Buckley v. ValeoBuckley v. Valeo
Deputy Solicitor General Friedman, Archibald Cox, Lloyd N. Cutler, and Ralph S. Spritzer argued the cause for appellees. With Mr. Friedman on the brief for appellees Levi and the Federal Election Commission were Attorney General Levi, pro se, Solicitor General Bork, and Louis F. Claiborne. With Mr. Cutler on the brief for appellees Center for Public Financing of Elections et al. were Paul J. Mode, Jr., William T. Lake, Kenneth J. Guido, Jr., and Fred Wertheimer. With Mr. Spritzer on the brief for appellee Federal Election Commission was Paul Bender. Attorney General Levi, pro se, Solicitor General Bork, and Deputy Solicitor General Randolph filed a brief for appellee Levi and for the United States as amicus curiae.†
OPINION
PER CURIAM.
These appeals present constitutional challenges to the key provisions of the Federal Election Campaign Act of 1971 (Act), and related provisions of the Internal Revenue Code of 1954, all as amended in 1974.1
Notes
This suit was originally filed by appellants in the United States District Court for the District of Columbia. Plaintiffs included a candidate for the Presidency of the United States, a United States Senator who is a candidate for re-election, a potential contributor, the
Jurisdiction was asserted under
On plenary review, a majority of the Court of Appeals rejected, for the most part, appellants’ constitutional attacks. The court found “a clear and compelling interest,” 171 U. S. App. D. C., at 192, 519 F. 2d, at 841, in preserving the integrity of the electoral process. On that basis, the court upheld, with one exception,7 the substantive provisions of the Act with respect to contributions, expenditures, and disclosure. It also sustained the constitutionality of the newly established Federal Election Commission. The court concluded that, notwithstanding the manner of selection of its members and the breadth of its powers, which included nonlegislative functions, the Commission is a constitutionally authorized agency created to perform primarily legislative functions.8
In this Court, appellants argue that the Court of Appeals failed to give this legislation the critical scrutiny demanded under accepted First Amendment and equal protection principles. In appellants’ view, limiting the use of money for political purposes constitutes a restriction on communication violative of the First Amendment, since virtually all meaningful political communications in the modern setting involve the expenditure of money. Further, they argue that the reporting and disclosure provisions of the Act unconstitutionally impinge on their right to freedom of association. Appellants also view the federal subsidy provisions of Subtitle H as violative of the General Welfare Clause, and as inconsistent with the First and Fifth Amendments. Finally, appellants renew their attack on the Commission‘s composition and powers.
At the outset we must determine whether the case before us presents a “case or controversy” within the meaning of Art. III of the Constitution. Congress may not, of course, require this Court to render opinions in matters which are not “cases or controversies.” Aetna Life Ins. Co. v. Haworth, 300 U. S. 227, 240-241 (1937). We must therefore decide whether appellants have the “personal stake in the outcome of the controversy” necessary to meet the requirements of Art. III. Baker v. Carr, 369 U. S. 186, 204 (1962). It is clear that Congress, in enacting
I. CONTRIBUTION AND EXPENDITURE LIMITATIONS
The intricate statutory scheme adopted by Congress to regulate federal election campaigns includes restrictions
The constitutional power of Congress to regulate federal elections is well established and is not questioned by any of the parties in this case.16 Thus, the critical constitutional
A. General Principles
The Act‘s contribution and expenditure limitations operate in an area of the most fundamental First Amendment activities. Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order “to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” Roth v. United States, 354 U. S. 476, 484 (1957). Although First Amendment protections are not confined to “the exposition of ideas,” Winters v. New York, 333 U. S. 507, 510 (1948), “there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs, . . . of course includ[ing] discussions of candidates. . . .” Mills v. Alabama, 384 U. S. 214, 218 (1966). This no more than reflects our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,” New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964). In a republic where the people are sovereign, the ability of the citizenry to make informed choices among candidates
The First Amendment protects political association as well as political expression. The constitutional right of association explicated in NAACP v. Alabama, 357 U. S. 449, 460 (1958), stemmed from the Court‘s recognition that “[e]ffective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association.” Subsequent decisions have made clear that the First and Fourteenth Amendments guarantee ” `freedom to associate with others for the common advancement of political beliefs and ideas,’ ” a freedom that encompasses ” `[t]he right to associate with the political party of one‘s choice.’ ” Kusper v. Pontikes, 414 U. S. 51, 56, 57 (1973), quoted in Cousins v. Wigoda, 419 U. S. 477, 487 (1975).
It is with these principles in mind that we consider the primary contentions of the parties with respect to the Act‘s limitations upon the giving and spending of money in political campaigns. Those conflicting contentions could not more sharply define the basic issues before us. Appellees contend that what the Act regulates is conduct, and that its effect on speech and association is incidental at most. Appellants respond that contributions and expenditures are at the very core of political speech, and that the Act‘s limitations thus constitute restraints on First Amendment liberty that are both gross and direct.
In upholding the constitutional validity of the Act‘s contribution and expenditure provisions on the ground
We cannot share the view that the present Act‘s contribution and expenditure limitations are comparable to the restrictions on conduct upheld in O‘Brien. The expenditure of money simply cannot be equated with such conduct as destruction of a draft card. Some forms of communication made possible by the giving and spending of money involve speech alone, some involve conduct primarily, and some involve a combination of the two. Yet this Court has never suggested that the dependence of a communication on the expenditure of money operates itself to introduce a non speech element or to reduce the exacting scrutiny required by the First Amendment. See Bigelow v. Virginia, 421 U. S. 809,
Even if the categorization of the expenditure of money as conduct were accepted, the limitations challenged here would not meet the O‘Brien test because the governmental interests advanced in support of the Act involve “suppressing communication.” The interests served by the Act include restricting the voices of people and interest groups who have money to spend and reducing the overall scope of federal election campaigns. Although the Act does not focus on the ideas expressed by persons or groups subject to its regulations, it is aimed in part at equalizing the relative ability of all voters to affect electoral outcomes by placing a ceiling on expenditures for political expression by citizens and groups. Unlike O‘Brien, where the Selective Service System‘s administrative interest in the preservation of draft cards was wholly unrelated to their use as a means of communication, it is beyond dispute that the interest in regulating the alleged “conduct” of giving or spending money “arises in some measure because the communication allegedly integral to the conduct is itself thought to be harmful.” 391 U. S., at 382.
Nor can the Act‘s contribution and expenditure limitations be sustained, as some of the parties suggest, by reference to the constitutional principles reflected in such
The expenditure limitations contained in the Act represent substantial rather than merely theoretical restraints on the quantity and diversity of political speech. The $1,000 ceiling on spending “relative to a clearly identified candidate,”
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.
Given the important role of contributions in financing political campaigns, contribution restrictions could have a severe impact on political dialogue if the limitations prevented candidates and political committees from amassing the resources necessary for effective advocacy. There is no indication, however, that the contribution limitations imposed by the Act would have any dramatic adverse effect on the funding of campaigns and political associations.23 The overall effect of the Act‘s contribution
The Act‘s contribution and expenditure limitations also impinge on protected associational freedoms. Making a contribution, like joining a political party, serves to affiliate a person with a candidate. In addition, it enables like-minded persons to pool their resources in furtherance of common political goals. The Act‘s contribution ceilings thus limit one important means of associating with a candidate or committee, but leave the contributor free to become a member of any political association and to assist personally in the association‘s efforts on behalf of candidates. And the Act‘s contribution limitations permit associations and candidates to aggregate large sums of money to promote effective advocacy. By contrast, the Act‘s $1,000 limitation on independent expenditures “relative to a clearly identified candidate” precludes most associations from effectively amplifying the voice of their adherents, the original basis for the recognition of First Amendment protection of the freedom of association. See NAACP v. Alabama, supra, at 460. The Act‘s constraints on the ability of independent associations and candidate campaign organizations to expend resources on political expression “is simultaneously an interference with the freedom of [their] adherents,” Sweezy v. New Hampshire, 354 U. S. 234, 250 (1957) (plurality opinion). See Cousins v. Wigoda, supra, at 487-488; NAACP v. Button, 371 U. S. 415, 431 (1963).
In sum, although the Act‘s contribution and expenditure limitations both implicate fundamental First Amendment interests, its expenditure ceilings impose significantly more severe restrictions on protected freedoms of political expression and association than do its limitations on financial contributions.
B. Contribution Limitations
1. The $1,000 Limitation on Contributions by Individuals and Groups to Candidates and Authorized Campaign Committees
Section 608 (b) provides, with certain limited exceptions, that “no person shall make contributions to any candidate with respect to any election for Federal office which, in the aggregate, exceed $1,000.” The statute defines “person” broadly to include “an individual, partnership, committee, association, corporation or any other organization or group of persons.” § 591 (g). The limitation reaches a gift, subscription, loan, advance, deposit of anything of value, or promise to give a contribution, made for the purpose of influencing a primary election, a Presidential preference primary, or a general election for any federal office.24 §§ 591 (e) (1), (2). The
Appellants contend that the $1,000 contribution ceiling unjustifiably burdens First Amendment freedoms, employs overbroad dollar limits, and discriminates against candidates opposing incumbent officeholders and against minor-party candidates in violation of the Fifth Amendment. We address each of these claims of invalidity in turn.
(a)
As the general discussion in Part I-A, supra, indicated, the primary First Amendment problem raised by the Act‘s contribution limitations is their restriction of one aspect of the contributor‘s freedom of political association.
Appellees argue that the Act‘s restrictions on large campaign contributions are justified by three governmental interests. According to the parties and amici, the primary interest served by the limitations and, indeed, by the Act as a whole, is the prevention of corruption and the appearance of corruption spawned by the real or imagined coercive influence of large financial contributions on candidates’ positions and on their actions if elected to office. Two “ancillary” interests underlying the Act are also allegedly furthered by the $1,000 limits on contributions. First, the limits serve to mute the voices of affluent persons and groups in the election
It is unnecessary to look beyond the Act‘s primary purpose—to limit the actuality and appearance of corruption resulting from large individual financial contributions —in order to find a constitutionally sufficient justification for the $1,000 contribution limitation. Under a system of private financing of elections, a candidate lacking immense personal or family wealth must depend on financial contributions from others to provide the resources necessary to conduct a successful campaign. The increasing importance of the communications media and sophisticated mass-mailing and polling operations to effective campaigning make the raising of large sums of money an ever more essential ingredient of an effective candidacy. To the extent that large contributions are given to secure a political quid pro quo from current and potential office holders, the integrity of our system of
Of almost equal concern as the danger of actual quid pro quo arrangements is the impact of the appearance of corruption stemming from public awareness of the opportunities for abuse inherent in a regime of large individual financial contributions. In CSC v. Letter Carriers, supra, the Court found that the danger to “fair and effective government” posed by partisan political conduct on the part of federal employees charged with administering the law was a sufficiently important concern to justify broad restrictions on the employees’ right of partisan political association. Here, as there, Congress could legitimately conclude that the avoidance of the appearance of improper influence “is also critical . . . if confidence in the system of representative Government is not to be eroded to a disastrous extent.” 413 U. S., at 565.29
Appellants contend that the contribution limitations must be invalidated because bribery laws and narrowly drawn disclosure requirements constitute a less restrictive means of dealing with “proven and suspected quid pro quo arrangements.” But laws making criminal
The Act‘s $1,000 contribution limitation focuses precisely on the problem of large campaign contributions— the narrow aspect of political association where the actuality and potential for corruption have been identified —while leaving persons free to engage in independent political expression, to associate actively through volunteering their services, and to assist to a limited but nonetheless substantial extent in supporting candidates and committees with financial resources.31 Significantly, the
We find that, under the rigorous standard of review established by our prior decisions, the weighty interests served by restricting the size of financial contributions to political candidates are sufficient to justify the limited effect upon First Amendment freedoms caused by the $1,000 contribution ceiling.
(b)
Appellants’ first overbreadth challenge to the contribution ceilings rests on the proposition that most large contributors do not seek improper influence over a candidate‘s position or an officeholder‘s action. Although the truth of that proposition may be assumed, it does not
A second, related overbreadth claim is that the $1,000 restriction is unrealistically low because much more than that amount would still not be enough to enable an unscrupulous contributor to exercise improper influence over a candidate or officeholder, especially in campaigns for statewide or national office. While the contribution limitation provisions might well have been structured to take account of the graduated expenditure limitations for congressional and Presidential campaigns,32 Congress’ failure to engage in such fine tuning does not invalidate the legislation. As the Court of Appeals observed, “[i]f 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.” 171 U. S. App. D. C., at 193, 519 F. 2d, at 842. Such distinctions in degree become significant only when they can be said to amount to differences in kind. Compare Kusper v. Pontikes, 414 U. S. 51 (1973), with Rosario v. Rockefeller, 410 U. S. 752 (1973).
(c)
Apart from these First Amendment concerns, appellants argue that the contribution limitations work such an invidious discrimination between incumbents
The charge of discrimination against minor-party and independent candidates is more troubling, but the record provides no basis for concluding that the Act invidiously disadvantages such candidates. As noted above, the Act on its face treats all candidates equally with regard to contribution limitations. And the restriction would appear to benefit minor-party and independent candidates relative to their major-party opponents because major-party candidates receive far more money in large contributions.39 Although there is some
In view of these considerations, we conclude that the impact of the Act‘s $1,000 contribution limitation on major-party challengers and on minor-party candidates does not render the provision unconstitutional on its face.
2. The $5,000 Limitation on Contributions by Political Committees
Section 608 (b) (2) permits certain committees, designated as “political committees,” to contribute up to $5,000 to any candidate with respect to any election for federal office. In order to qualify for the higher contribution ceiling, a group must have been registered with the Commission as a political committee under
3. Limitations on Volunteers’ Incidental Expenses
The Act excludes from the definition of contribution “the value of services provided without compensation by individuals who volunteer a portion or all of their time on behalf of a candidate or political committee.” § 591 (e) (5) (A). Certain expenses incurred by persons in providing volunteer services to a candidate are exempt from the $1,000 ceiling only to the extent that they do not exceed $500. These expеnses are expressly limited to (1) “the use of real or personal property and the cost of invitations, food, and beverages, voluntarily provided by an individual to a candidate in rendering voluntary personal services on the individual‘s residential premises for candidate-related activities.” § 591 (e) (5) (B); (2) “the sale of any food or beverage by a vendor for use in a candidate‘s campaign at a charge [at least equal to cost but] less than the normal comparable charge,” § 591 (e) (5) (C); and (3) “any unreimbursed payment for travel expenses made by an individual who on his own behalf volunteers his personal services to a candidate,” § 591 (e) (5) (D).
If, as we have held, the basic contribution limitations are constitutionally valid, then surely these provisions are a constitutionally acceptable accommodation of Congress’ valid interest in encouraging citizen participation in political campaigns while continuing to guard against the corrupting potential of large financial contributions to candidates. The expenditure of resources at the candidate‘s direction for a fundraising event at a volunteer‘s residence or the provision of in-kind assistance in the form of food or beverages to be resold to raise funds or consumed by the participants in such an event provides material financial assistance to a candidate. The ultimate
In addition to the $1,000 limitation on the nonexempt contributions that an individual may make to a particular candidate for any single election, the Act contains an overall $25,000 limitation on total contributions by an individual during any calendar year. § 608 (b) (3). A contribution made in connection with an election is considered, for purposes of this subsection, to be made in the year the election is held. Although the constitutionality of this provision was drawn into question by appellants, it has not been separately addressed at length by the parties. The overall $25,000 ceiling does impose an ultimate restriction upon the number of candidates and committees with which an individual may associate himself by means of financial support. But this quite modest restraint upon protected political activity serves to prevent evasion of the $1,000 contribution limitation by a person who might otherwise contribute massive amounts of money to a particular candidate through the use of unearmarked contributions to political committees likely to contribute to that candidate, or huge contributions to the candidate‘s political party. The limited, additional restriction on associational freedom imposed by the overall ceiling is thus no more than a corollary of the basic individual contribution limitation that we have found to be constitutionally valid.
The Act‘s expenditure ceilings impose direct and substantial restraints on the quantity of political speech. The most drastic of the limitations restricts individuals and groups, including political parties that fail to place a candidate on the ballot,44 to an expenditure of $1,000 “relative to a clearly identified candidate during a calendar year.” § 608 (e) (1). Other expenditure ceilings limit spending by candidates, § 608 (a), their campaigns, § 608 (c), and political parties in connection with election campaigns, § 608 (f). It is clear that a primary effect of these expenditure limitations is to restrict the quantity of campaign speech by individuals, groups, and candidates. The restrictions, while neutral as to the ideas expressed, limit political expression “at the core of our electoral process and of the First Amendment freedoms.” Williams v. Rhodes, 393 U. S. 23, 32 (1968).
1. The $1,000 Limitation on Expenditures “Relative to a Clearly Identified Candidate”
Section 608 (e) (1) provides that “[n]o person may make any expenditure . . . relative to a clearly identified candidate during a calendar year which, when added to all other expenditures made by such person during the year advocating the election or defeat of such candidate, exceeds $1,000.”45 The plain effect of § 608 (e) (1) is to
Before examining the interests advanced in support of § 608 (e) (1)‘s expenditure ceiling, consideration must be given to appellants’ contention that the provision is unconstitutionally vague.47 Close examination of the
The key operative language of the provision limits “any expenditure . . . relative to a clearly identified candidate.” Although “expenditure,” “clearly identified,” and “candidate” are defined in the Act, there is no definition clarifying what expenditures are “relative to” a candidate. The use of so indefinite a phrase as “relative to” a candidate fails to clearly mark the boundary between permissible and impermissible speech, unless other portions of § 608 (e) (1) make sufficiently explicit the range of expenditures
But while such a construction of § 608 (e) (1) refocuses the vagueness question, the Court of Appeals was mistaken in thinking that this construction eliminates the problem of unconstitutional vagueness altogether. 171 U. S. App. D. C., at 204, 519 F. 2d, at 853. For the distinction between discussion of issues and candidates and advocacy of election or defeat of candidates may often dissolve in practical application. Candidates, especially incumbents, are intimately tied to public issues involving legislative proposals and governmental actions. Not only do candidates campaign on the basis of their positions on various public issues, but campaigns themselves generate issues of public interest.50 In an analogous
[W]hether words intended and designed to fall short of invitation would miss that mark is a question both of intent and of effect. No speaker, in such circumstances, safely could assume that anything he might say upon the general subject would not be understood by some as an invitation. In short, the supposedly clear-cut distinction between discussion, laudation, general advocacy, and solicitation puts the speaker in these circumstances wholly at the mercy of the varied understanding of his hearers and consequently of whatever inference may be drawn as to his intent and meaning.
Such a distinction offers no security for free discussion. In these conditions it blankets with uncertainty whatever may be said. It compels the speaker to hedge and trim. Id., at 535.
See also United States v. Auto. Workers, supra, at 595-596 (Douglas, J., dissenting); Gitlow v. New York, 268 U. S. 652, 673 (1925) (Holmes, J., dissenting).
The constitutional deficiencies described in Thomas v. Collins can be avoided only by reading § 608 (e) (1) as limited to communications that include explicit words of advocacy of election or defeat of a candidate, much as the definition of “clearly identified” in § 608 (e) (2) requires that an explicit and unambiguous reference to the candidate appear as part of the communication.51 This
We turn then to the basic First Amendment question —whether § 608 (e) (1), even as thus narrowly and explicitly construed, impermissibly burdens the constitutional right of free expression. The Court of Appeals summarily held the provision constitutionally valid on the ground that “section 608 (e) is a loophole-closing provision only” that is necessary to prevent circumvention of the contribution limitations. 171 U. S. App. D. C., at 204, 519 F. 2d, at 853. We cannot agree.
The discussion in Part I-A, supra, explains why the Act‘s expenditure limitations impose far greater restraints on the freedom of speech and association than do its contribution limitations. The markedly greater burden on basic freedoms caused by § 608 (e) (1) thus cannot be sustained simply by invoking the interest in maximizing the effectiveness of the less intrusive contribution limitations. Rather, the constitutionality of § 608 (e) (1) turns on whether the governmental interests advanced in its support satisfy the exacting scrutiny applicable to limitations
We find that the governmental interest in preventing corruption and the appearance of corruption is inadequate to justify § 608 (e) (1)‘s ceiling on independent expenditures. First, assuming, arguendo, that large independent expenditures pose the same dangers of actual or apparent quid pro quo arrangements as do large contributions, § 608 (e) (1) does not provide an answer that sufficiently relates to the elimination of those dangers. Unlike the contribution limitations’ total ban on the giving of large amounts of money to candidates, § 608 (e) (1) prevents only some large expenditures. So long as persons and groups eschew expenditures that in express terms advocate the election or defeat of a clearly identified candidate, they are free to spend as much as they want to promote the candidate and his views. The exacting interpretation of the statutory language necessary to avoid unconstitutional vagueness thus undermines the limitation‘s effectiveness as a loophole-closing provision by facilitating circumvention by those seeking to exert improper influence upon a candidate or office-holder. It would naively underestimate the ingenuity and resourcefulness of persons and groups desiring to buy influence to believe that they would have much difficulty devising expenditures that skirted the restriction on express advocacy of election or defeat but nevertheless benefited the candidate‘s campaign. Yet no substantial societal interest would be served by a loophole-closing provision designed to check corruption that permitted unscrupulous persons and organizations to expend unlimited sums of money in order to obtain improper influence over candidates for elective office. Cf. Mills v. Alabama, supra, at 220.
Second, quite apart from the shortcomings of § 608 (e)
While the independent expenditure ceiling thus fails to serve any substantial governmental interest in stemming
It is argued, however, that the ancillary governmental interest in equalizing the relative ability of individuals and groups to influence the outcome of elections serves to justify the limitation on express advocacy of the election or defeat of candidates imposed by § 608 (e) (1)‘s expenditure ceiling. But the concept that government may restrict the speech of some elements of our society in
384 U. S. 214 (1966), and Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974), held that legislative restrictions on advocacy of the election or defeat of political candidates are wholly at odds with the guarantees of the First Amendment. In Mills, the Court addressed the question whether “a State, consistently with the United States Constitution, can make it a crime for the editor of a daily newspaper to write and publish an editorial on election day urging people to vote a certain way on issues submitted to them.” 384 U. S., at 215 (emphasis in original). We held that “no test of reasonableness can save [such] a state law from invalidation as a violation of the First Amendment.” Id., at 220. Yet the prohibition of election-day editorials invalidated in Mills is clearly a lesser intrusion on constitutional freedom than a $1,000 limitation on the amount of money any person or association can spend during an entire election year in advocating the election or defeat of a candidate for public office. More recently in Tornillo, the Court held that Florida could not constitutionally require a newspaper
For the reasons stated, we conclude that
2. Limitation on Expenditures by Candidates from Personal or Family Resources
The Act also sets limits on expenditures by a candidate “from his personal funds, or the personal funds of his immediate family, in connection with his campaigns during any calendar year.”
The primary governmental interest served by the Act—the prevention of actual and apparent corruption of the political process—does not support the limitation on the candidate‘s expenditure of his own personal funds. As the Court of Appeals concluded: “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.” 171 U. S. App. D. C., at 206, 519 F. 2d, at 855. Indeed, the use of personal funds reduces the candidate‘s dependence on outside contributions and thereby counteracts the coercive pressures and attendant risks of abuse to which the Act‘s contribution limitations are directed.59
3. Limitations on Campaign Expenditures
Section 608 (c) places limitations on overall campaign expenditures by candidates seeking nomination for election and election to federal office.60 Presidential candidates may spend $10,000,000 in seeking nomination for office and an additional $20,000,000 in the general election campaign.
No governmental interest that has been suggested is sufficient to justify the restriction on the quantity of political expression imposed by
The interest in equalizing the financial resources of candidates competing for federal office is no more convincing a justification for restricting the scope of federal election campaigns. Given the limitation on the size of outside contributions, the financial resources available to a candidate‘s campaign, like the number of volunteers recruited, will normally vary with the size and intensity of the candidate‘s support.63 There is nothing invidious, improper, or unhealthy in permitting such funds to be spent to carry the candidate‘s message to the electorate.64 Moreover, the equalization of permissible campaign expenditures
The campaign expenditure ceilings appear to be designed primarily to serve the governmental interests in reducing the allegedly skyrocketing costs of political campaigns. Appellees and the Court of Appeals stressed statistics indicating that spending for federal election campaigns increased almost 300% between 1952 and 1972 in comparison with a 57.6% rise in the consumer price index during the same period. Appellants respond that during these years the rise in campaign spending lagged behind the percentаge increase in total expenditures for commercial advertising and the size of the gross national product. In any event, the mere growth in the cost of federal election campaigns in and of itself provides no basis for governmental restrictions on the quantity of campaign spending and the resulting limitation on the scope of federal campaigns. The First Amendment denies government the power to determine that spending to promote one‘s political views is wasteful, excessive, or unwise. In the free society ordained by our Constitution it is not the government, but the people—individually as citizens and candidates and collectively as associations and political committees—who must retain control over the quantity and range of debate on public issues in a political campaign.65
In sum, the provisions of the Act that impose a $1,000 limitation on contributions to a single candidate,
Unlike the limitations on contributions and expenditures imposed by
The first federal disclosure law was enacted in 1910. Act of June 25, 1910, c. 392, 36 Stat. 822. It required political committees, defined as national committees and national congressional campaign committees of parties, and organizations operating to influence congressional elections in two or more States, to disclose names of all contributors of $100 or more; identification of recipients of expenditures of $10 or more was also required. §§ 1, 5-6, 36 Stat. 822 824. Annual expenditures of $50 or more “for the purpose of influencing or controlling, in two or more States, the result of” a congressional election had to be reported independently if they were not made through a political committee. § 7, 36 Stat. 824. In 1911 the Act was revised to include prenomination transactions such as those involved in conventions and primary campaigns. Act of Aug. 19, 1911, § 2, 37 Stat. 26. See United States v. Auto. Workers, 352 U. S., at 575-576.
Disclosure requirements were broadened in the Federal Corrupt Practices Act of 1925 (Title III of the Act of Feb. 28, 1925), 43 Stat. 1070. That Act required political committees, defined as organizations that accept contributions or make expenditures “for the purpose of
The Act presently under review replaced all prior disclosure laws. Its primary disclosure provisions impose reporting obligations on “political committees” and candidates. “Political committee” is defined in
Each political committee is required to register with the Commission,
Each committee and each candidate also is required to file quarterly reports.
Every individual or group, other than a political committee or candidate, who makes “contributions” or “expenditures” of over $100 in a calendar year “other than
A. General Principles
Unlike the overall limitations on contributions and expenditures, the disclosure requirements impose no ceiling on campaign-related activities. But we have repeatedly found that compelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment. E. g., Gibson v. Florida Legislative Comm., 372 U. S. 539 (1963); NAACP v. Button, 371 U. S. 415 (1963); Shelton v. Tucker, 364 U. S. 479 (1960); Bates v. Little Rock, 361 U. S. 516 (1960); NAACP v. Alabama, 357 U. S. 449 (1958).
We long have recognized that significant encroachments on First Amendment rights of the sort that compelled disclosure imposes cannot be justified by a mere showing of some legitimate governmental interest. Since NAACP v. Alabama we have required that the subordinating interests of the State must survive exacting scrutiny.73 We also have insisted that there be a “relevant correlation”74 or “substantial relation”75 between the governmental interest and the information required to be disclosed. See Pollard v. Roberts, 283 F. Supp. 248, 257 (ED Ark.) (three-judge court), aff‘d, 393 U. S. 14 (1968)
Appellees argue that the disclosure requirements of the Act differ significantly from those at issue in NAACP v. Alabama and its progeny because the Act only requires disclosure of the names of contributors and does not compel political organizations to submit the names of their members.76
As we have seen, group association is protected because it enhances “[e]ffective advocacy.” NAACP v. Alabama, supra, at 460. The right to join together “for the advancement of beliefs and ideas,” ibid., is diluted if it does not include the right to pool money through contributions, for funds are often essential if “advocacy” is
The strict test established by NAACP v. Alabama is necessary because compelled disclosure has the potential for substantially infringing the exercise of First Amendment rights. But we have acknowledged that there are governmental interests sufficiently important to outweigh the possibility of infringement, particularly when the “free functioning of our national institutions” is involved. Communist Party v. Subversive Activities Control Bd., 367 U. S. 1, 97 (1961).
The governmental interests sought to be vindicated by the disclosure requirements are of this magnitude. They fall into three categories. First, disclosure provides the electorate with information “as to where political campaign money comes from and how it is spent by the candidate”77 in order to aid the voters in evaluating those
Second, disclosure requirements deter actual corruption and avoid the appearance of corruption by exposing large contributions and expenditures to the light of publicity.78 This exposure may discourage those who would use money for improper purposes either before or after the election. A public armed with information about a candidate‘s most generous supporters is better able to detect any post-election special favors that may be given in return.79 And, as we recognized in Burroughs v. United States, 290 U. S., at 548, Congress could reasonably conclude that full disclosure during an election campaign tends “to prevent the corrupt use of money to affect elections.” In enacting these requirements it may have been mindful of Mr. Justice Brandeis’ advice:
“Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.”80
Third, and not least significant, recordkeeping, reporting,
The disclosure requirements, as a general matter, directly serve substantial governmental interests. In determining whether these interests are sufficient to justify the requirements we must look to the extent of the burden that they place on individual rights.
It is undoubtedly true that public disclosure of contributions to candidates and political parties will deter some individuals who otherwise might contribute. In some instances, disclosure may even expose contributors to harassment or retaliation. These are not insignificant burdens on individual rights, and they must be weighed carefully against the interests which Congress has sought to promote by this legislation. In this process, we note and agree with appellants’ concession81 that disclosure requirements—certainly in most applications—appear to be the least restrictive means of curbing the evils of campaign ignorance and corruption that Congress found to exist.82 Appellants argue, however, that the balance tips against disclosure when it is required of contributors to certain parties and candidates. We turn now to this contention.
B. Application to Minor Parties and Independents
Appellants contend that the Act‘s requirements are overbroad insofar as they apply to contributions to minor
1. Requisite Factual Showing
In NAACP v. Alabama the organization had “made an uncontroverted showing that on past occasions revelation of the identity of its rank-and-file members [had] exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility,” 357 U. S., at 462, and the State was unable to show that the disclosure it sought had a “substantial bearing” on the issues it sought to clarify, id., at 464. Under those circumstances, the Court held that “whatever interest the State may have in [disclosure] has not been shown to be sufficient to overcome petitioner‘s constitutional objections.” Id., at 465.
The Court of Appeals rejected appellants’ suggestion that this case fits into the NAACP v. Alabama mold. It concluded that substantial governmental interests in “informing the electorate and preventing the corruption of the political process” were furthered by requiring disclosure of minor parties and independent candidates, 171 U. S. App. D. C., at 218, 519 F. 2d, at 867, and therefore found no “tenable rationale for assuming that the public interest in minority party disclosure of contributions above a reasonable cutoff point is uniformly outweighed by potential contributors’ associational rights,” id., at 219, 519 F. 2d, at 868. The court left open the question of the application of the disclosure requirements to candidates (and parties) who could demonstrate injury of the sort at stake in NAACP v. Alabama. No record of harassment on a similar scale was found in this case.83 We agree with
It is true that the governmental interest in disclosure is diminished when the contribution in question is made to a minor party with little chance of winning an election. As minor parties usually represent definite and publicized viewpoints, there may be less need to inform the voters of the interests that specific candidates represent. Major parties encompass candidates of greater diversity. In many situations the label “Republican” or “Democrat” tells a voter little. The candidate who bears it may be supported by funds from the far right, the far left, or any place in between on the political spectrum. It is less likely that a candidate of, say, the Socialist Labor Party will represent interests that cannot be discerned from the party‘s ideological position.
The Government‘s interest in deterring the “buying” of elections and the undue influence of large contributors on officeholders also may be reduced where contributions to a minor party or an independent candidate are concerned, for it is less likely that the candidate will be victorious. But a minor party sometimes can play a significant role in an election. Even when a minor-party candidate has little or no chance of winning, he may be encouraged by major-party interests in order to divert votes from other major-party contenders.84
There could well be a case, similar to those before the Court in NAACP v. Alabama and Bates, where the threat to the exercise of First Amendment rights is so serious and the state interest furthered by disclosure so insubstantial that the Act‘s requirements cannot be constitutionally applied.87 But no appellant in this case has tendered record evidence of the sort proffered in NAACP v. Alabama. Instead, appellants primarily rely on “the clearly articulated fears of individuals, well experienced in the political process.” Brief for Appellants 173. At
2. Blanket Exemption
Appellants agree that “the record here does not reflect the kind of focused and insistent harassment of contributors and members that existed in the NAACP cases.” Ibid. They argue, however, that a blanket exemption for minor parties is necessary lest irreparable injury be done before the required evidence can be gathered.
Those parties that would be sufficiently “minor” to be exempted from the requirements of
The difficulty with these suggestions is that they reflect only a party‘s past or present political strength and
An opinion dissenting in part from the Court of Appeals’ decision concedes that no one line is “constitutionally required.”91 It argues, however, that a flat exemption for minor parties must be carved out, even along arbitrary lines, if groups that would suffer impermissibly from disclosure are to be given any real protection. An approach that requires minor parties to submit evidence that the disclosure requirements cannot constitutionally be applied to them offers only an illusory safeguard, the argument goes, because the “evils” of “chill and harassment . . . are largely incapable of formal proof.”92 This dissent expressed its concern that a minor party, particularly a
We recognize that unduly strict requirements of proof could impose a heavy burden, but it does not follow that a blanket exemption for minor parties is necessary. Minor parties must be allowed sufficient flexibility in the proof of injury to assure a fair consideration of their claim. The evidence offered need show only a reasonable probability that the compelled disclosure of a party‘s contributors’ names will subject them to threats, harassment, or reprisals from either Government officials or private parties. The proof may include, for example, specific evidence of past or present harassment of members due to their associational ties, or of harassment directed against the organization itself. A pattern of threats or specific manifestations of public hostility may be sufficient. New parties that have no history upon which to draw may be able to offer evidence of reprisals and threats directed against individuals or organizations holding similar views.
Where it exists the type of chill and harassment identified in NAACP v. Alabama can be shown. We cannot assume that courts will be insensitive to similar showings when made in future cases. We therefore conclude that a blanket exemption is not required.
C. Section 434 (e)
Section 434 (e) requires “[e]very person (other than a political committee or candidate) who makes contributions
In considering this provision we must apply the same strict standard of scrutiny, for the right of associational privacy developed in NAACP v. Alabama derives from the rights of the organization‘s members to advocate their personal points of view in the most effective way. 357 U. S., at 458, 460. See also NAACP v. Button, 371 U. S., at 429-431; Sweezy v. New Hampshire, 354 U. S. 234, 250 (1957).
Appellants attack
1. The Role of § 434 (e)
The Court of Appeals upheld
“If . . . Congress has both the authority and a compelling interest to regulate independent expenditures under section 608 (e), surely it can require that there be disclosure to prevent misuse of the spending channel.” 171 U. S. App. D. C., at 220, 519 F. 2d, at 869.
