Justia Federal District Court Opinions

In this extraordinary case, plaintiffs¹ brought an action in the District Court seeking a declaratory judgment holding unconstitutional key provisions of the Federal Election Campaign Act of 1971 (FECA),² which was overhauled by the FECA Amendments of 1974.³ Plaintiffs also asked that the defendants⁴ be enjoined from enforcing these Acts. Three organizations and eight individuals in leadership positions with those organizations5 have intervened in support of the challenged legislation.

Under attack are provisions that broadly require disclosure of and put ceilings on contributions and expenditures inuring to the benefit of candidates for federal office. Also under attack are the public financing provisions inserted into the Internal Revenue Code6 so as to provide public financing for the primary, convention, and general election stages of the Presidential selection process.

District Judge Howard Corcoran, acting pursuant to 2 U.S.C. § 437h⁷ (a special judicial review provision in FECA) transmitted the entire case to this court.⁸ Upon joint motion of the defendants and intervening defendants, we remanded the record for completion of certain evidentiary steps and for the formulation of constitutional questions to be certified to this court.⁹ Judge Corcoran, with all counsel cooperating, moved expeditiously. Constitutional questions have now been certified and the parties have addressed them in briefs and oral argument before this court en banc.¹⁰ This novel procedure permits timely appeal to the Supreme Court.

The unique posture of this litigation requires a unique opinion, cast in a structure of twenty-eight constitutional questions or sub-questions, which we either answer or conclude are not ripe for decision. Our order is reprinted for convenience as Appendix A.

The opinion is per curiam. That term is conventionally reserved for cases of lesser significance. It also has useful application to cases like this one, where the issues are so significant and far-reaching that the crafting of the opinion reflects the fact of participation of various judges, so that no single judge could fairly be designated as the author. Compare Nixon v. Sirica, 159 U.S.App.D.C. 58, 487 F.2d 700 (1973).

We have organized our discussion of the issues in this case into six major sections: a synopsis of the statutory provisions, in limine questions, questions concerning contribution and expenditure limitations, questions concerning disclosure requirements, questions concerning public financing provisions, and questions concerning the composition and powers of the newly-established Federal Election Commission. But in order to place this recent legislation in proper perspective, we begin with an overview.

The statutory provisions under attack, while separable, were combined by Congress as a comprehensive approach to a set of conditions and abuses that have spread over the years to infect the nation's federal election campaigns. "Speaking broadly, what is involved here is the integrity of our electoral process, and, not less, the responsibility of the individual citizen for the successful functioning of that process. The case thus raises issues not less than basic to a democratic society."¹¹ These solemn words, uttered in 1957 by Justice Frankfurter in a Supreme Court opinion considering limitations on federal election campaigns, are an apt prologue to our momentous task.

Our task is the more awesome, and these words opportune, in that we are pondering legislation passed and reviewed at a time of transition and crisis. The Nation has experienced the shock waves of momentous revelations concerning events of the last Presidential campaign. It is preparing in 1976 not only for another campaign, but for a time of bicentennial that sharpens our awareness of our heroic experiment in democracy. Abraham Lincoln has immortalized our dedication to the concept of a government of the people, by the people and for the people, our recognition that it is dependent on the consent of the governed and our resolution to take measures to preserve and to vitalize that system. What nourishes and invigorates democracy is the root of widespread popular participation.

No one can doubt the compelling government interest in preserving the integrity of the system of elections through which citizens exercise the core right of a free democracy of selecting the officials who will make and execute the laws under which we all must live.¹² Yet subjection of election campaigns to rules of law means restraints, and those restraints are assailed as a misguided undermining of the constitutional foundations of our free society.

Our vigorous and recurring election campaigns are a pulse beat of the strength of democracy. Keen men of this century have sought to preserve health by intervening against feverish excess. Justice Frankfurter's 1957 opinion recounts the origins of our present legislation in the steps taken around the turn of the century to cope with the abuses spawned by the disparities and aggregations of wealth. We identify some highlights.

The popular feeling that the power of wealth "unduly influenced politics, an influence not stopping short of corruption"¹³ led to public disclosure laws. But these "were found to be futile."¹⁴ In quest of more effective measures, Elihu Root proposed that New York prohibit contributions by corporations, to cope with "the great aggregations of wealth" seeking to influence elections toward "the advancement of their interests as against those of the public." He put it:¹⁵

It strikes at a constantly growing evil which has done more to shake the confidence of the plain people of small means of this country in our political institutions than any other practice which has ever obtained since the foundation of our Government.

Concern over the size and source of campaign funds in the 1904 campaign "crystallized popular sentiment for federal action to purge national politics of what was conceived to be the pernicious influence of 'big money' campaign contributions. * * * President Theodore Roosevelt quickly responded to this national mood."¹⁶ His annual messages of 1905 and 1906 urged laws to stop political contributions by corporations, and a 1907 law enacting such a measure as to national campaigns was "the first concrete manifestation of a continuing congressional concern for elections 'free from the power of money.' "¹⁷

In view of the issues now pending, we add and underline President Roosevelt's 1907 address on the need for public financing of election campaigns to effectuate the underlying objective.

Under our form of government voting is not merely a right but a duty, and, moreover, a fundamental and necessary duty if a man is to be a good citizen. It is well to provide that corporations shall not contribute to Presidential or National campaigns, and furthermore to provide for the publication of both contributions and expenditures. There is, however, always danger in laws of this kind, which from their very nature are difficult of enforcement; the danger being lest they be obeyed only by the honest, and disobeyed by the unscrupulous, so as to act only as a penalty upon honest men. Moreover, no such law would hamper an unscrupulous man of unlimited means from buying his own way into office. There is a very radical measure which would, I believe, work a substantial improvement in our system of conducting a campaign, although I am well aware that it will take some time for people so to familiarize themselves with such a proposal as to be willing to consider its adoption. The need for collecting large campaign funds would vanish if Congress provided an appropriation for the proper and legitimate expenses of each of the great national parties, an appropriation ample enough to meet the necessity for thorough organization and machinery, which requires a large expenditure of money. Then the stipulation should be made that no party receiving campaign funds from the Treasury should accept more than a fixed amount from any individual subscriber or donor; and the necessary publicity for receipts and expenditures could without difficulty be provided.¹⁸

The tale of measures passed, and to some extent bypassed, is related in Appendix C. It suffices here to say that over a span of almost 70 years Congress enacted a number of limited statutes; provisions for disclosure and reporting of contributions and expenditures were enacted and amended; in due time Congress imposed a ban on contributions by corporations, followed by a ban on contributions by labor unions; successive statutes put limits on the amounts an individual could contribute to candidates for federal office, and in 1939 an absolute limit ($3 million) was put on annual expenditures by national political committees.

