TABLE OF CONTENTS | ||
---|---|---|
I. | Preliminary Statement | 801 |
II. | Procedural History | 802 |
III. | Justiciability | 803 |
A. Statutory Subject Matter Jurisdiction | 803 | |
1. The Contentions | 803 | |
2. Discussion | 805 | |
(a) The Evolution of 9011(b) and 437c(b)(1) | 805 | |
(b) The Legitimacy of Maximum | ||
Enforcement | 806 | |
B. Constitutional Subject Matter Jurisdiction: | ||
Standing and Ripeness | 807 | |
1. Standing | 808 | |
(a) The Contentions | 808 | |
(b) Discussion | 809 | |
2. Ripeness | 811 | |
(a) The Contentions | 811 | |
(b) Discussion | 812 | |
IV. | The Merits | 814 |
A. Introduction | 814 | |
B. The Statutory Scheme: Section 9012(f)'s Role in | ||
the Fund Act, and FECA | 815 | |
C. The Constitutional Protection Afforded the | ||
Conduct Barred by Section 9012(f) | 816 | |
1. Analyzing Buckley v. Valeo | 816 | |
(a) Expenditures are Speech | 817 | |
(b) Contributions are only Proxy Speech | 817 | |
(c) Associational Freedoms | 817 | |
(d) The Centrality of Corruption | 817 | |
(e) Examining Corruption | 818 | |
2. Does Section 9012(f) Bar Speech Fully | ||
Protected by the First Amendment? | 818 | |
(a) The Contentions | 818 | |
(b) PACs Amplify Individual Speech | 819 | |
(c) Justifying 9012(f) as a Regulation on | ||
Corporate Speech | 820 | |
3. Does Section 9012(f) Prevent Corruption or | ||
its Appearance? | 822 | |
(a) Scope of Review | 822 | |
(i) The Impact of NRWC | 822 | |
(ii) The Buckley Findings | 823 | |
(b) Plaintiff's Evidence | 823 | |
(i) The Polls | 824 | |
(ii) Patronage Appointments | 827 | |
(iii) Briefings | 828 | |
(iv) The Benefits From Independent | ||
Expenditures | 829 | |
(c) Adjudicative v. Legislative Facts | 830 | |
(i) Potential for a Quo | 830 | |
(ii) Potential for a Quid | 831 | |
(d) “Corruption to the Statute” | 831 | |
4. Possible Narrowing Constructions of | ||
Section 9012(f) | 835 | |
(a) Control | 835 | |
(b) Advisory Opinions | 836 | |
D. The Overbreadth Analysis | 837 | |
V. | Conclusion | 839 |
The [FEC] shall administer, seek to obtain compliance with, and formulate policy with respect to, this Act and chapter 95 and chapter 96 of Title 26. The Commission shall have exclusive jurisdiction with respect to the civil enforcement of such provisions.7
enforcement responsibility was fragmented, and the line between improper conduct remediable in civil proceedings and conduct punishable as a crime blurred .... [Therefore] the Committee concluded that it was appropriate to simplify and rationalize the present enforcement system.
A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in today's mass society requires the expenditure of money.
By contrast with a limitation upon expenditures for political expression, a limitation upon the amount that any one person or group may contribute to a candidate or political committee entails only a marginal restriction upon the contributor's ability to engage in free communication .... [T]he size of the contribution provides a very rough index of the intensity of the contributor's support for the candidate. A limitation on the amount of money a person may give to a candidate or campaign organization thus involves little direct restraint on his political communication, for it permits the symbolic expression of support evidenced by a contribution but does not in any way infringe the contributor's freedom to discuss candidates and issues. While contributions may result in political expression if spent by a candidate or an association to present views to the voters, the transformation of contributions into political debate involves speech by someone other than the contributor.
“compelled to examine for [itself] the statements in issue and the circumstances under which they were made to see whether or not they do carry a threat of clear and present danger to the impartiality and good order of the courts or whether they are of a character which the principles of the First Amendment, as adopted by the Due Process Clause of the Fourteenth Amendment, protect.”
