Republican Nat. Committee v. Fed. Elec. Com'n

• Citation: 487 F. Supp. 280
• Decision Date: 14 April 1980
• Docket Number: No. 78 Civ. 2783.,78 Civ. 2783.
• Parties: REPUBLICAN NATIONAL COMMITTEE et al., Plaintiffs, v. FEDERAL ELECTION COMMISSION et al., Defendants.
• Court: U.S. District Court — Southern District of New York

487 F. Supp. 280

REPUBLICAN NATIONAL COMMITTEE et al., Plaintiffs, v. FEDERAL ELECTION COMMISSION et al., Defendants.

No. 78 Civ. 2783.

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

February 5, 1980.

Judgment Affirmed April 14, 1980.

Lord, Day & Lord, New York City, for plaintiffs; John W. Castles, 3d, Ralph K. Winter, James M. Morrissey, New York City, of counsel.

William C. Oldaker, Charles N. Steele, Carolyn U. Oliphant, Susan E. Propper, Washington, D. C., for Federal Election Commission.

Robert B. Fiske, Jr., U. S. Atty., S. D. N. Y., New York City, for defendants Bell and Blumenthal; Patrick H. Barth, Asst. U. S. Atty., New York City, of counsel.

Ostrolenk, Faber, Gerb & Soffen, Edward A. Meilman, New York City and Wilmer, Cutler & Pickering, Lloyd N. Cutler, Roger M. Witten, Alan B. Sternstein, Washington, D. C., for amici curiae Common Cause, David Cohen and Nan Waterman; Kenneth J. Guido, Jr., Ellen G. Block, Washington, D. C., of counsel.

Before MANSFIELD and VAN GRAAFEILAND, Circuit Judges, and GAGLIARDI, District Judge.

Judgment Affirmed April 14, 1980. See 100 S.Ct. 1639.

OPINION

MANSFIELD, Circuit Judge:

In this action for declaratory and injunctive relief against enforcement of certain provisions of the Presidential Election Campaign Fund Act, Ch. 95 of Subtitle H of the Internal Revenue Code of 1954, 26 U.S.C. §§ 9001, et seq. ("Fund Act") and the Federal Election Campaign Act of 1971, as amended, 2 U.S.C. §§ 431, et seq. ("FECA"), we have, by order entered pursuant to 28 U.S.C. § 2284 on November 30, 1978, been convened as a three-judge court in accordance with § 801(b) of the Fund Act, 26 U.S.C. § 9011(b), which expressly grants jurisdiction to such a court to "implement or construe" any provision of the Fund Act.

On February 20, 1979, defendants renewed their motion to dismiss the action after a prior motion before the single-judge district court (Gagliardi, J.) had been denied without prejudice pending the convening of a three-judge court and certification of related issues regarding the constitutionality of FECA by it to the Court of Appeals pursuant to 2 U.S.C. § 437h. See Republican National Committee v. Federal Election Commission, 461 F.Supp. 570, 575-76 (S.D. N.Y.1978). On October 15, 1979, after hearing the parties and accepting submissions of evidence we and the single-judge district court filed "Joint Findings of Fact" (attached hereto as Appendix A).

Plaintiffs' basic contention before this three-judge court is that certain provisions of the Fund Act violate the constitutional rights of a major-party presidential candidate and his supporters. After review of the evidence in the light of applicable law we are satisfied that these claims must be dismissed.

The "Joint Findings of Fact," which set forth the nature of this action, the statutory provisions under attack, a summary of plaintiffs' claims and the facts as found by the single-judge district court and this court, need not be repeated here. Suffice it to say that the principal provisions of the Fund Act under attack as unconstitutional are those in 26 U.S.C. § 9003(b),¹ which specifies that a presidential candidate, in order to be eligible for payments out of the "Presidential Election Campaign Fund," 26 U.S.C. § 9006, must certify that he or she (1) will not incur expenses in excess of the aggregate to which the candidate is entitled from the Fund under 26 U.S.C. § 9004² and 2 U.S.C. § 441a(b)(1)(B)³ and (2) that he will not accept private contributions except to the extent necessary to make up any deficiency in the Fund. Section 9004 prohibits the candidate from receiving payments from the Fund in excess of the amount specified by FECA, 2 U.S.C. § 441a(b)(1)(B), which, in the case of a "major-party" candidate (i. e., one whose party received at least 25% of the popular vote cast in the last presidential election, 26 U.S.C. § 9002(6)) is $20,000,000 as adjusted for changes in the consumer price index.⁴

The grant of jurisdiction by § 801(b) of the Fund Act, 26 U.S.C. § 9011(b) to this court to "implement or construe" any provision of that Act would appear to require us initially to construe its constitutionality, whereas circuit courts are granted jurisdiction by 2 U.S.C. § 437h(a) to "construe the constitutionality of any provision" of FECA. Plaintiffs have standing to raise the issue, since they, as committees and voters, may be precluded by the legislation from raising or contributing private funds toward the election of a Republican presidential candidate in 1980 if the candidate opts in favor of accepting payments out of the public Fund. 26 U.S.C. § 9011(b)(1). Cf. Buckley v. Valeo, 424 U.S. 1, 11-12, 96 S.Ct. 612, 630-31, 46 L.Ed.2d 659 (1976).