The achievements of the statutes were overmatched by what proved to be wholesale circumvention, including notably the invention and proliferation of political committees that purported to be independent and outside the knowledge and control of the candidates and designated campaign committees. The infinite ability to multiply committees eviscerated statutory limitations on contributions and expenditures.¹⁹

The escalation of the 1972 election and the shock of its aftermath led to a call for comprehensive corrective measures. Congress found that federal election campaigns have become enormously expensive, with costs increasing at an "alarming"²⁰ rate. An estimated $400 million was spent in 1972 for nomination and election campaigns almost a 300% increase since 1952, in a period when the consumer price index rose 57.6%. In 1972, Presidential campaign spending alone totaled $94.4 million up 67 percent from $56.4 million in 1968; up 147 percent from $38.1 million in 1964; and up 247 percent from $27.2 million in 1960. Findings IIA, P 51; I, PP 89, 93; Brief for Intervening Defendants at 34.

Congress found in the words of the House Report:

The unchecked rise in campaign expenditures coupled with the absence of limitations on contributions and expenditures, has increased the dependence of candidates on special interest groups and large contributors. Under the present law the impression persists that a candidate can buy an election by simply spending large sums in a campaign.²¹

The record documents the interaction of ever-increasing campaign expenditures, and reliance on large contributions from monied and special interests. By 1974, as the agreed findings establish, one percent of the people accounted for 90 percent of the dollars contributed to federal candidates, political parties and committees.²² Just 2-3 percent, the wealthiest people in the country, are responsible for about 95 percent of the financing for Congressional elections.²³

The sheer volume of special interest group money is enormous. The findings identify for the 1972 and 1974 elections not only the millions of total contributions by labor groups, business groups, health groups and agricultural groups,²⁴ but also how large they loom to individual candidates.²⁵

Plaintiffs say the need to seek contributions is a democratic check on candidates. The contention has some merit, dependent on moderation. In practice, however, candidates were compelled to allot to fund raising increasing and extreme amounts of time and energy. Senator Hollings testified that survival required candidates for national office to "set down a policy where they won't go see people other than those who can give money."²⁶ Joseph Cole, finance chairman for the Democratic National Committee, testified from his experience in some four or five Presidential campaigns, how dog-tired candidates must arise early in pursuit of large contributions, and continue "all day long and all night long." "(How) much time do you think a Presidential candidate spends on fund raising? . . . at least 70 percent of his time, and I think all of his waking hours. It is really demeaning, demeaning to go through it."²⁷

In advocating public subsidy to relieve candidates of "potentially corroding dependence on personal or family fortune or the gifts of special interest backers," Senator Biden referred to the pressure on candidates to avoid speaking out on issues lest campaign funds be cut off.²⁸

Senator Russell Long pinned the pervasive problem in these words:²⁹

(W)hen you are talking in terms of large campaign contributions . . . the distinction between a campaign contribution and a bribe is almost a hair's line difference . . . .

The quality of political contributions as denotive of freedom of thought and association must be reappraised realistically, so far as large contributions are concerned, in the light of the common practice of many large donors of contributing to both candidates for the same office. The agreed findings establish that during the 1974 Congressional elections, 120 registered interest groups gave contributions on 278 occasions, totaling over $676,000, to two or more candidates running for the same office.³⁰ Contributions to both parties were made in 1972 by Gulf Oil (illegal contributions to President Nixon, Senator Jackson, and Congressman Mills), and by American Milk Producers, Inc., a large dairy cooperative whose legal and illegal contributions were made to Nixon, Mills, and Humphrey.³¹

Large contributions are intended to, and do, gain access to the elected official after the campaign for consideration of the contributor's particular concerns.³² Senator Mathias not only describes this but also the corollary, that the feeling that big contributors gain special treatment produces a reaction that the average American has no significant role in the political process.³³

The concepts of political trust (trust in government) and its converse, political cynicism and alienation, are the subject of agreed findings. Illustrative is the trend revealed by the polls seeking responses to this question.Would you say the government is pretty much run by a few big interests looking out for themselves or that it is run for the benefit of all the people?³⁴

Congress and the public had become informed of the various aspects of the 1972 campaign.³⁵ Revelations of huge contributions from the dairy industry,³⁶ a number of corporations³⁷ (illegally) and ambassadors and potential ambassadors,³⁸ made the 1972 election a watershed for public confidence in the electoral system. Such matters dramatize rather than define the widespread concerns over the problem of undue influence. After extensive investigation, Congress concluded that such corrupt and pernicious practices are more likely to occur when there are no effective limits on amount of campaign expenditure. In short, big-spending campaigns pull like a magnetic field.

Congress knew there were no absolute guarantees that its reforms the combination of strengthened disclosures, shrinkage of total campaign expenditures, and provision of public funds in amounts (hopefully sufficient for the purpose) authorized by taxpayers would achieve the objective of curbing the excesses of campaign financing permeated by contributions of monied and special interests.

But Congress knew, too, that the perfect can be the enemy of the good, and that inaction, for whatever reason, may breed a noxious reaction. The statute was responsive to Congress's finding of "a definite need for effective and comprehensive legislation in this (campaign finance) area to restore and strengthen public confidence in the integrity of the political process" confidence that had declined, at least in part, because of campaign financing abuses.³⁹

Standard for Review of Campaign Measures Passed by Congress

It is a salient contention of plaintiffs that political contributions and expenditures are so permeated with the freedoms of speech, press and political association⁴⁰ guaranteed by the First Amendment that they are not constitutionally subject to restriction in amount.

We disagree. In our view, the pertinent standard is that set forth by the Supreme Court, albeit in another context, in United States v. O'Brien,391 U.S. 367, 376-77, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968) (footnotes omitted):

This Court has held that when "speech" and "nonspeech" elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. To characterize the quality of the governmental interest which must appear, the Court has employed a variety of descriptive terms: compelling; substantial; subordinating; paramount; cogent; strong. Whatever imprecision inheres in these terms, we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

The constitutional power of Congress to regulate federal elections (including the pre-election stages) is extensive.⁴¹ Here the Government has a clear and compelling interest in safeguarding the integrity of elections and avoiding the undue influence of wealth. Both the reality and appearance of electoral corruption justify Congressional intervention.