We have found that
But the two provisions are not so intimately tied. The legislative history on the function of
2. Vagueness Problems
In its effort to be all-inclusive, however, the provision raises serious problems of vagueness, particularly treacherous where, as here, the violation of its terms carries criminal penalties99 and fear of incurring these sanctions
Section 434 (e) applies to “[e]very person . . . who makes contributions or expenditures.” “Contributions” and “expenditures” are defined in parallel provisions in terms of the use of money or other valuable assets “for the purpose of . . . influencing” the nomination or election of candidates for federal office.100 It is the ambiguity of this phrase that poses constitutional problems.
Due process requires that a criminal statute provide adequate notice to a person of ordinary intelligence that his contemplated conduct is illegal, for “no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.” United States v. Harriss, 347 U. S. 612, 617 (1954). See also Papachristou v. City of Jacksonville, 405 U. S. 156 (1972). Where First Amendment rights are involved, an even “greater degree of specificity” is required. Smith v. Goguen, 415 U. S., at 573. See Grayned v. City of Rockford, 408 U. S. 104, 109 (1972); Kunz v. New York, 340 U. S. 290 (1951).
There is no legislative history to guide us in determining the scope of the critical phrase “for the purpose of . . . influencing.” It appears to have been adopted without comment from earlier disclosure Acts.101 Congress “has voiced its wishes in [most] muted strains,” leaving us to draw upon “those common-sense assumptions that must be made in determining direction without a compass.” Rosado v. Wyman, 397 U. S. 397, 412 (1970). Where the constitutional requirement of definiteness is at stake, we have the further obligation to construe the statute,
In enacting the legislation under review Congress addressed broadly the problem of political campaign financing. It wished to promote full disclosure of campaign-oriented spending to insure both the reality and the appearance of the purity and openness of the federal election process.102 Our task is to construe “for the purpose of . . . influencing,” incorporated in
In Part I we discussed what constituted a “contribution” for purposes of the contribution limitations set forth in
When we attempt to define “expenditure” in a similarly narrow way we encounter line-drawing problems
But when the maker of the expenditure is not within these categories—when it is an individual other than a candidate or a group other than a “political committee”107
In summary,
Unlike
Section 434 (e), as we have construed it, does not contain the infirmities of the provisions before the Court in Talley v. California, 362 U. S. 60 (1960), and Thomas v. Collins, 323 U. S. 516 (1945). The ordinance found wanting in Talley forbade all distribution of handbills that did not contain the name of the printer, author, or manufacturer, and the name of the distributor. The city urged that the ordinance was aimed at identifying those responsible for fraud, false advertising, and libel, but the Court found that it was “in no manner so limited.” 362 U. S., at 64. Here, as we have seen, the disclosure requirement is narrowly limited to those situations where the information sought has a substantial connection with the governmental interests sought to be advanced. Thomas held unconstitutional a prior restraint in the form of a registration requirement for labor organizers.
D. Thresholds
Appellants’ third contention, based on alleged overbreadth, is that the monetary thresholds in the recordkeeping and reporting provisions lack a substantial nexus with the claimed governmental interests, for the amounts involved are too low even to attract the attention of the candidate, much less have a corrupting influence.
The provisions contain two thresholds. Records are to be kept by political committees of the names and addresses of those who make contributions in excess of $10,
The Court of Appeals rejected appellants’ contention that these thresholds are unconstitutional. It found the challenge on First Amendment grounds to the $10 threshold to be premature, for it could “discern no basis in the statute for authorizing disclosure outside the Commission
The $10 and $100 thresholds are indeed low. Contributors of relatively small amounts are likely to be especially sensitive to recording or disclosure of their political preferences. These strict requirements may well discourage participation by some citizens in the political process, a result that Congress hardly could have intended. Indeed, there is little in the legislative history to indicate that Congress focused carefully on the appropriate level at which to require recording and disclosure. Rather, it seems merely to have adopted the thresholds existing in similar disclosure laws since 1910.110 But we cannot require Congress to establish that it has chosen the highest reasonable threshold. The line is necessarily a judgmental decision, best left in the context of this complex legislation to congressional discretion. We cannot say, on this bare record, that the limits designated are wholly without rationality.111
We are mindful that disclosure serves informational functions, as well as the prevention of corruption and the enforcement of the contribution limitations. Congress is not required to set a threshold that is tailored only to the latter goals. In addition, the enforcement
The $10 recordkeeping threshold, in a somewhat similar fashion, facilitates the enforcement of the disclosure provisions by making it relatively difficult to aggregate secret contributions in amounts that surpass the $100 limit. We agree with the Court of Appeals that there is no warrant for assuming that public disclosure of contributions between $10 and $100 is authorized by the Act. Accordingly, we do not reach the question whether information concerning gifts of this size can be made available to the public without trespassing impermissibly on First Amendment rights. Cf. California Bankers Assn. v. Shultz, 416 U. S., at 56-57.112
In summary, we find no constitutional infirmities in the recordkeeping, reporting, and disclosure provisions of the Act.113
A series of statutes114 for the public financing of Presidential election campaigns produced the scheme now found in
A. Summary of Subtitle H
Section 9006 establishes a Presidential Election Campaign Fund (Fund), financed from general revenues in the aggregate amount designated by individual taxpayers, under
Major parties are entitled to $2,000,000 to defray their national committee Presidential nominating cоnvention expenses, must limit total expenditures to that amount,
For expenses in the general election campaign,
Chapter 96 establishes a third account in the Fund, the Presidential Primary Matching Payment Account.
B. Constitutionality of Subtitle H
Appellants argue that Subtitle H is invalid (1) as “contrary to the ‘general welfare,’ ” Art. I, § 8, (2) because any scheme of public financing of election campaigns is inconsistent with the First Amendment, and (3) because Subtitle H invidiously discriminates against certain interests in violation of the Due Process Clause of the Fifth Amendment. We find no merit in these contentions.
Appellants’ “general welfare” contention erroneously treats the General Welfare Clause as a limitation upon congressional power. It is rather a grant of power, the scope of which is quite expansive, particularly in view of the enlargement of power by the Necessary and Proper Clause. M`Culloch v. Maryland, 4 Wheat. 316, 420 (1819). Congress has power to regulate Presidential elections and primaries, United States v. Classic, 313 U. S. 299 (1941); Burroughs v. United States, 290 U. S. 534 (1934); and public financing of Presidential elections as a means to reform the electoral process was clearly a choice within the granted power. It is for Congress to decide which expenditures will promote the general welfare: “[T]he power of Congress to authorize expenditure of public moneys for public purposes is not
Appellants’ challenge to the dollar check-off provision (§ 6096) fails for the same reason. They maintain that Congress is required to permit taxpayers to designate particular candidates or parties as recipients of their money.
But the appropriation to the Fund inAppellants next argue that “by analogy” to the Religion Clauses of the First Amendment public financing of election campaigns, however meritorious, violates the First Amendment. We have, of course, held that the Religion Clauses—“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof“—require Congress, and the States through the Fourteenth Amendment, to remain neutral in matters of religion. E. g., Abington School Dist. v. Schempp, 374 U. S. 203, 222-226 (1963). The government may not aid one religion to the detriment of others or impose a burden on one religion that is not imposed on others, and may not even aid all religions. E. g., Everson v. Board of Education, 330 U. S. 1, 15-16 (1947). See Kurland, Of Church and State and the Supreme Court, 29 U. Chi. L. Rev. 1, 96 (1961). But the analogy is patently inapplicable to our issue here. Although “Congress shall make no law . . . abridging the freedom of speech, or the press,” Subtitle H is a congressional effort, not to abridge, restrict, or censor speech, but rather to use public money to facilitate and enlarge public
Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment. Weinberger v. Wiesenfeld, 420 U. S. 636, 638 n. 2 (1975), and cases cited. In several situations concerning the electoral process, the principle has been
It cannot be gainsaid that public financing as a means of eliminating the improper influence of large private contributions furthers a significant governmental interest. S. Rep. No. 93-689, pp. 4-5 (1974). In addition, the limits on contributions necessarily increase the burden of fundraising, and Congress properly regarded public financing as an appropriate means of relieving major-party Presidential candidates from the rigors of soliciting private contributions. See id., at 5. The States have also been held to have important interests in limiting places on the ballot to those candidates who demonstrate substantial popular support. E. g., Storer v. Brown, supra, at 736; Lubin v. Panish, supra, at 718-719; Jenness v. Fortson, 403 U. S. 431, 442 (1971); Williams v. Rhodes, 393 U. S., at 31-33. Congress’ interest in not funding hopeless candidacies with large sums of public money, S. Rep. No. 93-689, supra, at 7, necessarily justifies the withholding of public assistance from candidates without significant public support. Thus, Congress may legitimately require “some preliminary showing of a significant modicum of support,” Jenness v. Fortson, supra, at 442, as an eligibility requirement for public funds. This requirement also serves the important public interest against providing artificial incentives to “splintered parties and unrestrained factionalism.” Storer v. Brown, supra, at 736; S. Rep. No. 93-689, supra, at 8; H. R. Rep. No. 93-1239, p. 13 (1974). Cf. Bullock v. Carter, 405 U. S. 134, 145 (1972).
At the same time Congress recognized the constitutional restraints against inhibition of the present opportunity of minor parties to become major political entities if they obtain widespread support. S. Rep. No. 93-689, supra, at 8-10; H. R. Rep. No. 93-1239, supra, at 13. As
1. General Election Campaign Financing
Appellants insist that Chapter 95 falls short of the constitutional requirement in that its provisions supply larger, and equal, sums to candidates of major parties, use prior vote levels as the sole criterion for pre-election funding, limit new-party candidates to post-election funds, and deny any funds to candidates of parties receiving less than 5% of the vote. These provisions, it is argued, are fatal to the validity of the scheme, because they work invidious discrimination against minor and new parties in violation of the Fifth Amendment. We disagree.131
[1] So in original. The Court‘s opinion, ante, at 64-65, n. 75, ante, at 66, n. 80, ante, at 80, n. 103, and ante, at 82, n. 109, seems to suggest that the Buckley appellants’ facial challenge to the disclosure provisions was not as broad as their challenge to the contribution and expenditure limitations. I do not so read the record. Appellants’ first cause of action in the District Court was a broad constitutional challenge to the entire Act, including the disclosure and reporting provisions. Footnote content not provided in source text snippet but placeholder was present in original. Federal Election Campaign Act of 1971, 86 Stat. 3, as amended by the Federal Election Campaign Act Amendments of 1974, 88 Stat. 1263. The pertinent portions of the legislation are set forth in the Appendix to this opinion. The particular verbalization has varied from case to case. First Amendment analysis defies capture in a single, easy phrase. The basic point of our inquiry, however expressed, is to determine whether the Government has sought to achieve admittedly important goals by means which demonstrably curtail our liberties to an unnecessary extent. That is, if the FEC were properly constituted, I would answer questions 8 (b), 8 (c), 8 (d) (see infra, at 282-286), and 8 (f) in the negative. With respect to question 8 (e), I reserve judgment on the validity of 2 U. S. C. § 456 (1970 ed., Supp. IV) which empowers the FEC to disqualify a candidate for failure to file certain reports. Of course, to the extent that the Court invalidates the expenditure limitations of the FECA, Part I-C, ante, at 39-59, the FEC, however appointed, would be powerless to enforce those provisions. Unless otherwise indicated, all statutory citations in this part of the opinion are to the Federal Election Campaign Act of 1971, §§ 301-311, 86 Stat. 11, as amended by the Federal Election Campaign Act Amendments of 1974, §§ 201-407, 88 Stat. 1272, 2 U. S. C. § 431 et seq. (1970 ed., Supp. IV). “In the Nation‘s seven largest States in 1970, 11 of the 15 major senatorial candidates were millionaires. The four who were not millionaires lost their bid for election.” 117 Cong. Rec. 42065 (1971) (remarks of Rep. Macdonald).The Act places no limit on the number of funds that may be formed through the use of subsidiaries or divisions of corporations, or of local and regional units of a national labor union. The potential for proliferation of these sources of contributions is not insignificant. In 1972, approximately 1,824,000 active corporations filed federal income tax returns. Internal Revenue Service, Preliminary Statistics of Income 1972, Corporation Income Tax Returns, p. 1 (pub. 159 (11-74)). (It is not clear whether this total includes subsidiary corporations where the parent filed a consolidated return.) In the same year, 71,409 local unions were chartered by national unions. Department of Labor, Bureau of Labor Statistics, Directory of National Unions and Employee Associations 1973, p. 87 (1974).
The Act allows the maximum contribution to be made by each unit‘s fund provided the decision or judgment to contribute to particular candidates is made by the fund independently of control or direction by the parent corporation or the national or regional union. See S. Rep. No. 93-1237, pp. 51-52 (1974).
The Federalist No. 73, pp. 468-469 (Wright ed. 1961).As conceded by appellants, the Constitution does not require Congress to treat all declared candidates the same for public financing purposes. As we said in Jenness v. Fortson, “there are obvious differences in kind between the needs and potentials of a political party with historically established broad support, on the one hand, and a new or small political organization on the other. . . . Sometimes the grossest discrimination can lie in treating
Furthermore, appellants have made no showing that
Appellants challenge reliance on the vote in past elections as the basis for determining eligibility. That challenge is foreclosed, however, by our holding in Jenness v. Fortson, 403 U. S., at 439-440, that popular vote totals in the last election are a proper measure of public support.
Appellants next argue, relying on the ballot-access decisions of this Court, that the absence of any alternative means of obtaining pre-election funding renders the scheme unjustifiably restrictive of minority political interests. Appellants’ reliance on the ballot-access decisions is misplaced. To be sure, the regulation sustained in Jenness v. Fortson, for example, incorporated alternative means of qualifying for the ballot, 403 U. S., at 440, and the lack of an alternative was a defect in the scheme struck down in Lubin v. Panish, 415 U. S., at 718. To
Appellants’ reliance on the alternative-means analyses of the ballot-access cases generally fails to recognize a significant distinction from the instant case. The primary goal of all candidates is to carry on a successful campaign by communicating to the voters persuasive reasons for electing them. In some of the ballot-access cases the States afforded candidates alternative means for qualifying for the ballot, a step in any campaign that, with rare exceptions, is essential to successful effort. Chapter 95 concededly provides only one method of obtaining pre-election financing; such funding is, however, not as necessary as being on the ballot. See n. 128, supra. 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. And, after all, the important achievements of minority
Of course, nonmajor parties and their candidates may qualify for post-election participation in public funding and in that sense the claimed discrimination is not total. Appellants contend, however, that the benefit of any such participation is illusory due to
2. Nominating Convention Financing
The foregoing analysis and reasoning sustaining general election funding apply in large part to convention funding under Chapter 95 and suffice to support our rejection of appellants’ challenge to these provisions. Funding of party conventions has increasingly been derived from large private contributions, see H. R. Rep. No. 93-1239, p. 14 (1974), and the governmental interest in eliminating this reliance is as vital as in the case of private contributions to individual candidates. The expenditure limitations on major parties participating in public financing enhance the ability of nonmajor parties to increase their spending relative to the major parties; further, in soliciting private contributions to finance conventions, parties are not subject to the $1,000 contribution limit pertaining to candidates.141 We therefore conclude that appellants’ constitutional challenge to the
3. Primary Election Campaign Financing
Appellants’ final challenge is to the constitutionality of Chapter 96, which provides funding of primary campaigns. They contend that these provisions are constitutionally invalid (1) because they do not provide funds for candidates not running in party primaries142 and (2) because the eligibility formula actually increases the influence of money on the electoral process. In not providing assistance to candidates who do not enter party primaries, Congress has merely chosen to limit at this time the reach of the reforms encompassed in Chapter 96. This Congress could do without constituting the reforms a constitutionally invidious discrimination. The governing principle was stated in Katzenbach v. Morgan, 384 U. S. 641, 657 (1966):
“[I]n deciding the constitutional propriety of the limitations in such a reform measure we are guided by the familiar principles that a `statute is not invalid under the Constitution because it might have gone farther than it did,’ Roschen v. Ward, 279 U. S. 337, 339, that a legislature need not `strike at all evils at the same time,’ Semler v. Dental Examiners, 294 U. S. 608, 610, and that `reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind,’ Williamson v. Lee Optical Co., 348 U. S. 483, 489.”143
The eligibility requirements in Chapter 96 are surely not an unreasonable way to measure popular support for a candidate, accomplishing the objective of limiting subsidization to those candidates with a substantial chance of being nominated. Counting only the first $250 of each contribution for eligibility purposes requires candidates to solicit smaller contributions from numerous people. Requiring the money to come from citizens of a minimum number of States eliminates candidates whose appeal is limited geographically; a President is elected not by popular vote, but by winning the popular vote in enough States to have a majority in the Electoral College.144
For the reasons stated, we reject appellants’ claims that Subtitle H is facially unconstitutional.147
By offering a single hypothetical situation, appellants try to prove that the matching formula gives wealthy contributors an advantage. Taxpayers are entitled to a deduction from ordinary income for political contributions up to $100, or $200 on a joint return. § 218. Appellants note that a married couple in the 70% tax bracket could give $500 to a candidate and claim the full deduction allowed by § 218, thus reducing their tax liability by $140. The matching funds increase the effective contribution to $1,000, and the total cost to the contributors is $360. But the appellants have disregarded a myriad of other possibilities. For example, taxpayers also have the option of claiming a tax credit up to $25, or $50 on a joint return, for one-half of their political contributions. § 41. Any married couple could give $100 to a candidate, claim the full $50 credit, and matching thus allows a contribution of $200 at a cost of only $50 to the contributors. Because this example and others involve greater subsidization—75% against 64%—of smaller contributions than is involved in appellants’ hypothesis, one cannot say that the matching formula unfairly favors wealthy interests or large contributors. Moreover, the effect noted by appellants diminishes as the size of individual contributions approaches $1,000. Finally, these examples clearly reveal that §§ 41 and 218 afford public subsidies for candidates, but appellants have raised no constitutional challenge to the provisions, either on First or Fifth Amendment grounds.C. Severability
The only remaining issue is whether our holdings invalidating
IV. THE FEDERAL ELECTION COMMISSION
The 1974 amendments to the Act create an eight-member Federal Election Commission (Commission) and vest in it primary and substantial responsibility for administering and enforcing the Act. The question that we address in this portion of the opinion is whether, in view of the manner in which a majority of its members are appointed, the Commission may under the Constitution exercise the powers conferred upon it. We find it unnecessary to parse the complex statutory provisions in order to sketch the full sweep of the Commission‘s authority. It will suffice for present purposes to describe what appear to be representative examples of its various powers.
Chapter 14 of Title 2148 makes the Commission the principal repository of the numerous reports and statements which are required by that chapter to be filed by those engaging in the regulated political activities. Its duties under
The Commission‘s enforcement power is both direct and wide ranging. It may institute a civil action for (i) injunctive or other relief against “any acts or practices which constitute or will constitute a violation of this Act,”
The body in which this authority is reposed consists of eight members.155 The Secretary of the Senate and the Clerk of the House of Representatives are ex officio members of the Commission without the right to vote. Two members are appointed by the President pro tempore of the Senate “upon the recommendations of the majority leader of the Senate and the minority leader of the Senate.”156 Two more are to be appointed by the Speaker of the House of Representatives, likewise upon the recommendations of its respective majority and minority leaders. The remaining two members are appointed by the President. Each of the six voting members of the Commission must be confirmed by the majority of both Houses of Congress, and each of the three appointing authorities is forbidden to choose both of their appointees from the same political party.
A. Ripeness
Appellants argue that given the Commission‘s extensive powers the method of choosing its members under
We have recently recognized the distinction between jurisdictional limitations imposed by Art. III and “[p]roblems of prematurity and abstractness” that may prevent adjudication in all but the exceptional case. Socialist Labor Party v. Gilligan, 406 U. S. 583, 588 (1972). In Regional Rail Reorganization Act Cases, 419 U. S. 102, 140 (1974), we stated that “ripeness is peculiarly a question of timing,” and therefore the passage of months between the time of the decision of the Court of Appeals and our present ruling is of itself significant. We likewise observed in the Reorganization Act Cases:
“Thus, occurrence of the conveyance allegedly violative of Fifth Amendment rights is in no way hypothetical or speculative. Where the inevitability of the operation of a statute against certain individuals is patent, it is irrelevant to the existence of a justiciable controversy that there will be a time delay before the disputed provisions will come into effect.” Id., at 143.
The Court of Appeals held that of the five specific certified questions directed at the Commission‘s authority, only its powers to render advisory opinions and to authorize excessive convention expenditures were ripe for adjudication. The court held that the remaining aspects of the Commission‘s authority could not be adjudicated because “[in] its present stance, this litigation does not present the court with the concrete facts that are necessary
Since the entry of judgment by the Court of Appeals,
Party litigants with sufficient concrete interests at stake may have standing to raise constitutional questions of separation of powers with respect to an agency designated to adjudicate their rights. Palmore v. United States, 411 U. S. 389 (1973); Glidden Co. v. Zdanok, 370 U. S. 530 (1962); Coleman v. Miller, 307 U. S. 433 (1939). In Glidden, of course, the challenged adjudication had already taken place, whereas in this case appellants’ claim is of impending future rulings and determinations by the Commission. But this is a question of ripeness, rather than lack of case or controversy under Art. III, and for the reasons to which we have previously
B. The Merits
Appellants urge that since Congress has given the Commission wide-ranging rulemaking and enforcement powers with respect to the substantive provisions of the Act, Congress is precluded under the principle of separation of powers from vesting in itself the authority to appoint those who will exercise such authority. Their argument is based on the language of
“[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint. . . all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”
Appellants’ argument is that this provision is the exclusive method by which those charged with executing the laws of the United States may be chosen. Congress, they assert, cannot have it both ways. If the Legislature wishes the Commission to exercise all of the conferred powers, then its members are in fact “Officers of the United States” and must be appointed under the Appointments Clause. But if Congress insists upon retaining the power to appoint, then the members of the Commission may not discharge those many functions of the Commission which can be performed only by “Officers of
Appellee Commission and amici in support of the Commission urge that the Framers of the Constitution, while mindful of the need for checks and balances among the three branches of the National Government, had no intention of denying to the Legislative Branch authority to appoint its own officers. Congress, either under the Appointments Clause or under its grants of substantive legislative authority and the Necessary and Proper Clause in Art. I, is in their view empowered to provide for the appointment to the Commission in the manner which it did because the Commission is performing “appropriate legislative functions.”
The majority of the Court of Appeals recognized the importance of the doctrine of separation of powers which is at the heart of our Constitution, and also recognized the principle enunciated in Springer v. Philippine Islands, 277 U. S. 189 (1928), that the Legislative Branch may not exercise executive authority by retaining the power to appoint those who will execute its laws. But it described appellants’ argument based upon
We do not think appellants’ arguments based upon
James Madison, writing in the Federalist No. 47,159 defended the work of the Framers against the charge that these three governmental powers were not entirely separate from one another in the proposed Constitution. He asserted that while there was some admixture, the Constitution was nonetheless true to Montesquieu‘s well-known maxim that the legislative, executive, and judicial departments ought to be separate and distinct:
“The reasons on which Montesquieu grounds his maxim are a further demonstration of his meaning. `When the legislative and executive powers are united in the same person or body,’ says he, `there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner.’ Again: `Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor.’ Some of these reasons
are more fully explained in other passages; but briefly stated as they are here, they sufficiently establish the meaning which we have put on this celebrated maxim of this celebrated author.”160
Yet it is also clear from the provisions of the Constitution itself, and from the Federalist Papers, that the Constitution by no means contemplates total separation of each of these three essential branches of Government. The President is a participant in the lawmaking process by virtue of his authority to veto bills enacted by Congress. The Senate is a participant in the appointive process by virtue of its authority to refuse to confirm persons nominated to office by the President. The men who met in Philadelphia in the summer of 1787 were practical statesmen, experienced in politics, who viewed the principle of separation of powers as a vital check against tyranny. But they likewise saw that a hermetic sealing off of the three branches of Government from one another would preclude the establishment of a Nation capable of governing itself effectively.
Mr. Chief Justice Taft, writing for the Court in Hampton & Co. v. United States, 276 U. S. 394 (1928), after stating the general principle of separation of powers found in the United States Constitution, went on to observe:
“[T]he rule is that in the actual administration of the government Congress or the Legislature should exercise the legislative power, the President or the State executive, the Governor, the executive power, and the Courts or the judiciary the judicial power, and in carrying out that constitutional division into three branches it is a breach of the National fundamental law if Congress gives up its legislative power
and transfers it to the President, or to the Judicial branch, or if by law it attempts to invest itself or its members with either executive power or judicial power. This is not to say that the three branches are not co-ordinate parts of one government and that each in the field of its duties may not invoke the action of the two other branches in so far as the action invoked shall not be an assumption of the constitutional field of action of another branch. In determining what it may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the governmental co-ordination.” Id., at 406.
More recently, Mr. Justice Jackson, concurring in the opinion and the judgment of the Court in Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 635 (1952), succinctly characterized this understanding:
“While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.”
The Framers regarded the checks and balances that they had built into the tripartite Federal Government as a self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of the other. As Madison put it in Federalist No. 51:
“This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the
several offices in such a manner as that each may be a check on the other—that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State.”161
This Court has not hesitated to enforce the principle of separation of powers embodied in the Constitution when its application has proved necessary for the decisions of cases or controversies properly before it. The Court has held that executive or administrative duties of a nonjudicial nature may not be imposed on judges holding office under Art. III of the Constitution. United States v. Ferreira, 13 How. 40 (1852); Hayburn‘s Case, 2 Dall. 409 (1792). The Court has held that the President may not execute and exercise legislative authority belonging only to Congress. Youngstown Sheet & Tube Co. v. Sawyer, supra. In the course of its opinion in that case, the Court said:
“In the framework of our Constitution, the President‘s power to see that the laws are faithfully executed refutes the idea that he is to be a law-maker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. The first section of the first article says that `All legislative Powers herein granted shall be vested in a Congress of the United States . . . .’ ” 343 U. S., at 587-588.
2. The Appointments Clause
The principle of separation of powers was not simply an abstract generalization in the minds of the Framers: it was woven into the document that they drafted in Philadelphia in the summer of 1787. Article I, § 1, declares: “All legislative Powers herein granted shall be vested in a Congress of the United States.” Article II, § 1, vests the executive power “in a President of the United States of America,” and Art. III, § 1, declares that “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” The further concern of the Framers of the Constitution with maintenance of the separation of powers is found in the so-called “Ineligibility” and “Incompatibility” Clauses contained in
“No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.”
It is in the context of these cognate provisions of the document that we must examine the language of
“[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”
The Appointments Clause could, of course, be read as merely dealing with etiquette or protocol in describing “Officers of the United States,” but the drafters had a less frivolous purpose in mind. This conclusion is supported by language from United States v. Germaine, 99 U. S. 508, 509-510 (1879):
“The Constitution for purposes of appointment very clearly divides all its officers into two classes. The primary class requires a nomination by the President and confirmation by the Senate. But foreseeing that when offices became numerous, and sudden removals necessary, this mode might be inconvenient, it was provided that, in regard to officers inferior to those specially mentioned, Congress might by law vest their appointment in the President alone, in the courts of law, or in the heads of departments. That all persons who can be said to hold an office under the government about to be established under the Constitution were intended to be included within one or the other of these modes of appointment there can be but little doubt.” (Emphasis supplied.)
We think that the term “Officers of the United States”
If “all persons who can be said to hold an office under the government about to be established under the Constitution were intended to be included within one or the other of these modes of appointment,” United States v. Germaine, supra, it is difficult to see how the members of the Commission may escape inclusion. If a postmaster first class, Myers v. United States, 272 U. S. 52 (1926), and the clerk of a district court, Ex parte Hennen, 13 Pet. 230 (1839), are inferior officers of the United States within the meaning of the Appointments Clause, as they are, surely the Commissioners before us are at the very least such “inferior Officers” within the meaning of that Clause.162
Although two members of the Commission are initially selected by the President, his nominations are subject to confirmation not merely by the Senate, but by the House of Representatives as well. The remaining four voting members of the Commission are appointed by the President pro tempore of the Senate and by the Speaker of the House. While the second part of the Clause
The phrase “Heads of Departments,” used as it is in conjunction with the phrase “Courts of Law,” suggests that the Departments referred to are themselves in the Executive Branch or at least have some connection with that branch. While the Clause expressly authorizes Congress to vest the appointment of certain officers in the “Courts of Law,” the absence of similar language to include Congress must mean that neither Congress nor its officers were included within the language “Heads of Departments” in this part of cl. 2.
Thus with respect to four of the six voting members of the Commission, neither the President, the head of any department, nor the Judiciary has any voice in their selection.
The Appointments Clause specifies the method of appointment only for “Officers of the United States” whose appointment is not “otherwise provided for” in the Constitution. But there is no provision of the Constitution remotely providing any alternative means for the selection of the members of the Commission or for anybody like them. Appellee Commission has argued, and the Court of Appeals agreed, that the Appointments Clause of Art. II should not be read to exclude the “inherent power of Congress” to appoint its own officers to perform functions necessary to that body as an institution. But there is no need to read the Appointments Clause contrary to its plain language in order to reach the result sought by the Court of Appeals. Article I, § 3, cl. 5, expressly authorizes the selection of the President pro tempore of the Senate, and § 2, cl. 5, of that Article provides
Appellee Commission and amici contend somewhat obliquely that because the Framers had no intention of relegating Congress to a position below that of the co-equal Judicial and Executive Branches of the National Government, the Appointments Clause must somehow be read to include Congress or its officers as among those
An interim version of the draft Constitution had vested in the Senate the authority to appoint Ambassadors, public Ministers, and Judges of the Supreme Court, and the language of Art. II as finally adopted is a distinct change in this regard. We believe that it was a deliberate change made by the Framers with the intent to deny Congress any authority itself to appoint those who were “Officers of the United States.” The debates on the floor of the Convention reflect at least in part the way the change came about.
On Monday, August 6, 1787, the Committee on Detail to which had been referred the entire draft of the Constitution reported its draft to the Convention, including the following two articles that bear on the question before us:167
Article IX, § 1: “The Senate of the United States shall have power . . . to appoint Ambassadors, and Judges of the Supreme Court.”
Article X, § 2: “[The President] shall commission all
the officers of the United States; and shall appoint officers in all cases not otherwise provided for by this Constitution.”
It will be seen from a comparison of these two articles that the appointment of Ambassadors and Judges of the Supreme Court was confided to the Senate, and that the authority to appoint—not merely nominate, but to actually appoint—all other officers was reposed in the President.
During a discussion of a provision in the same draft from the Committee on Detail which provided that the “Treasurer” of the United States should be chosen by both Houses of Congress, Mr. Read moved to strike out that clause, “leaving the appointment of the Treasurer as of other officers to the Executive.”168 Opposition to Read‘s motion was based, not on objection to the principle of executive appointment, but on the particular nature of the office of the “Treasurer.”169
On Thursday, August 23, the Convention voted to insert after the word “Ambassadors” in the text of draft Art. IX the words “and other public Ministers.” Immediately afterwards, the section as amended was referred to the “Committee of Five.”170 The following day the Convention took up Art. X. Roger Sherman objected to the draft language of § 2 because it conferred too much power on the President, and proposed to insert after the words “not otherwise provided for by this Constitution” the words “or by law.” This motion was defeated by a vote of nine States to one.171 On September
Meanwhile, on Friday, August 31, a motion had been carried without opposition to refer such parts of the Constitution as had been postponed or not acted upon to a Committee of Eleven. Such reference carried with it both Arts. IX and X. The following week the Committee of Eleven made its report to the Convention, in which the present language of Art. II, § 2, cl. 2, dealing with the authority of the President to nominate is found, virtually word for word, as § 4 of Art. X.173 The same Committee also reported a revised article concerning the Legislative Branch to the Convention. The changes are obvious. In the final version, the Senate is shorn of its power to appoint Ambassadors and Judges of the Supreme Court. The President is given, not the power to appoint public officers of the United States, but only the right to nominate them, and a provision is inserted by virtue of which Congress may require Senate confirmation of his nominees.
It would seem a fair surmise that a compromise had been made. But no change was made in the concept of the term “Officers of the United States,” which since it had first appeared in Art. X had been taken by all concerned to embrace all appointed officials exercising responsibility under the public laws of the Nation.
Appellee Commission and amici urge that because of what they conceive to be the extraordinary authority reposed in Congress to regulate elections, this case stands on a different footing than if Congress had exercised its legislative authority in another field. There is, of course, no doubt that Congress has express authority to regulate
The position that because Congress has been given explicit and plenary authority to regulate a field of activity, it must therefore have the power to appoint those who are to administer the regulatory statute is both novel and contrary to the language of the Appointments Clause. Unless their selection is elsewhere provided for, all officers of the United States are to be appointed in accordance with the Clause. Principal officers are selected by the President with the advice and consent of the Senate. Inferior officers Congress may allow to be appointed by the President alone, by the heads of departments, or by the Judiciary. No class or type of officer is excluded because of its special functions. The President appoints judicial as well as executive officers. Neither has it been disputed—and apparently
Appellees argue that the legislative authority conferred upon the Congress in Art.
Appellees also rely on the
We are also told by appellees and amici that Congress had good reason for not vesting in a Commission composed wholly of Presidential appointees the authority to administer the Act, since the administration of the Act would undoubtedly have a bearing on any incumbent President‘s campaign for re-election. While one cannot dispute the basis for this sentiment as a practical matter, it would seem that those who sought to challenge incumbent Congressmen might have equally good reason to fear a Commission which was unduly responsive to members of Congress whom they were seeking to unseat. But such fears, however rational, do not by themselves warrant a distortion of the Framers’ work.
Appellee Commission and amici finally contend, and the majority of the Court of Appeals agreed with them, that whatever shortcomings the provisions for the appointment of members of the Commission might have under Art. II, Congress had ample authority under the
So framed, the claim that Congress may provide for this manner of appointment under the Necessary and Proper Clause of Art. I stands on no better footing than the claim that it may provide for such manner of appointment because of its substantive authority to regulate federal elections. Congress could not, merely because it concluded that such a measure was “necessary and proper” to the discharge of its substantive legislative authority, pass a bill of attainder or ex post facto law contrary to the prohibitions contained in
The trilogy of cases from this Court dealing with the constitutional authority of Congress to circumscribe the President‘s power to remove officers of the United States is entirely consistent with this conclusion. In Myers v. United States, 272 U. S. 52 (1926), the Court held that Congress could not by statute divest the President of the power to remove an officer in the Executive Branch whom he was initially authorized to appoint. In explaining its reasoning in that case, the Court said:
“The vesting of the executive power in the President was essentially a grant of the power to execute the laws. But the President alone and unaided could not execute the laws. He must execute them by the assistance of subordinates. . . . As he is charged specifically to take care that they be faithfully executed, the reasonable implication, even in the absence of express words, was that as part of his executive power he should select those who were
to act for him under his direction in the execution of the laws.
.....
“Our conclusion on the merits, sustained by the arguments before stated, is that Article II grants to the President the executive power of the Government, i. e., the general administrative control of those executing the laws, including the power of appointment and removal of executive officers—a conclusion confirmed by his obligation to take care that the laws be faithfully executed . . . .” Id., at 117, 163-164.
In the later case of Humphrey‘s Executor, where it was held that Congress could circumscribe the President‘s power to remove members of independent regulatory agencies, the Court was careful to note that it was dealing with an agency intended to be independent of executive authority ”except in its selection.” 295 U. S. at 625 (emphasis in original). Wiener v. United States, 357 U. S. 349 (1958), which applied the holding in Humphrey‘s Executor to a member of the War Claims Commission, did not question in any respect that members of independent agencies are not independent of the Executive with respect to their appointments.
