plaintiffs filed this proceeding, immediately after the Times refused to accept for publication the advertisement, they were suffering real and immediate harm as a result of Title I's requirements -- harm giving rise to a controversy clearly ripe for adjudication. The Court recognizes that the criminal sanctions contained in this Title would never directly threaten the plaintiffs, and that they apply only to the communications media. But in this case, obviously cognizant of and understandably eager to avoid potential liability under the Title, the newspaper refused to accept the advertisement. Nor does the record indicate an absence of good faith by the Times or that the parties had in any manner contrived this litigation. Thus, the plaintiffs were exposed to a prior restraint on their right to speak, a restraint enforced by a private party, the Times, under the threat of criminal sanctions imposed by Title I. Had this Court not enjoined the enforcement of the Act, the plaintiffs would have been stymied in their attempt to air their views on a matter of national interest.
The representations set forth in the Hughes and Jennings affidavits are insufficient to render issues moot which were plainly ripe at the outset. This litigation presents -- in near classic form -- a situation involving challenged governmental policy which is "capable of repetition, yet evading review." See Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973); Moore v. Ogilvie, 394 U.S. 814, 816, 89 S. Ct. 1493, 23 L. Ed. 2d 1 (1969); In re Ballay, 157 U.S.App.D.C. 59, 482 F.2d 648, 651 (1973); Dash v. Commanding Officer, 307 F. Supp. 849 (D.S.C.1969), aff'd 429 F.2d 427 (4th Cir. 1970), cert. denied 401 U.S. 981, 91 S. Ct. 1192, 28 L. Ed. 2d 333 (1971).
In urging the Court to accept as controlling the opinions of the supervisory officials of the Act, the government relies upon Law Students Research Council v. Wadmond, 401 U.S. 154, 91 S. Ct. 720, 27 L. Ed. 2d 749 (1971). That case presented a challenge, on First Amendment vagueness and overbreadth grounds, to certain provisions of the New York Civil Practice Law and Rules requiring Bar applicants to establish their belief in our form of government. In rejecting the applicants' contentions, the Supreme Court significantly noted that the very named defendants charged with enforcing the admission requirements had for many years adopted a limited and narrow interpretation of the rule, thereby rescuing it from any constitutional infirmity. An administrative policy and interpretation of long standing was found to have had virtually become official policy, uniformly and consistently applied by the defendants.
But such is not the case here. This Act is far too new for its administrators to have developed a consistent and generally recognized policy such as that approved by the Court in Law Students Research Council. Without impugning the good faith of the FECA supervisory officials, their affidavits, as they relate to Regulation § 4.4 of Title I, appear to be an attempt to "moot a case that is live in its inception by promising to conform to plaintiffs' wishes." Such an attempt was rejected by a Three-Judge Court in Green v. Connally, 330 F. Supp. 1150, 1170 (D.D.C.1971). Defendants' affidavits do little more than express an administrative judgment as to this particular advertisement, a judgment which is by no means unalterable and which, to be sure, is highly discretionary.
Plaintiffs have in the past submitted, and plan to submit in the future, advertisements similar in purpose and effect to that now under consideration. But there is nothing found in the government's present position which would shed light on their possible attitude toward an advertisement of a similar nature but of sufficient difference so as to create uncertainty about the applicability of FECA. Government counsel has candidly admitted that should such a situation arise, plaintiffs would be free to pursue another cause of action and seek protection of their rights. But in the meantime, of course, their advertisement would presumably remain unpublished. To that extent, the governments' position, rather than demonstrating this Court's lack of jurisdiction, highlights the need for a substantive determination. The issues here presented have the markings of developing into what can be fairly described as a continuous, ongoing controversy unless full jurisdiction is accepted and a decision on the merits is rendered.
Nor can it be treated as insignificant that the Findings of Fact and Conclusions of Law accompanying the Order Granting Preliminary Injunction reflected a determination by this Court that the provisions of Title I (as well as those of Title III) were made applicable to plaintiffs by the publication of the advertisement. At that time the government, through memoranda and argument, urged the Court to accept the same conclusions later drawn by the two affidavits which comprised the thrust of their threshold argument. The differences between the conclusions reached by the Court based upon the facial requirements of FECA and those drawn by defendants in part reflects the ambiguity and uncertainty surrounding a statute which, unless judicially clarified, may open a Pandora's box of future problems.
Title III of the Act
The constitutional problems presented by Title III come before the Court in a context considerably different from those presented by Title I, and the jurisdictional question is not as easily resolved. While we conclude that Title I has an immediate impact upon the plaintiffs, in the form of a prior restraint, the effects of Title III upon those litigants' First Amendment rights have not been so clearly demonstrated.
