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August 23, 1971

COMMON CAUSE et al., Plaintiffs,

Parker, District Judge.

The opinion of the court was delivered by: PARKER


PARKER, District Judge.

 Section 608 of Title 18, United States Code, *fn1" prescribes limits for individual contributions and purchases in support of campaigns for elective Federal office. Section 609 *fn2" of that Title establishes permissible limits to annual receipts and expenditures by political committees. *fn3" Both Sections provide penalties of a fine, imprisonment, or both, for violations.

 The plaintiffs in this proceeding include Common Cause, a nonprofit, nonpartisan District of Columbia corporation whose announced concern is the promotion of social welfare, civic betterment and social improvement in the United States, with a particular interest in the integrity of the elective process; John W. Gardner, Chairman of Common Cause, and a resident and registered voter in the State of Maryland; Jonathan B. Bingham, Democrat-New York, and Gilbert Gude, Republican-Maryland, present members of the United States House of Representatives who assert their intention to seek reelection in 1972 to the 93rd Congress.

 These plaintiffs seek declaratory and injunctive relief against the Democratic National Committee, the Republican National Committee, and the Conservative Party to protect, under these statutes, their alleged private beneficial interests as citizens, voters, campaign contributors and workers, and candidates for elective Federal office.

 They contend that the defendants consistently and continually employ and conspire with other parties to use, with impunity, various devices designed to circumvent illegally §§ 608 and 609. They allege that the failure and apparent inability and unwillingness of the Justice Department to prosecute any of these alleged violations during the more than 30-year existence of the statutes makes a mockery of "the prophylactic purposes of these laws which were designed to prevent disparity in contributed financial resources from being a major factor in elections for elective Federal office and to prevent contributors of large amounts from exercising undue influence on the actions of elected Federal officials." *fn4"

  They move the Court to join as class plaintiffs all registered voters in the several states and the District of Columbia, all citizens who make lawful contributions to candidates of their choice for elective Federal office or to political committees and political organizations, all citizens who otherwise participate in campaigns for the election of such candidates, and all members of Common Cause who are also members of the aforesaid classes. They also seek to include all political committees and political organizations as class defendants.

 The immediate issues before the Court are presented by the defendants' motions to dismiss. They assert that the complaint fails to state a cause of action; lack of jurisdiction of the subject matter; lack of standing of the plaintiffs to sue; lack of justiciability; lack of an actual case or controversy; and, the absence of irreparable injury. They oppose the motion for designation of the proceedings as a class action.

 The Court concludes that the motions to dismiss the complaint should be denied as to Common Cause, John W. Gardner and the designated members of Common Cause; and granted, without prejudice, as to Congressmen Bingham and Gude. Further, the Court concludes that the motion for a class action should be denied as to all except the designated members of Common Cause.


 This Court has jurisdiction to consider such equitable actions as this *fn5" pursuant to former Section 521 of Title 11 of the District of Columbia Code, 1967 Edition. That Code provision gives general equity jurisdiction and venue to this Court where either party is resident or found within the District of Columbia. *fn6"

 The assertion of the Republican National Committee that jurisdiction is lacking because of a failure to state a cause of action is misplaced. "Whether the complaint states a cause of action on which relief could be granted * * * must be decided after and not before the court has assumed jurisdiction over the controversy. * * *" Bell et al. v. Hood et al., 327 U.S. 678, 682, 683, 66 S. Ct. 773, 776, 90 L. Ed. 939 (1946). Exceptions to that rule -- when the claim is wholly insubstantial and frivolous or is clearly immaterial and made solely for the purpose of obtaining jurisdiction -- are questionably jurisdictional and, in any event, inapplicable here.

 And although the jurisdiction conferred by the District of Columbia Code makes it unnecessary to rely on 28 U.S.C. § 1331(a), it is clear that the underlying economic basis of the complaint -- contributions in excess of $5,000 per person and expenditures in excess of $3,000,000 -- far exceeds the $10,000 necessary to satisfy the jurisdictional requirement of the federal statute. *fn7"

  Furthermore, if §§ 608 and 609 give rise to civil actions as alleged, this suit may be maintained under 28 U.S.C. § 1343(4) which provides jurisdiction


"(4) To recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote. * * *" *fn8"

 In any event the Republican National Committee admits that if there is, in fact, a cause of action the Court has subject matter jurisdiction. *fn9"


