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November 14, 1973

W. Pat JENNINGS et al., Defendants

The opinion of the court was delivered by: PARKER

In this case plaintiffs seek injunctive and declaratory relief against the Clerk of the United States House of Representatives and other government officials charged with the responsibility of supervising and enforcing the provisions of the Federal Election Campaign Act of 1971, Public Law 92-225, 86 Stat. 3 (FECA or Act) and applicable regulations promulgated thereunder, 11 C.F.R. § 1.1 et seq. (Regulations).

Plaintiffs challenge, as violative of the First Amendment, the regulatory procedure adopted to enforce spending limitations in the communications media imposed upon candidates for Federal office by Title I of the Act. They also seek to void, as unconstitutional on their face and as applied, certain provisions contained in Title III of FECA, requiring covered "political committees" to comply with extensive reporting and disclosure requirements.

 We find that the challenged provisions of Title I impose impermissible prior restraints and their enforcement is enjoined. We enter a declaratory judgment clarifying and restricting the scope of Title III which removes plaintiffs from its purview.


 The underlying facts and the present posture of this litigation can be briefly summarized. In early September 1972, plaintiffs, the American Civil Liberties Union (ACLU) and the New York Civil Liberties Union (NYCLU), non-profit and non-partisan organizations whose named purposes are to protect and to defend rights guaranteed by the Constitution, submitted for publication to The New York Times (Times) a proposed advertisement which expressed their opposition to the Nixon Administration backed legislation designed to limit court ordered busing. The advertisement, which appears fully as an appendix to this opinion, listed, in the form of an "honor roll," the names of 102 United States Representatives who had previously opposed this anti-busing policy. Plaintiffs were hopeful that through publication of the advertisement public support would be generated favorable to the position they had adopted on this highly publicized and controversial problem of national import. Any intention to aid in the election or re-election campaign of any political candidate has been specifically denied. *fn1"

 The Times, through one of its responsible officers, and on advice of counsel, notified the plaintiffs that their failure to comply with certain certification requirements mandated by Title I of the Act precluded publication of the advertisement. *fn2" Because those requirements, found in § 104(a) of the Act, as set forth in certain implementing regulations, 11 C.F.R. §§ 4.4 and 4.5, were not satisfied by the plaintiff, the Times, rather than risk criminal penalties under FECA, refused the publication for print. *fn3"

 On the heels of this refusal plaintiffs filed with the Court the present suit challenging the constitutionality of the FECA provisions cited by the Times in rejecting the advertisement, and sought injunctive relief prohibiting their enforcement. Named as defendants along with the Clerk of the House were the Comptroller General of the United States and the Director of the Office of Federal Elections all of whom were authorized and obligated to administer and enforce the Act.

 Plaintiffs further challenged and requested the Court to enjoin the enforcement of Title III of the Act, which establishes certain registration, filing and notice requirements for organizations engaged in the political process. *fn4" In this regard plaintiffs contend that the printing of the proposed communication would, in effect, cause them to be deemed a political committee within the meaning of the Title, thereby compelling them to disclose, inter alia, lists of their contributors. Such disclosure, they allege, violates their constitutional right to freedom of association. At no time have the defendants attempted or threatened to enforce the Title III disclosure provisions against the plaintiffs.

 Plaintiffs immediately moved for and were denied a temporary restraining order. Because of the constitutional issues presented, a Three-Judge Court was convened pursuant to 28 U.S.C. §§ 2282 and 2284. The Times sought and was granted permission to proceed in this matter as amicus curiae, limiting its participation to the issues raised with respect to Title I of the Act.