Ours is a nation that respects the drive of private profit and the pursuit of gain, but does not exalt wealth thereby achieved to undue preference in fundamental rights. The right to vote cannot be conditioned on a poll tax. Harper v. Virginia Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966). No compelling interest justifies restriction of voting on general obligation municipal bonds to real property taxpayers. Phoenix v. Kolodziejski, 399 U.S. 204, 90 S.Ct. 1990, 26 L.Ed.2d 523 (1970). In Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972), the Court held that huge filing fees as a condition of getting on the ballot were an unconstitutional impediment to candidates based on disparity of wealth. Even a moderate fee cannot be required of an impecunious candidate without providing a reasonable alternative means of ballot access. Lubin v. Panish, 415 U.S. 709, 94 S.Ct. 1315, 39 L.Ed.2d 702 (1974). The principle of equality in political suffrage rights has the constitutional footing of the "one man, one vote" principle. Reynolds v. Sims, 377 U.S. 533, 562, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964).

It would be strange indeed if, by extrapolation outward from the basic rights of individuals, the wealthy few could claim a constitutional guarantee to a stronger political voice than the unwealthy many because they are able to give and spend more money, and because the amounts they give and spend cannot be limited.

The Constitution also takes account of the governmental interest in curbing the appearance of undue influence, in order to avoid the corrosion of public confidence that is indispensable to democratic survival. In Civil Service Commission v. Letter Carriers, 413 U.S. 548, 565, 93 S.Ct. 2880, 2890, 37 L.Ed.2d 796 (1973), Justice White articulated this:

(I)t is not only important that the Government and its employees in fact avoid practicing political justice, but it is also critical that they appear to the public to be avoiding it, if confidence in the system of representative Government is not to be eroded to a disastrous extent.

There is a positive offset to plaintiffs' invocation of the First Amendment in the presentation by intervening defendants that the statute taken as a whole affirmatively enhances First Amendment values. By reducing in good measure disparity due to wealth, the Act tends to equalize both the relative ability of all voters to affect electoral outcomes, and the opportunity of all interested citizens to become candidates for elective federal office. This broadens the choice of candidates and the opportunity to hear a variety of views.

We are not here concerned with a complete ban on political activity such as has been adopted for corporations, labor unions, and government employees. In 1973 the Court reaffirmed the ban on government employees on the principle that the balance struck by Congress was permissible, in view of the important interests served, "if the Government is to operate effectively and fairly (and) elections are to play their proper part in representative government . . . ."⁴² Here, however, we are not concerned with a ban on political activity, but with a limitation on amount, without any discrimination based on party or orientation of speech or activity.

To the extent that prohibitions and restraints imposed by the Act in service of the compelling government interest in insuring the integrity of federal elections against undue influence work incidental restrictions on First Amendment freedoms, these constraints, broadly considered, are necessary to assure the integrity of federal elections.⁴³

Plaintiffs rely on a contention, derived from Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960), that the legislature's end "can be more narrowly achieved" with "less drastic means" and less restriction on freedoms.

The doctrine of "less drastic means" has particular scope when the court is concerned with the types of regulatory methods used by the legislature. If it is satisfied that some limit on contributions is necessary, a court has no scalpel to probe, whether, say, a $2,000 ceiling might not serve as well as $1,000. On questions of degree, of drawing the line, sound doctrine gives Congress latitude for reasonable judgments⁴⁴ unless the degree of regulation is so stark as to border on prohibition.⁴⁵

Ultimately it is plaintiffs' position that the legislation under attack is doomed by its comprehensiveness⁴⁶ and that reporting and disclosure are sufficient intrusion. However, the combination of measures reflects a legislative conviction that the intermesh of reinforcing measures is needed to cope with the grave abuses. We see no principled basis on which a court can displace the legislative judgment that reporting and disclosure are necessary, but not sufficient, remedies to achieve the objective of trammeling "the pernicious influence of 'big money' campaign contributions."⁴⁷ The judgments of Theodore Roosevelt and Elihu Root⁴⁸ have been borne out by our experience for in large part the circumvention of this century's legislation has led in practice to little more than reporting requirements. If to some extent more recent measures would have closed earlier gaps, there remains the inherent dilemma of handling the familiar phenomenon of contributions consummated and reported in the closing stages of a campaign. More important still is the legislative conviction that full reporting will not cope with the undue influence problem inherent in the conditions of the 1970's, with massive campaigns escalating in volume, and candidates increasingly driven to concentrate on ever-mounting contributions. The wiles of ambitious office seekers and their supporters are not easily cabined.

The provisions for public financing, which will be discussed in some detail, are not to be viewed in isolation, but as part of a series of reinforcing measures to protect elections against the abuse of corruption and undue influence. So, too, with the mechanism provided by Congress for monitoring its objectives the Federal Election Commission. Certain constitutional questions are presented by this agency's structure, and they will be considered. In assessing the past ineffectiveness of federal election legislation, Congress was rightfully concerned with the need for continuous bi-partisan monitoring, and with the problems posed if total responsibility is assigned to a President whose election may be the product of practices that demand review.

Defendants go too far in saying that this is ordinary legislation, entitled to the conventional presumption of validity that would be applicable, say, to economic regulation. In view of the interests involved, both the compelling government interest needed to sustain such provisions, and the associational freedoms that are impinged, strict judicial scrutiny of the challenged provisions is appropriate.

The need for exacting judicial scrutiny is underscored by the plaintiffs' contention that the legislation is a composite of measures that serve the interests of the "ins" members of Congress already elected in resisting the incursions of the "outs." Such a contention, if substantial, is a warning signal that dilutes the deference courts give to legislatures, at least until the matter is painstakingly considered. In any event, we are aware that serious constitutional questions are raised by measures that may inhibit potential candidates.⁴⁹ And in pondering the certified questions we have closely scrutinized plaintiffs' contentions.

In the light of this scrutiny, we do find one section, 2 U.S.C. § 437a, unconstitutional on First Amendment right of association and free speech grounds. Section 437a was injected by the Conference Committee, is not a core section and is plainly severable from the balance of the legislation. With this exception, it is the view of the court, considering only those challenged provisions now ripe for judicial examination because they exert an "inhibitory effect"⁵⁰ by their very existence, that the core provisions of the challenged acts do not violate the First Amendment's guarantees of fundamental freedoms. We discuss them briefly below, especially those provisions the facial meaning of which has given us difficulty; we leave for future litigation framed in the context of concrete facts the validity of other provisions and of all provisions as applied.

II. Synopsis of the Key Provisions of the Challenged Acts

Because the statutory provisions in suit are complex, comprehensive, and interrelated, we present a brief outline of the statutory framework before turning to the certified constitutional questions.