 There is no serious impediment to the plaintiffs' standing to sue in this matter. As recently stated by the Supreme Court, "* * * The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated." Flast v. Cohen, 392 U.S. 83, 99, 88 S. Ct. 1942, 1952, 20 L. Ed. 2d 947 (1968). Has the party seeking relief "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions?" Baker v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691, 703, 7 L. Ed. 2d 663 (1962). "* * * Thus, in terms of Article III limitations on federal court jurisdiction, the question of standing is related only to whether the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution. * * *" Flast v. Cohen, supra, 392 U.S. at 101, 88 S. Ct. at 1953 (footnote omitted.) Where the alleged injured right arises under a statute the court may add the additional requirement that "the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." Association of Data Processing Service Organizations, Inc. et al. v. Camp et al., 397 U.S. 150, 153, 90 S. Ct. 827, 830, 25 L. Ed. 2d 184 (1970).

 If John W. Gardner and other voters, contributors, and campaign workers, and Congressmen Bingham and Gude as candidates comply with Sections 608 and 609 while other candidates and their supporters do not, the votes of the plaintiffs and their efforts to effect the nomination or election of individuals of their choice are likely to be, as a practical matter, diluted or even nullified. That is arguably within the zone of interests and the evils which the Congress perceived and accordingly sought to regulate. Plaintiffs "are asserting 'a plain, direct and adequate interest in maintaining the effectiveness of their votes,' * * *, not merely a claim of 'the right, possessed by every citizen to require that the Government be administered according to law. * * *'" Baker v. Carr, supra, 369 U.S. at 208, 82 S. Ct. at 705 (citations omitted.) *fn10" Likewise, the declared interest of Common Cause in improving governmental responsiveness to the will of the unorganized mass of citizen voters adequately qualifies it to initiate this action. *fn11"


 The defendants' allegation that the complaint fails to state a cause of action upon which relief may be granted poses a two-step inquiry. First, under what circumstances may an admittedly criminal statute create or imply a civil cause of action upon which relief can be granted? Second, do those circumstances exist with respect to §§ 608 and 609 of Title 18?

 A consideration of the authorities leads this Court to conclude that civil actions may be implied from criminal statutes designed to protect a specific class. *fn12" This is an old doctrine *fn13" and it has found acceptance on the theory that "where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief." Bell et al. v. Hood et al., supra, 327 U.S. at 684, 66 S. Ct. at 777 (footnote omitted).

 In Texas & Pacific Railway Company v. Rigsby, 241 U.S. 33, 36 S. Ct. 482, 60 L. Ed. 874 (1916) the Court upheld a civil damage action arising from a violation of a penal provision of the Federal Safety Appliance Acts. *fn14" It held, at page 39, 36 S. Ct. at page 484:


"None of the acts, indeed, contains express language conferring a right of action for the death or injury of an employee; but the safety of employees and travelers is their principal object, and the right of private action by an injured employee, even without the Employers' Liability Act, has never been doubted. * * * A disregard of the command of the statute is a wrongful act, and where it results in damage to one of the class for whose especial benefit the statute was enacted, the right to recover the damages from the party in default is implied, . . . ." *fn15"

 More recently in J.I. Case Co. et al. v. Borak, 377 U.S. 426, 432, 84 S. Ct. 1555, 1560, 12 L. Ed. 2d 423 (1964) the Supreme Court permitted a civil action for rescission or damages to a corporate stockholder with respect to the use of a proxy statement alleged to contain false and misleading statements violative of § 14(a), a penal provision, of the Securities Exchange Act of 1934. *fn16" In speaking for the Court Mr. Justice Clark noted that


"While this language makes no specific reference to a private right of action, among its chief purposes is the 'protection of investors,' which certainly implies the availability of judicial relief where necessary to achieve that result."

 The defendants in this case contend that § 27 of the Securities Exchange Act *fn17" created a private civil cause of action in Borak. But careful analysis reveals that only jurisdiction was based on § 27 of the Act, which gave District Courts jurisdiction over "all suits in equity and actions at law brought to enforce any liability or duty created" under the Act. But the cause of action was implied from § 14(a). In a recent case, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971), Mr. Justice Harlan, in a concurring opinion described the Borak test as one of "necessity" or "appropriateness," Id., 91 S. Ct. at 2010, and emphasized the true source of the cause of action in Borak. "The exercise of judicial power involved in Borak simply cannot be justified in terms of statutory construction, * * *; nor did the Borak Court purport to do so." Id., 91 S. Ct. at p. 2008, n. 4. "* * * [The] cases concerning remedies, implied from statutory schemes, * * * [indicated] a judicial decision to accord or not to accord a particular remedy." Id., 91 S. Ct. at p. 2009, n. 6. (Emphasis added.)