This conclusion is buttressed by the fact that Mr. Justice Sutherland, the author of the Court‘s opinion in Humphrey‘s Executor, likewise wrote the opinion for the Court in Springer v. Philippine Islands, 277 U. S. 189 (1928), in which it was said:
“Not having the power of appointment, unless expressly granted or incidental to its powers, the legislature cannot engraft executive duties upon a legislative office, since that would be to usurp the power of appointment by indirection; though the case might be different if the additional duties
were devolved upon an appointee of the executive.” Id., at 202.
3. The Commission‘s Powers
Thus, on the assumption that all of the powers granted in the statute may be exercised by an agency whose members have been appointed in accordance with the Appointments Clause,175 the ultimate question is which, if any, of those powers may be exercised by the present voting Commissioners, none of whom was appointed as provided by that Clause. Our previous description of the statutory provisions, see supra, at 109-113, disclosed that the Commission‘s powers fall generally into three categories: functions relating to the flow of necessary information—receipt, dissemination, and investigation; functions with respect to the Commission‘s task of fleshing out the statute—rulemaking and advisory opinions; and functions necessary to ensure compliance with the statute and rules—informal procedures, administrative determinations and hearings, and civil suits.
Insofar as the powers confided in the Commission are essentially of an investigative and informative nature, falling in the same general category as those powers which Congress might delegate to one of its own committees, there can be no question that the Commission as presently constituted may exercise them. Kilbourn v. Thompson, 103 U. S. 168 (1881); McGrain v. Daugherty, 273 U. S. 135 (1927); Eastland v. United States Servicemen‘s Fund, 421 U. S. 491 (1975). As this Court stated in McGrain, supra, at 175:
“A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information—which not infrequently is true—recourse must be had to others who do possess it. Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtаin what is needed. All this was true before and when the Constitution was framed and adopted. In that period the power of inquiry—with enforcing process—was regarded and employed as a necessary and appropriate attribute of the power to legislate—indeed, was treated as inhering in it.”
But when we go beyond this type of authority to the more substantial powers exercised by the Commission, we reach a different result. The Commission‘s enforcement power, exemplified by its discretionary power to seek judicial relief, is authority that cannot possibly be regarded as merely in aid of the legislative function of Congress. A lawsuit is the ultimate remedy for a breach of the law, and it is to the President, and not to the Congress, that the Constitution entrusts the responsibility to “take Care that the Laws be faithfully executed.”
Congress may undoubtedly under the Necessary and Proper Clause create “offices” in the generic sense and provide such method of appointment to those “offices” as it chooses. But Congress’ power under that Clause
This Court observed more than a century ago with respect to litigation conducted in the courts of the United States:
“Whether tested, therefore, by the requirements of the Judiciary Act, or by the usage of the government, or by the decisions of this court, it is clear that all such suits, so far as the interests of the United States are concerned, are subject to the direction, and within the control of, the Attorney-General.” Confiscation Cases, 7 Wall. 454, 458-459 (1869).
The Court echoed similar sentiments 59 years later in Springer v. Philippine Islands, 277 U. S., at 202, saying:
“Legislative power, as distinguished from executive power, is the authority to make laws, but not to enforce them or appoint the agents charged with the duty of such enforcement. The latter are executive functions. It is unnecessary to enlarge further upon the general subject, since it has so recently received the full consideration of this Court. Myers v. United States, 272 U. S. 52.
“Not having the power of appointment, unless expressly granted or incidental to its powers, the legislature cannot engraft executive duties upon a legislative office, since that would be to usurp the power of appointment by indirection; though the
case might be different if the additional duties were devolved upon an appointee of the executive.”
We hold that these provisions of the Act, vesting in the Commission primary responsibility for conducting civil litigation in the courts of the United States for vindicating public rights, violate
All aspects of the Act are brought within the Commission‘s broad administrative powers: rulemaking, advisory opinions, and determinations of eligibility for funds and even for federal elective office itself. These functions, exercised free from day-to-day supervision of either Congress176 or the Executive Branch, are more legislative and judicial in nature than are the Commission‘s
CONCLUSION
In summary,178 we sustain the individual contribution limits, the disclosure and reporting provisions, and the public financing scheme. We conclude, however, that the limitations on campaign expenditures, on independent expenditures by individuals and groups, and on expenditures by a candidate from his personal funds are constitutionally infirm. Finally, we hold that most of the powers conferred by the Act upon the Federal Election Commission can be exercised only by “Officers of the United States,” appointed in conformity with
In No. 75-436, the judgment of the Court of Appeals
So ordered.
MR. JUSTICE STEVENS took no part in the consideration or decision of these cases.
APPENDIX TO PER CURIAM OPINION*
TITLE 2. THE CONGRESS
CHAPTER 14—FEDERAL ELECTION CAMPAIGNS
SUBCHAPTER I.—DISCLOSURE OF FEDERAL CAMPAIGN FUNDS
§ 431. Definitions.
When used in this subchapter and subchapter II of this chapter—
(a) “election” means—
(1) a general, special, primary, or runoff election;
(2) a convention or caucus of a political party held to nominate a candidate;
(3) a primary election held for the selection of delegates to a national nominating convention of a political party; and
(4) a primary election held for the expression of a preference for the nomination of persons for election to the office of President;
(1) taken the action necessary under the law of a State to qualify himself for nomination for election, or election, to Federal office; or
(2) received contributions or made expenditures, or has given his consent for any other person to receive contributions or make expenditures, with a view to bringing about his nomination for election, or election, to such office;
(c) “Federal office” means the office of President or Vice President of the United States; or of Senator or Representative in, or Delegate or Resident Commissioner to, the Congress of the United States;
(d) “political committee” means any committee, club, association, or other group of persons which receives contributions or makes expenditures during a calendar year in an aggregate amount exceeding $1,000;
(e) “contribution“—
(1) means a gift, subscription, loan, advance, or deposit of money or anything of value made for the purpose of—
(A) influencing the nomination for election, or election, of any person to Federal office or for the purpose of influencing the results of a primary held for the selection of delegates to a national nominating convention of a political party; or
(B) influencing the result of an election held for the expression of a preference for the nomination of persons for election to the office of President of the United States;
(2) means a contract, promise, or agreement, expressed or implied, whether or not legally enforceable, to make a contribution for such purposes; (3) means funds received by a political committee which are transferred to such committee from another political committee or other source;
(4) means the payment, by any person other than a candidate or a political committee, of compensation for the personal services of another person which are rendered to such candidate or political committee without charge for any such purpose; but
(5) does not include—
(A) the value of services provided without compensation by individuals who volunteer a portion or all of their time on behalf of a candidate or political committee;
(B) the use of real or personal property and the cost of invitations, food, and beverages, voluntarily provided by an individual to a candidate in rendering voluntary personal services on the individual‘s residential premises for candidate-related activities;
(C) the sale of any food or beverage by a vendor for use in a candidate‘s campaign at a charge less than the normal comparable charge, if such charge for use in a candidate‘s campaign is at least equal to the cost of such food or beverage to the vendor;
(D) any unreimbursed payment for travel expenses made by an individual who on his own behalf volunteers his personal services to a candidate;
(E) the payment by a State or local committee of a political party of the costs of preparation,
display, or mailing or other distribution incurred by such committee with respect to a printed slate card or sample ballot, or other printed listing, of three or more candidates for any public office for which an election is held in the State in which such committee is organized, except that this clause shall not apply in the case of costs incurred by such committee with respect to a display of any such listing made on broadcasting stations, or in newspapers, magazines, or other similar types of general public political advertising; or (F) any payment made or obligation incurred by a corporation or a labor organization which, under the provisions of the last paragraph of
section 610 of Title 18 , would not constitute an expenditure by such corporation or labor organization;to the extent that the cumulative value of activities by any individual on behalf of any candidate under each of clauses (B), (C), and (D) does not exceed $500 with respect to any election;
(f) “expenditure“—
(1) means a purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value, made for the purpose of—
(A) influencing the nomination for election, or the election, of any person to Federal office, or to the office of presidential and vice presidential elector; or
(B) influencing the results of a primary election held for the selection of delegates to a national nominating convention of a political party or for the expression of a preference for
the nomination of persons for election to the office of President of the United States; (2) means a contract, promise, or agreement, express or implied, whether or not legally enforceable, to make any expenditure;
(3) means the transfer of funds by a political committеe to another political committee; but
(4) does not include—
(A) any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication, unless such facilities are owned or controlled by any political party, political committee, or candidate;
(B) nonpartisan activity designed to encourage individuals to register to vote or to vote;
(C) any communication by any membership organization or corporation to its members or stockholders, if such membership organization or corporation is not organized primarily for the purpose of influencing the nomination for election, or election, of any person to Federal office;
(D) the use of real or personal property and the cost of invitations, food, and beverages, voluntarily provided by an individual to a candidate in rendering voluntary personal services on the individual‘s residential premises for candidate-related activities if the cumulative value of such activities by such individual on behalf of any candidate do [sic] not exceed $500 with respect to any election;
(E) any unreimbursed payment for travel expenses made by an individual who on his own behalf volunteers his personal services to a candidate if the cumulative amount for such individual incurred with respect to such candidate
does not exceed $500 with respect to any election; (F) any communication by any person which is not made for the purpose of influencing the nomination for election, or election, of any person to Federal office; or
(G) the payment by a State or local committee of a political party of the costs of preparation, display, or mailing or other distribution incurred by such committee with respect to a printed slate card or sample ballot, or other printed listing, of three or more candidates for any public office for which an election is held in the State in which such committee is organized, except that this clause shall not apply in the case of costs incurred by such committee with respect to a display of any such listing made on broadcasting stations, or in newspapers, magazines or other similar types of general public political advertising; or
(H) any payment made or obligation incurred by a corporation or a labor organization which, under the provisions of the last paragraph of
section 610 of Title 18 , would not constitute an expenditure by such corporation or labor organization;
(g) “Commission” means the Federal Election Commission;
(h) “person” means an individual, partnership, committee, association, corporation, labor organization, and any other organization or group of persons;
(i) “State” means each State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United States;
(1) in the case of an individual, his full name and the full address of his principal place of residence; and
(2) in the case of any other person, the full name and address of such person;
(k) “national committee” means the organization which, by virtue of the bylaws of a political party, is responsible for the day-to-day operation of such political party at the national level, as determined by the Commission;
(l) “State committee” means the organization which, by virtue of the bylaws of a political party, is responsible for the day-to-day operation of such political party at the State level, as determined by the Commission;
(m) “political party” means an association, committee, or organization which nominates a candidate for election to any Federal office, whose name appears on the election ballot as the candidate of such association, committee, or organization; and
(n) “principal campaign committee” means the principal campaign committee designated by a candidate under section 432 (f) (1) of this title.
§ 432. Organization of political committees.
(a) Chairman; treasurer; vacancies; official authorizations. Every political committee shall have a chairman and a treasurer. No contribution and no expenditure shall be accepted or made by or on behalf of a political committee at a time when there is a vacancy in the office of chairman or treasurer thereof. No expenditure shall be made for or on behalf of a political committee without the authorization of its chairman or treasurer, or their designated agents.
(b) Account of contributions; segregated funds.
(c) Recordkeeping. It shall be the duty of the treasurer of a political committee to keep a detailed and exact account of—
(1) all contributions made to or for such committee;
(2) the identification of every person making a contribution in excess of $10, and the date and amount thereof and, if a person‘s contributions aggregate more than $100, the account shall include occupation, and the principal place of business (if any);
(3) all expenditures made by or on behalf of such committee; and
(4) the identification of every person to whom any expenditure is made, the date and amount thereof and the name and address of, and office sought by, each candidate on whose behalf such expenditure was made.
(d) Receipts; preservation. It shall be the duty of the treasurer to obtain and keep a receipted bill, stating the particulars, for every expenditure made by or on behalf of a political committee in excess of $100 in amount, and for any such expenditure in a lesser amount, if the aggregate amount of such expenditures to the same person during a calendar year exceeds $100. The treasurer
(e) Unauthorized activities; notice. Any political committee which solicits or receives contributions or makes expenditures on behalf of any candidate that is not authorized in writing by such candidate to do so shall include a notice on the face or front page of all literature and advertisements published in connection with such candidate‘s campaign by such committee or on its behalf stating that the committee is not authorized by such candidate and that such candidate is not responsible for the activities of such committee.
(f) Principal campaign committees; one candidate limitation; office of President: national committee for candidate; duties. (1) Each individual who is a candidate for Federal office (other than the office of Vice President of the United States) shall designate a political committee to serve as his principal campaign committee. No political committee may be designated as the principal campaign committee of more than one candidate, except that the candidate for the office of President of the United States nominated by a political party may designate the national committee of such political party as his principal campaign committee. Except as provided in the preceding sentence, no political committee which supports more than one candidate may be designated as a principal campaign committee.
(2) Notwithstanding any other provision of this subchapter, each report or statement of contributions received or expenditures made by a political committee (other than a principal campaign committee) which is required to be filed with the Commission under this subchapter shall be filed instead with the principal campaign
(3) It shall be the duty of each principal campaign committee to receive all reports and statements required to be filed with it under paragraph (2) of this subsection and to compile and file such reports and statements, together with its own reports and statements, with the Commission in accordance with the provisions of this subchapter.
§ 433. Registration of political committees.
(a) Statements of organization. Each political committee which anticipates receiving contributions or making expenditures during the calendar year in an aggregate amount exceeding $1,000 shall file with the Commission a statement of organization, within 10 days after its organization or, if later, 10 days after the date on which it has information which causes the committee to anticipate it will receive contributions or make expenditures in excess of $1,000. Each such committee in existence at the date of enactment of this Act shall file a statement of organization with the Commission at such time as it prescribes.
(b) Contents of statements. The statement of organization shall include—
(1) the name and address of the committee;
(2) the names, addresses, and relationships of affiliated or connected organizations;
(3) the area, scope, or jurisdiction of the committee;
(4) the name, address, and position of the custodian of books and accounts;
(5) the name, address, and position of other principal officers, including officers and members of the finance committee, if any;
(6) the name, address, office sought, and party affiliation of— (A) each candidate whom the committee is supporting; and
(B) any other individual, if any, whom the committee is supporting for nomination for election, or election, to any public office whatever; or, if the committee is supporting the entire ticket of any party, the name of the party;
(7) a statement whether the committee is a continuing one;
(8) the disposition of residual funds which will be made in the event of dissolution;
(9) a listing of all banks, safety deposit boxes, or other repositories used;
(10) a statement of the reports required to be filed by the committee with State or local officers, and, if so, the names, addresses, and positions of such persons; and
(11) such other information as shall be required by the Commission.
(c) Information changes; report. Any change in information previously submitted in a statement of organization shall be reported to the Commission within a 10-day period following the change.
(d) Disbanding of political committees or contributions and expenditures below prescribed ceiling; notice. Any committee which, after having filed one or more statements of organization, disbands or determines it will no longer receive contributions or make expenditures during the calendar year in an aggregate amount exceeding $1,000 shall so notify the Commission.
(e) Filing reports and notifications with appropriate principal campaign committees. In the case of a political
§ 434. Reports by political committees and candidates.
(a) Receipts and expenditures; completion date, exception.
(1) Except as provided by paragraph (2), each treasurer of a political committee supporting a candidate or candidates for election to Federal office, and each candidate for election to such office, shall file with the Commission reports of receipts and expenditures on forms to be prescribed or approved by it. The reports referred to in the preceding sentence shall be filed as follows:
(A) (i) In any calendar year in which an individual is a candidate for Federal office and an election for such Federal office is held in such year, such reports shall be filed not later than the 10th day before the date on which such election is held and shall be complete as of the 15th day before the date of such election; except that any such report filed by registered or certified mail must be postmarked not later than the close of the 12th day before the date of such election.
(ii) such reports shall be filed not later than the 30th day after the day of such election and shall be complete as of the 20th day after the date of such election.
(B) In any other calendar yeаr in which an individual is a candidate for Federal office, such reports shall be filed after December 31 of such calendar year, but not later than January 31 of the following calendar year and shall be complete as of the close of the calendar year with respect to which the report is filed.
(C) Such reports shall be filed not later than the 10th day following the close of any calendar quarter in which the candidate or political committee concerned received contributions in excess of $1,000, or made expenditures in excess of $1,000, and shall be complete as of the close of such calendar quarter; except that any such report required to be filed after December 31 of any calendar year with respect to which a report is required to be filed under subparagraph (B) shall be filed as provided in such subparagraph. (D) When the last day for filing any quarterly report required by subparagraph (C) occurs within 10 days of an election, the filing of such quarterly report shall be waived and superseded by the report required by subparagraph (A) (i).
Any contribution of $1,000 or more received after the 15th day, but more than 48 hours, before any election shall be reported within 48 hours after its receipt.
(2) Each treasurer of a political committee which is not a principal campaign committee shall file the reports required under this section with the appropriate principal campaign committee.
(3) Upon a request made by a presidential candidate or a political committee which operates in more than one State, or upon its own motion, the Commission may waive the reporting dates set forth in paragraph (1) (other than the reporting date set forth in paragraph (1) (B)), and require instead that such candidate or political committee file reports not less frequently than monthly. The Commission may not require a presidential candidate or a political committee operating in more than one State to file more than 12 reports (not counting any report referred to in paragraph (1) (B)) during any calendar year. If the Commission acts on its own motion
(b) Contents of reports. Each report under this section shall disclose—
(1) the amount of cash on hand at the beginning of the reporting period;
(2) the full name and mailing address (occupation and the principal place of business, if any) of each person who has made one or more contributions to or for such committee or candidate (including the purchase of tickets for events such as dinners, luncheons, rallies, and similar fundraising events) within the calendar year in an aggregate amount or value in excess of $100, together with the amount and date of such contributions;
(3) the total sum of individual contributions made to or for such committee or candidate during the reporting period and not reported under paragraph (2);
(4) the name and address of each political committee or candidate from which the reporting committee or the candidate received, or to which that committee or candidate made, any transfer of funds, together with the amounts and dates of all transfers;
(5) each loan to or from any person within the calendar year in an aggregate amount or value in excess of $100, together with the full names and mailing addresses (occupations and the principal places of business, if any) of the lender, endorsers, and guarantors, if any, and the date and amount of such loans;
(6) the total amount of proceeds from—
(A) the sale of tickets to each dinner, luncheon, rally, and other fundraising event; (B) mass collections made at such events; and
(C) sales of items such as political campaign pins, buttons, badges, flags, emblems, hats, banners, literature, and similar materials;
(7) each contribution, rebate, refund, or other receipt in excess of $100 not otherwise listed under paragraphs (2) through (6);
(8) the total sum of all receipts by or for such committee or candidate during the reporting period, together with total expenditures less transfers between political committees which support the same candidate and which do not support more than one candidate;
(9) the identification of each person to whom expenditures have been made by such committee or on behalf of such committee or candidate within the calendar year in an aggregate amount or value in excess of $100, the amount, date, and purpose of each such expenditure and the name and address of, and office sought by, each candidate on whose behalf such expenditure was made;
(10) the identification of each person to whom an expenditure for personal services, salaries, and reimbursed expenses in excess of $100 has been made, and which is not otherwise reported, including the amount, date, and purpose of such expenditure;
(11) the total sum of expenditures made by such committee or candidate during the calendar year, together with total receipts less transfers between political committees which support the same candidate and which do not support more than one candidate;
(12) the amount and nature of debts and obligations owed by or to the committee, in such form as the supervisory officer may prescribe and a continuous reporting of their debts and obligations after the election at such periods as the Commission may require until such debts and obligations are extinguished, together with a statement as to the circumstances and conditions under which any such debt or obligation is extinguished and the consideration therefor; and (13) such other information as shall be required by the Commission.
(c) Cumulative reports for calendar year; amounts for unchanged items carried forward; statement of inactive status. The reports required to be filed by subsection (a) of this section shall be cumulative during the calendar year to which they relate, but where there has been no change in an item reported in a previous report during such year, only the amount need be carried forward. If no contributions or expenditures have been accepted or expended during a calendar year, the treasurer of the political committee or candidate shall file a statement to that effect.
(d) Members of Congress; reporting exemption. This section does not require a Member of the Congress to report, as contributions received or as expenditures made, the value of photographic, matting, or recording services furnished to him by the Senate Recording Studio, the House Recording Studio, or by an individual whose pay is disbursed by the Secretary of the Senate or the Clerk of the House of Representatives and who furnishes such services as his primary duty as an employee of the Senate or House of Representatives, or if such services were paid for by the Republican or Democratic Senatorial Campaign Committee, the Democratic National Congressional
(e) Reports by other than political committees. Every person (other than a political committee or candidate) who makes contributions or expenditures, other than by contribution to a political committee or candidate, in an aggregate amount in excess of $100 within a calendar year shall file with the Commission a statement containing the information required by this section. Statements required by this subsection shall be filed on the dates on which reports by political committees are filed but need not be cumulative.
§ 437a. Reports by certain persons; exemptions.
Any person (other than an individual) who expends any funds or commits any act directed to the public for the purpose of influencing the outcome of an election, or who publishes or broadcasts to the public any material referring to a candidate (by name, description, or other reference) advocating the election or defeat of such candidate, setting forth the candidate‘s position on any public issue, his voting record, or other official acts (in the case of a candidate who holds or has held Federal office), or otherwise designed to influence individuals to cast their votes for or against such candidate or to withhold their votes from such candidate shall file reports with the Commission as if such person were a political committee. The reports filed by such person shall set forth the source of the funds used in carrying out any activity described in the preceding sentence in the same detail as if the funds were contributions within the meaning of section 431 (e) of this title, and payments of such funds in the same detail as if they were expenditures within the meaning of section 431 (f) of this title. The provisions
(1) such publication is primarily for distribution to individuals affiliated by membership or stock ownership with the person (other than an individual) distributing it or causing it to be distributed, and not primarily for purchase by the public at newsstands or paid by subscription; or
(2) the news story, commentary, or editorial is distributed by a person (other than an individual) who devotes a substantial part of his activities to attempting to influence the outcome of elections, or to influence public opinion with respect to matters of national or State policy or concern.
§ 437c. Federal Election Commission.
(a) Establishment; membership; term of office; vacancies; qualifications; compensation; chairman and vice chairman.
(1) There is established a commission to be known as the Federal Election Commission. The Commission is composed of the Secretary of the Senate and the Clerk of the House of Representatives, ex officio and without the right to vote, and six members appointed as follows:
(A) two shall be appointed, with the confirmation of a majority of both Houses of the Congress, by the President pro tempore of the Senate upon the recommendations of the majority leader of the Senate and the minority leader of the Senate;
(B) two shall be appointed, with the confirmation of a majority of both Houses of the Congress, by the Speaker of the House of Representatives, upon the recommendations of the majority leader of the House and the minority leader of the House; and (C) two shall be appointed, with the confirmation of a majority of both Houses of the Congress, by the President of the United States.
A member appointed under subparagraph (A), (B), or (C) shall not be affiliated with the same political party as the other member appointed under such paragraph.
(2) Members of the Commission shall serve for terms of 6 years, except that of the members first appointed—
(A) one of the members appointed under paragraph (1) (A) shall be appointed for a term ending on the April 30 first occurring more than 6 months after the date on which he is appointed;
(B) one of the members appointed under paragraph (1) (B) shall be appointed for a term ending 1 year after the April 30 on which the term of the member referred to in subparagraph (A) of this paragraph ends;
(C) one of the members appointed under paragraph (1) (C) shall be appointed for a term ending 2 years thereafter;
(D) one of the members appointed under paragraph (1) (A) shall be appointed for a term ending 3 years thereafter;
(E) one of the members appointed under paragraph (1) (B) shall be appointed for a term ending 4 years thereafter; and
(F) one of the members appointed under paragraph
(1) (C) shall be appointed for a term ending 5 years thereafter.
An individual аppointed to fill a vacancy occurring other than by the expiration of a term of office shall be appointed only for the unexpired term of the member he succeeds. Any vacancy occurring in the membership of the Commission shall be filled in the same manner as in the case of the original appointment.
(3) Members shall be chosen on the basis of their maturity, experience, integrity, impartiality, and good judgment and shall be chosen from among individuals who, at the time of their appointment, are not elected or appointed officers or employees in the executive, legislative, or judicial branch of the Government of the United States.
(4) Members of the Commission (other than the Secretary of the Senate and the Clerk of the House of Representatives) shall receive compensation equivalent to the compensation paid at level IV of the Executive Schedule (
(5) The Commission shall elect a chairman and a vice chairman from among its members (other than the Secretary of the Senate and the Clerk of the House of Representatives) for a term of one year. No member may serve as chairman more often than once during any term of office to which he is appointed. The chairman and the vice chairman shall not be affiliated with the same political party. The vice chairman shall act as chairman in the absence or disability of the chairman, or in the event of a vacancy in such office.
(b) Administration, enforcement, and formulation of policy; primary jurisdiction of civil enforcement.
The Commission shall administer, seek to obtain compliance with, and formulate policy with respect to this Act and sections 608, 610, 611, 613, 614, 615, 616,
(c) Voting requirement; nondelegation of function.
All decisions of the Commission with respect to the exercise of its duties and powers under the provisions of this subchapter shall be made by a majority vote of the members of the Commission. A member of the Commission may not delegate to any person his vote or any decisionmaking authority or duty vested in the Commission by the provisions of this subchapter.
(d) Meetings.
The Commission shall meet at least once each month and also at the call of any member.
(e) Rules for conduct of activities; seal, judicial notice; principal office.
The Commission shall prepare written rules for the conduct of its activities, shall have an official seal which shall be judicially noticed, and shall have its principal office in or near the District of Columbia (but it may meet or exercise any of its powers anywhere in the United States).
(f) Staff director and general counsel: appointment and compensation; appointment and compensation of personnel and procurement of intermittent services by staff director; use of assistance, personnel, and facilities of Federal agencies and departments.
(1) The Commission shall have a staff director and a general counsel who shall be appointed by the Commission. The staff director shall be paid at a rate not to exceed the rate of basic pay in effect for level IV of the Executive Schedule (
(2) With the approval of the Commission, the staff director may procure temporary and intermittent services to the same extent as is authorized by section 3109 (b) of Title 5, but at rates for individuals not to exceed the daily equivalent of the annual rate of basic pay in effect for grade GS-15 of the general schedule (
(3) In carrying out its responsibilities under this Act, the Commission shall, to the fullest extent practicable, avail itself of the assistance, including personnel and facilities, of other agencies and departments of the United States Government. The heads of such agencies and departments may make available to the Commission such personnel, facilities, and other assistance, with or without reimbursement, as the Commission may request.
§ 437d. Powers of Commission.
(a) Specific enumeration.
The Commission has the power—
(1) to require, by special or general orders, any person to submit in writing such reports and answers to questions as the Commission may prescribe; and such submission shall be made within such a reasonable period of time and under oath or otherwise as the Commission may determine;
(2) to administer oaths or affirmations;
(3) to require by subpena, signed by the chairman or the vice chairman, the attendance and testimony of witnesses and the production of all documentary evidence relating to the execution of its duties;
(4) in any proceeding or investigation, to order testimony to be taken by deposition before any person who is designated by the Commission and has
the power to administer oaths and, in such instances, to compel testimony and the production of evidence in the same manner as authorized under paragraph (3) of this subsection; (5) to pay witnesses the same fees and mileage as are paid in like circumstances in the courts of the United States;
(6) to initiate (through civil proceedings for injunctive, declaratory, or other appropriate relief), defend, or appeal any civil action in the name of the Commission for the purpose of enforcing the provisions of this Act, through its general counsel;
(7) to render advisory opinions under section 437 of this title;
(8) to make, amend, and repeal such rules, pursuant to the provisions of
chapter 5 of Title 5 , as are necessary to carry out the provisions of this Act;(9) to formulate general policy with respect to the administration of this Act and sections 608, 610, 611, 613, 614, 615, 616, and 617 of Title 18;
(10) to develop prescribed forms under subsection (a) (1) of this section; and
(11) to conduct investigations and hearings expeditiously, to encourage voluntary compliance, and to report apparent violations to the appropriate law enforcement authorities.
(b) Judicial orders for compliance with subpenas and orders of Commission; contempt of court.
Any United States district court within the jurisdiction of which any inquiry is carried on, may, upon petition by the Commission, in case of refusal to obey a subpena or order of the Commission issued under subsection (a) of this section, issue an order requiring compliance therewith. Any failure to obey the order of the
(c) Civil liability for disclosure of information.
No person shall be subject to civil liability to any person (other than the Commission or the United States) for disclosing information at the request of the Commission.
(d) Transmittal to Congress: Budget estimates or requests and legislative recommendations; prior transmittal to Congress: legislative recommendations.
(1) Whenever the Commission submits any budget estimate or request to the President of the United States or the Office of Management and Budget, it shall concurrently transmit a copy of such estimate or request to the Congress.
(2) Whenever the Commission submits any legislative recommendations, or testimony, or comments on legislation, requested by the Congress or by any Member of the Congress, to the President of the United States or the Office of Management and Budget, it shall concurrently transmit a copy thereof to the Congress or to the Member requesting the same. No officer or agency of the United States shall have any authority to require the Commission to submit its legislative recommendations, testimony, or comments on legislation, to any office or agency of the United States for approval, comments, or review, prior to the submission of such recommendations, testimony, or comments to the Congress.
§ 437e. Reports to President and Congress.
The Commission shall transmit reports to the President of the United States and to each House of the Congress no later than March 31 of each year. Each such report shall contain a detailed statement with respect to the activities of the Commission in carrying out its duties under this subchapter, together with recommendations
§ 437f. Advisory opinions.
(a) Written requests; written opinions within reasonable time; specific transactions or activities constituting violations of provisions.
Upon written request to the Commission by any individual holding Federal office, any candidate for Federal office, or any political committee, the Commission shall render an advisory opinion, in writing, within a reasonable time with respect to whether any specific transaction or activity by such individual, candidate, or political committee would constitute a violation of this Act, of
(b) Presumption of compliance with provisions based on good faith actions.
Notwithstanding any other provision of law, any person with respect to whom an advisory opinion is rendered under subsection (a) of this section who acts in good faith in accordance with the provisions and findings of such advisory opinion shall be presumed to be in compliance with the provision of this Act, of chapter 95 or chapter 96 of Title 26, or of section 608, 610, 611, 613, 614, 615, 616, or 617 of Title 18, with respect to which such advisory opinion is rendered.
(c) Requests made public; transmittal to Commission of comments of interested parties with respect to such requests.
Any request made under subsection (a) shall be made public by the Commission. The Commission shall before rendering an advisory opinion with respect to such request, provide any interested party with an opportunity to transmit written comments to the Commission with respect to such request.
(a) Violations; complaints and referrals; notification and investigation by Commission: venue, judicial orders; referral to law enforcement authorities: civil actions by Attorney General: venue, judicial orders, bond; subpenas; review by courts of appeals: time for petition, finality of judgment; review by Supreme Court; docket: advancement and priorities.
(1) (A) Any person who believes a violation of this Act or of section 608, 610, 611, 613, 614, 615, 616, or 617 of Title 18 has occurred may file a complaint with the Commission.
(B) In any case in which the Clerk of the House of Representatives or the Secretary of the Senate (who receive reports and statements as custodian for the Commission) has reason to believe a violation of this act or section 608, 610, 611, 613, 614, 615, 616, or 617 of Title 18 has occurred he shall refer such apparent violation to the Commission.
(2) The Commission upon receiving any complaint under paragraph (1) (A), or a referral under paragraph (1) (B), or if it has reason to believe that any person has committed a violation of any such provision, shall notify the person involved of such apparent violation and shall—
(A) report such apparent violation to the Attorney General; or
(B) make an investigation of such apparent violation.
(3) Any investigation under paragraph (2) (B) shall be conducted expeditiously and shall include an investigation of reports and statements filed by any complainant under this subchapter, if such complainant is a candidate. Any notification or investigation made under paragraph (2) shall not be made public by the Commission or by
(4) The Commission shall, at the request of any person who receives notice of an apparent violation under paragraph (2), conduct a hearing with respect to such apparent violation.
(5) If the Commission determines, after investigation, that there is reason to believe that any person has engaged, or is about to engage in any acts or practices which constitute or will constitute a violation of this Act, it may endeavor to correct such violation by informal methods of conference, conciliation, and persuasion. If the Commission fails to correct the violation through informal methods, it may institute a civil action for relief, including a permanent or temporary injunction, restraining order, or any other appropriate order in the district court of the United States for the district in which the person against whom such action is brought is found, resides, or transacts business. Upon a proper showing that such person has engaged or is about to еngage in such acts or practices, the court shall grant a permanent or temporary injunction, restraining order, or other order.
(6) The Commission shall refer apparent violations to the appropriate law enforcement authorities to the extent that violations of provisions of
(7) Whenever in the judgment of the Commission, after affording due notice and an opportunity for a hearing, any person has engaged or is about to engage in any acts or practices which constitute or will constitute a violation of any provision of this Act or of section 608, 610, 611, 613, 614, 615, 616, or 617 of Title 18,
(8) In any action brought under paragraph (5) or (7) of this subsection, subpenas for witnesses who are required to attend a United States district court may run into any other district.
(9) Any party aggrieved by an order granted under paragraph (5) or (7) of this subsection may, at any time within 60 days after the date of entry thereof, file a petition with the United States court of appeals for the circuit in which such order was issued for judicial review of such order.
(10) The judgment of the court of appeals affirming or setting aside, in whole or in part, any such order of the district Court shall be final, subject to review by the Supreme Court of the United States upon certiorari or certification as provided in
(11) Any action brought under this subsection shall be advanced on the docket of the court in which filed, and put ahead of all other actions (other than other actions brought under this subsection or under
(b) Reports of Attorney General to Commission respecting action taken; reports of Commission respecting status of referrals.
In any case in which the Commission refers an apparent violation to the Attorney General, the Attorney
§ 437h. Judicial review.
(a) Actions, including declaratory judgments, for construction of constitutional questions; eligible plaintiffs; certification of such questions to courts of appeals sitting en banc.
The Commission, the national committee of any political party, or any individual eligible to vote in any election for the office of President of the United States may institute such actions in the appropriate district court of the United States, including actions for declaratory judgment, as may be appropriate to construe the constitutionality of any provision of this Act or of section 608, 610, 611, 613, 614, 615, 616, or 617 of Title 18. The district court immediately shall certify all questions of constitutionality of this Act or of section 608, 610, 611, 613, 614, 615, 616, or 617 of Title 18, to the United States court of appeals for the circuit involved, which shall hear the matter sitting en banc.
(b) Appeal to Supreme Court; time for appeal.
Notwithstanding any other provision of law, any decision on a matter certified under subsection (a) of this section shall be reviewable by appeal directly to the Supreme Court of the United States. Such appeal shall be brought no later than 20 days after the decision of the court of appeals.
(c) Advancement on appellate docket and expedited deposition of certified questions.
§ 438. Administrative and judicial provisions.
(a) Federal Election Commission; duties.
