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October 22, 1975

John DOE and 1974 Socialist Workers Municipal Campaign Committee, Plaintiffs,
Robert MARTIN, Chairman, District of Columbia Board of Elections and Ethics, et al., Defendants

The opinion of the court was delivered by: LEVENTHAL

LEVENTHAL, Circuit Judge:

This civil action challenges on constitutional grounds certain disclosure and filing requirements of the 1974 District of Columbia Campaign Finance Reform and Conflict of Interest Act, Pub.L. 93-376, 88 Stat. 446, recently enacted to regulate political campaign finance practices during local elections in the District of Columbia. The Act requires, among other things, public disclosure both of names of contributors and recipients of political expenditures made during a campaign for nomination or election to the office of Mayor, or member of the City Council, School Board or Neighborhood Advisory Council. This Act closely followed enactment of the District of Columbia Self-Government and Governmental Reorganization Act, Pub.L. 93-198, 87 Stat. 774, granting voting privileges to the citizens of the District of Columbia upon their acceptance of a proposed charter for the city's government.

 The District Court initially certified the questions presented as substantial and this three-judge court was convened. Defendants, the D.C. Board of Elections and Ethics and its members, who are charged with enforcing the statute, now ask that the three-judge court be dissolved and have also moved to dismiss the complaint on the ground it fails to state a cause of action. Both these questions were heard by the three-judge court after submission of briefs.

 Plaintiffs sought an exemption for the Socialist Workers Party from the disclosure provisions of the Act. *fn1" The Board by advisory opinion found that it did not have the power to grant such an exemption. Plaintiffs contend that in the absence of such an exemption the Act must be declared unconstitutional. The gravamen of the complaint is that disclosure of the names of contributors contributing $50 or more and the disclosure of expenditures made to others assisting the Party will subject those whose names are required to be disclosed to harassment by the FBI, employers and others.

 We quickly dispose of the contention that a three-judge court is not required under Goosby v. Osser, 409 U.S. 512, 518, 93 S. Ct. 854, 35 L. Ed. 2d 36 (1972). The precise issues here raised have never been decided by the United States Supreme Court and there is clearly room for disagreement on the issue presented given the conflict between earlier cases upholding disclosure statutes and the subsequent development of the doctrine of associational privacy. Compare Burroughs and Cannon v. United States, 290 U.S. 534, 54 S. Ct. 287, 78 L. Ed. 484 (1934), and United States v. Harriss, 347 U.S. 612, 74 S. Ct. 808, 98 L. Ed. 989 (1954), with N.A.A.C.P. v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S. Ct. 1163, 2 L. Ed. 2d 1488 (1958), and Shelton v. Tucker, 364 U.S. 479, 81 S. Ct. 247, 5 L. Ed. 2d 231 (1960). See also Printing Industries of Gulf Coast v. Hill, 382 F. Supp. 801 (S.D.Texas), vacated and remanded for reconsideration as to mootness, 422 U.S. 937, 95 S. Ct. 2670, 45 L. Ed. 2d 664 (1975).


 Turning to the merits, the motion to dismiss must of course be considered on the assumption that the facts pled can be established and, in particular, that the names, addresses and places of employment of those assisting the Party, absent any strictures to the contrary, will be noted by the FBI and others and that inquiries or other detrimental social pressures will ensue affecting employment and privacy.

 This case presents the difficult question whether a generally valid law requiring disclosure of modest contributions to political parties can have constitutional application to an unpopular minority party, which alleges past harassment by Federal agencies in support of a claim of invalidity of the law as applied. This case also presents difficulties that did not have to be reached in the lawsuit of Buckley v. Valeo.2 While that was an action by minority parties and potential independent candidates, there was no significant showing of harassment of persons contributing to such parties or candidate. The present case, involving the Socialist Workers Party, brings before the court affidavits that the party's members have been harassed by other government agencies -- the FBI; the Civil Service Commission; draft boards -- and by private employers, in at least some measure after the FBI advised them of the employee's membership in this party. At least the affidavits on this point would entitle the plaintiffs to a trial if this matter should be considered to affect the outcome.