The government contends that the Court lacks jurisdiction since in fact no present controversy exists. The plaintiffs, they point out, are not threatened with Title III enforcement nor does the government, on the basis of the advertisement that generated this suit, consider either the ACLU or the NYCLU as political committees under Title III standards. In these circumstances, they argue, there is no question of Title III's constitutionality properly before the Court. Plaintiffs reply, however, that even in the absence of Title III enforcement, and notwithstanding defendants' assertions that plaintiff organizations are without the scope of the Title, the overly broad and vague standards found therein constitute an imposing chilling effect upon the present and future free exercise of First Amendment rights.
The previous analysis of Title I jurisdiction discounted the weight to be accorded the affidavits of the defendants. Those observations are equally applicable to claims asserted by the defendants as to Title III. The government's reliance upon their announced interpretation and assessment of the issues at hand is misplaced and will not cause this Court to abstain from considering the merits of this matter. We are of the opinion, however, that there having been no threat of enforcement under Title III, and since the record does not otherwise reflect facts sufficient to establish the imminence of harm to the plaintiffs, permanent injunctive relief is inappropriate. Declaratory relief, on the other hand, appears clearly warranted under the circumstances. The propriety of such relief was noted in Justice Brennan's separate opinion in Perez v. Ledesma, 401 U.S. 82, 93, 91 S. Ct. 674, 27 L. Ed. 2d 701 (1971). There, in an observation particularly applicable here, he counseled:
"Declaratory relief should be available, whether the conduct inhibited is expressive or other conduct alleged to be protected by the Constitution. Of course, the special sensitivity and importance of First Amendment rights (their sensitivity to "chilling") is a necessary consideration in evaluating the claim of inhibition. The deterrence emanating from the existence of a statute purporting to prohibit constitutionally protected expression is itself plainly inconsistent with the First Amendment. . . ."
401 U.S. at 117, n. 10, 91 S. Ct. at 693, citations omitted. He added:
The federal declaratory judgment is not a prize to the winner of a race to the courthouses, but rather a declaration of rights that obviates the need to risk a . . . criminal proceeding or a race to the courthouses. Within the limits of Art. III, see Golden v. Zwickler, 394 U.S. 103 [89 S. Ct. 956, 22 L. Ed. 2d 113] (1969), doctrines of ripeness should be so fashioned as to give adequate room for this kind of relief. 401 U.S. at 119 n. 12, 91 S. Ct. at 694.
Plaintiffs allege that as controversial organizations the imposition of the reporting and disclosure requirements, presumably made operative by the publication of the advertisement, would result in an unconstitutional abridgment and chilling of their rights of freedom of association and privacy guaranteed by the First, Fourth and Ninth Amendments.
They contend that the existence of the statute, in its present form, leaves forever open the possibility of enforcement against them as well as other non-partisan, non-political groups, thereby placing them in the difficult and untenable position of, on the one hand, having to decide whether they will exercise First Amendment rights, i.e. publish material similar to that which prompted this litigation, and in so doing risk being caught within the Title III net of reporting and disclosure requirements, thereby sacrificing other constitutional rights of association and privacy, or, on the other hand, forego these former rights to protect the latter. The potential for such a situation, with its clear likelihood of causing chilling effects upon plaintiffs, leads us to conclude, following Justice Brennan's Perez approach, that the Title III questions are ripe for declaratory action.
Title I of the Act
The plaintiffs do not question the authority of Congress to pass legislation regulating Federal elections. Indeed, authority in that area appears to rest on solid foundation. United States v. International Union United Automobile, Aircraft and Agricultural Implement Workers of America, 352 U.S. 567, 77 S. Ct. 529, 1 L. Ed. 2d 563 (1957); Burroughs and Cannon v. United States, 290 U.S. 534, 54 S. Ct. 287, 78 L. Ed. 484 (1934). They do challenge, however, certain procedures and requirements adopted to secure adherence to the general policies established by the Act.
In Title I, § 104(a)(1) of the Act, total monetary limits are established on spending in the communications media by candidates for Federal elective office. Section 104(b), designed to implement the enforcement of these limitations, creates a monitoring procedure which provides that:
"No person may make any charge for the use by or on behalf of any legally qualified candidate for Federal elective office (or for nomination to such office) of any newspaper, magazine or outdoor advertising facility, unless such candidate (or a person specifically authorized by such candidate in writing to do so) certifies in writing to the person making such charge that the payment of such charge will not violate [the spending limitation]."