It shall be the duty of the Commission—
(1) Forms. To develop and furnish to the person required by the provisions of this Act prescribed forms for the making of the reports and statements required to be filed with it under this subchapter;
(2) Manual for uniform bookkeeping and reporting methods. To prepare, publish, and furnish to the person required to file such reports and statements a manual setting forth recommended uniform methods of bookkeeping and reporting;
(3) Filing, coding, and cross-indexing system. To develop a filing, coding, and cross-indexing system consonant with the purposes of this subchapter;
(4) Public inspection; copies; sale or use restrictions. To make the reports and statements filed with it available for public inspection and copying, commencing as soon as practicable but not later than the end of the second day following the day during which it was received, and to permit copying of any such report or statement by hand or by duplicating machine, as requested by any person, at the expense of such person: Provided, That any information copied from such reports and statements shall not be sold or utilized by any person for the purpose of soliciting contributions or for any commercial purpose;
(5) Preservation of reports and statements. To preserve such reports and statements for a period of
10 years from date of receipt, except that reports and statements relating solely to candidates for the House of Representatives shall be preserved for only 5 years from the date of receipt;
(6) Index of reports and statements; publication in Federal Register. To compile and maintain a cumulative index of reports and statements filed with it, which shall be published in the Federal Register at regular intervals and which shall be available for purchase directly or by mail for a reasonable price;
(7) Special reports; publication. To prepare and publish from time to time special reports listing those candidates for whom reports were filed as required by this subchapter and those candidates for whom such reports were not filed as so required;
(8) Audits; investigations. To make from time to time audits and field investigations with respect to reports and statements filed under the provisions of this subchapter, and with respect to alleged failures to file any report or statement required under the provisions of this subchapter;
(9) Enforcement authorities; reports of violations. To report apparent violations of law to the appropriate law enforcement authorities; and
(10) Rules and regulations. To prescribe suitable rules and regulations to carry out the provisions of this subchapter, in accordance with the provisions of subsection (c) of this section.
(b) Commission; duties: national clearinghouse for information; studies, scope, publication, copies to general public at cost. It shall be the duty of the Commission to serve as a national clearinghouse for information in respect to the administration of elections. In carrying out its duties under this subsection, the Commission shall enter into contracts for the purpose of conducting independent
(1) the method of selection of, and the type of duties assigned to, officials and personnel working on boards of elections;
(2) practices relating to the registration of voters; and
(3) voting and counting methods.
Studies made under this subsection shall be published by the Commission and copies thereof shall be made available to the general public upon the payment of the cost thereof.
(c) Proposed rules or regulations; statement, transmittal to Congress; Presidential elections and Congressional elections; “legislative days” defined.
(1) The Commission, before prescribing any rule or regulation under this section, shall transmit a statement with respect to such rule or regulation to the Senate or the House of Representatives, as the case may be, in accordance with the provisions of this subsection. Such statement shall set forth the proposed rule or regulation and shall contain a detailed explanation and justification of such rule or regulation.
(2) If the appropriate body of the Congress which receives a statement from the Commission under this subsection does not, through appropriate action, disapprove the proposed rule or regulation set forth in such statement no later than 30 legislative days after receipt of such statement, then the Commission may prescribe such rule or regulation. In the case of any rule or regulation proposed to deal with reports or statements required to be filed under this subchapter by a candidate for the office of President
of the United States, and by political committees supporting such a candidate both the Senate and the House of Representatives shall have the power to disapprove such proposed rule or regulation. The Commission may not prescribe any rule or regulation which is disapproved under this paragraph.
(3) If the Commission proposes to prescribe any rule or regulation dealing with reports or statements required to be filed under this subchapter by a candidate for the office of Senator, and by political committees supporting such candidate, it shall transmit such statement to the Senate. If the Commission proposes to prescribe any rule or regulation dealing with reports or statements required to be filed under this subchapter by a candidate for the office of Representative, Delegate, or Resident Commissioner, and by political committees supporting such candidate, it shall transmit such statement to the House of Representatives. If the Commission proposes to prescribe any rule or regulation dealing with reports or statements required to be filed under this subchapter by a candidate for the office of President of the United States, and by political committees supporting such candidate it shall transmit such statement to the House of Representatives and the Senate.
(4) For purposes of this subsection, the term “legislative days” does not include, with respect to statements transmitted to the Senate, any calendar day on which the Senate is not in session, and with respect to statements transmitted to the House of Representatives, any calendar day on which the House of Representatives is not in session, and with respect to statements transmitted to both such bodies, any calendar day on which both Houses of the Congress are not in session.
(1) The Commission shall prescribe suitable rules and regulations to carry out the provisions of this subchapter, including such rules and regulations as may be necessary to require that—
(A) reports and statements required to be filed under this subchapter by a candidate for the office of Representative in, or Delegate or Resident Commissioner to, the Congress of the United States, and by political committees supporting such candidate, shall be received by the Clerk of the House of Representatives as custodian for the Commission;
(B) reports and statements required to be filed under this subchapter by a candidate for the office of Senator, and by political committees supporting such candidate, shall be received by the Secretary of the Senate as custodian for the Commission; and
(C) the Clerk of the House of Representatives and the Secretary of the Senate, as custodians for the Commission, each shall make the reports and statements received by him available for public inspection and copying in accordance with paragraph (4) of subsection (a) of this section, and preserve such reports and statements in accordance with paragraph (5) of subsection (a) of this section.
(2) It shall be the duty of the Clerk of the House of Representatives and the Secretary of the Senate to cooperate with the Commission in carrying out its duties under this Act and to furnish such services and facilities as may be required in accordance with this section.
(a) “Appropriate State” defined. A copy of each statement required to be filed with the Commission by this subchapter shall be filed with the Secretary of State (or, if there is no office of Secretary of State, the equivalent State officer) of the appropriate State. For purposes of this subsection, the term “appropriate State” means—
(1) for reports relating to expenditures and contributions in connection with the campaign for nomination for election, or election, of a candidate to the office of President or Vice President of the United States, each State in which an expenditure is made by him or on his behalf, and
(2) for reports relating to expenditures and contributions in connection with the campaign for nomination for election, or election, of a candidate to the office of Senator or Representative in, or Delegate or Resident Commissioner to, the Congress of the United States, the State in which he seeks election.
(b) Duties of State officers. It shall be the duty of the Secretary of State, or the equivalent State officer, under subsection (a) of this section—
(1) to receive and maintain in an orderly manner all reports and statements required by this subchapter to be filed with him;
(2) to preserve such reports and statements for a period of 10 years from date of receipt, except that reports and statements relating solely to candidates for the House of Representatives shall be preserved for only 5 years from the date of receipt;
(3) to make the reports and statements filed with him available for public inspection and copying during regular office hours, commencing as soon
as practicable but not later than the end of the day during which it was received, and to permit copying of any such report or statement by hand or by duplicating machine, requested by any person, at the expense of such person; and
(4) to compile and maintain a current list of all statements or parts of statements pertaining to each candidate.
§ 439a. Use of contributed amounts for certain purposes; rules of Commission.
Amounts received by a candidate as contributions that are in excess of any amount necessary to defray his expenditures, and any other amounts contributed to an individual for the purpose of supporting his activities as a holder of Federal office, may be used by such candidate or individual, as the case may be, to defray any ordinary and necessary expenses incurred by him in connection with his duties as a holder of Federal office, may be contributed by him to any organization described in
§ 441. Penalties for violations.
(a) Any person who violates any of the provisions of this subchapter shall be fined not more than $1,000 or imprisoned not more than 1 year, or both.
SUBCHAPTER II.—GENERAL PROVISIONS
§ 454. Partial invalidity.
If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the validity of the remainder of the Act and the application of such provision to other persons and circumstances shall not be affected thereby.
§ 456. Additional enforcement authority.
(a) Findings, after notice and hearing, or failure to file timely reports; disqualification for prescribed period from candidacy in future Federal elections.
In any case in which the Commission, after notice and opportunity for a hearing on the record in accordance with
(b) Judicial review of findings.
Any finding by the Commission under subsection (a) of this section shall be subject to judicial review in accordance with the provisions of
CHAPTER 29—ELECTIONS AND POLITICAL ACTIVITIES
§ 591. Definitions.
Except as otherwise specifically provided, when used in this section and in sections 597, 599, 600, 602, 608, 610, 611, 614, 615, and 617 of this title—
(a) “election” means—
(1) a general, special, primary, or runoff election,
(2) a convention or caucus of a political party held to nominate a candidate,
(3) a primary election held for the selection of delegates to a national nominating convention of a political party, or
(4) a primary election held for the expression of a preference for the nomination of persons for election to the office of President;
(b) a “candidate” means an individual who seeks nomination for election, or election, to Federal office, whether or not such individual is elected, and, for purposes of this paragraph, an individual shall be deemed to seek nomination for election, or election, to Federal office, if he has—
(1) taken the action necessary under the law of a State to qualify himself for nomination for election, or election, or
(2) received contributions or made expenditures, or has given his consent for any other person to receive contributions or make expenditures, with a view to bringing about his nomination for election, or election, to such office;
(c) “Federal office” means the office of President or Vice President of the United States, or Senator
or Representative in, or Delegate or Resident Commissioner to, the Congress of the United States;
(d) “political committee” means any committee, club, association, or other group of persons which receives contributions or makes expenditures during a calendar year in an aggregate amount exceeding $1,000;
(e) “contribution“—
(1) means a gift, subscription, loan, advance, or deposit of money or anything of value (except a loan of money by a national or State bank made in accordance with the applicable banking laws and regulations and in the ordinary course of business, which shall be considered a loan by each endorser or guarantor, in that proportion of the unpaid balance thereof that each endorser or guarantor bears to the total number of endorsers or gurantors), made for the purpose of influencing the nomination for election, or election, of any person to Federal office or for the purpose of influencing the results of a primary held for the selection of delegates to a national nominating convention of a political party or for the expression of a preference for the nomination of persons for election to the office of President of the United States;
(2) means a contract, promise, or agreement, express or implied, whether or not legally enforceable, to make a contribution for such purposes;
(3) means funds received by a political committee which are transferred to such committee from another political committee or other source;
(4) means the payment, by any person other than a candidate or a political committee, of compensation for the personal services of another person which are rendered to such candidate or political committee without charge for any such purpose; but
(5) does not include—
(A) the value of services provided without compensation by individuals who volunteer a portion or all of their time on behalf of a candidate or political committee;
(B) the use of real or personal property and the cost of invitations, food, and beverages, voluntarily provided by an individual to a candidate in rendering voluntary personal services on the individual‘s residential premises for candidate-related activities;
(C) the sale of any food or beverage by a vendor for use in a candidate‘s campaign at a charge less than the normal comparable charge, if such charge for use in a candidate‘s campaign is at least equal to the cost of such food or beverage to the vendor;
(D) any unreimbursed payment for travel expenses made by an individual who on his own behalf volunteers his personal services to a candidate; or
(E) the payment by a State or local committee of a political party of the costs of preparation, display, or mailing or other distribution incurred by such committee with respect to a printed slate card or sample
ballot, or other printed listing, of three or more candidates for any public office for which an election is held in the State in which such committee is organized, except that this clause shall not apply in the case of costs incurred by such committee with respect to a display of any such listing made on broadcasting stations, or in newspapers, magazines or other similar types of general public political advertising; to the extent that the cumulative value of activities by any person on behalf of any candidate under each of clauses (B), (C), and (D) does not exceed $500 with respect to any election;
(f) “expenditure“—
(1) means a purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value (except a loan of money by a national or State bank made in accordance with the applicable banking laws and regulations and in the ordinary course of business), made for the purpose of influencing the nomination for election, or election, of any person to Federal office or for the purpose of influencing the results of a primary held for the selection of delegates to a national nominating convention of a political party or for the expression of a preference for the nomination of persons for election to the office of President of the United States;
(2) means a contract, promise, or agreement, express or implied, whether or not legally enforceable, to make any expenditure; and
(3) means the transfer of funds by a political committee to another political committee; but
(4) does not include—
(A) any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication, unless such facilities are owned or controlled by any political party, political committee, or candidate;
(B) nonpartisan activity designed to encourage individuals to register to vote or to vote;
(C) any communication by any membership organization or corporation to its members or stockholders, if such membership organization or corporation is not organized primarily for the purpose of influencing the nomination for election, or election, of any person to Federal office;
(D) the use of real or personal property and the cost of invitations, food, and beverages, voluntarily provided by an individual to a candidate in rendering voluntary personal services on the individual‘s residential premises for candidate-related activities;
(E) any unreimbursed payment for travel expenses made by an individual who on his own behalf volunteers his personal services to a candidate;
(F) any communication by any person which is not made for the purpose of influencing the nomination for election, or election, of any person to Federal office;
(G) the payment by a State or local committee of a political party of the costs of
preparation, display, or mailing or other distribution incurred by such committee with respect to a printed slate card or sample ballot, or other printed listing, of three or more candidates for any public office for which an election is held in the State in which such committee is organized, except that this clause shall not apply in the case of costs incurred by such committee with respect to a display of any such listing made on broadcasting stations, or in newspapers, magazines or other similar types of general public political advertising;
(H) any costs incurred by a candidate in connection with the solicitation of contributions by such candidate, except that this clause shall not apply with respect to costs incurred by a candidate in excess of an amount equal to 20 percent of the expenditure limitation applicable to such candidate under section 608 (c) of this title; or
(I) any costs incurred by a political committee (as such term is defined by section 608 (b) (2) of this title) with respect to the solicitation of contributions to such political committee or to any general political fund controlled by such political committee, except that this clause shall not apply to exempt costs incurred with respect to the solicitation of contributions to any such political committee made through broadcasting stations, newspapers, magazines, outdoor advertising facilities, and
other similar types of general public political advertising; to the extent that the cumulative value of activities by any individual on behalf of any candidate under each of clauses (D) or (E) does not exceed $500 with respect to any election;
(g) “person” and “whoever” mean an individual, partnership, committee, association, corporation, or any other organization or group of persons;
(h) “State” means each State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United States;
(i) “political party” means any association, committee, or organization which nominates a candidate for election to any Federal office whose name appears on the election ballot as the candidate of such association, committee, or organization;
(j) “State committee” means the organization which, by virtue of the bylaws of a political party, is responsible for the day-to-day operation of such political party at the State level, as determined by the Federal Election Commission;
(k) “national committee” means the organization which, by virtue of the bylaws of the political party, is responsible for the day-to-day operation of such political party at the national level, as determined by the Federal Election Commission established under
section 437c (a) of Title 2 ; and
(l) “principal campaign committee” means the principal campaign committee designated by a candidate under
section 432 (f) (1) of Title 2 .
§ 608. Limitations on contributions and expenditures.
(a) Personal funds of candidate and family.
(1) No candidate may make expenditures from
his personal funds, or the personal funds of his immediate family, in connection with his campaigns during any calendar year for nomination for election, or for election, to Federal office in excess of, in the aggregate—
(A) $50,000, in the case of a candidate for the office of President or Vice President of the United States;
(B) $35,000, in the case of a candidate for the office of Senator or for the office of Representative from a State which is entitled to only one Representative; or
(C) $25,000, in the case of a candidate for the office of Representative, or Delegate or Resident Commissioner, in any other State.
For purposes of this paragraph, any expenditure made in a year other than the calendar year in which the election is held with respect to which such expenditure was made, is considered to be made during the calendar year in which such election is held.
(2) For purposes of this subsection, “immediate family” means a candidate‘s spouse, and any child, parent, grandparent, brother, or sister of the candidate, and the spouses of such persons.
(3) No candidate or his immediate family may make loans or advances from their personal funds in connection with his campaign for nomination for election, or for election, to Federal office unless such loan or advance is evidenced by a written instrument fully disclosing the terms and conditions of such loan or advance.
(4) For purposes of this subsection, any such loan or advance shall be included in computing the total amount of such expenditures only to the extent
of the balance of such loan or advance outstanding and unpaid.
(b) Contributions by persons and committees.
(1) Except as otherwise provided by paragraphs (2) and (3), no person shall make contributions to any candidate with respect to any election for Federal office which, in the aggregate, exceed $1,000.
(2) No political committee (other than a principal campaign committee) shall make contributions to any candidate with respect to any election for Federal office which, in the aggregate, exceed $5,000. Contributions by the national committee of a political party serving as the principal campaign committee of a candidate for the office of President of the United States shall not exceed the limitation imposed by the preceding sentence with respect to any other candidate for Federal office. For purposes of this paragraph, the term “political committee” means an organization registered as a political committee under
section 433, Title 2, United States Code , for a period of not less than 6 months which has received contributions from more than 50 persons and, except for any State political party organization, has made contributions to 5 or more candidates for Federal office.
(3) No individual shall make contributions aggregating more than $25,000 in any calendar year. For purposes of this paragraph, any contribution made in a year other than the calendar year in which the election is held with respect to which such contribution was made, is considered to be made during the calendar year in which such election is held.
(4) For purposes of this subsection—
(A) contributions to a named candidate made
to any political committee authorized by such candidate, in writing, to accept contributions on his behalf shall be considered to be contributions made to such candidate; and
(B) contributions made to or for the benefit of any candidate nominated by a political party for election to the office of Vice President of the United States shall be considered to be contributions made to or for the benefit of the candidate of such party for election to the office of President of the United States.
(5) The limitations imposed by paragraphs (1) and (2) of this subsection shall apply separately with respect to each election, except that all elections held in any calendar year for the office of President of the United States (except a general election for such office) shall be considered to be one election.
(6) For purposes of the limitations imposed by this section, all contributions made by a person, either directly or indirectly, on behalf of a particular candidate, including contributions which are in any way earmarked or otherwise directed through an intermediary or conduit to such candidate, shall be treated as contributions from such person to such candidate. The intermediary or conduit shall report the original source and the intended recipient of such contribution to the Commission and to the intended recipient.
(c) Limitations on expenditures.
(1) No candidate shall make expenditures in excess of—
(A) $10,000,000, in the case of a candidate for nomination for election to the office of President of the United States, except that
the aggregate of expenditures under this subparagraph in any one State shall not exceed twice the expenditure limitation applicable in such State to a candidate for nomination for election to the office of Senator, Delegate, or Resident Commissioner, as the case may be;
(B) $20,000,000, in the case of a candidate for election to the office of President of the United States;
(C) in the case of any campaign for nomination for election by a candidate for the office of Senator or by a candidate for the office of Representative from a State which is entitled to only one Representative, the greater of—
(i) 8 cents multiplied by the voting age population of the State (as certified under subsection (g)); or
(ii) $100,000;
(D) in the case of any campaign for election by a candidate for the office of Senator or by a candidate for the office of Representative from a State which is entitled to only one Representative, the greater of—
(i) 12 cents multiplied by the voting age population of the State (as certified under subsection (g)); or
(ii) $150,000;
(E) $70,000, in the case of any campaign for nomination for election, or for election, by a candidate for the office of Representative in any other State, Delegate from the District of Columbia, or Resident Commissioner; or
(F) $15,000, in the case of any campaign for nomination for election, or for election, by
a candidate for the office of Delegate from Guam or the Virgin Islands.
(2) For purposes of this subsection—
(A) expenditures made by or on behalf of any candidate nominated by a political party for election to the office of Vice President of the United States shall be considered to be expenditures made by or on behalf of the candidate of such party for election to the office of President of the United States; and
(B) an expenditure is made on behalf of a candidate, including a vice presidential candidate, if it is made by—
(i) an authorized committee or any other agent of the candidate for the purposes of making any expenditure; or
(ii) any person authorized or requested by the candidate, an authorized committee of the candidate, or an agent of the candidate, to make the expenditure.
(3) The limitations imposed by subparagraphs (C), (D), (E), and (F) of paragraph (1) of this subsection shall apply separately with respect to each election.
(4) The Commission shall prescribe rules under which any expenditure by a candidate for presidential nomination for use in 2 or more States shall be attributed to such candidate‘s expenditure limitation in each such State, based on the voting age population in such State which can reasonably be expected to be influenced by such expenditure.
(d) Adjustment of limitations based on price index.
(1) At the beginning of each calendar year (commencing in 1976), as there become available necessary
data from the Bureau of Labor Statistics of the Department of Labor, the Secretary of Labor shall certify to the Commission and publish in the Federal Register the per centum difference between the price index for the 12 months preceding the beginning of such calendar year and the price index for the base period. Each limitation established by subsection (c) and subsection (f) shall be increased by such per centum difference. Each amount so increased shall be the amount in effect for such calendar year.
(2) For purposes of paragraph (1)—
(A) the term “price index” means the average over a calendar year of the Consumer Price Index (all items—United States city average) published monthly by the Bureau of Labor Statistics; and
(B) the term “base period” means the calendar year 1974.
(e) Expenditure relative to clearly identified candidate.
(1) No person may make any expenditure (other than an expenditure made by or on behalf of a candidate within the meaning of subsection (c) (2) (B)) relative to a clearly identified candidate during a calendar year which, when added to all other expenditures made by such person during the year advocating the election or defеat of such candidate, exceeds $1,000.
(2) For purposes of paragraph (1)—
(A) “clearly identified” means—
(i) the candidate‘s name appears;
(ii) a photograph or drawing of the candidate appears; or
(iii) the identity of the candidate is apparent by unambiguous reference; and
(B) “expenditure” does not include any payment made or incurred by a corporation or a labor organization which, under the provisions of the last paragraph of section 610, would not constitute an expenditure by such corporation or labor organization.
(f) Exceptions for national and State committees.
(1) Notwithstanding any other provision of law with respect to limitations on expenditures or limitations on contributions, the national committee of a political party and a State committee of a political party, including any subordinate committee of a State committee, may make expenditures in connection with the general election campaign of candidates for Federal office, subject to the limitations contained in paragraphs (2) and (3) of this subsection.
(2) The national committee of a political party may not make any expenditure in connection with the general election campaign of any candidate for President of the United States who is affiliated with such party which exceeds an amount equal to 2 cents multiplied by the voting age population of the United States (as certified under subsection (g)). Any expenditure under this paragraph shall be in addition to any expenditure by a national committee of a political party serving as the principal campaign committee of a candidate for the office of President of the United States.
(3) The national committee of a political party, or a State committee of a political party, including any subordinate committee of a State committee, may not make any expenditure in connection with the general election campaign of a candidate for
Federal office in a State who is affiliated with such party which exceeds—
(A) in the case of a candidate for election to the office of Senator, or of Representative from a State which is entitled to only one Representative, the greater of—
(i) 2 cents multiplied by the voting age population of the State (as certified under subsection (g)); or
(ii) $20,000; and
(B) in the case of a candidate for election to the office of Representative, Delegate, or Resident Commissioner in any other State, $10,000.
(g) Voting age population estimates. During the first week of January 1975, and every subsequent year, the Secretary of Commerce shall certify to the Commission and publish in the Federal Register an estimate of the voting age population of the United States, of each State, and of each congressional district as of the first day of July next preceding the date of certification. The term “voting age population” means resident population, 18 years of age or older.
(h) Knowing violations. No candidate or political committee shall knowingly accept any contribution or make any expenditure in violation of the provisions of this section. No officer or employee of a political committee shall knowingly accept a contribution made for the benefit or use of a candidate, or knowingly make any expenditure on behalf of a candidate, in violation of any limitation imposed on contributions and expenditures under this section.
(i) Penalties. Any person who violates any provision of this section shall be fined not more than $25,000 or imprisoned not more than 1 year, or both.
It is unlawful for any national bank, or any corporation organized by authority of any law of Congress, to make a contribution or expenditure in connection with any election to any political office, or in connection with any primary election or political convention or caucus held to select candidates for any political office, or for any corporation whatever, or any labor organization to make a contribution or expenditure in connection with any election at which presidential and vice presidential electors or a Senator or Representative in, or a Delegate or Resident Commissioner to Congress are to be voted for, or in connection with any primary election or political convention or caucus held to select candidates for any of the foregoing offices, or for any candidate, political committee, or other person to accept or receive any contribution prohibited by this section.
Every corporation or labor organization which makes any contribution or expenditure in violation of this section shall be fined not more than $25,000; and every officer or director of any corporation, or officer of any labor organization, who consents to any contribution or expenditure by the corporation or labor organization, as the case may be, and any person who accepts or receives any contribution, in violation of this section, shall be fined not more than $1,000 or imprisoned not more than 1 year, or both; and if the violation was willful, shall be fined not more than $50,000 or imprisoned not more than 2 years or both.
For the purposes of this section “labor organization” means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exist for the purpose,
As used in this section, the phrase “contribution or expenditure” shall include any direct or indirect payment, distribution, loan, advance, deposit, or gift of money, or any services, or anything of value (except a loan of money by a national or State bank made in accordance with the applicable banking laws and regulations and in the ordinary course of business) to any candidate, campaign committee, or political party or organization, in connection with any election to any of the offices referred to in this section; but shall not include communications by a corporation to its stockholders and their families or by a labor organization to its members and their families on any subject; nonpartisan registration and get-out-the-vote campaigns by a corporation aimed at its stockholders and their families, or by a labor organization aimed at its members and their families; the establishment, administration, and solicitation of contributions to a separate segregated fund to be utilized for political purposes by a corporation or labor organization: Provided, That it shall be unlawful for such a fund to make a contribution or expenditure by utilizing money or anything of value secured by physical force, job discrimination, financial reprisals, or the threat of force, job discrimination, or financial reprisal; or by dues, fees, or other monies required as a condition of membership in a labor organization or as a condition of employment, or by monies obtained in any commercial transaction.
§ 611. Contributions by Government contractors.
Whoever—
(a) entering into any contract with the United States or any department or agency thereof either
for the rendition of personal services or furnishing any material, supplies, or equipment to the United States or any department or agency thereof or for selling any land or building to the United States or any department or agency thereof, if payment for the performance of such contract or payment for such material, supplies, equipment, land, or building is to be made in whole or in part from funds appropriated by the Congress, at any time between the commencement of negotiations for and the later of—
(1) the completion of performance under, or
(2) the termination of negotiations for, such contract or furnishing of material, supplies, equipment, land or buildings,
directly or indirectly makes any contribution of money or other thing of value, or promises expressly or impliedly to make any such contribution, to any political party, committee, or candidate for public office or to any person for any political purpose or use; or
(b) knowingly solicits any such contribution from any such person for any such purpose during any such period;
shall be fined not more than $25,000 or imprisoned not more than 5 years, or both.
This section does not prohibit or make unlawful the establishment or administration of, or the solicitation of contributions to, any separate segregated fund by any corporation or labor organization for the purpose of influencing the nomination for election, or election, of any person to Federal office, unless the provisions of section 610 of this title prohibit or make unlawful the establishment or administration of, or the solicitation of contributions to, such fund.
For purposes of this section, the term “labor organization”
TITLE 26. INTERNAL REVENUE CODE
§ 6096. Designation by individuals.
(a) In general. Every individual (other than a non-resident alien) whose income tax liability for the taxable year is $1 or more may designate that $1 shall be paid over to the Presidential Election Campaign Fund in accordance with the provisions of section 9006 (a). In the case of a joint return of husband and wife having an income tax liability of $2 or more, each spouse may designate that $1 shall be paid to the fund.
(b) Income tax liability. For purposes of subsection (a), the income tax liability for an individual for any taxable year is the amount of the tax imposed by chapter 1 on such individual for such taxable year (as shown on his return), reduced by the sum of the credits (as shown in his return) allowable under sections 33, 37, 38, 40, and 41.
(c) Manner and time of designation. A designation under subsection (a) may be made with respect to any taxable year—
(1) at the time of filing the return of the tax imposed by chapter 1 for such taxable year, or
(2) at any other time (after the time of filing the return of the tax imposed by chapter 1 for such taxable year) specified in regulations prescribed by the Secretary or his delegate.
Such designation shall be made in such manner as the Secretary or his delegate prescribes by regulations except that, if such designation is made at the time of filing the return of the tax imposed by chapter 1 for such taxable year, such designation shall be made either on the
CHAPTER 95—PRESIDENTIAL ELECTION CAMPAIGN FUND
§ 9001. Short title.
This chapter may be cited as the “Presidential Election Campaign Fund Act.”
§ 9002. Definitions.
For purposes of this chapter—
(1) The term “authorized committee” means, with respect to the candidates of a political party for President and Vice President of the United States, any political committee which is authorized in writing by such candidates to incur expenses to further the election of such candidates. Such authorization shall be addressed to the chairman of such political committee, and a copy of such authorization shall be filed by such candidates with the Commission. Any withdrawal of any authorization shall also be in writing and shall be addressed and filed in the same manner as the authorization.
(2) The term “candidate” means, with respect to any presidential election, an individual who—
(A) has been nominated for election to the office of President of the United States or the office of Vice President of the United States by a major party, or
(B) has qualified to have his name on the election ballot (or to have the names of electors pledged to him on the election ballot) as the candidate of a political party for election to either such office in 10 or more States.
For purposes of paragraphs (6) and (7) of this section and purposes of section 9004 (a) (2), the term “candidate” means, with respect to any preceding presidential
(3) The term “Commission” means the Federal Election Commission established by
(4) The term “eligible candidates” means the candidates of a political party for President and Vice President of the United States who have met all applicable conditions for eligibility to receive payments under this chapter set forth in section 9003.
(5) The term “fund” means the Presidential Election Campaign Fund established by section 9006 (a).
(6) The term “major party” means, with respect to any presidential election, a political party whose candidate for the office of President in the preceding presidential election received, as the candidate of such party, 25 percent or more of the total number of popular votes received by all candidates for such office.
(7) The term “minor party” means, with respect to any presidential election, a political party whose candidate for the office of President in the preceding presidential election received, as the candidate of such party, 5 percent or more but less than 25 percent of the total number of popular votes received by all candidates for such office.
(8) The term “new party” means, with respect to any presidential election, a political party which is neither a major party nor a minor party.
(9) The term “political committee” means any committee, association, or organization (whether or not incorporated) which accepts contributions or makes expenditures for the purpose of influencing, or attempting to influence, the nomination or election of one or more individuals to Federal, State, or local elective public office.
(11) The term “qualified campaign expense” means an expense—
(A) incurred—
(i) by the candidate of a political party for the office of President to further his election to such office or to further the election of the candidate of such political party for the office of Vice President, or both,
(ii) by the candidate of a political party for the office of Vice President to further his election to such office or to further the election of the candidate of such political party for the office of President, or both, or
(iii) by an authorized committee of the candidates of a political party for the offices of President and Vice President to further the election of either or both of such candidates to such offices;
(B) incurred within the expenditure report period (as defined in paragraph (12)), or incurred before the beginning of such period to the extent such expense is for property, services, or facilities used during such period; and
(C) neither the incurring nor payment of which constitutes a violation of any law of the United States or of the State in which such expense is incurred or paid.
An expense shall be considered as incurred by a candidate or an authorized committee if it is incurred by a person authorized by such candidate or such committee, as the case may be, to incur such expense on behalf of such candidate or such committee. If an authorized committee of the candidates of a political party for
(12) The term “expenditure report period” with respect to any presidential election means—
(A) in the case of a major party, the period beginning with the first day of September before the election, or, if earlier, with the date on which such major party at its national convention nominated its candidate for election to the office of President of the United States, and ending 30 days after the date of the presidential election; and
(B) in the case of a party which is not a major party, the same period as the expenditure report period of the major party which has the shortest expenditure report period for such presidential election under subparagraph (A).
§ 9003. Condition for eligibility for payments.
(a) In general. In order to be eligible to receive any payments under section 9006, the candidates of a political party in a presidential election shall, in writing—
(1) agree to obtain and furnish to the Commission such evidence as it may request of the qualified campaign expenses of such candidates;
(2) agree to keep and furnish to the Commission such records, books, and other information as it may request; and
(3) agree to an audit and examination by the
Commission under section 9007 and to pay any amounts required to be paid under such section.
(b) Major parties. In order to be eligible to receive any payments under section 9006, the candidates of a major party in a presidential election shall certify to the Commission, under penalty of perjury, that—
(1) such candidates and their authorized committees will not incur qualified campaign expenses in excess of the aggregate payments to which they will be entitled under section 9004; and
(2) no contributions to defray qualified campaign expenses have been or will be accepted by such candidates or any of their authorized committees except to the extent necessary to make up any deficiency in payments received out of the fund on account of the application of section 9006 (d), and no contributions to defray expenses which would be qualified campaign expenses but for subparagraph (C) of section 9002 (11) have been or will be accepted by such candidates or any of their authorized committees.
Such certification shall be made within such time prior to the day of the presidential election as the Commission shall prescribe by rules or regulations.
(c) Minor and new parties. In order to be eligible to receive any payments under section 9006, the candidates of a minor or new party in a presidential election shall certify to the Commission, under penalty of perjury, that—
(1) such candidates and their authorized committees will not incur qualified campaign expenses in excess of the aggregate payments to which the eligible candidates of a major party are entitled under section 9004; and
(2) such candidates and their authorized committees will accept and expend or retain contributions to defray qualified campaign expenses only to the extent that the qualified campaign expenses incurred by such candidates and their authorized committees certified to under paragraph (1) exceed the aggregate payments received by such candidates out of the fund pursuant to section 9006.
Such certification shall be made within such time prior to the day of the presidential election as the Commission shall prescribe by rules or regulations.
§ 9004. Entitlement of eligible candidates to payments.
(a) In general. Subject to the provisions of this chapter—
(1) The eligible candidates of each major party in a presidential election shall be entitled to equal payments under section 9006 in an amount which, in the aggregate, shall not exceed the expenditure limitations applicable to such candidates under
section 608 (c) (1) (B) of Title 18, United States Code .
(2) (A) The eligible candidates of a minor party in a presidential election shall be entitled to payments under section 9006 equal in the aggregate to an amount which bears the same ratio to the amount allowed under paragraph (1) for a major party as number of popular votes received by the candidate for President of the minor party, as such candidate, in the preceding presidential election bears to the average number of popular votes received by the candidates for President of the major parties in the preceding presidential election.
(B) If the candidate of one or more political parties (not including a major party) for the office of President was a candidate for such office in the preceding presidential election and received 5 percent
or more but less than 25 percent of the total number of popular votes received by all candidates for such office, such candidate and his running mate for the office of Vice President, upon compliance with the provisions of section 9003 (a) and (c), shall be treated as eligible candidates entitled to payments under section 9006 in an amount computed as provided in subparagraph (A) by taking into account all the popular votes received by such candidate for the office of President in the preceding presidential election. If eligible candidates of a minor party are entitled to payments under this subparagraph, such entitlement shall be reduced by the amount of the entitlement allowed under subparagraph (A).
(3) The eligible candidates of a minor party or a new party in a presidential election whose candidate for President in such election receives, as such candidate, 5 percent or more of the total number of popular votes cast for the office of President in such election shall be entitled to payments under section 9006 equal in the aggregate to an amount which bears the same ratio to the amount allowed under paragraph (1) for a major party as the number of popular votes received by such candidate in such election bears to the average number of popular votes received in such election by the candidates for President of the major parties. In the case of eligible candidates entitled to payments under paragraph (2), the amount allowable under this paragraph shall be limited to the amount, if any, by which the entitlement under the preceding sentence exceeds the amount of the entitlement under paragraph (2).
(b) Limitations. The aggregate payments to which the eligible candidates of a political party shall be entitled
(1) the amount of qualified campaign expenses incurred by such eligible candidates and their authorized committees, reduced by the amount of contributions to defray qualified campaign expenses received and expended or retained by such eligible candidates and such committees; or
(2) the aggregate payments to which the eligible candidates of a major party are entitled under subsection (a) (1), reduced by the amount of contributions described in paragraph (1) of this subsection.