Contribution and Expenditure Limitations

A person⁵¹ may make a contribution⁵² of up to $1000 to a candidate⁵³ for a federal office⁵⁴ in his or her primary race, and another contribution of up to $1000 for his or her general election. 18 U.S.C. § 608(b)(1). This is because the law treats general, special, primary, and runoff elections as separate, distinct elections. Id. § 591(a). There is an exception to this rule for the various state Presidential primaries, which are all treated as a single primary for contribution purposes only. Id. § 608(b) (5).⁵⁵

The law allows an individual to make contributions of up to $25,000 in any calendar year, id. § 608(b)(3), which would mean, for example, $1000 for a Presidential candidate's primary, $1000 for a Presidential candidate's November election, and up to twenty-three other primary or general election contributions of up to $1000 to candidates for federal office (Senate and House) around the country. For purposes of the $25,000 ceiling, the law treats all contributions made in connection with the same election season as made in the year of the general election. Id. And it treats contributions to a Vice Presidential candidate as contributions to his Presidential running mate. Id. § 608(b)(4)(B). No contribution of currency may, in the aggregate, exceed $100. Id. § 615(a).

In addition to making political contributions of up to $25,000 per year, a person may make unlimited outlays to voice his views on public issues and campaign issues, subject only to the limitation that if he makes an expenditure⁵⁶ "relative to a clearly identified candidate" and "advocating the election or defeat of such candidate" all expenditures relative to that candidate may not exceed $1000. Id. § 608(e). There is no provision analogous to the $25,000 ceiling on contributions, so presumably a person may make expenditures of up to $1000 relative to an unlimited number of candidates for federal office.

A political committee⁵⁷ may make contributions of up to $5000 to a candidate, provided that the committee has been registered with the Federal Election Commission for more than six months. Id. § 608(b)(2).

Candidate expenditure ceilings permit overall spending of $10,000,000 in all Presidential primaries, although in any given state the ceiling is twice the Senatorial primary ceiling. Id. § 608(c)(1)(A). Candidates for President in the general election may spend no more than $20,000,000. Id. § 608(c)(1)(B). Those seeking nomination for election as Senator may expend only eight cents times the voting age population of the state, or one hundred thousand dollars if that sum is larger. Id. § 608(c)(1)(C). In Senatorial general elections, the expenditure limitation is twelve cents times the voting age population, or one hundred fifty thousand dollars if that sum is larger. Id. § 608(c)(1)(D). In House races in states entitled to only one Representative, the Senatorial limits apply. Id. § 608(c)(1)(C), (D). In all other House races, the candidate may spend seventy thousand dollars in the primary, and the identical sum in the general election. Id. § 608(c)(1)(E).⁵⁸ In addition to the sums specified above, each candidate may spend up to twenty per cent of the applicable expenditure limit under section 608(c) solely for the purpose of soliciting contributions, without those disbursements being considered "expenditures" and therefore without their being counted against the candidate's overall expenditure ceiling. Id. § 591(f)(4)(H).

Notwithstanding any of the above provisions or limitations, the national committee of a political party and a state committee or its geographic subdivisions may make the following expenditures with respect to the general elections of affiliated candidates for federal office:

1. For President: not greater than two cents times the voting age population (VAP) of the United States by the national committee only (at the present time, the VAP of the United States is approximately 141 million, providing a sum in excess of $2.8 million).

2. For Senator, or Representative in a state entitled to only one Representative: two cents times the voting age population of the state, or $20,000 if greater.

3. For all other House races: $10,000.

Id. § 608(f). The expenditure ceilings set for candidates and national and state party committees shall be annually adjusted to reflect changes in the Consumer Price Index. Id. § 608(d).⁵⁹

As indicated above, no national bank or corporation organized by authority of any law of Congress may make political contributions or expenditures of any sort in any federal, state, or local election. Id. § 610. All corporations and labor organizations are prohibited from making any contribution or expenditure in Presidential, Senatorial or House primaries, caucuses, conventions or general elections. Id. Voluntary segregated funds to which shareholders of a corporation or members of a labor union contribute are excepted from this ban and treated as political committees. Id.; see id. § 591(d).

Section 9008 of Subtitle H limits the national convention expenditures of national committees of major and minor parties to $2 million, adjusted annually for changes in the cost of living. 26 U.S.C. § 9008. The Commission may authorize an exception to this limitation if, "due to extraordinary and unforeseen circumstances, such expenditures are necessary to assure the effective operation of the presidential nominating convention by such committee." Id. § 9008(d)(3).

In addition to the individual contribution and independent expenditure limits discussed above, the law tightly limits the use of personal and immediate family funds by candidates. No more than $50,000 of such monies can be expended by a candidate for President or Vice President, $35,000 in the case of a Senatorial candidate or a House candidate in a state entitled to only one Representative, and $25,000 in the case of a House candidate in any other state. 18 U.S.C. § 608(a)(1). This ceiling is an overall limit, and thus the candidate may not apply it to each separate stage of the electoral process, i. e. nomination, convention, and election. Id. Immediate family "means a candidate's spouse, and any child, parent, grandparent, brother, or sister of the candidate, and the spouses of such persons." Id. § 608(a)(2).

Disclosure Requirements

Political committees must keep detailed records of individuals contributing in excess of $10, and these nondisclosed records are subject to audit by the Commission. 2 U.S.C. §§ 432, 438. The political committee must disclose the name, occupation and principal place of business of anyone who contributes in excess of $100. Id. § 434(b)(2). All persons who contribute or expend in excess of $100 must file with the Commission if their transaction was not with a political committee or candidate. Id. § 434(e). Members of Congress, however, are not required to report either as contributions received or expenditures made, the value of photographic or recording services furnished to officeholders by the House and Senate bureaucracies or the national party Congressional committees, except in the year of an election. Id. § 434(d).

Persons (other than individuals) who expend funds or do acts directed to the public for the purpose of influencing the election or advocating election or defeat of candidates shall file with the Commission in the same manner as a political committee. Id. § 437a. Government publications, news stories, commentaries, and editorials in bona fide publications are exempt. Id.

Public Financing

Unlike the contribution and expenditure limitation provisions and the disclosure requirements, which apply to all campaigns for federal elective office, the public financing provisions apply only to contests for the Presidency.