 The Supreme Court's most definitive statement allowing civil relief for violation of criminal statutes is found in Wyandotte Transportation Co. et al. v. United States, 389 U.S. 191, 88 S. Ct. 379, 19 L. Ed. 2d 407 (1967) where the Federal Government was permitted to maintain an in personam action against a shipowner for reimbursement of the costs of removal of a negligently sunk vessel. The Court relied only on § 16 of the Rivers and Harbors Act of 1899, *fn18" which provides criminal penalties for violation of the duty of a shipowner to remove a sunken craft; and it rejected the trial court's conclusion that civil relief was restricted to in rem recovery for the salvage value of the sunken vessel pursuant to § 19 of the Act. *fn19" The Court concluded, at page 202, 88 S. Ct. at page 386,


"* * * Our decisions in cases involving civil actions of private parties based on the violation of a penal statute * * * indicate * * * [that in] those cases we concluded that criminal liability was inadequate to ensure the full effectiveness of the statute which Congress had intended. Because the interest of the plaintiffs in those cases fell within the class that the statute was intended to protect, and because the harm that had occurred was of the type that the statute was intended to forestall, we held that civil actions were proper. That conclusion was in accordance with a general rule of the law of torts. See Restatement (Second) of Torts § 286. We see no reason to distinguish the Government, and to deprive the United States of the benefit of that rule." (Emphasis added). *fn20"

 While authority may be found to support the argument that penal statutes do not give rise to civil actions where they are not designed for the benefit of a special class, *fn21" this Court notes that there are a persuasive number of opinions which have permitted civil actions for violation of penal statutes regulating election procedures. In Rising v. Brown, 313 F. Supp. 824 (C.D. Cal. 1970) and Straus v. Gilbert, 293 F. Supp. 214 (S.D.N.Y. 1968) injunctive relief was granted to candidates for elective Federal office where their opponents were allegedly violating congressional franking privileges. *fn22" The only statutory remedy was penal. Various state courts have also recognized a cause of action. In Smith et al. v. Higinbothom et al., 187 Md. 115, 48 A. 2d 754 (1946) the dismissal of the complaint was upheld because the court concluded the statute in question was not applicable to the defendants, but it did not question the appropriateness of a declaratory judgment regarding activities alleged to violate a state Corrupt Practices Act, a penal statute. And in Pecora v. Queens County Bar Ass'n et al., 46 Misc. 2d 530, 260 N.Y.S. 2d 116 (1965) the court reached the merits of a private civil action alleging violations of a penal election statute. Also in De Mille v. American Federation of Radio Artists, 31 Cal. 2d 139, 187 P. 2d 769 (1947), cert. denied, 333 U.S. 876, 68 S. Ct. 906, 92 L. Ed. 1152 (1948), a civil action based partly on alleged violations of the Federal Corrupt Practices Act was dismissed because the Act was held not applicable to the parties and activities involved. But the court indicated that the action could have been sustained if the statute had been applicable.

 An analysis of the legislative history of §§ 608 and 609 warrants the conclusion that voters, campaign contributors and workers, and candidates whose legitimate resources were incidentally restricted by the Hatch Act or otherwise overwhelmed by large contributions to such an extent as to undermine and perhaps even nullify their right to vote were the intended beneficiaries of the statutes and comprise a class whose interests may be protected by a private civil action. *fn23"

 In 1939 Congress enacted the Hatch Act *fn24" to prevent so-called "pernicious political activities." The Act arose ostensibly from complaints that federal relief jobs were being used to coerce campaign help and contributions from the recipients. *fn25" Sections 608 and 609 were attached to a 1940 amendment extending the provisions of the Act *fn26" to the District of Columbia and to state and local projects that were partially financed with federal funds. *fn27"

 The legislation sought to correct these practices by prohibiting the solicitation or receipt of campaign contributions from anyone known to be receiving compensation, employment or other benefits from federal relief funds, and further outlawing active participation in political management or political campaigns by lower and middle grade government employees. *fn28"

 The incidental elimination of a major source of traditional Democratic campaign manpower and financial support was apparently unrecognized when the 1939 bill was passed, *fn29" but was believed a hidden motive behind the near unanimous Republican support. *fn30"

 It was to counter this incidental interference with legal campaign activity, as well as to counter the undue influence of large contributions *fn31" that the Democratic majority in Congress compelled the adoption of the § 13 campaign contribution limitation *fn32" that was codified as 18 U.S.C. § 61m and recodified as § 608, and the Section 20 campaign expenditures limitation *fn33" that became 18 U.S.C. § 61t and was later recodified as § 609.