(c) Restrictions. The eligible candidates of a political party shall be entitled to payments under subsection (a) only—
(1) to defray qualified campaign expenses incurred by such eligible candidates or their authorized committees; or
(2) to repay loans the proceeds of which were used to defray such qualified campaign expenses, or otherwise to restore funds (other than contributions to defray qualified campaign expenses received and expended by such candidates or such committees) used to defray such qualified campaign expenses.
§ 9005. Certification by Commission.
(a) Initial certifications. Not later than 10 days after the candidates of a political party for President and Vice President of the United States have met all applicable conditions for eligibility to receive payments under this chapter set forth in section 9003, the Commission shall certify to the Secretary for payment to such eligible candidates under section 9006 payment in full of amounts to which such candidates are entitled under section 9004.
§ 9006. Payments to eligible candidates.
(a) Establishment of campaign fund. There is hereby established on the books of the Treasury of the United States a special fund to be known as the “Presidential Election Campaign Fund.” The Secretary shall, from time to time, transfer to the fund an amount not in excess of the sum of the amounts designated (subsequent to the previous Presidential election) to the fund by individuals under section 6096. There is appropriated to the fund for each fiscal year, out of amounts in the general fund of the Treasury not otherwise appropriated, an amount equal to the amounts so designated during each fiscal year, which shall remain available to the fund without fiscal year limitation.
(b) Transfer to the general fund. If, after a Presidential election and after all eligible candidates have been paid the amount which they are entitled to receive under this chapter, there are moneys remaining in the fund, the Secretary shall transfer the moneys so remaining to the general fund of the Treasury.
(c) Payments from the fund. Upon receipt of a certification from the Commission under section 9005 for payment to the eligible candidates of a political party, the Secretary shall pay to such candidates out of the fund the amount certified by the Commission. Amounts paid to any such candidates shall be under the control of such candidates.
(d) Insufficient amounts in fund. If at the time of a
§ 9007.
(a) Examinations and audits. After each presidential election, the Commission shall conduct a thorough examination and audit of the qualified campaign expenses of the candidates of each political party for President and Vice President.
(b) Repayments.
(1) If the Commission determines that any portion of the payments made to the eligible candidates of a political party under section 9006 was in excess of the aggregate payments to which candidates were entitled under section 9004, it shall so notify such candidates, and such candidates shall pay to the Secretary an amount equal to such portion.
(2) If the Commission determines that the eligible candidates of a political party and their authorized
committees incurred qualified campaign expenses in excess of the aggregate payments to which the eligible candidates of a major party were entitled under section 9004, it shall notify such candidates of the amount of such excess and such candidates shall pay to the Secretary an amount equal to such amount.
(3) If the Commission determines that the eligible candidates of a major party or any authorized committee of such candidates accepted contributions (other than contributions to make up deficiencies in payments out of the fund on account of the application of section 9006 (d)) to defray qualified campaign expenses (other than qualified campaign expenses with respect to which payment is required under paragraph (2)), it shall notify such candidates of the amount of the contributions so accepted, and such candidates shall pay to the Secretary an amount equal to such amount.
(4) If the Commission determines that any amount of any payment made to the eligible candidates of a political party under section 9006 was used for any purpose other than—
(A) to defray the qualified campaign expenses with respect to which such payment was made; or
(B) to repay loans the proceeds of which were used, or otherwise to restore funds (other than contributions to defray qualified campaign expenses which were received and expended) which were used to defray such qualified campaign expenses,
it shall notify such candidates of the amount so used, and such candidates shall pay to the Secretary an amount equal to such amount.
(5) No payment shall be required from the eligible
candidates of a political party under this subsection to the extent that such payment, when added to other payments required from such candidates under this subsection, exceeds the amount of payments received by such candidates under section 9006.
(c) Notification. No notification shall be made by the Commission under subsection (b) with respect to a presidential election more than 3 years after the day of such election.
(d) Deposit of repayments. All payments received by the Secretary under subsection (b) shall be deposited by him in the general fund of the Treasury.
§ 9008. Payments for presidential nominating conventions.
(a) Establishment of accounts. The Secretary shall maintain in the fund, in addition to any account which he maintains under section 9006 (a), a separate account for the national committee of each major party and minor party. The Secretary shall deposit in each such account an amount equal to the amount which each such committee may receive under subsection (b). Such deposits shall be drawn from amounts designated by individuals under section 6096 and shall be made before any transfer is made to any account for any eligible candidate under section 9006 (a).
(b) Entitlement to payments from the fund.
(1) Major parties. Subject to the provisions of this section, the national committee of a major party shall be entitled to payments under paragraph (3), with respect to any presidential nominating convention, in amounts which, in the aggregate, shall not exceed $2 million.
(2) Minor parties. Subject to the provisions of this section, the national committee of a minor party
shall be entitled to payments under paragraph (3), with respect to any presidential nominating convention, in amounts which, in the aggregate, shall not exceed an amount which bears the same ratio to the amount the national committee of a major party is entitled to receive under paragraph (1) as the number of popular votes received by the candidate for President of the minor party, as such candidate, in the preceding presidential election bears to the average number of popular votes received by the candidates for President of the United States of the major parties in the preceding presidential election.
(3) Payments. Upon receipt of certification from the Commission under subsection (g), the Secretary shall make payments from the appropriate account maintained under subsection (a) to the national committee of a major party or minor party which elects to receive its entitlement under this subsection. Such payments shall be available for use by such committee in accordance with the provisions of sub-section (c).
(4) Limitation. Payments to the national committee of a major party or minor party under this subsection from the account designated for such committee shall be limited to the amounts in such account at the time of payment.
(5) Adjustment of entitlements. The entitlements established by this subsection shall be adjusted in the same manner as expenditure limitations established by section 608 (c) and section 608 (f) of Title 18, United States Code, are adjusted pursuant to the provisions of section 608 (d) of such title.
(c) Use of funds. No part of any payment made under subsection (b) shall be used to defray the expenses
(1) to defray expenses incurred with respect to a presidential nominating convention (including the payment of deposits) by or on behalf of the national committee receiving such payments; or
(2) to repay loans the proceeds of which were used to defray such expenses, or otherwise to restore funds (other than contributions to defray such expenses received by such committee) used to defray such expenses.
(d) Limitation of expenditures.
(1) Major parties. Except as provided by paragraph (3), the national committee of a major party may not make expenditures with respect to a presidential nominating convention which, in the aggregate, exceed the amount of payments to which such committee is entitled under subsection (b) (1).
(2) Minor parties. Except as provided by paragraph (3), the national committee of a minor party may not make expenditures with respect to a presidential nominating convention which, in the aggregate, exceed the amount of the entitlement of the national committee of a major party under subsection (b) (1).
(3) Exception. The Commission may authorize the national committee of a major party or minor party to make expenditures which, in the aggregate, exceed the limitation established by paragraph (1) or paragraph (2) of this subsection. Such authorization shall be based upon a determination by the Commission that, due to extraordinary and unforeseen circumstances, such expenditures are necessary
to assure the effective operation of the presidential nominating convention by such committee.
(e) Availability of payments. The national committee of a major party or minor party may receive payments under subsection (b) (3) beginning on July 1 of the calendar year immediately preceding the calendar year in which a presidential nominating convention of the political party involved is held.
(f) Transfer to the fund. If, after the close of a presidential nominating convention and after the national committee of the political party involved has been paid the amount which it is entitled to receive under this section, there are moneys remaining in the account of such national committee, the Secretary shall transfer the moneys so remaining to the fund.
(g) Certification by Commission. Any major party or minor party may file a statement with the Commission in such form and manner and at such times as it may require, designating the national committee of such party. Such statement shall include the information required by section 433 (b) of Title 2, United States Code, together with such additional information as the Commission may require. Upon receipt of a statement filed under the preceding sentences, the Commission promptly shall verify such statement according to such procedures and criteria as it may establish and shall certify to the Secretary for payment in full to any such committee of amounts to which such committee may be entitled under subsection (b). Such certifications shall be subject to an examination and audit which the Commission shall conduct no later than December 31 of the calendar year in which the presidential nominating convention involved is held.
(h) Repayments. The Commission shall have the same authority to require repayments from the national
§ 9009. Reports to Congress; regulations.
(a) Reports. The Commission shall, as soon as practicable after each presidential election, submit a full report to the Senate and House of Representatives setting forth—
(1) the qualified campaign expenses (shown in such detail as the Commission determines necessary) incurred by the candidates of each political party and their authorized committees;
(2) the amounts certified by it under section 9005 for payment to eligible candidates of each political party;
(3) the amount of payments, if any, required from such candidates under section 9007, and the reasons for each payment required;
(4) the expenses incurred by the national committee of a major party or minor party with respect to a presidential nominating convention;
(5) the amounts certified by it under section 9008 (g) for payment to each such committee; and
(6) the amount of payments, if any, required from such committees under section 9008 (h), and the reasons for each such payment.
Each report submitted pursuant to this section shall be printed as a Senate document.
(b) Regulations, etc. The Commission is authorized to prescribe such rules and regulations in accordance with the provisions of subsection (c), to conduct such
(c) Review of regulations.
(1) The Commission, before prescribing any rule or regulation under subsection (b), shall transmit a statement with respect to such rule or regulation to the Senate and to the House of Representatives, in accordance with the provisions of this subsection. Such statement shall set forth the proposed rule or regulation and shall contain a detailed explanation and justification of such rule or regulation.
(2) If either such House does not, through appropriate action, disapprove the proposed rule or regulation set forth in such statement no later than 30 legislative days after receipt of such statement, then the Commission may prescribe such rule or regulation. The Commission may not prescribe any rule or regulation which is disapproved by either such House under this paragraph.
(3) For purposes of this subsection, the term “legislative days” does not include any calendar day on which both Houses of the Congress are not in session.
§ 9010. Participation by Commission in judicial proceedings.
(a) Appearance by counsel. The Commission is authorized to appear in and defend against any action filed under section 9011, either by attorneys employed in its office or by counsel whom it may appoint without regard to the provisions of Title 5, United States Code, governing appointments in the competitive service, and
(b) Recovery of certain payments. The Commission is authorized through attorneys and counsel described in subsection (a) to appear in the district courts of the United States to seek recovery of any amounts determined to be payable to the Secretary as a result of examination and audit made pursuant to section 9007.
(c) Declaratory and injunctive relief. The Commission is authorized through attorneys and counsel described in subsection (a) to petition the courts of the United States for declaratory or injunctive relief concerning any civil matter covered by the provisions of this subtitle or section 6096. Upon application of the Commission an action brought pursuant to this subsection shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of Title 28, United States Code, and any appeal shall lie to the Supreme Court. It shall be the duty of the judges designated to hear the case to assign the case for hearing at the earliest practicable date, to participate in the hearing and determination thereof, and to cause the case to be in every way expedited.
(d) Appeal. The Commission is authorized on behalf of the United States to appeal from, and to petition the Supreme Court for certiorari to review, judgments or decrees entered with respect to actions in which it appears pursuant to the authority provided in this section.
§ 9011. Judicial review.
(a) Review of certification, determination, or other action by the Commission. Any certification, determination, or other action by the Commission made or taken pursuant to the provisions of this chapter shall be subject to review by the United States Court of Appeals for
(b) Suits to implement chapter.
(1) The Commission, the national committee of any political party, and individuals eligible to vote for President are authorized to institute such actions, including actions for declaratory judgment or injunctive relief, as may be appropriate to implement or contrue1 any provisions of this chapter.
(2) The district courts of the United States shall have jurisdiction of proceedings instituted pursuant to this subsection and shall exercise the same without regard to whether a person asserting rights under provisions of this subsection shall have exhausted any administrative or other remedies that may be provided at law. Such proceedings shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of Title 28, United States Code, and any appeal shall lie to the Supreme Court. It shall be the duty of the judges designated to hear the case to assign the case for hearing at the earliest practicable date, to participate in the hearing and determination thereof, and to cause the case to be in every way expedited.
§ 9012. Criminal penalties.
(a) Excess expenses.
(1) It shall be unlawful for an eligible candidate of a political party for President and Vice President in a presidential election or any of his authorized committees knowingly and willfully to incur qualified
campaign expenses in excess of the aggregate payments to which the eligible candidates of a major party are entitled under section 9004 with respect to such election. It shall be unlawful for the national committee of a major party or minor party knowingly and willfully to incur expenses with respect to a presidential nominating convention in excess of the expenditure limitation applicable with respect to such committee under section 9008 (d), unless the incurring of such expenses is authorized by the Commission under section 9008 (d) (3).
(2) Any person who violates paragraph (1) shall be fined not more than $5,000, or imprisoned not more than 1 year or both. In the case of a violation by an authorized committee, any officer or member of such committee who knowingly and willfully consents to such violation shall be fined not more than $5,000, or imprisoned not more than 1 year, or both.
(b) Contributions.
(1) It shall be unlawful for an eligible candidate of a major party in a presidential election or any of his authorized committees knowingly and willfully to accept any contribution to defray qualified campaign expenses, except to the extent necessary to make up any deficiency in payments received out of the fund on account of the application of section 9006 (d), or to defray expenses which would be qualified campaign expenses but for subparagraph (C) of section 9002 (11).
(2) It shall be unlawful for an eligible candidate of a political party (other than a major party) in a presidential election or any of his authorized committees knowingly and willfully to accept and expend or retain contributions to defray qualified
campaign expenses in an amount which exceeds the qualified campaign expenses incurred with respect to such election by such eligible candidate and his authorized committees.
(3) Any person who violates paragraph (1) or (2) shall be fined not more than $5,000, or imprisoned not more than 1 year, or both. In the case of a violation by an authorized committee, any officer or member of such committee who knowingly and willfully consents to such violation shall be fined not more than $5,000, or imprisoned not more than 1 year, or both.
(c) Unlawful use of payments.
(1) It shall be unlawful for any person who receives any payment under section 9006, or to whom any portion of any payment received under such section is transferred, knowingly and willfully to use, or authorize the use of, such payment or such portion for any purpose other than—
(A) to defray the qualified campaign expenses with respect to which such payment was made; or
(B) to repay loans the proceeds of which were used, or otherwise to restore funds (other than contributions to defray qualified campaign expenses which were received and expended) which were used, to defray such qualified campaign expenses.
(2) It shall be unlawful for the national committee of a major party or minor party which receives any payment under section 9008 (b) (3) to use, or authorize the use of, such payment for any purpose other than a purpose authorized by section 9008 (c).
(3) Any person who violates paragraph (1) shall
be fined not more than $10,000, or imprisoned not more than 5 years, or both.
(d) False statements, etc.
(1) It shall be unlawful for any person knowingly and willfully—
(A) to furnish any false, fictitious, or fraudulent evidence, books, or information to the Commission under this subtitle, or to include in any evidence, books, or information so furnished any misrepresentation of a material fact, or to falsify or conceal any evidence, books, or information relevant to a certification by the Commission or an examination and audit by the Commission under this chapter; or
(B) to fail to furnish to the Commission any records, books, or information requested by it for purposes of this chapter.
(2) Any person who violates paragraph (1) shall be fined not more than $10,000, or imprisoned not more than 5 years, or both.
(e) Kickbacks and illegal payments.
(1) It shall be unlawful for any person knowingly and willfully to give or accept any kickback or any illegal payment in connection with any qualified campaign expense of eligible candidates or their authorized committees. It shall be unlawful for the national committee of a major party or minor party knowingly and willfully to give or accept any kickback or any illegal payment in connection with any expense incurred by such committee with respect to a presidential nominating convention.
(2) Any person who violates paragraph (1) shall be fined not more than $10,000, or imprisoned not more than 5 years, or both.
(3) In addition to the penalty provided by paragraph (2), any person who accepts any kickback or illegal payment in connection with any qualified campaign expense of eligible candidates or their authorized committees, or in connection with any expense incurred by the national committee of a major party or minor party with respect to a presidential nominating convention, shall pay to the Secretary, for deposit in the general fund of the Treasury, an amount equal to 125 percent of the kickback or payment received.
(f) Unauthorized expenditures and contributions.
(1) Except as provided in paragraph (2), it shall be unlawful for any political committee which is not an authorized committee with respect to the eligible candidates of a political party for President and Vice President in a presidential election knowingly and willfully to incur expenditures to further the election of such candidates, which would constitute qualified campaign expenses if incurred by an authorized committee of such candidates, in an aggregate amount exceeding $1,000.
(2) This subsection shall not apply to—
(A) expenditures by a broadcaster regulated by the Federal Communications Commission, or by a periodical publication, in reporting the news or in taking editorial positions; or
(B) expenditures by any organization described in section 501 (c) which is exempt from tax under section 501 (a) in communicating to its members the views of that organization.
(3) Any political committee which violates paragraph (1) shall be fined not more than $5,000, and any officer or member of such committee who knowingly and willfully consents to such violation and
any other individual who knowingly and willfully violates paragraph (1) shall be fined not more than $5,000, or imprisoned not more than 1 year, or both.
(g) Unauthorized disclosure of information.
(1) It shall be unlawful for any individual to disclose any information obtained under the provisions of this chapter except as may be required by law.
(2) Any person who violates paragraph (1) shall be fined not more than $5,000, or imprisoned not more than 1 year, or both.
CHAPTER 96—PRESIDENTIAL PRIMARY MATCHING PAYMENT ACCOUNT
§ 9031. Short title.
This chapter may be cited as the “Presidential Primary Matching Payment Account Act.”
§ 9032. Definitions.
For the purposes of this chapter—
(1) The term “authorized committee” means, with respect to the candidates of a political party for President and Vice President of the United States, any political committee which is authorized in writing by such candidates to incur expenses to further the election of such candidаtes. Such authorization shall be addressed to the chairman of such political committee, and a copy of such authorization shall be filed by such candidates with the Commission. Any withdrawal of any authorization shall also be in writing and shall be addressed and filed in the same manner as the authorization.
(2) The term “candidate” means an individual who seeks nomination for election to be President of the United States. For purposes of this paragraph,
an individual shall be considered to seek nomination for election if he—
(A) takes the action necessary under the law of a State to qualify himself for nomination for election;
(B) receives contributions or incurs qualified campaign expenses; or
(C) gives his consent for any other person to receive contributions or to incur qualified campaign expenses on his behalf.
(3) The term “Commission” means the Federal Election Commission established by section 437c (a) (1) of Title 2, United States Code.
(4) Except as provided by section 9034 (a), the term “contribution“—
(A) means a gift, subscription, loan, advance, or deposit of money, or anything of value, the payment of which was made on or after the beginning of the calendar year immediately preceding the calendar year of the presidential election with respect to which such gift, subscription, loan, advance, or deposit of money, or anything of value, is made for the purpose of influencing the result of a primary election;
(B) means a contract, promise, or agreement, whether or not legally enforceable, to make a contribution for any such purpose;
(C) means funds received by a political committee which are transferred to that committee from another committee; and
(D) means the payment by any person other than a candidate, or his authorized committee, of compensation for the personal services of another person which are rendered to the candidate or committee without charge; but
(E) does not include—
(i) except as provided in subparagraph (D), the value of personal services rendered to or for the benefit of a candidate by an individual who receives no compensation for rendering such service to or for the benefit of the candidate; or
(ii) payments under section 9037.
(5) The term “matching payment account” means the Presidential Primary Matching Payment Account established under section 9037 (a).
(6) The term “matching payment period” means the period beginning with the beginning of the calendar year in which a general election for the office of President of the United States will be held and ending on the date on which the national convention of the party whose nomination a candidate seeks nominates its candidate for the office of President of the United States, or, in the case of a party which does not make such nomination by national convention, ending on the earlier of—
(A) the date such party nominates its candidate for the office of President of the United States; or
(B) the last day of the last national convention held by a major party during such calendar year.
(7) The term “primary election” means an election, including a runoff election or a nominating convention or caucus held by a political party, for the selection of delegates to a national nominating convention of a political party, or for the expression of a preference for the nomination of persons for election to the office of President of the United States.
(8) The term “political committee” means any individual, committee, association, or organization (whether or not incorporated) which accepts contributions or incurs qualified campaign expenses for the purpose of influencing, or attempting to influence, the nomination of any person for election to the office of President of the United States.
(9) The term “qualified campaign expense” means a purchase, payment, distribution, loan, advance, deposit, or gift of money or of anything of value—
(A) incurred by a candidate, or by his authorized committee, in connection with his campaign for nomination for election; and
(B) neither the incurring nor payment of which constitutes a violation of any law of the United States or of the State in which the expense is incurred or paid.
For purposes of this paragraph, an expense is incurred by a candidate or by an authorized committee if it is incurred by a person specifically authorized in writing by the candidate or committee, as the case may be, to incur such expense on behalf of the candidate or the committee.
(10) The term “State” means each State of the United States and the District of Columbia.
§ 9033. Eligibility for payments.
(a) Conditions. To be eligible to receive payments under section 9037, a candidate shall, in writing—
(1) agree to obtain and furnish to the Commission any evidence it may request of qualified campaign expenses;
(2) agree to keep and furnish to the Commission any records, books, and other information it may request; and
(3) agree to an audit and examination by the
Commission under section 9038 and to pay any amounts required to be paid under such section.
(b) Expense limitation; declaration of intent; minimum contributions. To be eligible to receive payments under section 9037, a candidate shall certify to the Commission that—
(1) the candidate and his authorized committees will not incur qualified campaign expenses in excess of the limitation on such expenses under section 9035;
(2) the candidate is seeking nomination by a political party for election to the office of President of the United States;
(3) the candidate has received matching contributions which in the aggregate, exceed $5,000 in contributions from residents of each of at least 20 States; and
(4) the aggregate of contributions certified with respect to any person under paragraph (3) does not exceed $250.
§ 9034. Entitlement of eligible candidates to payments.
(a) In general. Every candidate who is eligible to receive payments under section 9033 is entitled to payments under section 9037 in an amount equal to the amount of each contribution received by such candidate on or after the beginning of the calendar year immediately preceding the calendar year of the presidential election with respect to which such candidate is seeking nomination, or by his authorized committees, disregarding any amount of contributions from any person to the extent that the total of the amounts contributed by such person on or after the beginning of such preceding calendar year exceeds $250. For purposes of this subsection and section 9033 (b), the term “contribution” means a gift of money made by a written instrument which identifies
(b) Limitations. The total amount of payments to which a candidate is entitled under subsection (a) shall not exceed 50 percent of the expenditure limitation applicable under section 608 (c) (1) (A) of Title 18, United States Code.
§ 9035. Qualified campaign expense limitation.
No candidate shall knowingly incur qualified campaign expenses in excess of the expenditure limitation applicable under section 608 (c) (1) (A) of Title 18, United States Code.
§ 9036. Certification by Commission.
(a) Initial certifications. Not later than 10 days after a candidate establishes his eligibility under section 9033 to receive payments under section 9037, the Commission shall certify to the Secretary for payment to such candidate under section 9037 payment in full of amounts to which such candidate is entitled under section 9034. The Commission shall make such additional certifications as may be necessary to permit candidates to receive payments for contributions under section 9037.
(b) Finality of determinations. Initial certifications by the Commission under subsection (a), and all determinations made by it under this chapter, are final and conclusive, except to the extent that they are subject to examination and audit by the Commission under section 9038 and judicial review under section 9041.
§ 9037. Payments to eligible candidates.
(a) Establishment of account. The Secretary shall maintain in the Presidential Election Campaign Fund
(b) Payments from the matching payment account. Upon receipt of a certification from the Commission under section 9036, but not before the beginning of the matching payment period, the Secretary or his delegate shall promptly transfer the amount certified by the Commission from the matching payment account to the candidate. In making such transfers to candidates of the same political party, the Secretary or his delegate shall seek to achieve an equitable distribution of funds available under subsection (a), and the Secretary or his delegate shall take into account, in seeking to achieve an equitable distribution, the sequence in which such certifications are received.
§ 9038. Examinations and audits; repayments.
(a) Examinations and audits. After each matching payment period, the Commission shall conduct a thorough examination and audit of the qualified campaign expenses of every candidate and his authorized committees who received payments under section 9037.
(b) Repayments.
(1) If the Commission determines that any portion of the payments made to a candidate from the matching payment account was in excess of the aggregate amount of payments to which such candidate was entitled under section 9034, it shall
notify the candidate, and the candidate shall pay to the Secretary or his delegate an amount equal to the amount of excess payments.
(2) If the Commission determines that any amount of any payment made to a candidate from the matching payment account was used for any purpose other than—
(A) to defray the qualified campaign expenses with respect to which such payment was made; or
(B) to repay loans the proceeds of which were used, or otherwise to restore funds (other than contributions to defray qualified campaign expenses which were received and expended) which were used, to defray qualified campaign expenses;
it shall notify such candidate of the amount so used, and the candidate shall pay to the Secretary or his delegate an amount equal to such amount.
(3) Amounts received by a candidate from the matching payment account may be retained for the liquidation of all obligations to pay qualified campaign expenses incurred for a period not exceeding 6 months after the end of the matching payment period. After all obligations have been liquidated, that portion of any unexpended balance remaining in the candidate‘s accounts which bears the same ratio to the total unexpended balance as the total amount received from the matching payment account bears to the total of all deposits made into the candidate‘s accounts shall be promptly repaid to the matching payment account.
(c) Notification. No notification shall be made by the Commission under subsection (b) with respect to a matching payment period more than 3 years after the end of such period.
§ 9039. Reports to Congress; regulations.
(a) Reports. The Commission shall, as soon as practicable after each matching payment period, submit a full report to the Senate and House of Representatives setting forth—
(1) the qualified campaign expenses (shown in such detail as the Commission determines necessary) incurred by the candidates of each political party and their authorized committees;
(2) the amounts certified by it under section 9036 for payment to each eligible candidate; and
(3) the amount of payments, if any, required from candidates under section 9038, and the reasons for each payment required.
Each report submitted pursuant to this section shall be printed as a Senate document.
(b) Regulations, etc. The Commission is authorized to prescribe rules and regulations in accordance with the provisions of subsection (c), to conduct examinations and audits (in addition to the examinations and audits required by section 9038 (a)), to conduct investigations, and to require the keeping and submission of any books, records, and information, which it determines to be necessary to carry out its responsibilities under this chapter.
(c) Review of regulations.
(1) The Commission, before prescribing any rule or regulation under subsection (b), shall transmit a statement with respect to such rule or regulation to the Senate and to the House of Representatives,
in accordance with the provisions of this subsection. Such statement shall set forth the proposed rule or regulation and shall contain a detailed explanation and justification of such rule or regulation.
(2) If either such House does not, through appropriate action, disapprove the proposed rule or regulation set forth in such statement no later than 30 legislative days after receipt of such statement, then the Commission may prescribe such rule or regulation. The Commission may not prescribe any rule or regulation which is disapproved by either such House under this paragraph.
(3) For purposes of this subsection, the term “legislative days” does not include any calendar day on which both Houses of the Congress are not in session.
§ 9040. Participation by Commission in judicial proceedings.
(a) Appearance by counsel. The Commission is authorized to appear in and defend against any action instituted under this section, either by attorneys employed in its office or by counsel whom it may appoint without regard to the provisions of Title 5, United States Code, governing appointments in the competitive service, and whose compensation it may fix without regard to the provisions of chapter 51 and subchapter III of chapter 53 of such title.
(b) Recovery of certain payments. The Commission is authorized, through attorneys and counsel described in subsection (a), to institute actions in the district courts of the United States to seek recovery of any amounts determined to be payable to the Secretary or his delegate as a result of an examination and audit made pursuant to section 9038.
(d) Appeal. The Commission is authorized on behalf of the United States to appeal from, and to petition the Supreme Court for certiorari to review, judgments or decrees entered with respect to actions in which it appears pursuant to the authority provided in this section.
§ 9041. Judicial review.
(a) Review of agency action by the Commission. Any agency action by the Commission made under the provisions of this chapter shall be subject to review by the United States Court of Appeals for the District of Columbia Circuit upon petition filed in such court within 30 days after the agency action by the Commission for which review is sought.
(b) Review procedures. The provisions of chapter 7 of Title 5, United States Code, apply to judicial review of any agency action, as defined in section 551 (13) of Title 5, United States Code, by the Commission.
§ 9042. Criminal penalties.
(a) Excess campaign expenses. Any person who violates the provisions of section 9035 shall be fined not more than $25,000, or imprisoned not more than 5 years, or both. Any officer or member of any political committee who knowingly consents to any expenditure in violation of the provisions of section 9035 shall be fined not more than $25,000, or imprisoned not more than 5 years, or both.
(b) Unlawful use of payments.
(1) It is unlawful for any person who receives any payment under section 9037, or to whom any portion
of any such payment is transferred, knowingly and willfully to use, or authorize the use of, such payment or such portion for any purpose other than—
(A) to defray qualified campaign expenses; or
(B) to repay loans the proceeds of which were used, or otherwise to restore funds (other than contributions to defray qualified campaign expenses which were received and expended) which were used, to defray qualified campaign expenses.
(2) Any person who violates the provisions of paragraph (1) shall be fined not more than $10,000, or imprisoned not more than 5 years, or both.
(c) False statements, etc.
(1) It is unlawful for any person knowingly and willfully—
(A) to furnish any false, fictitious, or fraudulent evidence, books, or information to the Commission under this chapter, or to include in any evidence, books, or information so furnished any misrepresentation of a material fact, or to falsify or conceal any evidence, books, or information relevant to a certification by the Commission or an examination and audit by the Commission under this chapter; or
(B) to fail to furnish to the Commission any records, books, or information requested by it for purposes of this chapter.
(2) Any person who violates the provisions of paragraph (1) shall be fined not more than $10,000, or imprisoned not more than 5 years, or both.
(d) Kickbacks and illegal payments.
(1) It is unlawful for any person knowingly and willfully to give or accept any kickback or any illegal
payment in connection with any qualified campaign expense of a candidate, or his authorized committees, who receives payments under section 9037.
(2) Any person who violates the provisions of paragraph (1) shall be fined not more than $10,000, or imprisoned not more than 5 years, or both.
(3) In addition to the penalty provided by paragraph (2), any person who accepts any kickback or illegal payment in connection with any qualified campaign expense of a candidate or his authorized committees shall pay to the Secretary for deposit in the matching payment account, an amount equal to 125 percent of the kickback or payment received.
MR. CHIEF JUSTICE BURGER, concurring in part and dissenting in part.
For reasons set forth more fully later, I dissent from those parts of the Court‘s holding sustaining the statutory provisions (a) for disclosure of small contributions, (b) for limitations on contributions, and (c) for public financing of Presidential campaigns. In my view, the Act‘s disclosure scheme is impermissibly broad and violative of the First Amendment as it relates to reporting contributions in excess of $10 and $100. The contribution limitations infringe on First Amendment liberties and suffer from the same infirmities that the Court correctly sees in the expenditure ceilings. The system for public financing of Presidential campaigns is, in my judgment, an impermissible intrusion by the Government into the traditionally private political process.
More broadly, the Court‘s result does violence to the intent of Congress in this comprehensive scheme of campaign finance. By dissecting the Act bit by bit, and casting off vital parts, the Court fails to recognize that the whole of this Act is greater than the sum of its parts.
(1)
DISCLOSURE PROVISIONS
Disclosure is, in principle, the salutary and constitutional remedy for most of the ills Congress was seeking to alleviate. I therefore agree fully with the broad proposition that public disclosure of contributions by individuals and by entities—particularly corporations and labor unions—is an effective means of revealing the type of political support that is sometimes coupled with expectations of special favors or rewards. That disclosure impinges on First Amendment rights is conceded by the Court, ante, at 64-66, but given the objectives to which disclosure is directed, I agree that the need for disclosure outweighs individual constitutional claims.
Disclosure is, however, subject to First Amendment limitations which are to be defined by looking to the relevant public interests. The legitimate public interest is the elimination of the appearance and reality of corrupting influences. Serious dangers to the very processes of government justify disclosure of contributions of such dimensions reasonably thought likely to purchase special favors. These fears have been at the root of the Court‘s prior decisions upholding disclosure requirements, and I therefore have no disagreement, for example, with Burroughs v. United States, 290 U. S. 534 (1934).
The Court‘s theory, however, goes beyond permissible limits. Under the Court‘s view, disclosure serves broad informational purposes, enabling the public to be fully informed on matters of acute public interest. Forced disclosure of one aspect of a citizen‘s political activity,
“It is undoubtedly true that public disclosure of contributions to candidates and political parties will deter some individuals who otherwise might contribute.” Ante, at 68.
Examples come readily to mind. Rank-and-file union members or rising junior executives may now think twice before making even modest contributions to a candidate who is disfavored by the union or management hierarchy. Similarly, potential contributors may well decline to take the obvious risks entailed in making a reportable contribution to the opponent of a well-entrenched incumbent. This fact of political life did not go unnoticed by the Congress:
“The disclosure provisions really have in fact made it difficult for challengers to challenge incumbents.” 120 Cong. Rec. 34392 (1974) (remarks of Sen. Long).
See Pollard v. Roberts, 283 F. Supp. 248 (ED Ark.), aff‘d per curiam, 393 U. S. 14 (1968).
The public right to know ought not be absolute when its exercise reveals private political convictions. Secrecy, like privacy, is not per se criminal. On the contrary, secrecy and privacy as to political preferences and convictions are fundamental in a free society. For example, one of the great political reforms was the advent of the secret ballot as a universal practice. Similarly, the enlightened labor legislation of our time has enshrined the secrecy of choice of a bargaining representative for
We all seem to agree that whatever the legitimate public interest in this area, proper analysis requires us to scrutinize the precise means employed to implement that interest. The balancing test used by the Court requires that fair recognition be given to competing interests. With respect, I suggest the Court has failed to give the traditional standing to some of the First Amendment values at stake here. Specifically, it has failed to confine the particular exercise of governmental power within limits reasonably required.
“In every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom.” Cantwell v. Connecticut, 310 U. S. 296, 304 (1940).
“Unduly” must mean not more than necessary, and until today, the Court has recognized this criterion in First Amendment cases:
“In the area of First Amendment freedoms, government has the duty to confine itself to the least intrusive regulations which are adequate for the purpose.” Lamont v. Postmaster General, 381 U. S. 301, 310 (1965) (BRENNAN, J., concurring). (Emphasis added.)
Similarly, the Court has said:
“[E]ven though the governmental purpose be legitimate
and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose.” Shelton v. Tucker, supra, at 488.
In light of these views,1 it seems to me that the threshold limits fixed at $10 and $100 for anonymous contributions are constitutionally impermissible on their face. As the Court‘s opinion notes, ante, at 83, Congress gave little or no thought, one way or the other, to these limits, but rather lifted figures out of a 65-year-old statute.2 As we are all painfully aware, the 1976 dollar is not what it used to be and is surely not the dollar of 1910. Ten dollars in 1976 will, for example, purchase only what $1.68 would buy in 1910. United States Dept. of Labor, Handbook of Labor Statistics 1975, p. 313 (Dec. 1975). To argue that a 1976 contribution of $10 or $100 entails a risk of corruption or its appearance is simply too extravagant to be maintained. No public right to know justifies the compelled disclosure of such contributions, at the risk of discouraging them. There is, in short, no relation whatever between the means used and the legitimate goal of ventilating possible undue influence. Congress has used a shotgun to kill wrens as well as hawks.
“Precision of regulation must be the touchstone in an area so closely touching on our most precious freedoms.” NAACP v. Button, 371 U. S. 415, 438 (1938).