The Presidential Election Campaign Fund, established by section 9006 of Subtitle H, is funded with revenue monies that are transferred to the Fund by the Secretary of the Treasury in accord with the wishes of taxpayers checking off one and two dollar sums on their income tax returns under 26 U.S.C. § 6096. Individuals and joint taxpayers may express only a desire to transfer monies to the Fund, or to withhold them; unlike earlier proposals, the statute does not authorize them to indicate a candidate or party preference.

Federal funds are to be applied to three stages of ballot access and election in the Presidential campaign: Presidential primaries, nominating conventions, and the general election itself. Pursuant to priorities established in id. §§ 9008(a), 9037(a), monies must first be expended to finance the national nominating conventions, then the general election, and, if sums remain, the primary races.

Chapter 95 of Subtitle H establishes three categories of parties major parties, minor parties, and new parties for the purpose of allocating monies from the Presidential Election Campaign Fund. A major party is defined as one whose candidate in the preceding Presidential election received 25 percent or more of the total popular vote. Id. § 9002(6). A minor party is defined as one whose candidate for President in the previous election received 5 percent or more of the popular vote, but less than 25 percent. Id. § 9002(7). All other parties are deemed "new parties." Id. § 9002(8).

Section 9008 of Subtitle H, which limits major party convention spending to $2 million, provides an identical sum as the public funding entitlement of a major party for its national convention. The convention financing entitlement of a minor party is determined by computing the ratio between the minor party's share of the previous popular vote and the average share of all major parties. No comparable funding is provided for nominating conventions for new parties, or for parties which choose not to conduct a convention, or for independent candidacies. Major and minor parties may receive payments beginning on July 1 of the year prior to the convention. Id. § 9008(e).

The major-minor-new party division, which attempts to apportion public funding for conventions without allowing raids upon the Fund by wholly frivolous or doomed candidacies, is also used to establish threshold requirements for general election funding. A provision of Subtitle H provides equal general election funding of $20 million for all major party candidates. Id. § 9004(a). As a condition of public funding, however, a candidate must agree to furnish to the Commission, upon request by the Commission, certain books, records, and evidence of qualified expenses (defined at id. § 9002(11)), and also to submit to a Commission audit of his qualified campaign expenses. Id. § 9003(a). Further, a major party candidate may not incur qualified campaign expenses in excess of his public funding entitlement. Id. § 9003(b)(1). And a major party candidate must certify that he will not accept private funding, except to the extent that the Fund is incapable of providing the full entitlement of public monies. Id. § 9003(b)(2).

The entitlement of the minor party candidates to public funding in the general election is computed on the basis of the ratio of the minor party's share of the popular vote in the previous Presidential election to the average share of the major parties. Id. § 9004(a)(2)(A). Unlike major party candidates, those of minor parties, who are not entitled to full public funding, need not certify that they will not accept private funding, but must certify that they will abide by the overall Presidential expenditure ceiling. Id. § 9003(c).

Subtitle H also provides for retroactive payments to candidates of minor or new parties who either garner more votes than their track record would have indicated (minor parties) or who had no previous track record (new parties). To discourage frivolous campaigns designed to obtain public funding, 5 percent of the total popular vote is the minimum cutoff for public financing, and candidates who fail to meet that cutoff are not entitled to retroactive funding. Minor party candidates receiving pre-election funding are entitled, post-election, only to the difference between the entitlement based upon previous track record and the entitlement reckoned on actual vote count. Id. § 9004(a)(3).

Subtitle H establishes different paths to general election funding by defining "candidate" in two different ways: either the nominee of a major party, or an individual qualified to have his name (or those of electors pledged to him) on the ballot of 10 or more states. Id. § 9002(2). Thus, while candidacies of independents, new parties, or minor parties not holding conventions are not entitled to any analog of public funding for conventions, they may be entitled to general election funding (albeit after the election in the case of a nonestablished candidacy).

The third stage of the Presidential selection process which may receive public funding is the nominating primary (actually a series of state-by-state primaries). Because the number of participants is largest at this earliest stage of a campaign, the law imposes stringent threshold requirements to restrict public expenditures to the category of serious contenders.

Chapter 96 of Subtitle H is known as the Presidential Primary Matching Payment Account Act. As with general election funding, certification that the candidate will abide by the overall and state-by-state expenditure ceilings is a prerequisite for eligibility. Id. § 9033. Public payments for primaries draw upon a simple matching fund; for every qualified dollar raised in private contributions, the Account will give the candidate one dollar in public funds. Although every eligible candidate is entitled to receive contributions of up to $1000 from every individual, 18 U.S.C. § 608(b)(1), the Act provides matching funds only for the first $250 of each contribution. 26 U.S.C. § 9034(a).

The threshold formula is also somewhat complex. Chapter 96 clearly deems eligible for matching funds only a candidate "seeking nomination by a political party for election to the office of President of the United States." Id. § 9033(b)(2) (emphasis added). Thus, any candidate claiming to pursue an independent (nonparty) route to the ballot is ineligible for this portion of public financing. To be eligible for matching, a candidate is required to have raised $5000 in private primary contributions in each of at least 20 states, and only the first $250 of any person's contribution counts toward this $5000.

The public funding provisions of Subtitle H manifestly dovetail with the contribution and expenditure ceilings set in FECA, and they should be viewed as complementary stratagems.

Our first inquiry must be into the meaning and application of the major review provision of FECA, section 315(a), codified as 2 U.S.C. § 437h.⁶⁰ By its plain words, the first sentence is a broad grant of legislative standing to sue,⁶¹ embracing any individual eligible to vote in any election for the office of President. However, this does not entitle the eligible plaintiffs to raise any conceivable constitutional issue with respect to the Act and the relevant criminal sections, no matter how remote or speculative. We perceive no congressional intent to waive article III's requirement that there be a present "case or controversy."⁶² The declaratory judgment, often seen as the outer limits of article III jurisdiction, nevertheless requires that there be an actual controversy.⁶³

In answer to Constitutional Question No. 1,⁶⁴ therefore, we reply that since nothing in the first sentence of Section 437h must be read to require rendering an advisory opinion, no violation of the "case or controversy" requirement of article III, section 2 appears. Congress was concerned with the inhibitory effect of a massive rearrangement of regulations operating upon federal campaigns and elections,⁶⁵ and wanted election participants to be permitted expeditiously to test the facial validity of limitations and requirements imposed by the challenged Acts. Consistent, however, with the underlying need for "case or controversy," actions are not to be decided unless the inhibitory effects of the challenged provisions are "definite and concrete," "touching the legal relations of parties having adverse legal interests," and "admitting of specific relief through a decree of a conclusive character."⁶⁶

Seen through the lens of "inhibitory effect," Question No. 2⁶⁷ may be answered, "Yes, subject to considerations of ripeness." Each of the plaintiffs has shown enough injury to maintain a "case or controversy" as to one or more issues but not for all issues, since a number of issues are held not ripe for resolution in the factual context underlying certification.