 Such harassment, if proved, would significantly infringe on plaintiff's associational rights. In effect, the contribution disclosure requirement allegedly exacts as the price for monetary support of a candidate a willingness to risk not only social disapproval but harassment encompassing economic reprisals, loss of employment, and physical coercion and violence. Because the harassment potential is not confined to any one identifiable agency or group, preventive litigative relief is not a realistic remedy. An indicator of the substantiality of plaintiffs' fears is provided by a ruling of the Minnesota Ethics Commission -- an agency empowered under the Minnesota Ethics in Government Act of 1974 *fn3" to grant exemptions from disclosing the identity of contributors to political associations where disclosure would expose individuals to "economic reprisals, loss of employment or threat of physical coercion." The Commission granted such an exemption to the Minnesota Socialist Workers 1974 Campaign Committee following hearings presenting episodes of the kind of harassment alleged in the complaint pending before us. *fn4"

  The Congressional enactment before the court includes a $10 contribution record-keeping provision and a $50 contribution disclosure requirement. *fn5" We find that the $10 contribution report requirements of the D.C. election law contains an implicit provision against disclosure except that which is inextricably and unavoidably involved in the processes of verification and audit. Giving those records a confidential status effectuates the Congressional audit provisions, while avoiding undue encroachment on associational interests through disclosure of even minimal financial support. See Buckley v. Valeo, supra note 2, 519 F.2d at 864-65.


 In considering the contention that harassment resulting from contribution disclosure would unconstitutionally infringe on plaintiff's associational rights, we start from two basic postulates.

 First. We entertain no doubt that Congress can put a limit on the amount of contributions to political parties and can require disclosure of substantial contributions even though under the legal maximum. Congress can properly achieve its purposes of limiting attempts to buy "influence" with elected candidates and of enhancing public perception of the legitimacy of the election process by requiring that "significant" party candidates seeking to influence public policy accept the publicity attendant to public disclosure of this active role. See Buckley v. Valeo, supra note 2, at 833-44.

 In general, there is a rational nexus between Congress' objective of eliminating secrecy in substantial political contributions and the disclosure technique of regulation. Burroughs and Cannon v. United States, 290 U.S. 534, 54 S. Ct. 287, 78 L. Ed. 484 (1934); United States v. Harriss, 347 U.S. 612, 74 S. Ct. 808, 98 L. Ed. 989 (1954); Buckley v. Valeo, supra note 2; Stoner v. Fortson, 379 F. Supp. 704 (N.D.Ga. 1974, 3-judge court). Absent allegations of harassment, there is also a rational basis for applying the disclosure regulatory device to minority parties. The problem of "undue influence" of monied and special interests, and their pursuit of candidates who will have the power of government to help their friends and hinder the enemies, is largely the problem of contributions to majority parties. But minority parties also influence election outcomes. They divert votes from one or another better supported candidates, occasionally forge ahead to win races, and can be used as stalking horses (particularly in local elections). There is also the problem of appearances -- the possibility of citizen anxiety stemming from keeping part of the process secret, engendering the suspicion that what is not accounted for has some connection with undue influence on those elected. Thus omission of minority parties from a general disclosure scheme could seriously undercut the Act's objective of enabling the voting public to consider the identity, concerns, and interests of those whose contributions fund the campaigns aimed at their votes.

 "This controversy is thus not of a pattern with such cases as N.A.A.C.P. v. Alabama, 357 U.S. 449, 78 S. Ct. 1163, 2 L. Ed. 2d 1488 and Bates v. Little Rock, 361 U.S. 516, 80 S. Ct. 412, 4 L. Ed. 2d 480. In those cases the Court held that there was no substantially relevant correlation between the governmental interest asserted and the State's effort to compel disclosure of the membership lists involved." Shelton v. Tucker, 364 U.S. 479, 485, 81 S. Ct. 247, 250, 5 L. Ed. 2d 231 (1960). Here, by contrast, the efficacy of a disclosure statute implementing Congress' decision to rid the election process of the corrupting effects of secret contributions, is clear.