See, e. g., Aptheker v. Secretary of State, 378 U. S. 500 (1964); United States v. Robel, 389 U. S. 258 (1967); Lamont v. Postmaster General, supra. The Court‘s abrupt departure3 from traditional standards is wrong; surely a greater burden rests on Congress than merely to avoid “irrationality” when regulating in the core area of the First Amendment. Even taking the Court at its word, the particular dollar amounts fixed by Congress that must be reported to the Commission fall short of meeting the test of rationality when measured by the goals sought to be achieved.
Finally, no legitimate public interest has been shown in forcing the disclosure of modest contributions that are the prime support of new, unpopular, or unfashionable political causes. There is no realistic possibility that such modest donations will have a corrupting influence especially on parties that enjoy only “minor” status. Major parties would not notice them; minor parties need them. Furthermore, as the Court candidly recognizes, ante, at 70, minor parties and new parties tend to be sharply ideological in character, and the public can readily discern where such parties stand, without resorting to the indirect device of recording the names of financial supporters. To hold, as the Court has, that privacy must sometimes yield to congressional investigations of alleged subversion, is quite different from making domestic political
I would therefore hold unconstitutional the provisions requiring reporting of contributions of more than $10 and to make a public record of the name, address, and occupation of a contributor of more than $100.
(2)
CONTRIBUTION AND EXPENDITURE LIMITS
I agree fully with that part of the Court‘s opinion that holds unconstitutional the limitations the Act puts on campaign expenditures which “place substantial and direct restrictions on the ability of candidates, citizens, and associations to engage in protected political expression, restrictions that the First Amendment cannot tolerate.” Ante, at 58-59. Yet when it approves similarly stringent limitations on contributions, the Court ignores the reasons it finds so persuasive in the context of expenditures. For me contributions and expenditures are two sides of the same First Amendment coin.
By limiting campaign contributions, the Act restricts the amount of money that will be spent on political activity
The Court attempts to separate the two communicative aspects of political contributions—the “moral” support that the gift itself conveys, which the Court suggests is the same whether the gift is $10 or $10,000,6 and the
The Court‘s attempt to distinguish the communication inherent in political contributions from the speech aspects of political expenditures simply “will not wash.” We do little but engage in word games unless we recognize that people—candidates and contributors—spend money on political activity because they wish to communicate ideas, and their constitutional interest in doing so is precisely the same whether they or someone else utters the words.
The Court attempts to make the Act seem less restrictive by casting the problem as one that goes to freedom of association rather than freedom of speech. I have long thought freedom of association and freedom of expression were two peas from the same pod. The contribution limitations of the Act impose a restriction on certain forms of associational activity that are for the most part, as the Court recognizes, ante, at 29, harmless in fact. And the restrictions are hardly incidental in their effect upon particular campaigns. Judges are ill-equipped to gauge the precise impact of legislation, but a law that impinges upon First Amendment rights requires us to make the attempt. It is not simply speculation to think that the limitations on contributions will foreclose some candidacies.9 The limitations will also alter the nature of some electoral contests drastically.10
After a bow to the “weighty interests” Congress meant to serve, the Court then forsakes this analysis in one sentence: “Congress was surely entitled to conclude that disclosure was only a partial measure, and that contribution ceilings were a necessary legislative concomitant to deal with the reality or appearance of corruption . . . .” Ante, at 28. In striking down the limitations on campaign expenditures, the Court relies in part on its conclusion that other means—namely, disclosure and contribution ceilings—will adequately serve the statute‘s aim. It is not clear why the same analysis is not also appropriate in weighing the need for contribution ceilings in addition to disclosure requirements. Congress may well be
Finally, it seems clear to me that in approving these limitations on contributions the Court must rest upon the proposition that “pooling” money is fundamentally different from other forms of associational or joint activity. But see ante, at 66. I see only two possible ways in which money differs from volunteer work, endorsements, and the like. Money can be used to buy favors, because an unscrupulous politician can put it to personal use; second, giving money is a less visible form of associational activity. With respect to the first problem, the Act does not attempt to do any more than the bribery laws to combat this sort of corruption. In fact, the Act does not reach at all, and certainly the contribution limits do not reach, forms of “association” that can be fully as corrupt as a contribution intended as a quid pro quo—such as the eleventh-hour endorsement by a former rival, obtained for the promise of a federal appointment. This underinclusiveness is not a constitutional flaw, but it demonstrates that the contribution limits do not clearly focus on this first distinction. To the extent Congress thought that the second problem, the lesser visibility of contributions, required that money be treated differently from other forms of associational activity, disclosure laws are the simple and wholly efficacious answer; they make the invisible apparent.
(3)
PUBLIC FINANCING
I dissent from Part III sustaining the constitutionality of the public financing provisions of Subtitle H.
Since the turn of this century when the idea of Government
The Court chooses to treat this novel public financing of political activity as simply another congressional appropriation whose validity is “necessary and proper” to Congress’ power to regulate and reform elections and primaries, relying on United States v. Classic, 313 U. S. 299 (1941), relying on United States v.
Classic, 313 U.S. 299 (1941), and Burroughs v. United States, 290 U.S. 534 (1934). No holding of this Court is directly in point, because no federal scheme allocating public funds in a comparable manner has ever been before us. The uniqueness of the plan is not relevant, of course, to whether Congress has power to enact it. Indeed, I do not question the power of Congress to regulate elections; nor do I
I would, however, fault the Court for not adequately analyzing and meeting head on the issue whether public financial assistance to the private political activity of individual citizens and parties is a legitimate expenditure of public funds. The public monies at issue here are not being employed simply to police the integrity of the electoral process or to provide a forum for the use of all participants in the political dialogue, as would, for example, be the case if free broadcast time were granted. Rather, we are confronted with the Government‘s actual financing, out of general revenues, a segment of the political debate itself. As Senator Howard Baker remarked during the debate on this legislation:
“I think there is something politically incestuous about the Government financing and, I believe, inevitably then regulating, the day-to-day procedures by which the Government is selected . . . .
“I think it is extraordinarily important that the Government not control the machinery by which the public expresses the range of its desires, demands, and dissent.” 120 Cong. Rec. 8202 (1974).
If this “incest” affected only the issue of the wisdom of the plan, it would be none of the concern of judges. But, in my view, the inappropriateness of subsidizing, from general revenues, the actual political dialogue of the people—the process which begets the Government itself— is as basic to our national tradition as the separation of church and state also deriving from the First Amendment, see Lemon v. Kurtzman, 403 U.S. 602, 612 (1971); Walz v. Tax Comm‘n, 397 U.S. 664, 668-669 (1970),
Recent history shows dangerous examples of systems with a close, “incestuous” relationship between “government” and “politics“; the Court‘s opinion simply dismisses possible dangers by noting that:
“Subtitle H is a congressional effort, not to abridge, restrict, or censor speech, but rather to use public money to facilitate and enlarge public discussion and participation in the electoral process, goals vital to a self-governing people.” Ante, at 92-93.
Congress, it reassuringly adds by way of a footnote, has expressed its determination to avoid such a possibility.15Ante, at 93 n. 126. But the Court points to no basis for predicting that the historical pattern of “varying measures of control and surveillance,” Lemon v. Kurtzman, supra, at 621, which usually accompany grants from Government will not also follow in this case.16 Up to now, the Court has always been extraordinarily sensitive, when dealing with First Amendment rights, to the risk that the “flag tends to follow the dollars.” Yet, here, where Subtitle H specifically requires the auditing of records of political parties and candidates by Government inspectors,17 the Court shows
Assuming, arguendo, that Congress could validly appropriate public money to subsidize private political activity, it has gone about the task in Subtitle H in a manner which is not, in my view, free of constitutional infirmity.19 I do not question that Congress has “wide discretion in the manner of prescribing details of expenditures” in some contexts, Cincinnati Soap Co. v. United States, 301 U.S. 308, 321 (1937). Here, however, Congress has not itself appropriated a specific sum to attain the ends of the Act but has delegated to a limited group
I agree with MR. JUSTICE REHNQUIST that the scheme approved by the Court today invidiously discriminates against minor parties. Assuming, arguendo, the constitutionality of the overall scheme, there is a legitimate governmental interest in requiring a group to make a “preliminary showing of a significant modicum of support.” Jenness v. Fortson, 403 U.S. 431, 442 (1971). But the present system could preclude or severely hamper access to funds before a given election by a group or an individual who might, at the time of the election, reflect the views of a major segment or even a majority of the electorate. The fact that there have been few drastic realignments in our basic two-party structure in 200 years is no constitutional justification for freezing the status quo of the present major parties at the expense of such future political movements. Cf. discussion, ante, at 73. When and if some minority party achieves majority status, Congress can readily deal with any problems that arise. In short, I see grave risks in legislation, enacted by incumbents of the major political parties, which distinctly disadvantages minor parties or independent candidates. This Court has, until today, been particularly cautious when dealing with enactments that tend to perpetuate those who control legislative power. See Reynolds v. Sims, 377 U.S. 533, 570 (1964).
I would also find unconstitutional the system of
(4)
I cannot join in the attempt to determine which parts of the Act can survive review here. The statute as it now stands is unworkable and inequitable.
I agree with the Court‘s holding that the Act‘s restrictions on expenditures made “relative to a clearly identified candidate,” independent of any candidate or his committee, are unconstitutional. Ante, at 39-51. Paradoxically the Court upholds the limitations on individual contributions, which embrace precisely the same sort of expenditures “relative to a clearly identified candidate” if those expenditures are “authorized or requested” by the “candidate or his agents.” Ante, at 24 n. 25. The Act as cut back by the Court thus places intolerable pressure on the distinction between “authorized” and “unauthorized” expenditures on behalf of a candidate; even those with the most sanguine hopes for the Act might well concede that the distinction cannot be maintained. As the Senate Report on the bill said:
“Whether campaigns are funded privately or publicly. . . controls are imperative if Congress is to enact meaningful limits on direct contributions. Otherwise, wealthy individuals limited to a $3,000 direct contribution [$1,000 in the bill as finally enacted] could also purchase one hundred thousand
dollars’ worth of advertisements for a favored candidate. Such a loophole would render direct contribution limits virtually meaningless.” S. Rep. No. 93-689, p. 18 (1974).
Given the unfortunate record of past attempts to draw distinctions of this kind, see ante, at 61-62, it is not too much to predict that the Court‘s holding will invite avoidance, if not evasion, of the intent of the Act, with “independent” committees undertaking “unauthorized” activities in order to escape the limits on contributions. The Court‘s effort to blend First Amendment principles and practical politics has produced a strange offspring.
Moreover, the Act—or so much as the Court leaves standing—creates significant inequities. A candidate with substantial personal resources is now given by the Court a clear advantage over his less affluent opponents, who are constrained by law in fundraising, because the Court holds that the “First Amendment cannot tolerate” any restrictions on spending. Ante, at 59. Minority parties, whose situation is difficult enough under an Act that excludes them from public funding, are prevented from accepting large single-donor contributions. At the same time the Court sustains the provision aimed at broadening the base of political support by requiring candidates to seek a greater number of small contributors, it sustains the unrealistic disclosure thresholds of $10 and $100 that I believe will deter those hoped-for small contributions. Minor parties must now compete for votes against two major parties whose expenditures will be vast. Finally, the Act‘s distinction between contributions in money and contributions in services remains, with only the former being subject to any limits. As Judge Tamm put it in dissent from the Court of Appeals’ opinion:
“[T]he classification created only regulates certain
types of disproportional influences. Under section 591 (e) (5), services are excluded from contributions. This allows the housewife to volunteer time that might cost well over $1000 to hire on the open market, while limiting her neighbor who works full-time to a regulated contribution. It enhances the disproportional influence of groups who command large quantities of these volunteer services and will continue to magnify this inequity by not allowing for an inflation adjustment to the contribution limit. It leads to the absurd result that a lawyer‘s contribution of services to aid a candidate in complying with FECA is exempt, but his first amendment activity is regulated if he falls ill and hires a replacement.” 171 U. S. App. D. C. 172, 266, 519 F. 2d 821, 915 (1975).
One need not call problems of this order equal protection violations to recognize that the contribution limitations of the Act create grave inequities that are aggravated by the Court‘s interpretation of the Act.
The Court‘s piecemeal approach fails to give adequate consideration to the integrated nature of this legislation. A serious question is raised, which the Court does not consider:20 when central segments, key operative provisions, of this Act are stricken, can what remains function in anything like the way Congress intended? The incongruities are obvious. The Commission is now eliminated, yet its very purpose was to guide candidates and campaign workers—and their accountants and lawyers— through an intricate statutory maze where a misstep can lead to imprisonment. All candidates can now spend freely; affluent candidates, after today, can spend their own money without limit; yet, contributions for the ordinary
Although the statute contains a severability clause,
Finally, I agree with the Court that the members of the Federal Election Commission were unconstitutionally appointed. However, I disagree that we should give blanket de facto validation to all actions of the Commission undertaken until today. The issue is not before us and we cannot know what acts we are ratifying. I would leave this issue to the District Court to resolve if and when any challenges are brought.
In the past two decades the Court has frequently
“[T]o assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people,” Roth v. United States, 354 U.S. 476, 484 (1957);
and:
“[T]here is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs . . . [including] discussions of candidates . . . ,” Mills v. Alabama, 384 U.S. 214, 218 (1966);
and again:
“[I]t can hardly be doubted that the constitutional guarantee [of the First Amendment] has its fullest and most urgent application precisely to the conduct of campaigns for political office.” Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971).
To accept this generalization one need not agree that the Amendment has its “fullest and most urgent application” only in the political area, for others would think religious freedom is on the same or even a higher plane. But I doubt that the Court would tolerate for an instant a limitation on contributions to a church or other religious cause; however grave an “evil” Congress thought the limits would cure, limits on religious expenditures would most certainly fall as well. To limit either contributions or expenditures as to churches would plainly restrict “the free exercise” of religion. In my view Congress can no more ration political expression than it can ration religious expression; and limits on political or religious contributions and expenditures effectively curb expression in both areas. There are many prices we pay for the freedoms secured by the First Amendment; the risk of undue
I concur in the Court‘s answers to certified questions 1, 2, 3 (b), 3 (c), 3 (e), 3 (f), 3 (h), 5, 6, 7 (a), 7 (b), 7 (c), 7 (d), 8 (a), 8 (b), 8 (c), 8 (d), 8 (e), and 8 (f). I dissent from the answers to certified questions 3 (a), 3 (d), and 4 (a). I also join in Part III of the Court‘s opinion and in much of Parts I-B, II, and IV.
I
It is accepted that Congress has power under the Constitution to regulate the election of federal officers, including the President and the Vice President. This includes the authority to protect the elective processes against the “two great natural and historical enemies of all republics, open violence and insidious corruption,” Ex parte Yarbrough, 110 U.S. 651, 658 (1884); for “[i]f this government is anything more than a mere aggregation of delegated agents of other States and governments, each of which is superior to the general government, it must have the power to protect the elections on which its existence depends from violence and corruption,” the latter being the consequence of “the free use of money in elections, arising from the vast growth of recent wealth . . . .” Id., at 657-658, 667.
This teaching from the last century was quoted at length and reinforced in Burroughs v. United States, 290 U.S. 534, 546-548 (1934). In that case the Court sustained the Federal Corrupt Practices Act of 1925, Title III of the Act of Feb. 28, 1925, 43 Stat. 1070, which, among other things, required political committees to keep
“The power of Congress to protect the election of President and Vice President from corruption being clear, the choice of means to that end presents a question primarily addressed to the judgment of Congress. If it can be seen that the means adopted are really calculated to attain the end, the degree of their necessity, the extent to which they conduce to the end, the closeness of the relationship between the means adopted and the end to be attained, are matters for congressional determination alone.” Id., at 547-548.
Pursuant to this undoubted power of Congress to vindicate the strong public interest in controlling corruption and other undesirable uses of money in connection with election campaigns, the Federal Election Campaign Act substantially broadened the reporting and disclosure requirements that so long have been a part of the federal law. Congress also concluded that limitations on contributions and expenditures were essential if the aims of the Act were to be achieved fully. In another major innovation, aimed at insulating candidates from the time-consuming and entangling task of raising huge sums of
The disclosure requirements and the limitations on contributions and expenditures are challenged as invalid abridgments of the right of free speech protected by the First Amendment. I would reject these challenges. I agree with the Court‘s conclusion and much of its opinion with respect to sustaining the disclosure provisions. I am also in agreement with the Court‘s judgment upholding the limitations on contributions. I dissent, however, from the Court‘s view that the expenditure limitations of
Concededly, neither the limitations on contributions nor those on expenditures directly or indirectly purport to control the content of political speech by candidates or by their supporters or detractors. What the Act regulates is giving and spending money, acts that have First Amendment significance not because they are themselves communicative with respect to the qualifications of the candidate, but because money may be used to defray the expenses of speaking or otherwise communicating about the merits or demerits of federal candidates for election. The act of giving money to political candidates, however, may have illegal or other undesirable consequences: it may be used to secure the express or tacit understanding that the giver will enjoy political favor if the candidate is elected. Both Congress and this Court‘s cases have recognized this as a mortal danger against which effective preventive and curative steps must be taken.
Since the contribution and expenditure limitations are neutral as to the content of speech and are not motivated by fear of the consequences of the political speech
Despite its seeming struggle with the standard by which to judge this case, this is essentially the question the Court asks and answers in the affirmative with respect to the limitations on contributions which individuals and political committees are permitted to make to federal candidates. In the interest of preventing undue influence that large contributors would have or that the public might think they would have, the Court upholds the provision that an individual may not give to a candidate, or spend on his behalf if requested or authorized by the candidate to do so, more than $1,000 in any one election. This limitation is valid although it imposes a low ceiling on what individuals may deem to be their most effective means of supporting or speaking on behalf of the candidate—i. e., financial support given directly to the candidate. The Court thus accepts the congressional judgment that the evils of unlimited contributions are sufficiently threatening to warrant restriction regardless of the impact of the limits on the contributor‘s opportunity for effective speech and in turn on the total volume of the candidate‘s political communications by reason of his inability to accept large sums from those willing to give.
The congressional judgment, which I would also accept, was that other steps must be taken to counter the corrosive effects of money in federal election campaigns. One of these steps is § 608 (e), which, aside from those funds that are given to the candidate or spent at his
It would make little sense to me, and apparently made none to Congress, to limit the amounts an individual may give to a candidate or spend with his approval but fail to limit the amounts that could be spent on his behalf. Yet the Court permits the former while striking down the latter limitation. No more than $1,000 may be given to a candidate or spent at his request or with his approval or cooperation; but otherwise, apparently, a contributor is to be constitutionally protected in spending unlimited amounts of money in support of his chosen candidate or candidates.
Let us suppose that each of two brothers spends $1 million on TV spot announcements that he has individually prepared and in which he appears, urging the election of the same named candidate in identical words. One brother has sought and obtained the approval of the candidate; the other has not. The former may validly be prosecuted under § 608 (e); under the Court‘s view, the latter may not, even though the candidate could scarcely help knowing about and appreciating the expensive favor. For constitutional purposes it is difficult to see the difference between the two situations. I would take the word of those who know—that limiting
In sustaining the contribution limits, the Court recognizes the importance of avoiding public misapprehension about a candidate‘s reliance on large contributions. It ignores that consideration in invalidating § 608 (e). In like fashion, it says that Congress was entitled to determine that the criminal provisions against bribery and corruption, together with the disclosure provisions, would not in themselves be adequate to combat the evil and that limits on contributions should be provided. Here, the Court rejects the identical kind of judgment made by Congress as to the need for and utility of expenditure limits. I would not do so.
The Court also rejects Congress’ judgment manifested in § 608 (c) that the federal interest in limiting total campaign expenditures by individual candidates justifies the incidental effect on their opportunity for effective political speech. I disagree both with the Court‘s assessment of the impact on speech and with its narrow view of the values the limitations will serve.
Proceeding from the maxim that “money talks,” the Court finds that the expenditure limitations will seriously curtail political expression by candidates and interfere substantially with their chances for election. The Court concludes that the Constitution denies Congress the power to limit campaign expenses; federal candidates— and I would suppose state candidates, too—are to have the constitutional right to raise and spend unlimited amounts of money in quest of their own election.
As an initial matter, the argument that money is speech and that limiting the flow of money to the speaker violates the First Amendment proves entirely too much. Compulsory bargaining and the right to strike, both provided for or protected by federal law, inevitably have
In any event, as it should be unnecessary to point out, money is not always equivalent to or used for speech, even in the context of political campaigns. I accept the reality that communicating with potential voters is the heart of an election campaign and that widespread communication has become very expensive. There are, however, many expensive campaign activities that are not themselves communicative or remotely related to speech. Furthermore, campaigns differ among themselves. Some seem to spend much less money than others and yet communicate as much as or more than those supported by enormous bureaucracies with unlimited financing. The record before us no more supports the conclusion that the communicative efforts of congressional and Presidential candidates will be crippled by the expenditure limitations than it supports the contrary. The judgment of Congress was that reasonably effective campaigns could be conducted within the limits established by the Act and that the communicative efforts of these campaigns would not seriously suffer. In this posture
In the first place, expenditure ceilings reinforce the contribution limits and help eradicate the hazard of corruption. The Court upholds the overall limit of $25,000 on an individual‘s political contributions in a single election year on the ground that it helps reinforce the limits on gifts to a single candidate. By the same token, the expenditure limit imposed on candidates plays its own role in lessening the chance that the contribution ceiling will be violated. Without limits on total expenditures, campaign costs will inevitably and endlessly escalate. Pressure to raise funds will constantly build and with it the temptation to resort in “emergencies” to those sources of large sums, who, history shows, are sufficiently confident of not being caught to risk flouting contribution limits. Congress would save the candidate from this predicament by establishing a reasonable ceiling on all candidates. This is a major consideration in favor of the limitation. It should be added that many successful candidates will also be saved from large, overhanging campaign debts which must be paid off with money raised while holding public office and at a time when they are already preparing or thinking about the next campaign. The danger to the public interest in such situations is self-evident.
Besides backing up the contribution provisions, which are aimed at preventing untoward influence on candidates that are elected, expenditure limits have their own potential for preventing the corruption of federal elections themselves. For many years the law has required the disclosure of expenditures as well as contributions. As Burroughs indicates, the corrupt use of money by candidates
I have little doubt in addition that limiting the total that can be spent will ease the candidate‘s understandable obsession with fundraising, and so free him and his staff to communicate in more places and ways unconnected with the fundraising function. There is nothing objectionable—indeed it seems to me a weighty interest in favor of the provision—in the attempt to insulate the political expression of federal candidates from the influence inevitably exerted by the endless job of raising increasingly large sums of money. I regret that the Court has returned them all to the treadmill.
It is also important to restore and maintain public confidence in federal elections. It is critical to obviate or dispel the impression that federal elections are purely and simply a function of money, that federal offices are bought and sold or that political races are reserved for those who have the facility—and the stomach—for doing whatever it takes to bring together those interests, groups, and individuals that can raise or contribute large fortunes in order to prevail at the polls.
The ceiling on candidate expenditures represents the considered judgment of Congress that elections are to be decided among candidates none of whom has overpowering advantage by reason of a huge campaign war chest. At least so long as the ceiling placed upon the candidates
I also disagree with the Court‘s judgment that § 608 (a), which limits the amount of money that a candidate or his family may spend on his campaign, violates the Constitution. Although it is true that this provision does not promote any interest in preventing the corruption of candidates, the provision does, nevertheless, serve salutary purposes related to the integrity of federal campaigns. By limiting the importance of personal wealth, § 608 (a) helps to assure that only individuals with a modicum of support from others will be viable candidates. This in turn would tend to discourage any notion that the outcome of elections is primarily a function of money. Similarly, § 608 (a) tends to equalize access to the political arena, encouraging the less wealthy, unable to bankroll their own campaigns, to run for political office.
As with the campaign expenditure limits, Congress was entitled to determine that personal wealth ought to play a less important role in political campaigns than it has in the past. Nothing in the First Amendment stands in the way of that determination.
For these reasons I respectfully dissent from the Court‘s answers to certified questions 3 (a), 3 (d), and 4 (a).
I join the answers in Part IV of the Court‘s opinion, ante, at 141-142, n. 177, to the questions certified by the District Court relating to the composition and powers of the FEC, i. e., questions 8 (a), 8 (b), 8 (c), 8 (d) (with the qualifications stated infra, at 282-286), 8 (e), and 8 (f). I also agree with much of that part of the Court‘s opinion, including the conclusions that these questions are properly before us and ripe for decision, that the FEC‘s past acts are de facto valid, that the Court‘s judgment should be stayed, and that the FEC may function de facto while the stay is in effect.
The answers to the questions turn on whether the FEC is illegally constituted because its members were not selected in the manner required by Art. II, § 2, cl. 2, the Appointments Clause. It is my view that with one exception Congress could endow a properly constituted commission with the powers and duties it has given the FEC.1
Section 437c creates an eight-member FEC. Two members, the Secretary of the Senate and the Clerk of the House of Representatives, are ex officio members
It is apparent that none of the members of the FEC is selected in a manner Art. II specifies for the appointment of officers of the United States. The Appointments Clause provides:
“[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”3
Although two of the members of the FEC are initially selected by the President, his nominations are subject to confirmation by both Houses of Congress. Neither
The Appointments Clause applies only to officers of the United States whose appointment is not “otherwise provided for” in the Constitution. Senators and Congressmen are officers of the United States, but the Constitution expressly provides the mode of their selection.4 The Constitution also expressly provides that each House of Congress is to appoint its own officers.5 But it is not contended here that FEC members are officers of either House selected pursuant to these express provisions, if for no other reason, perhaps, than that none of the Commissioners was selected in the manner specified by these provisions—none of them was finally selected by either House acting alone as Art. I authorizes.
The appointment power provided in Art. II also applies only to officers, as distinguished from employees,6 of the United States, but there is no claim the Commissioners are employees of the United States rather than officers. That the Commissioners are among those officers of the United States referred to in the Appointments Clause of Art. II is evident from the breadth of their
It is thus not surprising that the FEC, in defending the legality of its members’ appointments, does not deny that they are “officers of the United States” as that term is used in the Appointments Clause of Art. II.7 Instead,
The language of the Appointments Clause was not mere inadvertence. The matter of the appointment of officers of the new Federal Government was repeatedly debated by the Framers, and the final formulation of the Clause arrived at only after the most careful debate and consideration of its place in the overall design of government. The appointment power was a major building block fitted into the constitutional structure designed to avoid the accumulation or exercise of arbitrary power by the Federal Government. The basic approach was that official power should be divided among the Executive, Legislative, and Judicial Departments. The separation-of-powers principle was implemented by a series of provisions, among which was the knowing decision that Congress was to have no power whatsoever to appoint federal officers, except for the power of each House to appoint its own officers serving in the strictly legislative
Early in the 1787 Convention it was also proposed that members of Congress be absolutely ineligible during the term for which they were elected, and for a period thereafter, for appointment to any state or federal office.11 But to meet substantial opposition to so stringent a provision, ineligibility for state office was first eliminated,12 and under the language ultimately adopted, Congressmen
Under Art. II as finally adopted, law enforcement authority was not to be lodged in elected legislative officials subject to political pressures. Neither was the Legislative Branch to have the power to appoint those who were to enforce and administer the law. Also, the appointment power denied Congress and vested in the President was not limited to purely executive officers but reached officers performing purely judicial functions as well as all other officers of the United States.
I thus find singularly unpersuasive the proposition that because the FEC is implementing statutory policies with respect to the conduct of elections, which policies Congress has the power to propound, its members may be appointed by Congress. One might as well argue that the exclusive and plenary power of Congress over interstate commerce authorizes Congress to appoint the members of the Interstate Commerce Commission and of many other regulatory commissions; that its exclusive power to provide for patents and copyrights would permit the administration of the patent laws to be carried out by a congressional committee; or that the exclusive power of the Federal Government to establish post offices authorizes
In Myers, a postmaster of the first class was removed by the President prior to the expiration of his statutory four-year term. Challenging the President‘s power to remove him contrary to the statute, he sued for his salary. The challenge was rejected here. The Court said that under the Constitution the power to appoint the principal officers of the Executive Branch was an inherent power of the President:
“[T]he reasonable implication, even in the absence of express words, was that as part of his executive power [the President] should select those who were to act for him under his direction in the execution of the laws.” Id., at 117.
Further, absent express limitation in the Constitution, the President was to have unrestricted power to remove those administrative officers essential to him in discharging his duties. These fundamental rules were to extend to those bureau and department officers with power to issue regulations and to discharge duties of a quasi-judicial nature—those members of “executive tribunal whose decisions after hearing affect interests of individuals.” Id., at 135. As for inferior officers such as the plaintiff postmaster, the same principles were to govern if Congress chose to place the appointment in the President with the advice and consent of the Senate, as
“[T]he Court never has held, nor reasonably could hold, although it is argued to the contrary on behalf of the appellant, that the excepting clause enables Congress to draw to itself, or to either branch of it, the power to remove or the right to participate in the exercise of that power. To do this would be to go beyond the words and implications of that clause and to infringe the constitutional principle of the separation of governmental powers.” Id., at 161.
Humphrey‘s Executor v. United States, 295 U.S. 602 (1935), limited the reach of the Myers case. There the President attempted to remove a member of the Federal Trade Commission prior to the expiration of his statutory term and for reasons not specified in the statute. The Court ruled that the Presidential removal power vindicated in Myers related solely to “purely executive officers,” 295 U. S., at 628, from whom the Court sharply distinguished officers such as the members of the Federal Trade Commission who were to be free from political dominance and control, whose duties are “neither political nor executive, but predominantly quasi-judicial and quasi-legislative.” Id., at 624. Contrary to the dicta in Myers, such an officer was thought to occupy “no place in the executive department,” to exercise “no part of the executive power vested by the Constitution in the President,” 295 U. S., at 628, and to be immune from removal by the President except on terms specified by Congress. The Commissioners were described as being
The holding in Humphrey‘s Executor was confirmed in Wiener v. United States, 357 U.S. 349 (1958), but the Court did not question what Humphrey‘s Executor had expressly recognized—that members of independent agencies are not independent of the Executive with respect to their appointments. Nor did either Wiener or Humphrey‘s Executor suggest that Congress could not only create the independent agency, specify its duties, and control the grounds for removal of its members but could also itself appoint or remove them without the participation of the Executive Branch of the Government. To have so held would have been contrary to the Appointments Clause as the Myers case recognized.
It is said that historically Congress has used its own officers to receive and file the reports of campaign expenditures and contributions as required by law and that this Court should not interfere with this practice. But the Act before us creates a separate and independent campaign commission with members, some nominated by the President, who have specified terms of office, are not subject to removal by Congress, and are free from congressional control in their day-to-day functions. The FEC, it is true, is the designated authority with which candidates and political committees must file reports of contributions and expenditures, as required by the Act. But the FEC may also make rules and regulations with respect to the disclosure requirements, may investigate reported violations, issue subpoenas, hold its own hearings
Nor do the FEC‘s functions stop with policing the reporting and disclosure requirements of the Act. The FEC is given express power to administer, obtain compliance with, and “to formulate general policy”22 with respect to
It is suggested, without accounting for the President‘s role in appointing some of its members, that the FEC would be willing to forgo its civil enforcement powers and that absent these functions, it is left with nothing that purely legislative officers may not do. The difficulty is that the statute invests the FEC not only with the authority but with the duties that unquestionably make its members officers of the United States, fully as much as the members of other commissions charged with the major responsibility for administering statutes. What is more, merely forgoing its authority to bring suit would still leave the FEC with the power to issue rules and regulations, its advisory opinion authority, and primary duties to enforce the Act. Absent notice and hearing by the FEC and a request on its part, it would not appear that the Executive Branch of the Government would have any authority under the statute to institute civil enforcement proceedings with respect to the reporting and disclosure requirements or the relevant provisions of Titles 18 and 26.
There is no doubt that the development of the administrative
I do not dispute the legislative power of Congress coercively to gather and make available for public inspection massive amounts of information relevant to the legislative process. Its own officers may, as they have
For these reasons I join in the Court‘s answers to certified questions 8 (a), 8 (b), 8 (c), 8 (e) and 8 (f), and with the following reservations to question 8 (d).
Question 8 (d) asks whether § 438 (c) violates the constitutional rights of one or more of the plaintiffs in that “it empowers the Federal Election Commission to make rules under the F. E. C. A. in the manner specified therein.” Section 438 (c) imposes certain preconditions to the effectiveness of “any rule or regulation under this section . . . ,” but does not itself authorize the issuance of rules or regulations. That authorization is to be found in § 438 (a) (10), which includes among the duties of the FEC the task of prescribing “rules and regulations to carry out the provisions of this subchapter, in accordance with the provisions of subsection (c).” The “subchapter” referred to is the subchapter dealing with federal election campaigns and the reports of contributions and expenditures required to be filed with the FEC.27 Subsection
By expressly referring to subsection (c), question 8 (d) appears to focus on the disapproval requirement; but the Court‘s answer is not responsive in these terms. Rather, the Court expressly disclaims holding that the FEC‘s rules and regulations are invalid because of the requirement that they are subject to disapproval by one or both Houses of Congress. Ante, at 140 n. 176. As I understand it, the FEC‘s rules and regulations, whether or not issued in compliance with
If the FEC members had been nominated by the President and confirmed by the Senate as provided in Art. II,
I am also of the view that the otherwise valid regulatory power of a properly created independent agency is not rendered constitutionally infirm, as violative of the President‘s veto power, by a statutory provision subjecting agency regulations to disapproval by either House of Congress. For a bill to become law it must pass both Houses and be signed by the President or be passed over his veto. Also, “Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary . . .” is likewise subject to the veto power.29 Under
In terms of the substantive content of regulations and the degree of congressional influence over agency lawmaking, I do not suggest that there is no difference between the situation where regulations are subject to disapproval by Congress and the situation where the agency need not run the congressional gantlet. But the President‘s veto power, which gives him an important role in the legislative process, was obviously not considered an inherently executive function. Nor was its principal aim to provide another check against poor legislation. The major purpose of the veto power appears to have been to shore up the Executive Branch and to provide it with some bargaining and survival power against what the Framers feared would be the overweening power of legislators. As Hamilton said the veto power was to provide a defense against the legislative department‘s intrusion on the rights and powers of other departments; without such power, “the legislative and executive powers might speedily come to be blended in the same hands.”31
I would be much more concerned if Congress purported to usurp the functions of law enforcement, to control the outcome of particular adjudications, or to pre-empt the President‘s appointment power; but in the
MR. JUSTICE MARSHALL, concurring in part and dissenting in part.
I join in all of the Court‘s opinion except Part I-C-2, which deals with
To be sure,
It is significant, moreover, that the ceilings imposed by
The Court views “[t]he ancillary interest in equalizing the relative financial resources of candidates” as the relevant rationale for
One of the points on which all Members of the Court agree is that money is essential for effective communication in a political campaign. It would appear to follow that the candidate with a substantial personal fortune at his disposal is off to a significant “headstart.” Of course, the less wealthy candidate can potentially overcome the disparity in resources through contributions from others. But ability to generate contributions may itself depend upon a showing of a financial base for the campaign or some demonstration of pre-existing support, which in turn is facilitated by expenditures of substantial personal sums. Thus the wealthy candidate‘s immediate access to a substantial personal fortune may give him an initial advantage that his less wealthy opponent can never overcome. And even if the advantage can be overcome, the perception that personal wealth wins elections may not only discourage potential candidates without significant personal wealth from entering the political arena, but also undermine public confidence in the integrity of the electoral process.1
The concern that candidacy for public office not become, or appear to become, the exclusive province of the wealthy assumes heightened significance when one considers the impact of
In view of
MR. JUSTICE BLACKMUN, concurring in part and dissenting in part.