Limitations on Contributions

The ample power of Congress to regulate federal elections⁶⁸ embraces, in our view, the power to adopt per candidate and over-all limitations on the amount that an individual or political committee may contribute in the context of federal elections and primaries.

Question 3(b)⁶⁹ certifies the question whether FECA's limitations on contributions to or for a candidate are constitutional. We believe that in the context of past abuses and present needs the statutory contribution limit of $1,000 per candidate per election⁷⁰ (with primary and general elections counted as two separate elections)⁷¹ serves a compelling governmental interest. Nor do we find constitutionally infirm the provision limiting to $25,000 the total contributions permitted in any calendar year.⁷²

Limitations on Independent Expenditures Relative to a Clearly Identified Candidate

Question 3(d)⁷³ inquires as to the validity of the $1,000 limitation upon expenditures "relative to a clearly identified candidate,"⁷⁴ (as distinguished from contributions⁷⁵.

This provision is new, and its importance arises from the strict limitation in FECA upon contributions for the benefit of a candidate, whether made directly, to an agent, or to any political committee supporting him. 18 U.S.C. § 608(b) (6). Prior to FECA, the limitations on contributions were widely circumvented by the multiplication of so-called independent committees. With FECA's closing of this loophole, Congress foresaw another: that large independent expenditures by individuals and groups advocating the candidate's election or urging defeat of his opponent might effectively circumvent the individual contribution limitations of section 608(b) and the candidate expenditure ceilings of section 608(c). An expenditure may obviously inure to the benefit of a candidate even though the expenditure was not directed by the candidate and the candidate was not in control of the expenditure or of the goods or services purchased.

We hold that the limitation on expenditures relative to a clearly identified candidate is a necessary and constitutional means of closing a loophole that would otherwise destroy the effectiveness of other statutory provisions.⁷⁶ But section 608(e) is a loophole-closing provision only, and it bars only those expenditures directly relative to a clearly identified candidate. We underline the statute's phrase "advocating the election or defeat of such candidate" and give it a restrictive reading.

Section 608(e) parallels the general $1,000 limit on contributions so as to cover an expenditure by a person that is "relative to a clearly identified candidate" even though it was not made at the request of a candidate or his agent or authorized committee. The term "clearly identified" requires a clear reference to the candidate either by name, photograph, or drawing, or some other unambiguous reference. In our view, in addition to a clear and unambiguous reference, the expenditure must clearly be "advocating the election or defeat of such candidate." Further, expenditures relative to clearly identified candidates stand in contradistinction to expenditures relating primarily to issues of public policy, and the latter are not limited at all by the challenged Acts. An expenditure relating primarily to issues of public policy does not become subject to the $1,000 limitation merely because it contains a clear and unambiguous reference to a candidate, unaccompanied by a message advocating election or defeat; e. g., a list of those in support of or in opposition to the relevant issue position. The test, then, is whether the expenditure (or the publicity which it buys) taken as a whole amounts to a clear advocacy of the election or defeat of a clearly identified candidate.

Limitations on Use of Personal Funds of Candidate and Family

We next consider Question 3(a)⁷⁷, which focuses on the provisions in section 608(a)⁷⁸ limiting candidate out-of-pocket and out-of-family-pocket expenditures. These provisions were added by the FECA of 1971⁷⁹ to a scheme that did not then include either contribution limits or overall expenditure ceilings.

Plaintiffs attacked these provisions in the First Amended Complaint as too restrictive,⁸⁰ and in brief as a lax loophole in the $1,000 contribution ceiling.⁸¹ Clearly, the personal and family funds expenditure limitation of the FECA of 1971 and the contribution limitations of the FECAA of 1974 operate together to avoid any gaping loophole such as plaintiffs suggest. In fact, the out-of-pocket and out-of-family-pocket expenditure provisions merely serve to relax the $1,000 per candidate contribution limit for a candidate and his immediate family. Section 608(a) does not serve, however, to relax the section 608(b)(3) $25,000 contribution ceiling. The latter provision, enacted after the limitation on out-of-pocket and out-of-family-pocket expenditures, contains no exception for a candidate's family members. Thus, a family member's participation in the candidate's § 608(a)(1) expenditures must be deemed a "contribution" under § 608(b), and counted against the family member's § 608(b)(3) $25,000 contribution ceiling.

Similarly, § 608(c),⁸² which establishes the candidate's overall campaign expenditure ceilings, was enacted after the FECA of 1971 personal funds limitation and contains no exception for personal and family funds. Thus, a candidate entitled to make expenditures from personal or family funds in his race for federal office must count those expenditures towards the applicable overall expenditure ceiling.

Furthermore, section 608(a) does not affect at all the operation of section 608(e),⁸³ which was enacted after the FECA of 1971 and which limits expenditures relative to a clearly identified candidate to $1,000. Candidates and their family members are treated identically with other persons; the right of family members to make up to $1,000 in independent expenditures relative to a clearly identified candidate (whether within the family or not) is unfettered.

Thus read, it can be seen that the chief strength of these provisions is that they provide a candidate the opportunity to raise quickly, free of the $1,000 limitation on loans as well as gifts,⁸⁴ a portion of the applicable overall expenditure limit for use as either "seed money" or an end-of-campaign countercharge cushion.⁸⁵ We believe that Congress may treat the personal monies of a candidate and family monies attributed to a candidate differently, to some extent, from monies raised from the public at large, and could conclude with good reason that the flexibility section 608(a) provides a candidate is beneficial. Manifestly, the core problem of avoiding undisclosed and undue influence on candidates from outside interests has lesser application when the monies involved come from the candidate himself or from his immediate family. Congress was not acting unreasonably when it chose to make some reasonable distinction on this basis and to give the candidate and family a greater latitude to "contribute" while still subjecting such intrafamily transactions to the flat contribution ceiling and to the limitation upon independent expenditures.

If these provisions governed only the personal funds of candidates, they might favor the wealthy, but given the number of individuals who are considered to be within his "immediate family", even a candidate in modest circumstances obtains the flexibility to raise useful sums, while a wealthy one is restricted by the family ceiling as to the percentage of family assets that may be brought to bear. Moreover, the ratio of permitted family expenditures to overall expenditure ceilings is such that in all federal election campaigns not wholly publicly-funded, a candidate desiring to conduct a hard-hitting campaign will be compelled to go to the populace to raise most of his funds. Thus, section 608(a) establishes additional candidate options without raising barriers to more modestly circumstanced candidacies and without substantially undermining movement toward equalized spending by very rich and very poor candidates.