“[A legislative declaration] does not preclude enquiry into the question whether, at the time and under the circumstances, the conditions existed which are essential to validity under the Federal Constitution.... Whenever the fundamental rights of free speech and assembly are alleged to have been invaded, it must remain open to a defendant to present the issue whether there actually did exist at the time a clear danger; whether the danger, if any, was imminent; and whether the evil apprehended was one so substantial as to justify the stringent restriction interposed by the legislature.”
As you may know, you can check off on your tax return that you want a dollar contributed to the presidential election campaign. In 1971 a law was passed that allows a presidential candidate to choose between receiving part of these funds for his campaign, and accepting no outside funds, or trying to raise more money from outside sources and not accepting any of these Federal funds. Suppose one candidate chose to receive these Federal funds, and the other decided to raise money from outside sources. Which candidate do you think would be least influenced by special interest groups—the one who got the Federal funds or the one who got the outside money, or don't you think there would be any difference.
Since 1971 nearly every presidential candidate has chosen to receive Federal funds rather than raise his money from outside sources. But in recent elections some private interest groups have spent very large sums of money on television advertising to support a particular candidate. Others say it is a purely technical way of getting around the 1971 law and should be stopped. Do you think it is all right or should it be stopped?
TRUST IN PACS THAT GIVE MONEY TO A PRESIDENTIAL CANDIDATE | |||||
---|---|---|---|---|---|
A | Not | ||||
---|---|---|---|---|---|
Great | Very | Not | Not | ||
Deal | Somewhat | Much | At All | Sure | |
A consumer organization PAC | 19 | 42 | 18 | 17 | 4 |
A pro-environmental PAC | 15 | 36 | 24 | 20 | 5 |
A pro-nuclear-freeze PAC | 12 | 31 | 25 | 26 | 6 |
A pro-ERA, or Equal Rights Amendment, | |||||
PAC | 11 | 33 | 26 | 26 | 4 |
An anti-abortion PAC | 11 | 22 | 24 | 39 | 4 |
A pro-gun-control PAC | 10 | 25 | 25 | 35 | 5 |
An anti-gun control PAC | 9 | 20 | 26 | 35 | 4 |
A pro-abortion PAC | 7 | 29 | 27 | 32 | 5 |
An AFL-CIO PAC | 7 | 29 | 27 | 32 | 5 |
An insurance company PAC | 7 | 28 | 29 | 32 | 4 |
A labor union PAC | 7 | 28 | 30 | 32 | 2 |
An oil industry PAC | 7 | 24 | 28 | 37 | 4 |
A business corporation PAC | 6 | 34 | 30 | 26 | 4 |
A banker's PAC | 6 | 30 | 29 | 30 | 5 |
A pro-Moral Majority PAC | 6 | 26 | 27 | 35 | 6 |
An anti-ERA, or Equal Rights Amendment, | |||||
PAC | 5 | 23 | 30 | 37 | 5 |
A chemical industry PAC | 5 | 21 | 32 | 36 | 6 |
A realtors' PAC | 4 | 34 | 30 | 26 | 6 |
NCPAC, or the National Political | |||||
Conservative Committee | 4 | 28 | 32 | 28 | 8 |
Any Amount | $1,000 | Nothing | D.K. | |
---|---|---|---|---|
Labor unions | 25% | 37 | 31 | 7 |
Business corporations | 29% | 40 | 25 | 6 |
Ordinary citizens | 42% | 38 | 16 | 4 |
Millionaires | 40% | 38 | 17 | 5 |
Right wing conservative | ||||
---|---|---|---|---|
groups | 24% | 35 | 30 | 11 |
Left wing liberal groups | 21% | 35 | 31 | 13 |
Special issue groups | ||||
---|---|---|---|---|
like gay activists or | ||||
anti-abortion groups | 22% | 32 | 38 | 8 |
Organized gambling | ||||
---|---|---|---|---|
interests | 20% | 23 | 51 | 6 |
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