First and Second Causes of Action

Plaintiffs' First Cause of Action claims that the foregoing statutory provisions violate their First Amendment rights by conditioning eligibility for public campaign funds upon compliance with expenditure limitations. Their Second Cause of Action alleges that the First Amendment is also violated because the Republican presidential candidate in 1980 will be forced, because of "legal and practical factors" to opt in favor of public funding. What plaintiffs seek is the right to solicit, receive and spend both public and private campaign funds, without any limitations, even though the alternative of public financing made available by Congress to candidates was clearly "intended as a substitute for private contributions," Buckley v. Valeo, supra, 424 U.S. at 99, 96 S.Ct. at 673. (Emphasis added).

Fundamental to both causes of action is the contention that a presidential candidate is somehow or other forced as a practical matter to accept public funding in lieu of unlimited private funding and spending, and that this deprives the candidate and supporters of their First Amendment rights. Neither the statutes under attack nor the evidence adduced by plaintiffs supports this contention.

Each candidate remains free under the Fund Act, instead of opting for public funding, to attempt through private funding to raise more than the "$20,000,000 plus" public funding limit and to spend any amount of funds raised by private funding, without any ceiling. Indeed, major-party presidential candidates have succeeded in doing so prior to Congress' enactment of the legislation here in issue. For instance, in 1972 candidates Nixon and McGovern raised $60.2 million and $38.7 million, respectively, through private financing.⁵ "Plainly, campaigns can be successfully carried out by means other than public financing; they have been up to this date, and this avenue is still open to all candidates." Buckley v. Valeo, supra, 424 U.S. at 101, 96 S.Ct. at 674 (Emphasis added).

In view of our finding that a presidential candidate is not compelled to accept public financing under the statutes or to accept the limitations imposed by 26 U.S.C. § 9003, we are left with the issue of whether Congress may lawfully condition a presidential candidate's eligibility for public federal campaign funds upon the candidate's voluntary acceptance of limitations on campaign expenditures and private contributions. This question in turn raises three others: Does Congress have the power to enact such a provision, and, if so, is the effect of the law to abridge either (a) the rights of the candidate or (b) the rights of his or her supporters.

We have no difficulty concluding that the imposition of such conditions lies within Congress' power to legislate under the General Welfare Clause and that, as long as the candidate remains free to engage in unlimited private funding and spending instead of limited public funding, the law does not violate the First Amendment rights of the candidate or supporters.

Congress' power to enact the very statutes here under attack was recognized by the Supreme Court in Buckley v. Valeo, 424 U.S. 1, 57 n. 65, 96 S.Ct. 612, 653, n. 65, 46 L.Ed.2d 659 (1976), where the Court stated:

"Congress may engage in public financing of election campaigns and may condition acceptance of public funds on an agreement by the candidate to abide by specified expenditure limitations. Just as a candidate may voluntarily limit the size of the contributions he chooses to accept, he may decide to forgo private fundraising and accept public funding."⁶ (Emphasis added).

The legislative history of the public financing provision gives evidence of two Congressional concerns: to give candidates the opportunity to lessen the "great drain on their time and energies" required by fundraising "at the expense of providing competitive debate of the issues for the electorate" and to "eliminate reliance on large private contributions" and on the implicit obligations to private contributors that may arise from such reliance without decreasing the ability of the candidates to get their message to the people. Senate Report No. 93-689, at pp. 5-6, reprinted in 1974 U.S. Code Cong. & Admin.News, pp. 5587, 5591-92. If the candidate chooses to accept public financing he or she is beholden unto no person and, if elected, should feel no post-election obligation toward any contributor of the type that might have existed as a result of a privately financed campaign.

While Congress may not condition benefit on the sacrifice of protected rights, see Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Frost & Frost Trucking Co. v. Railroad Commission, 271 U.S. 583, 593-94, 46 S.Ct. 605, 607, 70 L.Ed. 1101 (1926), the fact that a statute requires an individual to choose between two methods of exercising the same constitutional right does not render the law invalid, provided the statute does not diminish a protected right or, where there is such a diminution, the burden is justified by a compelling state interest. Sherbert v. Verner, 374 U.S. 398, 403, 83 S.Ct. 1790, 1793, 10 L.Ed.2d 965 (1963). "Not...