Limitations on Volunteers' Incidental Expenses

Question 3(c)⁸⁶ asks whether constitutional rights are violated by the provisions of 18 U.S.C. § 591(e)⁸⁷ and § 608(b),⁸⁸ which limit the incidental expenses that volunteers working in a political campaign may incur to amounts specified in the statute. As background, we note that the challenged provisions treat volunteer campaign assistance differently from the donation of money. We believe that it is rational for Congress to do so, because the history of campaign abuses recently brought to light reflects major abuses in campaign financing, not in volunteer activities. Plaintiffs contend that donation of money and volunteering of services must be treated similarly because they are substantially fungible. But we believe that the differences outweigh the similarities, particularly with respect to the potential for abuse, and that those differences are a valid basis for differential treatment. The possibility of abuse in volunteer activities is at present conjectural and speculative. When and if such abuses develop, the court, taking into account whatever Congress does or fails to do, can consider such legal attacks as may then lie.

With the basis for this distinction in mind, we turn to the specific issue raised by the certified question. Under section 591(e)(5)(A), "the value of services provided without compensation by individuals who volunteer a portion or all of their time" is specifically excluded from the definition of "contribution." Thus, no estimate is made of the dollar worth of a volunteer's time nor is that amount counted against the volunteer's section 608(b) per candidate contribution limitation of $1,000. But certain categories of financial outlays by volunteers are excluded from the definition of "contribution" only to the extent that they do not exceed $500. Thus, if a volunteer provides a candidate or political committee with coffee-klatch type functions in the volunteer's residence, see id. § 591(e)(5)(B), or supplies food or beverages to the campaign at cost (thereby foregoing a normal vendor's profit), see id. § 591(e)(5)(C), or makes unreimbursed travel expenses while rendering personal services, see § 591(e)(5)(D), the value of those activities will be deemed a contribution from volunteer to candidate to the extent that it exceeds $500. That contribution is then chargeable to the volunteer's section 608(b) limit of $1,000 with respect to the recipient candidate.

It can readily be seen that "contribution" treatment for incidental volunteer expenses in excess of some reasonable amount is a necessary loophole-closing provision, designed to prevent contributions by indirection. To allow a volunteer no financial elbow room would tend to reduce desirable political participation, but the specific sum chosen as the cutoff point for non-contribution treatment is reasonable legislative line-drawing. We view this loophole-closing device in light of the concerns of the Congress, and we conclude that it allows sufficient flexibility for effective volunteer campaign assistance, without opening the door to wholesale circumvention of contribution and expenditure limits.

Limitations on Convention Expenditures

Question 3(f)⁸⁹ asks whether Subtitle H violates constitutional rights in that it limits a national committee's expenditures with respect to its national nominating convention for President.⁹⁰ That limitation is contained in 26 U.S.C. § 9008(d), which establishes a $2 million ceiling on convention expenditures for both major and minor parties.⁹¹ If public funding is available,⁹² major parties are entitled to receive $2 million, and minor parties are entitled to a pro rata share based on voting success in the preceding Presidential election. All entitlements are subject to cost-of-living adjustments.

The primary purpose of a national convention is, of course, to select a party's candidates for President and Vice-President. The national convention, a democratic and open feature of the American political process, is thus a great occasion when the adherents of a party come together from the various states, formally and informally, to weld a national party.

Clearly, the legislation challenged in this suit reflects a recognition by Congress of the value of and need for national nominating conventions. Indeed, in establishing limitations on convention expenditures, Congress sought to assure an adequate source of funds for conducting the convention while at the same time preventing massive convention expenditures that would serve to launch and promote the campaign of its nominees.⁹³ We do not believe that Congress acted unreasonably in attempting to prevent circumvention of the limitations in section 608 on candidate campaign expenditures, especially given Congressional awareness of the ingenuity displayed in the past in circumventing campaign control measures.

As is often the case with loophole-closing provisions, the question thus becomes one of degree. On the basis of the record before us, especially in light of the fact that no party has challenged the $2 million ceiling as inadequate on the ground that it does not provide sufficient funds with which to conduct a convention, we have no basis for holding that the statutory limitation is unconstitutional.

Time Restriction on Higher ($5,000) Contribution Limit For Political Committees

Question 3(h)⁹⁴ asks whether there is a constitutional violation in the statute's requirement, 18 U.S.C. § 608(b)(2),⁹⁵ that a political committee be registered for "not less than 6 months" before being entitled to the higher ($5,000) contribution limit under the challenged Acts. Clearly, this provision only incidentally impedes the freedom of association protected by the First Amendment, because it does not prevent individuals from drawing together to act as a political committee at any time. Rather, it is a loophole-closing provision intended to prevent proliferation of dummy committees, each of a few persons, in support of federal candidacies. Otherwise, two or three persons could acquire the $5,000 committee contribution authority of section 608(b)(2) merely by organizing themselves as a political committee. The challenged Act limits such bootstrapping by interposing a six-month protective shield. During the waiting period, such political committees would be subject to the reporting and disclosures provisions of 2 U.S.C. § 434.

Suggestion that "Contribution" Definition Limits News Stories

Question 3(g) asks whether there is a constitutional infirmity in specifically exempting news stories, commentaries, and editorials from limits applied to "expenditures," without a parallel exemption from "contribution" treatment.⁹⁶ Plaintiff Human Events, Inc., a publisher of political matter, contends that its First Amendment rights are violated by this unequal statutory treatment. It suggests that it will be exposed to charges of illegal corporate contributions based on publication of copy respecting candidates for federal office. This contention, however, is based on a misunderstanding. The concept of "contribution"⁹⁷ extends only to placing something of value into the control of a candidate or his agents. Since a news story, commentary, or editorial is not within the control of the candidate or his agents, it is not a contribution, despite the obvious fact that it might redound to his benefit. The plain and simple reality is that Congress had no intention of controlling an independent press by this statute.

Since the concept of "expenditure"⁹⁸ is far broader, however, including even spending by a private citizen in support of a candidate where nothing of value is placed within the candidate's control, publishing a news story, commentary, or editorial might arguably constitute an expenditure to benefit a candidate for federal office, and the specific exemption to foreclose that reading therefore makes sense. With the statute thus explained, plaintiffs have no reason to fear exposure to charges of illegal corporate contributions based on the publication of copy respecting a candidate for federal office.