I am not persuaded that the Court makes, or indeed is able to make, a principled constitutional distinction between the contribution limitations, on the one hand, and the expenditure limitations, on the other, that are involved here. I therefore do not join Part I-B of the Court‘s opinion or those portions of Part I-A that are consistent with Part I-B. As to those, I dissent.
I also dissent, accordingly, from the Court‘s responses to certified questions 3 (b), (c), and (h). I would answer those questions in the affirmative.
I do join the remainder of the Court‘s opinion and its answers to the other certified questions.
MR. JUSTICE REHNQUIST, concurring in part and dissenting in part.
I concur in Parts I, II, and IV of the Court‘s opinion. I concur in so much of Part III of the Court‘s opinion as holds that the public funding of the cost of a Presidential election campaign is a permissible exercise of congressional authority under the power to tax and spend granted by Art. I, but dissent from Part III-B-1 of the Court‘s opinion, which holds that certain aspects of the statutory treatment of minor parties and independent candidates are constitutionally valid. I state as briefly as possible my reasons for so doing.
The limits imposed by the First and Fourteenth Amendments on governmental action may vary in their stringency depending on the capacity in which the government is acting. The government as proprietor, Adderley v. Florida, 385 U. S. 39 (1966), is, I believe,
For the reasons stated in the dissenting opinion of Mr. Justice Jackson in Beauharnais v. Illinois, 343 U. S. 250, 288-295 (1952), and by Mr. Justice Harlan in his dissenting opinion in Roth v. United States, 354 U. S. 476, 500-503 (1957), I am of the opinion that not all of the strictures which the First Amendment imposes upon Congress are carried over against the States by the Fourteenth Amendment, but rather that it is only the “general principle” of free speech, Gitlow v. New York, 268 U. S. 652, 672 (1925) (Holmes J., dissenting), that the latter incorporates. See Palko v. Connecticut, 302 U. S. 319, 324-325 (1937).
Given this view, cases which deal with state restrictions on First Amendment freedoms are not fungible with those which deal with restrictions imposed by the Federal Government, and cases which deal with the government as employer or proprietor are not fungible with those which deal with the government as a lawmaker enacting criminal statutes applying to the population generally. The statute before us was enacted by Congress, not with the aim of managing the Government‘s property nor of regulating the conditions of Government employment, but rather with a view to the regulation of the citizenry as a whole. The case for me, then, presents the First Amendment interests of the appellants at their strongest, and the legislative authority of Congress in the position where it is most vulnerable to First Amendment attacks.
While I am not sure that I agree with the Court‘s comment, ante, at 95, that “public financing is generally less restrictive of access to the electoral process than the ballot-access regulations dealt with in prior cases,” in any case that is not, under my view, an adequate answer to appellants’ claim. The electoral laws relating to ballot access which were examined in Lubin v. Panish, 415 U. S. 709, 716 (1974); American Party of Texas v. White, 415 U. S. 767, 780 (1974); and Storer v. Brown, 415 U. S. 724, 729 730 (1974), all arose out of state efforts to regulate minor party candidacies and the actual physical size of the ballot. If the States are to afford a republican form of government, they must by definition provide for general elections and for some standards as to the contents of the official ballots which will be used at those elections. The decision of the state legislature to enact legislation embodying such regulations is therefore not in any sense an optional one; there must be some standards, however few, which prescribe the contents of the official ballot if the popular will is to be translated into a choice among candidates. Dealing thus by necessity with these issues, the States have strong interests in “limiting places on the ballot to those candidates who demonstrate substantial popular support,” ante, at 96. They have a like interest in discouraging
Congress, on the other hand, while undoubtedly possessing the legislative authority to undertake the task if it wished, is not obliged to address the question of public financing of Presidential elections at all. When it chooses to legislate in this area, so much of its action as may arguably impair First Amendment rights lacks the same sort of mandate of necessity as does a State‘s regulation of ballot access.
Congress, of course, does have an interest in not “funding hopeless candidacies with large sums of public money,” ante, at 96, and may for that purpose legitimately require ” ‘some preliminary showing of a significant modicum of support,’ Jenness v. Fortson, 403 U. S. 431, 442 (1971), as an eligibility requirement for public funds.” Ante, at 96. But Congress in this legislation has done a good deal more than that. It has enshrined the Republican and Democratic Parties in a permanently preferred position, and has established requirements for funding minor-party and independent candidates to which the two major parties are not subject. Congress would undoubtedly be justified in treating the Presidential candidates of the two major parties differently from minor-party or independent Presidential candidates, in view of the long demonstrated public support of the former. But because of the First Amendment overtones of the appellants’ Fifth Amendment equal protection claim, something more than a merely rational basis for the difference in treatment must be shown, as the Court apparently recognizes. I find it impossible to subscribe to the Court‘s reasoning that because no third party has posed a credible threat to the two major parties in Presidential
I would hold that, as to general election financing, Congress has not merely treated the two major parties differently from minor parties and independents, but has discriminated in favor of the former in such a way as to run afoul of the Fifth and First Amendments to the United States Constitution.
NOTES
[*] Together with No. 75-437, Buckley et al. v. Valeo, Secretary of the United States Senate, et al., on appeal from the United States District Court for the District of Columbia.
Notes
[†] Thomas F. Monaghan filed a brief for James B. Longley as amicus curiae urging reversal.
Mr. Cox filed a brief for Hugh Scott et al. as amici curiae urging affirmance.
Briefs of amici curiae were filed by Jerome B. Falk, Jr., Daniel H. Lowenstein, Howard F. Sachs, and Guy L. Heinemann for the California Fair Political Practices Commission et al.; by Lee Metcalf, pro se, and G. Roger King for Mr. Metcalf; by Vincent Hallinan for the Socialist Labor Party; by Marguerite M. Buckley for the Los Angeles County Central Committee of the Peace and Freedom Party; and by the Committee for Democratic Election Laws.
[1] Federal Election Campaign Act of 1971, 86 Stat. 3, as amended by the Federal Election Campaign Act Amendments of 1974, 88 Stat. 1263. The pertinent portions of the legislation are set forth in the Appendix to this opinion.
[2] 171 U. S. App. D. C. 172, 519 F. 2d 821 (1975).
[3] The Revenue Act of 1971, Title VIII, 85 Stat. 562, as amended, 87 Stat. 138, and further amended by the Federal Election Campaign Act Amendments of 1974, § 403 et seq., 88 Stat. 1291. This subtitle consists of two parts: Chapter 95 deals with funding national party conventions and general election campaigns for president, and Chapter 96 deals with matching funds for Presidential primary campaigns.
[4] Ҥ 437h. Judicial review.
“(a) . . .
“The Commission, the national committee of any political party, or any individual eligible to vote in any election for the office of President of the United States may institute such actions in the appropriate district court of the United States, including actions for declaratory judgment, as may be appropriate to construe the constitutionality of any provision of this Act or of section 608, 610, 611, 613, 614, 615, 616, or 617 of Title 18. The district court immediately shall certify all questions of constitutionality of this Act or of section 608, 610, 611, 613, 614, 615, 616, or 617 of Title 18, to the United States court of appeals for the circuit involved, which shall hear the matter sitting en banc.
“(b) . . .
“Notwithstanding any other provision of law, any decision on a matter certified under subsection (a) of this section shall be reviewable by appeal directly to the Supreme Court of the United States. Such appeal shall be brought no later than 20 days after the decision of the court of appeals.
“(c) . . .
“It shall be the duty of the court of appeals and of the Supreme Court of the United States to advance on the docket and to expedite to the greatest possible extent the disposition of any matter certified under subsection (a) of this section.”
[5] Center for Public Financing of Elections, Common Cause, the League of Women Voters of the United States, Chellis O‘Neal Gregory, Norman F. Jacknis, Louise D. Wides, Daniel R. Noyes, Mrs. Edgar B. Stern, Charles P. Taft, John W. Gardner, and Ruth Clusen.
[6] The Court of Appeals also suggested in its en banc order that the issues arising under Subtitle H (relating to the public financing of Presidential campaigns) might require, under
[7] The court held one provision, § 437a, unconstitutionally vague and overbroad on the ground that the provision is ” ‘susceptible to a reading necessitating reporting by groups whose only connection with the elective process arises from completely nonpartisan public discussion of issues of public importance.’ ” 171 U. S. App. D. C., at 183, 519 F. 2d, at 832. No appeal has been taken from that holding.
[8] The court recognized that some of the powers delegated to the Commission, when exercised in a concrete context, may be predominantly executive or judicial or unrelated to the Commission‘s legislative function; however, since the Commission had not yet exercised most of these challenged powers, consideration of the constitutionality of those grants of authority was postponed. See n. 157, infra.
[9] See n. 4, supra.
[10] This Court has held, for instance, that an organization “may assert, on behalf of its members, a right personal to them to be protected from compelled disclosure . . . of their affiliation.” NAACP v. Alabama, 357 U. S. 449, 458 (1958). See also Bates v. Little Rock, 361 U. S. 516, 523 n. 9 (1960). Similarly, parties with sufficient concrete interests at stake have been held to have standing to raise constitutional questions of separation of powers with respect to an agency designated to adjudicate their rights. Palmore v. United States, 411 U. S. 389 (1973); Glidden Co. v. Zdanok, 370 U. S. 530 (1962); Coleman v. Miller, 307 U. S. 433 (1939).
[11] Accordingly, the two relevant certified questions are answered as follows:
1. Does the first sentence of § 315 (a) of the Federal Election Campaign Act, as amended,
2. Has each of the plaintiffs alleged sufficient injury to his constitutional rights enumerated in the following questions to create a constitutional “case or controversy” within the judicial power under Article III? YES.
[12] See
[13] See
[14] See
[15] See
[16] Article I, § 4, of the Constitution grants Congress the power to regulate elections of members of the Senate and House of Representatives. See Smiley v. Holm, 285 U. S. 355 (1932); Ex parte Yarbrough, 110 U. S. 651 (1884). Although the Court at one time indicated that party primary contests were not “elections” within the meaning of Art. I, § 4, Newberry v. United States, 256 U. S. 232 (1921), it later held that primary elections were within the Constitution‘s grant of authority to Congress. United States v. Classic, 313 U. S. 299 (1941). The Court has also recognized broad congressional power to legislate in connection with the elections of the president and Vice President. Burroughs v. United States, 290 U. S. 534 (1934). See Part III, infra.
[17] The nongovernmental appellees argue that just as the decibels emitted by a sound truck can be regulated consistently with the First Amendment, Kovacs v. Cooper, 336 U. S. 77 (1949), the Act may restrict the volume of dollars in political campaigns without impermissibly restricting freedom of speech. See Freund, Commentary in A. Rosenthal, Federal Regulation of Campaign Finance: Some Constitutional Questions 72 (1971). This comparison underscores a fundamental misconception. The decibel restriction upheld in Kovacs limited the manner of operating a soundtruck, but not the extent of its proper use. By contrast, the Act‘s dollar ceilings restrict the extent of the reasonable use of virtually every means of communicating information. As the Kovacs Court emphasized, the nuisance ordinance only barred soundtrucks from broadcasting “in a loud and raucous manner on the streets,” 336 U. S., at 89, and imposed “no restriction upon the communication of ideas or discussion of issues by the human voice, by newspapers, by pamphlets, by dodgers,” or by soundtrucks operating at a reasonable volume. Ibid. See Saia v. New York, 334 U. S. 558, 561-562 (1948).
[18] Being free to engage in unlimited political expression subject to a ceiling on expenditures is like being free to drive an automobile as far and as often as one desires on a single tank of gasoline.
[19] Political parties that fail to qualify a candidate for a position on the ballot are classified as “persons” and are subject to the $1,000 independent expenditure ceiling. See
Unless otherwise indicated all subsequent statutory citations in Part I of this opinion are to Title 18 of the United States Code, 1970 edition, Supplement IV.
[20] The record indicates that, as of January 1, 1975, one full-page advertisement in a daily edition of a certain metropolitan newspaper cost $6,971.04—almost seven times the annual limit on expenditures “relative to” a particular candidate imposed on the vast majority of individual citizens and associations by § 608 (e) (1)
[21] The statistical findings of fact agreed to by the parties in the District Court indicate that 17 of 65 major-party senatorial candidates in 1974 spent more than the combined primary-election, general-election, and fundraising limitations imposed by the Act. §§ 591 (f) (4) (H), 608 (c) (1) (C), (D). The 1972 senatorial figures showed that 18 of 66 major-party candidates exceeded the Act‘s limitations. This figure may substantially underestimate the number of candidates who exceeded the limits provided in the Act, since the Act imposes separate ceilings for the primary election, the general election, and fundraising, and does not permit the limits to be aggregated. § 608 (c) (3). The data for House of Representatives elections are also skewed, since statistics reflect a combined $168,000 limit instead of separate $70,000 ceilings for primary and general elections with up to an additional 20% permitted for fundraising. §§ 591 (f) (4) (H), 608 (c) (1) (E). Only 22 of the 810 major-party House candidates in 1974 and 20 of the 816 major-party candidates in 1972 exceeded the $168,000 figure. Both Presidential candidates in 1972 spent in excess of the combined Presidential expenditure ceilings. §§ 608 (c) (1) (A), (B).
[22] Other factors relevant to an assessment of the “intensity” of the support indicated by a contribution include the contributor‘s financial ability and his past contribution history.
[23] Statistical findings agreed to by the parties reveal that approximately 5.1% of the $73,483,613 raised by the 1,161 candidates for Congress in 1974 was obtained in amounts in excess of $1,000. In 1974, two major-party senatorial candidates, Ramsey Clark and Senator Charles Mathias, Jr., operated large-scale campaigns on contributions raised under a voluntarily imposed $100 contribution limitation.
[24] The Act exempts from the contribution ceiling the value of all volunteer services provided by individuals to a candidate or a political committee and excludes the first $500 spent by volunteers on certain categories of campaign-related activities. §§ 591 (e) (5) (A)-(D). See infra, at 36-37.
The Act does not define the phrase—“for the purpose of influencing” an election—that determines when a gift, loan, or advance constitutes a contribution. Other courts have given that phrase a narrow meaning to alleviate various problems in other contexts. See United States v. National Comm. for Impeachment, 469 F. 2d 1135, 1139-1142 (CA2 1972); American Civil Liberties Union v. Jennings, 366 F. Supp. 1041, 1055-1057 (DC 1973) (three-judge court), vacated as moot sub nom. Staats v. American Civil Liberties Union, 422 U. S. 1030 (1975). The use of the phrase presents fewer problems in connection with the definition of a contribution because of the limiting connotation created by the general understanding of what constitutes a political contribution. Funds provided to a candidate or political party or campaign committee either directly or indirectly through an intermediary constitute a contribution. In addition, dollars given to another person or organization that are earmarked for political purposes are contributions under the Act.
[25] Expenditures by persons and associations that are “authorized or requested” by the candidate or his agents are treated as contributions under the Act. See n. 53, infra.
[26] Contribution limitations alone would not reduce the greater potential voice of affluent persons and well-financed groups, who would remain free to spend unlimited sums directly to promote candidates and policies they favor in an effort to persuade voters.
[27] Yet, a ceiling on the size of contributions would affect only indirectly the costs of political campaigns by making it relatively more difficult for candidates to raise large amounts of money. In 1974, for example, 94.9% of the funds raised by candidates for Congress came from contributions of $1,000 or less, see n. 23, supra. Presumably, some or all of the contributions in excess of $1,000 could have been replaced through efforts to raise additional contributions from persons giving less than $1,000. It is the Act‘s campaign expenditure limitations, § 608 (c), not the contribution limits, that directly address the overall scope of federal election spending.
[28] The Court of Appeals’ opinion in this case discussed a number of the abuses uncovered after the 1972 elections. See 171 U. S. App. D. C., at 190-191, and nn. 36-38, 519 F. 2d, at 839-840, and nn. 36-38.
[29] Although the Court in Letter Carriers found that this interest was constitutionally sufficient to justify legislation prohibiting federal employees from engaging in certain partisan political activities, it was careful to emphasize that the limitations did not restrict an employee‘s right to express his views on political issues and candidates. 413 U. S., at 561, 568, 575-576, 579. See n. 54, infra.
[30] The Act‘s disclosure provisions are discussed in Part II, infra.
[31] While providing significant limitations on the ability of all individuals and groups to contribute large amounts of money to candidates, the Act‘s contribution ceilings do not foreclose the making of substantial contributions to candidates by some major special-interest groups through the combined effect of individual contributions from adherents or the proliferation of political funds each authorized under the Act to contribute to candidates. As a prime example, § 610 permits corporations and labor unions to establish segregated funds to solicit voluntary contributions to be utilized for political purposes. Corporate and union resources without limitation may be employed to administer these funds and to solicit contributions from employees, stockholders, and union members. Each separate fund may contribute up to $5,000 per candidate per election so long as the fund qualifies as a political committee under § 608 (b) (2). See S. Rep. No. 93-1237, pp. 50-52 (1974); Federal Election Commission, Advisory Opinion 1975-23, 40 Fed. Reg. 56584 (1975).
The Act places no limit on the number of funds that may be formed through the use of subsidiaries or divisions of corporations, or of local and regional units of a national labor union. The potential for proliferation of these sources of contributions is not insignificant. In 1972, approximately 1,824,000 active corporations filed federal income tax returns. Internal Revenue Service, Preliminary Statistics of Income 1972, Corporation Income Tax Returns, p. 1 (pub. 159 (11-74)). (It is not clear whether this total includes subsidiary corporations where the parent filed a consolidated return.) In the same year, 71,409 local unions were chartered by national unions. Department of Labor, Bureau of Labor Statistics, Directory of National Unions and Employee Associations 1973, p. 87 (1974).
The Act allows the maximum contribution to be made by each unit‘s fund provided the decision or judgment to contribute to particular candidates is made by the fund independently of control or direction by the parent corporation or the national or regional union. See S. Rep. No. 93-1237, pp. 51-52 (1974).
[32] The Act‘s limitations applicable to both campaign expenditures and а candidate‘s personal expenditures on his own behalf are scaled to take account of the differences in the amounts of money required for congressional and Presidential campaigns. See §§ 608 (a) (1), (c) (1) (A)-(E).
[33] In this discussion, we address only the argument that the contribution limitations alone impressibly discriminate against non-incumbents. We do not address the more serious argument that these limitations, in combination with the limitation on expenditures by individuals and groups, the limitation on a candidate‘s use of his own personal and family resources, and the overall ceiling on campaign expenditures invidiously discriminate against major-party challengers and minor-party candidates.
Since an incumbent is subject to these limitations to the same degree as his opponent, the Act, on its face, appears to be even-handed. The appearance of fairness, however, may not reflect political reality. Although some incumbents are defeated in every congressional election, it is axiomatic that an incumbent usually begins the race with significant advantages. In addition to the factors of voter recognition and the status accruing to holding federal office, the incumbent has access to substantial resources provided by the Government. These include local and Washington offices, staff support, and the franking privilege. Where the incumbent has the support of major special-interest groups which have the flexibility described in n. 31, supra, and is further supported by the media, the overall effect of the contribution and expenditure limitations enacted by Congress could foreclose any fair opportunity of a successful challenge.
However, since we decide in Part I-C, infra, that the ceilings on independent expenditures, on the candidate‘s expenditures from his personal funds, and on overall campaign expenditures are unconstitutional under the First Amendment, we need not express any opinion with regard to the alleged invidious discrimination resulting from the full sweep of the legislation as enacted.
[34] In 1974, for example, 40 major-party challengers defeated incumbent members of the House of Representatives in the general election. Four incumbent Senators were defeated by major-party challengers in the 1974 primary and general election campaigns.
[35] In the 1974 races for the House of Representatives, three of the 22 major-party candidates exceeding the combined expenditure limits contained in the Act were challengers to incumbents and nine were candidates in races not involving incumbents. The comparable 1972 statistics indicate that 14 of the 20 major-party candidates exceeding the combined limits were nonincumbents.
[36] In 1974, major-party challengers outspent House incumbents in 22% of the races, and 22 of the 40 challengers who defeated House incumbents outspent their opponents. In 1972, 24% of the major-party challengers in senatorial elections outspent their incumbent opponents. The 1974 statistics for senatorial contests reveal substantially greater financial dominance by incumbents.
[37] Of the $3,781,254 in contributions raised in 1974 by congressional candidates over and above a $1,000-per-contributor limit, almost twice as much money went to incumbents as to major-party challengers.
[38] Appellants contend that the Act discriminates against challengers, because, while it limits contributions to all candidates, the Government makes available other material resources to incumbents. See n. 33, supra. Yet, taking cognizance of the advantages and disadvantages of incumbency, there is little indication that the $1,000 contribution ceiling will consistently harm the prospects of challengers relative to incumbents.
[39] Between September 1, 1973, and December 31, 1974, major-party candidates for the House and Senate raised over $3,725,000 in contributions over and above $1,000 compared to $55,000 raised by minor-party candidates in amounts exceeding the $1,000 contribution limit.
[40] Appellant Libertarian Party, according to estimates of its national chairman, has received only 10 contributions in excess of $1,000 out of a total of 4,000 contributions. Even these 10 contributions would have been permissible under the Act if the donor did not earmark the funds for a particular candidate and did not exceed the overall $25,000 contribution ceiling for the calendar year. See § 608 (b). Similarly, appellants Conservative Victory Fund and American Conservative Union have received only an insignificant portion of their funding through contributions in excess of $1,000. The affidavit of the executive director of the Conservative Victory Fund indicates that in 1974, a typical fundraising year, the Fund received approximately $152,000 through over 9,500 individual contributions. Only one of the 9,500 contributions, an $8,000 contribution earmarked for a particular candidate, exceeded $1,000. In 1972, the Fund received only three contributions in excess of $1,000, all of which might have been legal under the Act if not earmarked. And between April 7, 1972, and February 28, 1975, the American Conservative Union did not receive any aggregate contributions exceeding $1,000. Moreover, the Committee for a Constitutional Presidency—McCarthy ‘76, another appellant, engaged in a concerted effort to raise contributions in excess of $1,000 before the effective date of the Act but obtained only five contributions in excess of $1,000.
Although appellants claim that the $1,000 ceiling governing contributions to candidates will prevent the acquisition of seed money necessary to launch campaigns, the absence of experience under the Act prevents us from evaluating this assertion. As appellees note, it is difficult to assess the effect of the contribution ceiling on the acquisition of seed money since candidates have not previously had to make a concerted effort to raise start-up funds in small amounts.
[41] Appellant Buckley was a minor-party candidate in 1970 when he was elected to the United States Senate from the State of New York.
[42] Although expenditures incidental to volunteer services would appear self-limiting, it is possible for a worker in a candidate‘s campaign to generate substantial travel expenses. An affidavit submitted by Stewart Mott, an appellant, indicates that he “expended some $50,000 for personal expenses” in connection with Senator McGovern‘s 1972 Presidential campaign.
[43] The Act contains identical, parallel provisions pertaining to incidental volunteer expenses under the definitions of contribution and expenditure. Compare §§ 591 (e) (5) (B)-(D) with §§ 591 (f) (4) (D), (E). The definitions have two effects. First, volunteer expenses that are counted as contributions by the volunteer would also constitute expenditures by the candidate‘s campaign. Second, some volunteer expenses would qualify as contributions whereas others would constitute independent expenditures. The statute distinguishes between independent expenditures by individuals and campaign expenditures on the basis of whether the candidate, an authorized committee of the candidate, or an agent of the candidate “authorized or requested” the expenditure. See §§ 608 (c) (2) (B) (ii), (e) (1); S. Rep. No. 93-689, p. 18 (1974); H. R. Rep. No. 93-1239, p. 6 (1974). As a result, only travel that is “authorized or requested” by the candidate or his agents would involve incidental expenses chargeable against the volunteer‘s contribution limit and the candidate‘s expenditure ceiling. See n. 53, infra. Should a person independently travel across the country to participate in a campaign, any unreimbursed travel expenses would not be treated as a contribution. This interpretation is not only consistent with the statute and the legislative history but is also necessary to avoid the administrative chaos that would be produced if each volunteer and candidate had to keep track of amounts spent on unsolicited travel in order to comply with the Act‘s contribution and expenditure ceilings and the reporting and disclosure provisions. The distinction between contributions and expenditures is also discussed at n. 53, infra, and in Part II-C-2, infra.
[44] See n. 19, supra.
[45] The same broad definition of “person” applicable to the contribution limitations governs the meaning of “person” in § 608 (e) (1). The statute provides some limited exceptions through various exclusions from the otherwise comprehensive definition of “expenditure.” See § 591 (f). The most important exclusions are: (1) “any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication, unless such facilities are owned or controlled by any political party, political committee, or candidate,” § 591 (f) (4) (A), and (2) “any communication by any membership organization or corporation to its members or stockholders, if such membership organization or corporation is not organized primarily for the purpose of influencing the nomination for election, or election, of any person to Federal office,” § 591 (f) (4) (C). In addition, the Act sets substantially higher limits for personal expenditures by a candidate in connection with his own campaign, § 608 (a), expenditures by national and state committees of political parties that succeed in placing a candidate on the ballot, §§ 591 (i), 608 (f), and total campaign expenditures by candidates, § 608 (c).
[46] Section 608 (i) provides that any person convicted of exceeding any of the contribution or expenditure limitations “shall be fined not more than $25,000 or imprisoned not more than one year, or both.”
[47] Several of the parties have suggested that problems of ambiguity regarding the application of § 608 (e) (1) to specific campaign speech could be handled by requesting advisory opinions from the Commission. While a comprehensive series of advisory opinions or a rule delineating what expenditures are “relative to a clearly identified candidate” might alleviate the provision‘s vagueness problems, reliance on the Commission is unacceptable because the vast majority of individuals and groups subject to criminal sanctions for violating § 608 (e) (1) do not have a right to obtain an advisory opinion from the Commission. See
[48] In such circumstances, vague laws may not only “trap the innocent by not providing fair warning” or foster “arbitrary and discriminatory application” but also operate to inhibit protected expression by inducing “citizens to ‘steer far wider of the unlawful zone’ . . . than if the boundaries of the forbidden areas were clearly marked.’ ” Grayned v. City of Rockford, 408 U. S. 104, 108-109 (1972), quoting Baggett v. Bullitt, 377 U. S. 360, 372 (1964), quoting Speiser v. Randall, 357 U. S. 513, 526 (1958). “Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.” NAACP v. Button, 371 U. S. 415, 433 (1963).
[49] This interpretation of “relative to” a clearly identified candidate is supported by the discussion of § 608 (e) (1) in the Senate Report, S. Rep. No. 93-689, p. 19 (1974), the House Report, H. R. Rep. No. 93-1239, p. 7 (1974), the Conference Report, S. Conf. Rep. No. 93-1237, pp. 56-57 (1974), and the opinion of the Court of Appeals, 171 U. S. App. D. C., at 203-204, 519 F. 2d, at 852-853.
[50] In connection with another provision containing the same advocacy language appearing in § 608 (e) (1), the Court of Appeals concluded:
“Public discussion of public issues which also are campaign issues readily and often unavoidably draws in candidates and their positions, their voting records and other official conduct. Discussions of those issues, and as well more positive efforts to influence public opinion on them, tend naturally and inexorably to exert some influence on voting at elections.” 171 U. S. App. D. C., at 226, 519 F. 2d, at 875.
[51] Section 608 (e) (2) defines “clearly identified” to require that the candidate‘s name, photograph or drawing, or other unambiguous reference to his identity appear as part of the cоmmunication. Such other unambiguous reference would include use of the candidate‘s initials (e. g., FDR), the candidate‘s nickname (e. g., Ike), his office (e. g., the President or the Governor of Iowa), or his status as a candidate (e. g., the Democratic Presidential nominee, the senatorial candidate of the Republican Party of Georgia).
[52] This construction would restrict the application of § 608 (e) (1) to communications containing express words of advocacy of election or defeat, such as “vote for,” “elect,” “support,” “cast your ballot for,” “Smith for Congress,” “vote against,” “defeat,” “reject.”
[53] Section 608 (e) (1) does not apply to expenditures “on behalf of a candidate” within the meaning of § 608 (c) (2) (B). The latter subsection provides that expenditures “authorized or requested by the candidate, an authorized committee of the candidate, or an agent of the candidate” are to be treated as expenditures of the candidate and contributions by the person or group making the expenditure. The House and Senate Reports provide guidance in differentiating individual expenditures that are contributions and candidate expenditures under § 608 (c) (2) (B) from those treated as independent expenditures subject to the § 608 (e) (1) ceiling. The House Report speaks of independent expenditures as costs “incurred without the request or consent of a candidate or his agent.” H. R. Rep. No. 93-1239, p. 6 (1974). The Senate Report addresses the issue in greater detail. It provides an example illustrating the distinction between “authorized or requested” expenditures excluded from § 608 (e) (1) and independent expenditures governed by § 608 (e) (1):
“[A] person might purchase billboard advertisements endorsing a candidate. If he does so completely on his own, and not at the request or suggestion of the candidate or his agent‘s [sic] that would constitute an `independent expenditure on behalf of a candidate’ under section 614 (c) of the bill. The person making the expenditure would have to report it as such.
“However, if the advertisement was placed in cooperation with the candidate‘s campaign organization, then the amount would constitute a gift by the supporter and an expenditure by the candidate— just as if there had been a direct contribution enabling the candidate to place the advertisement, himself. It would be so reported by both.” S. Rep. No. 93-689, p. 18 (1974).
The Conference substitute adopted the provision of the Senate bill dealing with expenditures by any person “authorized or requested” to make an expenditure by the candidate or his agents. S. Conf. Rep. No. 93-1237, p. 55 (1974). In view of this legislative history and the purposes of the Act, we find that the “authorized or requested” standard of the Act operates to treat all expenditures placed in cooperation with or with the consent of a candidate, his agents, or an authorized committee of the candidate as contributions subject to the limitations set forth in § 608 (b).
[54] Appellees mistakenly rely on this Court‘s decision in CSC v. Letter Carriers, as supporting § 608 (e) (1)‘s restriction on the spending of money to advocate the election or defeat of a particular candidate. In upholding the Hatch Act‘s broad restrictions on the associational freedoms of federal employees, the Court repeatedly emphasized the statutory provision and corresponding regulation permitting an employee to ” ‘[e]xpress his opinion as an individual privately and publicly on political subjects and candidates.’ ” 413 U. S., at 579, quoting
[55] Neither the voting rights cases nor the Court‘s decision upholding the Federal Communications Commission‘s fairness doctrine lends support to appellees’ position that the First Amendment permits Congress to abridge the rights of some persons to engage in political expression in order to enhance the relative voice of other segments of our society.
Cases invalidating governmentally imposed wealth restrictions on the right to vote or file as a candidate for public office rest on the conclusion that wealth “is not germane to one‘s ability to participate intelligently in the electoral process” and is therefore an insufficient basis on which to restrict a citizen‘s fundamental right to vote. Harper v. Virginia Bd. of Elections, 383 U. S. 663, 668 (1966). See Lubin v. Panish, 415 U. S. 709 (1974); Bullock v. Carter, 405 U. S. 134 (1972); Phoenix v. Kolodziejski, 399 U. S. 204 (1970). These voting cases and the reapportionment decisions serve to assure that citizens are accorded an equal right to vote for their representatives regardless of factors of wealth or geography. But the principles that underlie invalidation of governmentally imposed restrictions on the franchise do not justify governmentally imposed restrictions on political expression. Democracy depends on a well-informed electorate, not a citizenry legislatively limited in its ability to discuss and debate candidates and issues.
In Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969), the Court upheld the political-editorial and personal-attack portions of the Federal Communications Commission‘s fairness doctrine. That doctrine requires broadcast licensees to devote programing time to the discussion of controversial issues of public importance and to present both sides of such issues. Red Lion “makes clear that the broadcast media pose unique and special problems not present in the traditional free speech case,” by demonstrating that ” ‘it is idle to posit an unbridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish.’ ” Columbia Broadcasting v. Democratic Comm., 412 U. S. 94, 101 (1973), quoting Red Lion Broadcasting Co., supra, at 388. Red Lion therefore undercuts appellees’ claim that § 608 (e) (1)‘s limitations may permissibly restrict the First Amendment rights of individuals in this “traditional free speech case.” Moreover, in contrast to the undeniable effect of § 608 (e) (1), the presumed effect of the fairness doctrine is one of “enhancing the volume and quality of coverage” of public issues. 395 U. S., at 393.
[56] The Act exempts most elements of the institutional press, limiting only expenditures by institutional press facilities that are owned or controlled by candidates and political parties. See § 591 (f) (4) (A). But, whatever differences there may be between the constitutional guarantees of a free press and of free speech, it is difficult to conceive of any principled basis upon which to distinguish § 608 (e) (1)‘s limitations upon the public at large and similar limitations imposed upon the press specifically.
[57] The $35,000 ceiling on expenditures by candidates for the Senate also applies to candidates for the House of Representatives from States entitled to only one Representative. § 608 (a) (1) (B).
The Court of Appeals treated § 608 (a) as relaxing the $1,000-per-candidate contribution limitation imposed by § 608 (b) (1) so as to permit any member of the candidate‘s immediate family—spouse, child, grandparent, brother, sister, or spouse of such persons—to contribute up to the $25,000 overall annual contribution ceiling to the candidate. See 171 U. S. App. D. C., at 205, 519 F. 2d, at 854. The Commission has recently adopted a similar interpretation of the provision. See Federal Election Commission, Advisory Opinion 1975-65 (Dec. 5, 1975), 40 Fed. Reg. 58393. However, both the Court of Appeals and the Commission apparently overlooked the Conference Report accompanying the final version of the Act which expressly provides for a contrary interpretation of § 608 (a):
“It is the intent of the conferees that members of the immediate family of any candidate shall be subject to the contribution limitations established by this legislation. If a candidate for the office of Senator, for example, already is in a position to exercise control over funds of a member of his immediate family before he becomes a candidate, then he could draw upon these funds up to the limit of $35,000. If, however, the candidate did not have access to or control over such funds at the time he became a candidate, the immediate family member would not be permitted to grant access or control to the candidate in amounts up to $35,000, if the immediate family member intends that such amounts are to be used in the campaign of the candidate.
The immediate family member would be permitted merely to make contributions to the candidate in amounts not greater than $1,000 for each election involved.” S. Conf. Rep. No. 93-1237, p. 58 (1974).
58The Court of Appeals evidently considered the personal funds expended by the candidate on his own behalf as a contribution rather than an expenditure. See 171 U. S. App. D. C., at 205, 519 F. 2d, at 854. However, unlike a person‘s contribution to a candidate, a candidate‘s expenditure of his personal funds directly facilitates his own political speech.
59The legislative history of the Act clearly indicates that
The limitation on a candidate‘s expenditure of his own funds differs markedly from a limitation on family contributions both in the absence of any threat of corruption and the presence of a legislative restriction on the candidate‘s ability to fund his own communication with the voters.