 Accordingly, this Court concludes that §§ 608 and 609 were intended, not to punish otherwise illegal activities, but rather to protect the plaintiffs' interests as voters, campaign workers and contributors, and candidates for elective Federal office by limiting otherwise acceptable practices. *fn34" And the inability of the Justice Department to enforce these laws *fn35" emphasizes both the inadequacy of relying upon criminal liability and the lack of reason to fear interference with criminal prosecutions. *fn36" If the facts are as alleged, *fn37" this is a flagrant and irreparable erosion of the right to an effective vote, and, in the absence of an express statutory provision to the contrary, clearly warrants immediate judicial relief. *fn38"


 The defendants' claim of lack of justiciability presents no serious challenge. Powell et al. v. McCormack et al., 395 U.S. 486, 516, 517, 89 S. Ct. 1944, 23 L. Ed. 2d 491 (1969). The Court having already concluded that a civil action may be maintained, there can be no doubt that "the duty asserted can be judicially identified and its breach judicially determined * * *," Baker v. Carr, supra, 369 U.S. at 198, 82 S. Ct. at 700, as easily as in a criminal action. "Of course the mere fact that the suit seeks protection of a political right does not mean it presents a political question. Such an objection 'is little more than a play upon words.'" Id., at 209, 82 S. Ct. at 706. *fn39" There is no problem of separation of powers involved and therefore this case is justiciable.

 In determining whether there is a live case or controversy, "the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S. Ct. 510, 512, 85 L. Ed. 826 (1941). *fn40"

 None of the plaintiffs has made allegations with respect to contributions or expenditures for specific currently active candidates whose election they oppose. This is a fatal flaw as to the candidate-plaintiffs. *fn41" While Congressmen Bingham and Gude have announced their candidacies for reelection, the identity and conduct of their potential opponents is uncertain and conjectural and, thus, this Court does not have before it a factual situation or a delineation of issues on which it may properly rule. It cannot therefore be said that irreparable harm may result if the candidate-plaintiffs are required to wait until the specific activities they challenge become more evident. Until then the complaint should be dismissed without prejudice as to them.

 On the other hand, the interests of the voter-, worker-, and contributor-plaintiffs as well as Common Cause are threatened by practices of a continuing nature, capable of repetition, yet essentially evading review. Moore v. Ogilvie, 394 U.S. 814, 816, 89 S. Ct. 1493, 23 L. Ed. 2d 1 (1969). *fn42" The practices attributed to the major political campaign committees are alleged to have existed for more than 30 years with respect to the Democratic National Committee and the Republican National Committee and for several years as to the Conservative Party. There is no allegation or evidence that such practices are to be voluntarily abandoned. Thus the presentation and delineation of the challenged activities is sufficient. And the difficulties inherent in examining financial arrangements for hundreds of candidates makes it likely that delay would make the practical election results of a successful litigation illusory.

 Of course it may be that certain candidates supported by the plaintiffs benefit from the alleged illegal activities of the major political campaign committees. But the clear political activism displayed by the plaintiffs makes inevitable their continuing opposition to many of the candidates and national policies that will receive direct or indirect support from the challenged practices. *fn43" An actual litigable controversy presently exists. *fn44"


 Finally, this case will be designated a class action, pursuant to Rule 23(a), (b)(1) and (b)(2) of the Federal Rules of Civil Procedure, 1970 ed., as to all members of Common Cause who are also registered voters or who make lawful contributions from time to time to candidates or to political committees and political organizations for purposes of supporting elections for Federal elective office, or who otherwise participate in campaigns of candidates for elective Federal office. Their interests coincide with the activities of Common Cause in seeking to uphold the effectiveness of citizen participation in the Federal election process.

 However, the innumerable and diverse interests, candidates, campaign organizations and practices that would be involved makes this action inappropriate for class-plaintiff designation as to voters, contributors and campaign workers who have not joined Common Cause, and class-defendant designation as to all political committees and political organizations. Many of those proposed classplaintiffs may suffer no injury on account of the alleged activities and may in fact hold different views of the obligations imposed by §§ 608 and 609. And the activities of unnamed political committees and political organizations may be either in complete conformity with the views expressed by the plaintiffs or at least substantially different from those of the Democratic National Committee, the Republican National Committee and the Conservative Party.

 Counsel for plaintiffs shall present an appropriate Order within five days.

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