Limitation on Expenditures by Candidates

Question 4(a)⁹⁹ asks about limitations upon overall campaign expenditures by candidates, provisions that in large measure track those addressed to contribution limits. Plaintiffs suggest that the governmental interest in preserving the purity of the electoral process by limiting skyrocketing campaign expenditures is not compelling. Moreover, plaintiffs argue that corruption can be controlled by less restrictive measures, such as bribery statutes and disclosure requirements. We disagree, and uphold the expenditure ceilings imposed by 18 U.S.C. § 608(c)¹⁰⁰ as an essential ingredient in the regulatory scheme propounded by this comprehensive legislation, one which reduces the incentive to circumvent direct contribution limits and bans.

From 1911 through the repeal of the Federal Corrupt Practices Act by FECA in 1972, overall expenditure ceilings were in effect for Senate and House races.¹⁰¹ In the only prosecution ever brought thereunder, ceilings were held unconstitutional as applied to primary elections, on the ground that a party primary was not a federal election. Newberry v. United States, 256 U.S. 232, 247, 258, 41 S.Ct. 469, 65 L.Ed. 913 (1921). Federal authority to regulate primaries for federal office was established in the case of United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941). After Newberry, Congress acted to update federal election law, and enacted the Federal Corrupt Practices Act, which contained expenditure ceilings for general elections. Upholding that Act in Burroughs & Cannon v. United States, 290 U.S. 534, 54 S.Ct. 287, 78 L.Ed. 484 (1934), the Supreme Court said: "(I)t seems plain that the statute as a whole is calculated to discourage the making and use of contributions for purposes of corruption." Id. at 548, 54 S.Ct. at 291. Although Burroughs did not involve a First Amendment challenge, and although the Court did not specifically discuss the overall expenditure ceilings, the case has been cited with approval by the Supreme Court in upholding the strictures of the Federal Regulation of Lobbying Act against attack on the grounds of denial of freedom of speech and association. United States v. Harriss, 347 U.S. 612, 625, 74 S.Ct. 808, 98 L.Ed. 989 (1954). From the repeal of the Federal Corrupt Practices Act in 1972 until the effective date of the FECAA of 1974, Congress tried limitations upon media expenditures (which are presumably easier to track) in place of overall campaign ceilings.¹⁰² In the FECAA of 1974, however, Congress again imposed overall limits.

Plaintiffs suggest that Congress lacks the power to decide when a candidate for office has had "too much communication with the voters." They argue that if the public is to benefit from full and robust debate of public issues and personalities, then the range of debate may not be limited. But given the power of money and its various uses, and abuses, in the context of campaigns, there is a compelling interest in its regulation notwithstanding incidental limitations on freedom of speech and political association.

Plaintiffs would buttress their argument by asserting that overall expenditure ceilings also infringe the right of potential donors to participate in the political process, by making it impossible or nugatory for them to give additional dollars to a candidate or campaign which has reached its expenditure limit. This latter argument avails plaintiffs nothing, for 2 U.S.C. § 439a¹⁰³ permits an officeholder or successful candidate for federal office to apply unspent contributions to "defray any ordinary and necessary expenses incurred by him in connection with his duties as a holder of Federal office," or to contribute those funds in turn to any organization described in 26 U.S.C. § 170(c), or to use the funds for any other lawful purpose. Such applications of unspent contributions must be disclosed to the Federal Election Commission. Under this provision, the private citizen is not deterred from giving his statutory maximum contribution, even if the maximum has already been spent on the campaign by the candidate. Further, if there are any political advantages to the donee candidate in receiving such donations, or in the association symbolized by accepting them, they can be realized. Overall expenditure ceilings allow the candidate to be selective as to which donors' gifts he will accept.

In the context of overall expenditure ceilings, therefore, a discussion of the rights of the contributor is misplaced; overall expenditure limits primarily bear upon the candidate's putative right to unlimited campaigning and the right of access to the political system for candidates of only modest means, since unlimited spending by an opponent may discourage challengers.

In the broad, our answer to the question concerning the limitation on candidate campaign expenditures is set forth in Part I of this opinion. The material there amply demonstrates a compelling governmental interest, both as to need and public perception of need, that justifies any incidental impact on First Amendment freedoms. Plaintiffs argue that the Congressional objective may be achieved by a refined disclosure statute.¹⁰⁴ In view of the history of federal election laws and their circumvention, we have no principled basis for displacing the considered judgment of Congress that what was required in the national interest was a broader, more comprehensive approach.Claims of Discrimination in Favor of Incumbents

We have considered the charge that the limits set by Congress work an undue discrimination in favor of incumbents. Although plaintiffs sought findings in support of this theory, Judge Corcoran properly declined to provide such findings in light of the speculative nature of the assertions. The material available to the court looks both ways.¹⁰⁵ The political scientists draw diametric conclusions from the available information. Plaintiffs contend that only by immense expenditures can an unknown candidate compete. This may be correct for some candidates, in some situations. But it also is true that at other times a newcomer has achieved political momentum without large contributions. In a broad sense, the statute may favor relative newcomers, by limiting the access of incumbents to large donations.¹⁰⁶ Any advantage gained by incumbents from service to their constituents is neither novel nor pernicious. Indeed, this may be a vindication of the principles of democracy.

Plaintiffs say that limits on contributions by individuals, with disclosure, suffice to avoid abuses of large contributions, and there is no warrant for controlling expenditures, with attendant restrictions on communication. Congress was of the view that limitation on expenditures was a key ingredient in control of abuses. Realistically, limitations on contributions and disclosure requirements pose almost insuperable enforcement problems, if not supplemented by limits on expenditures. The huge and escalating expenditures are a magnet for large contributions, and for circumventions. Expenditures must come out in public, at least when significant. Candidates who wish to forge links of association, and widen political appeal, are free to solicit modest contributions without limit. These several considerations provide a validating context for the judgment of Congress that expenditures must be subject to reasonable regulation.

Question 7¹⁰⁷ asks the court to rule on the validity of the provisions in the challenged statutes requiring disclosure, in connection with elections for federal office, of contributions and expenditures in excess of stated cut-off points. Question 7(a)¹⁰⁸ addresses the statutory requirement that political committees keep, and make available for inspection and audit, lists of individuals who contribute more than $10.¹⁰⁹ The major disclosure provision, section 434(b),¹¹⁰ is the subject of Question 7(b).¹¹¹ This provision requires candidates and political committees¹¹² to