60Expenditures made by an authorized committee of the candidate or any other agent of the candidate as well as any expenditure by any other person that is “authorized or requested” by the candidate or his agent are charged against the candidate‘s spending ceiling.
61Expenditures made by or on behalf of a Vice Presidential candidate of a political party are considered to have been made by or on behalf of the party‘s Presidential candidate.
62The campaign ceilings contained in
63This normal relationship may not apply where the candidate devotes a large amount of his personal resources to his campaign.
64As an opinion dissenting in part from the decision below noted: “If a senatorial candidate can raise $1 from each voter, what evil is exacerbated by allowing that candidate to use all that money for political communication? I know of none.” 171 U. S. App. D. C., at 268, 519 F. 2d, at 917 (Tamm, J.).
65For the reasons discussed in Part III, infra, 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.
66Subtitle H of the Internal Revenue Code also established separate limitations for general election expenditures by national and state committees of political parties,
67Accordingly, the answers to the certified constitutional questions pertaining to the Act‘s contribution and expenditure limitations are as follows:
3. Does any statutory limitation, or do the particular limitations in the challenged statutes, on the amounts that individuals or organizations may contribute or expend in connection with elections for federal office violate the rights of one or more of the plaintiffs under the First, Fifth, or Ninth Amendment or the Due Process Clause of the Fifth Amendment of the Constitution of the United States?
(a) Does
Answer: YES.
(b) Does
Answer: NO.
(c) Do
Answer: NO.
(d) Does
Answer: YES.
(e) Does
Answer: NO, as to the Fifth Amendment challenge advanced by appellants.
(f) Does
Answer: NO, as to the Fifth Amendment challenge advanced by appellants.
(h) Does
Answer: NO.
4. Does any statutory limitation, or do the particular limitations in the challenged statutes, on the amounts that candidates for elected federal office may expend in their campaigns violate the rights of one or more of the plaintiffs under the First or Ninth Amendment or the Due Process Clause of the Fifth Amendment?
(a) Does
Answer: YES.
68Unless otherwise indicated, all statutory citations in Part II of this opinion are to Title 2 of the United States Code, 1970 edition, Supplement IV.
69Appellants do contend that there should be a blanket exemption from the disclosure provisions for minor parties. See Part II-B-2, infra.
70The Court of Appeals’ ruling that
71Past disclosure laws were relatively easy to circumvent because candidates were required to report only contributions that they had received themselves or that were received by others for them with their knowledge or consent. § 307, 43 Stat. 1072. The data that were reported were virtually impossible to use because there were no uniform rules for the compiling of reports or provisions for requiring corrections and additions. See Redish, Campaign Spending Laws and the First Amendment, 46 N. Y. U. L. Rev. 900, 905 (1971).
72See Part I, supra. The relevant provisions of Title 2 are set forth in the Appendix to this opinion, infra, at 144 et seq.
73NAACP v. Alabama, 357 U. S., at 463. See also Gibson v. Florida Legislative Comm., 372 U. S. 539, 546 (1963); NAACP v. Button, 371 U. S., at 438; Bates v. Little Rock, 361 U. S., at 524.
75Gibson v. Florida Legislative Comm., supra, at 546.
76The Court of Appeals held that the applicable test for evaluating the Act‘s disclosure requirements is that adopted in United States v. O‘Brien, 391 U. S. 367 (1968), in which ” ‘speech’ and ‘non-speech’ elements [were] combined in the same course of conduct.” Id., at 376. O‘Brien is appropriate, the Court of Appeals found, because the Act is directed toward the spending of money, and money introduces a nonspeech element. As the discussion in Part I-A, supra, indicates, O‘Brien is inapposite, for money is a neutral element not always associated with speech but a necessary and integral part of many, perhaps most, forms of communication. Moreover, the O‘Brien test would not be met, even if it were applicable. O‘Brien requires that “the governmental interest [be] unrelated to the suppression of free expression.” Id., at 377. The governmental interest furthered by the disclosure requirements is not unrelated to the “suppression” of speech insofar as the requirements are designed to facilitate the detection of violations of the contribution and expenditure limitations set out in
77H. R. Rep. No. 92-564, p. 4 (1971).
78Ibid.; S. Rep. No. 93-689, p. 2 (1974).
79We have said elsewhere that “informed public opinion is the most potent of all restraints upon misgovernment.” Grosjean v. American Press Co., 297 U. S. 233, 250 (1936). Cf. United States v. Harriss, 347 U. S. 612, 625 (1954) (upholding disclosure requirements imposed on lobbyists by the Federal Regulation of Lobbying Act, Title III of the Legislative Reorganization Act of 1946, 60 Stat. 839).
80L. Brandeis, Other People‘s Money 62 (National Home Library Foundation ed. 1933).
81See supra, at 60.
82Post-election disclosure by successful candidates is suggested as a less restrictive way of preventing corrupt pressures on office-holders. Delayed disclosure of this sort would not serve the equally important informational function played by pre-election reporting. Moreover, the public interest in sources of campaign funds is likely to be at its peak during the campaign period; that is the time when improper influences are most likely to be brought to light.
83Nor is this a case comparable to Pollard v. Roberts, 283 F. Supp. 248 (ED Ark.) (three-judge court), aff‘d, 393 U. S. 14 (1968), in which an Arkansas prosecuting attorney sought to obtain, by a subpoena duces tecum, the records of a checking account (including names of individual contributors) established by a specific party, the Republican Party of Arkansas.
84See Developments in the Law—Elections, 88 Harv. L. Rev. 1111, 1247 n. 75 (1975).
85See Williams v. Rhodes, 393 U. S. 23, 32 (1968) (“There is, of course, no reason why two parties should retain a permanent monopoly on the right to have people vote for or against them. Competition in ideas and governmental policies is at the core of our electoral process and of the First Amendment freedoms“); Sweezy v. New Hampshire, 354 U. S. 234, 250-251 (1957) (plurality opinion).
86Cf. Talley v. California, 362 U. S. 60, 64-65 (1960).
87Allegations made by a branch of the Socialist Workers Party in a civil action seeking to declare the District of Columbia disclosure and filing requirements unconstitutional as applied to its records were held to be sufficient to withstand a motion to dismiss in Doe v. Martin, 404 F. Supp. 753 (1975) (three-judge court). The District of Columbia provisions require every political committee to keep records of contributions of $10 or more and to report contributors of $50 or more.
88For example, a campaign worker who had solicited campaign funds for the Libertarian Party in New York testified that two persons solicited in a Party campaign “refused to contribute because they were unwilling for their names to be disclosed or published.” None of the appellants offers stronger evidence of threats or harassment.
89These criteria were suggested in an opinion concurring in part and dissenting in part from the decision below. 171 U. S. App. D. C., at 258 n. 1, 519 F. 2d, at 907 n. 1 (Bazelon, C. J.).
90Age is also underinclusive in that it would presumably leave long-established but unpopular parties subject to the disclosure requirements. The Socialist Labor Party, which is not a party to this litigation but which has filed an amicus brief in support of appellants, claims to be able to offer evidence of “direct suppression, intimidation, harassment, physical abuse, and loss of economic sustenance” relating to its contributors. Brief for Socialist Labor Party as Amicus Curiae 6. The Party has been in existence since 1877.
91171 U. S. App. D. C., at 258, 519 F. 2d, at 907 n. 1 (Bazelon C. J.).
92Id., at 260, 519 F. 2d, at 909. See also Developments in the Law—Elections, 88 Harv. L. Rev. 1111, 1247-1249 (1975).
93See Appendix to this opinion, infra, at 160.
94See Part I-C-1, supra.
95§ 305, 86 Stat. 16.
9688 Stat. 1265.
97S. Rep. No. 92-229, p. 57 (1971).
98See n. 71, supra.
99Section 441 (a) provides: “Any person who violates any of the provisions of this subchapter shall be fined not more than $1,000 or imprisoned not more than one year, or both.”
100
101See supra, at 61-63.
102S. Rep. No. 92-96, p. 33 (1971); S. Rep. No. 93-689, pp. 1-2 (1974).
103See n. 53, supra.
104See Part I-C-1, supra.
105Section 431 (d) defines “political committee” as “any committee, club, association, or other group of persons which receives contributions or makes expenditures during a calendar year in an aggregate amount exceeding $1,000.”
106At least two lower courts, seeking to avoid questions of unconstitutionality, have construed the disclosure requirements imposed on “political committees” by
107Some partisan committees—groups within the control of the candidate or primarily organized for political activities—will fall within
108See n. 52, supra.
109Of course, independent contributions and expenditures made in support of the campaigns of candidates of parties that have been found to be exempt from the general disclosure requirements because of the possibility of consequent chill and harassment would be exempt from the requirements of
110See supra, at 61-63.
111“Looked at by itself without regard to the necessity behind it the line or point seems arbitrary. It might as well or nearly as well be a little more to one side or the other. But when it is seen that a line or point there must be, and that there is no mathematical or logical way of fixing it precisely, the decision of the legislature must be accepted unless we can say that it is very wide of any reasonable mark.” Louisville Gas Co. v. Coleman, 277 U. S. 32, 41 (1928) (Holmes, J., dissenting).
112Appellants’ final argument is directed against
113Accordingly, we respond to the certified questions, as follows:
7. Do the particular requirements in the challenged statutes that persons disclose the amounts that they contribute or expend in connection with elections for federal office or that candidates for such office disclose the amounts that they expend in their campaigns violate the rights of one or more of the plaintiffs under the First, Fourth, or Ninth Amendment or the Due Process Clause of the Fifth Amendment?
(a) Do
Answer: NO.
(b) Does
Answer: NO.
(c) Does
Answer: NO.
(d) Does
Answer: NO.
114The Presidential Election Campaign Fund Act of 1966, Title IV of Pub. L. 89-909, §§ 301-305, 80 Stat. 1587, was the first such provision. This Act also initiated the dollar check-off provision now contained in
115Unless otherwise indicated all statutory citations in this Part III are to the Internal Revenue Code of 1954, Title 26 of the United States Code, 1970 edition, Supplement IV.
116See n. 6, supra.
117Priorities are established when the Fund is insufficient to satisfy all entitlements in any election year: the amount in the Fund is first allocated to convention funding, then to financing the general election, and finally to primary matching assistance. See
118Independent candidates might be excluded from general election funding by Chapter 95. See
119No party to this case has challenged the constitutionality of this expenditure limit.
120This amount is the same as the expenditure limit provided in
121No separate pledge is required from the candidate‘s party, but if the party organization is an “authorized committee” or “agent,” expenditures by the party may be attributed to the candidate.
122As with Chapter 95, any constitutional question that may arise from the exclusion of independent candidates from any assistance, such as funds to defray expenses of getting on state ballots by petition drives, need not be addressed in this case. See n. 118, supra.
123As with general election funding, this limit is the same as the candidate expenditure limit of
124The scheme involves no compulsion upon individuals to finance the dissemination of ideas with which they disagree, Lathrop v. Donohue, 367 U. S. 820, 871 (1961) (Black, J., dissenting); id., at 882 (Douglas, J., dissenting); Machinists v. Street, 367 U. S. 740, 778 (1961) (Douglas, J., concurring); id., at 788-792 (Black, J., dissenting). The
125Some proposals for public financing would give taxpayers the opportunity to designate the candidate or party to receive the dollar, and
126Appellants voice concern that public funding will lead to governmental control of the internal affairs of political parties, and thus to a significant loss of political freedom. The concern is necessarily wholly speculative and hardly a basis for invalidation of the public financing scheme on its face. Congress has expressed its determination to avoid the possibility. S. Rep. No. 93-689, pp. 9-10 (1974).
127The historical bases of the Religion and Speech Clauses are markedly different. Intolerable persecutions throughout history led to the Framers’ firm determination that religious worship—both in method and belief—must be strictly protected from government intervention. “Another purpose of the Establishment Clause rested upon an awareness of the historical fact that governmentally established religions and religious persecutions go hand in hand.” Engel v. Vitale, 370 U. S. 421, 432 (1962) (footnote omitted). See Everson v. Board of Education, 330 U. S. 1, 8-15 (1947). But the central purpose of the Speech and Press Clauses was to assure a society in which “uninhibited, robust, and wide-open” public debate concerning matters of public interest would thrive, for only in such a society can a healthy representative democracy flourish. New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964). Legislation to enhance these First Amendment values is the rule, not the exception. Our statute books are replete with laws providing financial assistance to the exercise of free speech, such as aid to public broadcasting and other forms of educational media,
128Appellants maintain that denial of funding is a more severe restriction than denial of access to the ballot, because write-in candidates can win elections, but candidates without funds cannot. New parties will be unfinanced, however, only if they are unable to get private financial support, which presumably reflects a general lack of public support for the party. Public financing of some candidates does not make private fundraising for others any more difficult; indeed, the elimination of private contributions to major-party Presidential candidates might make more private money available to minority candidates.
129Appellants dispute the relevance of this answer to their argument on the ground that they will not be able to raise money to equal major-party spending. As a practical matter, however, Subtitle H does not enhance the major parties’ ability to campaign; it substitutes public funding for what the parties would raise privately and additionally imposes an expenditure limit. If a party cannot raise funds privately, there are legitimate reasons not to provide public funding, which would effectively facilitate hopeless candidacies.
130Our only prior decision dealing with a system of public financing, American Party of Texas v. White, 415 U. S. 767 (1974), also recognized that such provisions are less restrictive than regulation of ballot access. Texas required major parties—there called “political parties“—to nominate candidates by primaries, and the State reimbursed the parties for some of the expenses incurred in holding the primaries. But Texas did not subsidize other parties for the expenses involved in qualifying for the ballot, and this denial was claimed to be a denial of equal protection of the laws. We said that we were “unconvinced . . . that this financing law is an ‘exclusionary mechanism’ which ‘tends to deny some voters the opportunity to vote for a candidate of their choosing’ or that it has ‘a real and appreciable impact on the exercise of the franchise.’ ” Id., at 794, quoting from Bullock v. Carter, 405 U. S., at 144. That the aid in American Party was provided to parties and not to candidates, as is most of the Subtitle H funding, is immaterial.
131The allegations of invidious discrimination are based on the claim that Subtitle H is facially invalid; since the public financing provisions have never been in operation, appellants are unable to offer factual proof that the scheme is discriminatory in its effect. In rejecting appellants’ arguments, we of course do not rule out the possibility of concluding in some future case, upon an appropriate factual demonstration, that the public financing system invidiously discriminates against nonmajor parties.
132In 1912 Theodore Roosevelt ran as the candidate of the Progressive Party, which had split off from the Republican Party, and he received more votes than William H. Taft, the Republican candidate. But this third-party “threat” was short-lived; in 1916 the Progressive came back into the Republican Party when the party nominated Charles Evans Hughes as its candidate for the Presidency. With the exception of 1912, the major-party candidates have outpolled all others in every Presidential election since 1856.
133Appellants suggest that a less discriminatory formula would be to grant full funding to the candidate of the party getting the most votes in the last election and then give money to candidates of other parties based on their showing in the last election relative to the “leading” party. That formula, however, might unfairly favor incumbents, since their major-party challengers would receive less financial assistance. See S. Rep. No. 93-689, p. 10 (1974).
134Appellants argue that this effort to “catch up” is hindered by the contribution limits in
135There will, however, be no minor-party candidates in the 1976 Presidential election, since no 1972 candidate other than those of the major parties received 5% of the popular vote.
136Another suggested alternative is Senator Metcalf‘s voucher scheme, but we have previously mentioned problems presented by that device. See n. 125, supra. The United States suggests that a matching formula could be used for general election funding, as it is for funding primary campaigns, in order to relate current funding to current support more closely. Congress could readily have concluded, however, that the matching formula was inappropriate for the general election. The problems in determining the relative strength of candidates at the primaries stage of the campaign are far greater than after a candidate has obtained the nomination of a major party. See S. Rep. No. 93-689, p. 6 (1974). It might be eminently reasonable, therefore, to employ a matching formula for primary elections related to popular support evidenced by numerous smaller contributions, yet inappropriate for general election financing as inconsistent with the congressional effort to remove the influence of private contributions and to relieve candidates of the burden of fundraising. Ibid.
137Williams v. Rhodes, 393 U. S. 23, 31-32 (1968); Sweezy v. New Hampshire, 354 U. S. 234, 250-251 (1957) (plurality opinion). Cf. Talley v. California, 362 U. S. 60, 64 (1960).
138Apart from the adjustment for inflation, and assuming a major-party entitlement of $20,000,000, a candidate getting 5% of the popular vote, when the balance is divided between two major parties, would be entitled to a post-election payment of more than $2,100,000 if that sum remains after priority allocations from the fund.
139On similar grounds we sustain the 10-state requirement in
140On similar grounds we sustain the 10-state requirement in
141As with primary campaigns, Congress could reasonably determine that there was no need for reforms as to minor-party conventions. See infra, at 105-106. This contribution limit applies to “contributions to any candidate,”
142With respect to the denial of funds to candidates who may not be affiliated with a “political party” for the purposes of public financing, see n. 118, supra.
143Appellants argue that this reasoning from Katzenbach v. Morgan, is inapplicable to this case involving First Amendment guarantees. But the argument as to the denial of funds to certain candidates primarily claims invidious discrimination and hence presents Fifth Amendment questions, though with First Amendment overtones, as in Katzenbach v. Morgan.
144Appellants contend that the 20-state requirement directly conflicts with Moore v. Ogilvie, 394 U. S. 814 (1969), but that case is distinguishable. Only 7% of the Illinois voters could have blocked a candidate from qualifying for the ballot, even though the statewide elections were decided by straight majority vote. The clear purpose was to keep any person from being nominated without support in downstate counties making up only 7% of the vote, but those same voters could not come close to defeating a candidate in the general election. There is no similar restriction here on the opportunity to vote for any candidate, and the 20-state requirement is not an unreasonable method of measuring a candidate‘s breadth of support. See supra, at 103-105.
145The fear that barriers would be reduced too much was one reason for rejecting a matching formula for the general election financing system. See n. 136, supra.
146By offering a single hypothetical situation, appellants try to prove that the matching formula gives wealthy contributors an advantage. Taxpayers are entitled to a deduction from ordinary income for political contributions up to $100, or $200 on a joint return.
Finally, these examples clearly reveal that
147Our responses to the certified constitutional questions pertaining to public financing of Presidential election campaigns are:
5. Does any statutory provision for the public financing of political conventions or campaigns for nomination or election to the Presidency or Vice Presidency violate the rights of one or more of the plaintiffs under the First or Ninth Amendment, the Due Process Clause of the Fifth Amendment, or Article I, Section 8, Clause 1, of the Constitution of the United States?
Answer: NO.
6. Do the particular provisions of Subtitle H and
Answer: NO.
148Unless otherwise indicated, all statutory citations in Part IV are to Title 2 of the United States Code, 1970 edition, Supplement IV, the relevant provisions of which are set forth in the Appendix to this opinion, infra, at 144-180.
149In administering Chapters 95 and 96 of Title 26, which provide for funding of Presidential election and primary campaigns, respectively, the Commission is empowered, inter alia, “to prescribe such rules and regulations . . . as it deems necessary to carry out the functions and duties imposed on it” by each chapter.
150The sections from Title 18, incorporated by reference into several of the provisions relating to the Commission‘s powers, were either enacted or amended by the 1971 Act or the 1974 amendments. They are codified at
151Section 437c (b) also provides, somewhat redundantly, that the Commission “shall administer, seek to obtain compliance with, and formulate policy with respect to this Act” and the Title 18 sections.
152The Commission is charged with the duty under each Act to receive and pass upon requests by eligible candidates for campaign money and certify them to the Secretary of the Treasury for the latter‘s disbursement from the Fund. See
153This conclusion seems to follow from the manner in which the subsections of
“The Commission shall refer apparent violations to the appropriate law enforcement authorities to the extent that violations of provisions of chapter 29 of Title 18 are involved, or if the Commission is unable to correct apparent violations of this Act under the authority given it by paragraph (5), or if the Commission determines that any such referral is appropriate.”
154Such a finding is subject to judicial review under the Administrative Procedure Act,
155
156
157The Court of Appeals, following the sequence of the certified questions, adopted a piecemeal approach to the six questions, reproduced below, concerning the method of appointment and powers of the Commission. Its basic holding, in answer to question 8 (a), was that “Congress has the constitutional authority to establish and appoint [the Commission] to carry out appropriate legislative functions.” 171 U. S. App. D. C., at 244, 519 F. 2d, at 890. Appellants’ claim, embodied in questions 8 (b) through 8 (f), that the Commission‘s powers go well beyond “legislative functions” and are facially invalid was in an overarching sense not ripe, since “[w]hether particular powers are predominantly executive or judicial, or insufficiently related to the exercise of appropriate legislative power is an abstract question . . . better decided in the context of a particular factual controversy.” Id., at 243, 519 F. 2d, at 892. While some of the statutory grants such as civil enforcement and candidate disqualification powers (questions 8 (c) and 8 (e)) raised, in the court‘s view, “very serious constitutional questions,” only the power of the Commission to issue advisory opinions under
The Court of Appeals accordingly answered the six certified questions as follows:
“8. Do the provisions in the challenged statutes concerning the powers and method of appointment of the Federal Election Commission violate the rights of one or more of the plaintiffs under the constitutional separation of powers, the First, Fourth, Fifth, Sixth, or Ninth Amendment, Article I, Section 2, Clause 6, Article I, Section 5, Clause 1, or Article III?
“(a) Does
“Answer: NO
“(b) Do
“Answer: NO as to the power to issue advisory opinions; UNRIPE as to all else.
“(c) Does
“Answer: UNRIPE FOR RESOLUTION
“(d) Does
“Answer: UNRIPE FOR RESOLUTION
“(e) Does
“Answer: UNRIPE FOR RESOLUTION
“(f) Does
“Answer: NO”
158With respect to the Commission‘s power under
159The Federalist No. 47, p. 299 (G. P. Putnam‘s Sons ed. 1908).
160Id., at 302-303 (emphasis in original).
161The Federalist No. 51, pp. 323-324 (G. P. Putnam‘s Sons ed. 1908).
162“Officers of the United States” does not include all employees of the United States, but there is no claim made that the Commissioners are employees of the United States rather than officers. Employees are lesser functionaries subordinate to officers of the United States, see Auffmordt v. Hedden, 137 U. S. 310, 327 (1890); United States v. Germaine, 99 U. S. 508 (1879), whereas the Commissioners, appointed for a statutory term, are not subject to the control or direction of any other executive, judicial, or legislative authority.
163Rule II of the Rules of the House of Representatives, the earliest form of which was adopted in 1789, provides for the election by the House, at the commencement of each Congress, of a Clerk, Sergeant at Arms, Doorkeeper, Postmaster, and Chaplain, each of whom in turn is given appointment power over the employees of his department. Jefferson‘s Manual and Rules of the House of Representatives §§ 635-636. While there is apparently no equivalent rule on the Senate side, one of the first orders of business at the first session of the Senate, April 1789, was to elect a Secretary and a Doorkeeper. Senate Journal 10 (1st & 2d Congress 1789-1793).
164
165Appellee Commission has relied for analogous support on the existence of the Comptroller General, who as a “legislative officer” had significant duties under the 1971 Act. § 308, 86 Stat. 16. But irrespective of Congress’ designation, cf.
1662 M. Farrand, The Records of the Federal Convention of 1787, pp. 74, 76 (1911); The Federalist No. 48, pp. 308-310 (G. P. Putnam‘s Sons ed. 1908) (J. Madison); The Federalist No. 71, pp. 447-448 (G. P. Putnam‘s Sons ed. 1908) (A. Hamilton). See generally Watson, Congress Steps Out: A Look at Congressional Control of the Executive, 63 Calif. L. Rev. 983, 1029-1048 (1975).
167J. Madison, Notes of Debates in the Federal Convention of 1787, p. 385 (Ohio Univ. Press ed. 1966).
168Id., at 472 (emphasis added).
169“Col. Mason in opposition to Mr. Read‘s motion desired it might be considered to whom the money would belong; if to the people, the legislature representing the people ought to appoint the keepers of it.” Ibid.
174“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”
175Since in future legislation that may be enacted in response to today‘s decision Congress might choose not to confer one or more of the powers under discussion to a properly appointed agency, our assumption is arguendo only. Considerations of ripeness prevent us from deciding, for example, whether such an agency could under
176Before a rule or regulation promulgated by the Commission under
177The subsidiary questions certified by the District Court relating to the composition of the Federal Election Commission, together with our answers thereto, are as follows:
Question 8 (a). Does
With respect to the powers referred to in Questions 8 (b)-8 (f), the method of appointment violates Art. II, § 2, cl. 2, of the Constitution.
Question 8 (b). Do
Question 8 (c). Does
Question 8 (d). Does
Question 8 (e). Does
Question 8 (f). Does
The Federal Election Commission as presently constituted may not under Art. II, § 2, cl. 2, of the Constitution exercise the powers referred to in Questions 8 (b)-8 (f).
178We have not set forth specific answers to some of the certified questions. Question 9, dealing with alleged vagueness in several provisions, 171 U. S. App. D. C., at 252, 519 F. 2d, at 901 (Appendix A), is resolved in the opinion to the extent urged by the parties. We need not respond to questions 3 (g), 3 (i), 4 (b), and 7 (f), id., at 250-251, 519 F. 2d, at 899-900 (Appendix A), to resolve the issues presented.
*Based upon Federal Election Campaign Laws, compiled by the Senate Library for the Subcommittee on Privileges and Elections of the Senate Committee on Rules and Administration (1975).
[1] So in original.
1The particular verbalization has varied from case to case. First Amendment analysis defies capture in a single, easy phrase. The basic point of our inquiry, however expressed, is to determine whether the Government has sought to achieve admittedly important goals by means which demonstrably curtail our liberties to an unnecessary extent.
2The 1910 legislation required disclosure of the names of recipients of expenditures in excess of $10.
3Ironically, the Court seems to recognize this principle when dealing with the limitations on contributions. Ante, at 25.
4The record does not show systematic harassment of the sort involved in NAACP v. Alabama, 357 U. S. 449 (1958). But uncontradicted evidence was adduced with respect to actual experiences of minor parties indicating a sensitivity on the part of potential contributors to the prospect of disclosure. See, e. g., District Court findings of fact, affidavits of Wertheimer (¶ 6) and Reed (¶ 8), 2B App. 736, 742. This evidence suffices when the governmental interest in putting the spotlight on the sources of support for minor parties or splinter groups is so tenuous.
5The Court notes that 94.9% of the funds raised by congressional candidates in 1974 came in contributions of less than $1,000, ante, at 26 n. 27, and suggests that the effect of the contribution limitations will be minimal. This logic ignores the disproportionate influence large contributions may have when they are made early in a campaign; “seed money” can be essential, and the inability to obtain it may effectively end some candidacies before they begin. Appellants have excerpted from the record data on nine campaigns to which large, initial contributions were critical. Brief for Appellants 132-138. Campaigns such as these will be much harder, and perhaps impossible, to mount under the Act.
6Whatever the effect of the limitation, it is clearly arbitrary—Congress has imposed the same ceiling on contributions to a New York or California senatorial campaign that it has put on House races in Alaska or Wyoming. Both the strength of support conveyed by the gift of $1,000 and the gift‘s potential for corruptly influencing the recipient will vary enormously from place to place. Seven Senators each spent from $1,000,000 to $1,300,000 in their successful 1974 election campaigns. A great many congressional candidates spent less than $25,000. 33 Cong. Quarterly 789-790 (1975). The same contribution ceiling would seem to apply to each of these campaigns. Congress accounted for these tremendous variations when it geared the expenditure limits to voting population; but it imposed a flat ceiling on contributions without focusing on the actual evil attacked or the actual harm the restrictions will work.
7Suppose, for example, that a candidate‘s committee authorizes a celebrity or elder statesman to make a radio or television address on the candidate‘s behalf, for which the speaker himself plans to pay. As the Court recognizes, ante, at 24 n. 25, the Act defines this activity as a contribution and subjects it to the $1,000 limit on individual contributions and the $5,000 limit on contributions by political committees—effectively preventing the speech over any substantial radio or television station. Whether the speech is considered an impermissible “contribution” or an allowable “expenditure” turns, not on whether speech by “someone other than the contributor” is involved, but on whether the speech is “authorized” or not. The contribution limitations directly restrict speech by the contributor himself. Of course, this restraint can be avoided if the speaker makes his address without consulting the candidate or his agents. Elsewhere I suggest that the distinction between “independent” and “authorized” political activity is unrealistic and simply cannot be maintained. For present purposes I wish only to emphasize that the Act directly restricts, as a “contribution,” what is clearly speech by the “contributor” himself.
8The Court treats the Act‘s provisions limiting a candidate‘s spending from his personal resources as expenditure limits, as indeed the Act characterizes them, and holds them unconstitutional. As MR. JUSTICE MARSHALL points out, post, at 287, by the Court‘s logic these provisions could as easily be treated as limits on contributions, since they limit what the candidate can give to his own campaign.
9Candidates who must raise large initial contributions in order to appeal for more funds to a broader audience will be handicapped. See n. 5, supra. It is not enough to say that the contribution ceilings “merely . . . require candidates . . . to raise funds from a greater number of persons,” ante, at 22, where the limitations will effectively prevent candidates without substantial personal resources from doing just that.
10Under the Court‘s holding, candidates with personal fortunes will be free to contribute to their own campaigns as much as they like, since the Court chooses to view the Act‘s provisions in this regard as unconstitutional “expenditure” limitations rather than “contribution” limitations. See n. 8, supra.
11113 Cong. Rec. 12165 (1967).
12Brief for Appellee Attorney General and for United States as Amicus Curiae 93.
15Such considerations have never before influenced the Court‘s evaluation of the risks of restraints on expression.
16The Court‘s opinion demonstrates one such intrusion. While the Court finds that the Act‘s expenditure limitations unconstitutionally inhibit a candidate‘s or a party‘s First Amendment rights, it imposes, by invoking the severability clause of Subtitle H, such limitations on qualifying for public funds.
17See, e. g.,
18Cf. Terry v. Adams, 345 U. S. 461 (1953); Smith v. Allwright, 321 U. S. 649 (1944).
19See generally remarks of Senator Gore, 112 Cong. Rec. 28783 (1966).
20The problem is considered only in the limited context of Subtitle H.
21Section 454 provides that if a “provision” is invalid, the entire Act will not be deemed invalid. More than a provision, more than a few provisions, have been held invalid today. Section 454 probably does not even reach such extensive invalidation.
1That is, if the FEC were properly constituted, I would answer questions 8 (b), 8 (c), 8 (d) (see infra, at 282-286), and 8 (f) in the negative. With respect to question 8 (e), I reserve judgment on the validity of
Unless otherwise indicated, all statutory citations in this part of the opinion are to the Federal Election Campaign Act of 1971, §§ 301-311, 86 Stat. 11, as amended by the Federal Election Campaign Act Amendments of 1974, §§ 201-407, 88 Stat. 1272,
2References to the “Commissioners,” the “FEC,” or its “members” do not include these two ex officio members.
3
4Id., Art. I, §§ 2, 3, and the
5“The House of Representatives shall chuse their Speaker and other Officers . . . .”
“The Vice President of the United States shall be President of the Senate, but . . . [t]he Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.”
6The distinction appears ante, at 126 n. 162.
7Indeed the FEC attacks as “erroneous” appellants’ statement that the Court of Appeals ruled that “the FEC commissioners are not officers of the United States. Rather, it held that the grant of power to the President to appoint civil officers of the United States is not to be read as preclusive of Congressional authority to appoint such officers to aid in the discharge of Congressional responsibilities.” Brief for Appellee Federal Election Commission 16 n. 19 (hereafter FEC Brief).
8How Congress may both appoint officers itself and condition appointment of the President‘s nominees on confirmation by a majority of both Houses of Congress is not explained.
9Watson, Congress Steps Out: A Look at Congressional Control of the Executive, 63 Calif. L. Rev. 983, 1042-1043 (1975).
10
“[N]o Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.”
See 1 M. Farrand, The Records of the Federal Convention of 1787, pp. 379-382 (1911) (hereafter Farrand); 2 Farrand 483.
111 Farrand 20.
12Id., at 210-211, 217, 219, 221, 222, 370, 375-377, 379-382, 383, 384, 419, 429, 435; 2 Farrand 180.
13Id., at 487. As ratified, the Ineligibility Clause provides:
“No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time . . . .”
141 Farrand 116, 120, 224, 233; 2 Farrand 37-38, 41-44, 71-72, 116, 138.
151 Farrand 63, 67.
182 Farrand 183, 383, 394.
21C. Warren, The Making of the Constitution 641-642 (1947).
22
23
24Section 437g (a) (7) provides:
“Whenever in the judgment of the Commission, after affording due notice and an opportunity for a hearing, any person has engaged or is about to engage in any acts or practices which constitute or will constitute a violation of any [relevant] provision . . . upon request by the Commission the Attorney General on behalf of the United States shall institute a civil action for relief . . . .” (Emphasis supplied.)
The FEC argues that ” ‘there is no showing in this case of a convincing legislative history that would enable us to conclude that “shall” was intended to be the “language of command.” ’ ” FEC Brief 62 n. 52, quoting 171 U. S. App. D. C. 172, 244 n. 191, 519 F. 2d 821, 893 n. 191 (1975). The contention is that the FEC‘s enforcement power is not exclusive, because the Attorney General retains the traditional discretion to decline to institute legal proceedings. However this may be, the FEC‘s civil enforcement responsibilities are substantial. Moreover it is authorized under
25Although the FEC resists appellants’ attack on its position that it has “no general substantive rulemaking authority with regard to Title 18 spending and contribution limitations” (FEC Brief 49), it agrees “that there is inevitably some interplay between Title 2 and Title 18.” (Id., at 55.) It seeks to minimize the importance of the interplay by noting that its definitions of what is to be disclosed and reported would not be binding in judicial proceedings to determine whether substantive provisions of the Act had been violated, but would simply be extended a measure of deference as administrative interpretations. Appellants’ reply is the practical one that, whether the FEC‘s power is substantive or not, persons violating its regulations do so at their peril. To illustrate the extent to which the FEC‘s regulations implicate the provisions of Title 18, appellants point to the FEC‘s interim guidelines for the New Hampshire and Tennessee special elections, 40 Fed. Reg. 40668, 43660 (1975), and its regulations, rejected by the Senate, providing that funds contributed to and expended from the “office accounts” of Members of Congress were contributions or expenditures “subject to the limitations of
26The FEC itself cannot fashion coercive relief by, for example, issuing cease-and-desist orders. To obtain such relief it must apply to the courts itself or through the Attorney General.
27The same preconditions are imposed with respect to regulations issued under the public financing provisions of the election laws.
28Section 438 (c) (4) defines “legislative day.” See also
29
30Surely the challengers to the provision for congressional disapproval do not mean to suggest that the FEC‘s regulations must become effective despite the disapproval of one House or the other. Disapproval nullifies the suggested regulation and prevents the occurrence of any change in the law. The regulation is void. Nothing remains on which the veto power could operate. It is as though a bill passed in one House and failed in another.
31The Federalist No. 73, pp. 468-469 (Wright ed. 1961).
1“In the Nation‘s seven largest States in 1970, 11 of the 15 major senatorial candidates were millionaires. The four who were not millionaires lost their bid for election.” 117 Cong. Rec. 42065 (1971) (remarks of Rep. Macdonald).
2Of course,