on direct corporate contributions as inconsistent with the First Amendment. Mariani also challenges the constitutionality of S 441f, which prohibits making campaign contributions in the name of another to a candidate for federal elective office.

The Supreme Court has construed S 437h so that, if a district court concludes that a challenge to the FECA is frivolous, the court may dismiss the case without certifying it. See California Med. Ass'n v. Federal Election Comm'n, 453 U.S. 182, 193-94 n.14 (1981). The District Court concluded that the challenge to S 441b(a) was not frivolous, made comprehensive findings, and certified Mariani's challenge to this Court. Section 437h, as construed by the Supreme Court, required the District Court to make fact findings. Many of the District Court's findings were stipulated to by the parties and are uncontested. The government and the Federal Election Commission ("FEC"), however, assail other findings and the Court's 21 ultimate findings of fact as being excessive or beyond its powers. They also argue that a number of them, including the ultimate findings, are unsupported by the record. Our review of the District Court's findings, made in a setting outside the traditional adversary crucible, is not deferential. As we note in section II, we agree that some of the District Court's findings are unsupported by proper evidence and that some stray from appropriate fact finding into legal conclusions. But even assuming that the role of soft money is that asserted by Mariani and found by the District Court, we conclude that the record could not support a holding that S 441b(a) violates the First Amendment.

The government and the FEC not only defend the constitutionality of SS 441b(a) and 441f, but contend that Mariani's challenges are legally frivolous and thus never should have been certified to the en banc court. They also submit that the District Court employed an insufficiently stringent standard for measuring frivolousness. We are satisfied that the District Court did not apply an incorrect standard of legal frivolousness and that it acted correctly in not dismissing the case without certifying it, at least with respect to the challenges to S 441b(a), for which it made an independent assessment of frivolousness. Though the District Court did not make an independent assessment of the frivolousness of the challenge to S 441f as it should have, the government does not challenge the lack of an independent assessment here, and because the pending criminal case awaits a determination of this action, we will reach the challenges to S 441f without remanding for such a determination.

Although not legally frivolous, Mariani's challenge to S 441b(a) fails. As we explain in detail, both the underinclusiveness and outright ban challenges are interred by the Supreme Court's jurisprudence in the area. See especially Austin v. Mich. Chamber of Commerce, 494 U.S. 652 (1990), and Federal Election Comm'n v. Nat'l Right to Work Comm., 459 U.S. 197 (1982). Although Mariani's factual portrayal of the impact of soft money on contemporary elections is impressive, it falls short. Section 441b(a) is not fatally underinclusive under our precedents, because we cannot say that there is no meaningful distinction between hard and soft money. We cannot exchange our robes for togas; any reform in this area must be sought from Congress.

Finally, we conclude that the challenge to S 441f is patently without merit. Accordingly we shall enter judgment in favor of the government.

I. Procedural History

In October 1997, the United States filed an indictment charging Mariani and several other individuals with, inter alia, violating the FECA. That action, United States v. Mariani, No. 3:CR-97-225, is pending before the District Court. The indictment charges that between August 1994 and December 1996, Mariani and other officers and employees of Empire Sanitary Landfill, Inc. ("Empire") and Danella Environmental Technologies, Inc. ("Danella") solicited numerous employees of the corporations, as well as business associates, friends, and family members, to make contributions to the campaigns of designated candidates for federal election. According to the indictment, these contributions were reimbursed either directly or indirectly by Empire. The indictment also alleges that Mariani and other officers and employees at Empire and Danella made individual contributions to these federal candidates, which were also reimbursed by Empire.

More particularly, the indictment alleges that in April 1995, Mariani and other officers and employees of Empire and Danella contacted employees, associates, friends and family members in an effort to raise funds for the New Jersey Steering Committee, a state fundraising arm of the Robert Dole campaign for President. Contributors allegedly were asked to write personal checks in amounts of $1,000 (or, in the case of couples, $2,000) and were reimbursed with Empire corporate funds. It is also alleged that on April 29, 1995, Mariani and another defendant in the criminal case, Michael Serafini, attended a Steering Committee luncheon at which they handed an envelope containing the contributions to Dole campaign officials. When the Dole campaign reported the contributions to the Federal Election Commission ("FEC"), its filing allegedly attributed these $80,000 worth of contributions to the individual contributors, rather than to Empire. The Dole contributions came approximately ten days...