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 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.
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.
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.
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.
After full briefing and argument, and despite an eleventh hour amendment of regulation § 4.4,
the Court found harbored within the provisions of Titles I and III sufficient First Amendment impediments and restraints to warrant the issuance of a preliminary injunction. Accordingly, the defendants were "enjoined, pendente lite, from taking any action against plaintiffs, or any other person, that would have the effect of impeding, hindering, or preventing the acceptance for publication of any advertisements or statements of plaintiffs which are similar to, in purpose and effect, the advertisement or statements which are the subject of this suit; and they (were) further enjoined from threatening, initiating or taking any civil or criminal action in connection with the publication of any such advertisements or statements. . . ."
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.
THE FEDERAL ELECTION CAMPAIGN ACT
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.
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.
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.
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.
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.
These contentions must be rejected. There is little doubt that when the 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 ...