 The threat of prosecution under FPCA having been eliminated, The New York Times published, on October 27, 1972, the revised anti-busing advertisement submitted by the plaintiffs. This advertisement contains in its entirety and embellishes upon, by reference to this suit, the original submission of September, 1972. The defendants thereafter moved to dismiss the action or, in the alternative, for an order granting summary judgment on the merits. Plaintiffs cross-moved for summary judgment and a supporting memorandum was submitted by The New York Times. In support of their motion the government submitted affidavits of two of the defendants stating that in their judgment, as supervisory officials under the Act, the advertisement of October 27, 1972: (a) was not subject to the certification requirements of § 4.4(a) of the regulation as amended, since it neither advocated nor supported the nomination or election of any federal candidate; (b) was subject to the requirements set forth in regulation § 4.5, in that it derogated President Nixon's stand on busing; and (c) would not cause plaintiffs to be designated as "political committees" for Title III purposes and, therefore, would not subject them to the disclosure and reporting requirements found therein.


 A brief description of the relevant portions of Titles I and III of the Act, to be later elaborated upon, is desirable in order to establish the proper framework within which the jurisdictional issues raised in this litigation must be assessed.

 The Federal Election Campaign Act of 1971 was enacted to protect the federal election process from an excessive influence of uncontrolled expenditures by candidates for federal office.

 Title I establishes limitations on spending through the communications media by candidates for federal office in either primary or general elections. To effectuate these expenditure limitations a procedure was developed by which any person desirous of publishing an advertisement "on behalf of" such a candidate must first obtain a certification from the candidate that the advertisement does not exceed his spending limitation. The regulations promulgated in connection with this Title further provide that certain certification is required for statements which are "in derogation" of any candidate. Such certification is designed to establish the independence of the sponsor from any candidates for election opposing the candidate "derogated" in the advertisement. Any publication that publishes an advertisement as to which these certification requirements have not been met is subject to criminal penalties.

 An implementing regulation of the Title, 11 C.F.R. § 4.4 defines an expenditure "on behalf of a candidate" as one which both identifies the candidate and supports or advocates his election. A second regulation, § 4.5 provides a mechanism through which expenditures made by a candidate to derogate an opponent are charged to his spending limitation. This latter regulation provides that the sponsor of the derogatory advertisement either indicate the source of the ad or provide a disclaimer that no opposing candidate has authorized the same. If a statement of non-authorization is submitted the seller of the advertising time or space is then required to take reasonable precautions, before charges are assessed, to verify the accuracy of the disclaimer.

 Title III requires that any group expending $1,000 "for the purpose of influencing" an election comply with certain complex registration, disclosure and reporting provisions. The Title designates such groups as "political committees," thereby triggering the filing and reporting requirements, which include the public disclosure of information concerning the committee's name, address, officers, purposes, funds and contributions, as well as the full identity of persons who contribute any amount or value in excess of $100 in any one year. The Title also details record keeping procedures required of "political committees."


 In order to reach the merits of the claims presented by the plaintiffs, the Court must first determine whether the issues are justiciable. Relying heavily upon the affidavits of the officials charged with responsibility of supervising the Act, the defendants dispute the existence of a case and controversy suitable for adjudication. They urge the Court to avoid any possible constitutional confrontations by refraining from, or drastically limiting, its review of the substantive issues raised in this litigation. We are left unpersuaded by that argument. Because of the nature of the asserted claims and the factual context within which they have arisen, the plaintiffs present a case, as to both Titles, sufficiently real and controversial so as to permit this Court to consider the merits.

 Title I of the Act

 As to Title I the government asserts that, within the framework of this suit, there is no basis for challenge since the officials charged with the responsibility of administering FECA, after careful review, have concluded that the October 27th advertisement statement is not "on behalf of" the candidacy of any Federal office-seeker. In view of this, the government then argues that the Times would not have been in violation by charging for the publication without certification from the listed Federal candidates. *fn7" The proposed ad, as viewed and commented on in the affidavit of the defendant Hughes, focused more on issues than on candidates and the fact that the favorably mentioned 102 congressmen had not provided appropriate FECA certification would not subject the newspaper to the criminal penalties provided in the Act. *fn8" Although they regarded the advertisement as denigrating a position of the President, and as such was subject to the requirements of § 4.5, they argue that, in the absence of any enforcement action by them, this situation lacks the degree of ripeness required of a justiciable case or controversy within the meaning of Article III.

 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. *fn9"

 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 ...

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