 Second. In varying contexts, the political freedom of the individual to support minority parties and dissident groups and the corollary associational right of privacy have been constitutionally protected by prohibiting compulsory membership disclosure in the absence of a compelling interest. The importance of these rights is underscored by the potential of unorthodoxy to be established in time as the vanguard of democratic thought. *fn6" The doctrine evolved principally in cases enjoining disclosure of membership in the N.A.A.C.P., *fn7" but extends broadly to instances where "identification and fear of reprisal might deter perfectly peaceful discussions of public matters of importance." *fn8"

 In the broad, these cases have protected individual associational interests from government action that fosters persecution. In cases where the government fails to advance a fundamental state interest while infringing these associational rights, government action that singles out a minority party in the context of proven past harassment or that merely sets the stage for private harassment has been held to be in violation of the Constitution. Thus in NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462-63, 78 S. Ct. 1163, 1172, 2 L. Ed. 2d 1488 (1958) the Court emphasized the "crucial . . . interplay of governmental and private action" in holding that past evidence of "economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility" made it likely that compelled membership disclosure would adversely affect the NAACP's collective effort to associate to foster common beliefs. The importance of protecting effective political association, recognized in NAACP v. Button, 371 U.S. 415, 431, 83 S. Ct. 328, 9 L. Ed. 2d 405 (1963) similarly requires protecting minority party member privacy faced with public persecution and threatened reprisals. Thus in Sweezy v. New Hampshire, 354 U.S. 234, 77 S. Ct. 1203, 1 L. Ed. 2d 1311 (1957), the Supreme Court, by a 6-2 vote, sustained the position of a state university professor who answered questions of the state's legislative branch concerning the Communist Party, but refused to answer questions concerning his knowledge of the Progressive Party and its members, on the ground that by inquiring into the activities of a lawful political organization, they infringed upon the inviolability of his right to privacy in his political associations. The plurality opinion of Chief Justice Warren, for four justices, held that the state had not established a "fundamental" state interest required to permit inquiry on party affiliation (354 U.S. at 251-2, 77 S. Ct. 1203, 1 L. Ed. 2d 1311). Justice Frankfurter's concurring opinion (joined by Justice Harlan) put it (354 U.S. at 265, 77 S. Ct. at 1219):


For a citizen to be made to forego even a part of so basic a liberty as his political autonomy, the subordinating interest of the State must be compelling. Inquiry pursued in safeguarding a State's security against threatened force and violence cannot be shut off by mere disclaimer, . . . But the inviolability of privacy belonging to a citizen's political loyalties has so overwhelming an importance to the well-being of our kind of society that it cannot be constitutionally encroached upon on the basis of so meagre a countervailing interest of the State as may be argumentatively found in the remote, shadowy threat to the security of New Hampshire allegedly presented in the origins and contributing elements of the Progressive Party and in petitioner's relations to these.

 In Pollard v. Roberts, 283 F. Supp. 248 (E.D.Ark.), aff'd, 393 U.S. 14, 89 S. Ct. 47, 21 L. Ed. 2d 14 (mem. 1968), the 3-judge district court, which included then Circuit Judge Blackmun, enjoined enforcement of subpoena of a prosecuting attorney seeking information on contributions to the Republican Party of Arkansas, on the ground that the investigation of alleged vote buying was not sufficiently connected with the disclosure of contributions to constitute a compelling state interest. The opinion reviews the privacy decisions as embracing the broad rationale that the Constitution protects the rights of people to associate in controversial, but legitimate, political or social action; that when the group or its objective is unpopular at a given time or place, the occurrence or apprehension of reprisals, from revelation of identity, tends to discourage exercise of constitutional rights. (p. 256). The court referred to the Republican Party of Arkansas as "a minority party as far as numbers of regular adherents are concerned." (p. 258). *fn9"


 The question to be decided here is the validity of minority party disclosure provisions that in application can lead to harassment resulting in substantial infringement of associational freedoms. As formulated in United States v. O'Brien, 391 U.S. 367, 377, 88 S. Ct. 1673, 1679, 20 L. Ed. 2d 672 (1968) the issue is whether the restriction on First Amendment associational freedoms "is no greater than is essential to the furtherance of [the governmental] interest." As pointed out by the Supreme Court in Jenness v. Fortson, 403 U.S. 431, 441, 442, 91 S. Ct. 1970, 29 L. Ed. 2d 554 (1971), there may be invidious inequality in giving the same treatment to major and minor parties and ignoring their crucial differences. Similarly, equal treatment of differently circumstanced minority parties may result in infringement of constitutional rights. A statutory scheme that blocks minority party access to the electoral process unjustifiably invades the right to vote and to associate. *fn10"

 Competing associational and governmental interests must be weighed in a concrete factual situation. Unlike the plaintiffs in California Bankers Assn. v. Shultz, 416 U.S. 21, 94 S. Ct. 1494, 39 L. Ed. 2d 812 (1974) *fn11" and in Laird v. Tatum, 408 U.S. 1, 92 S. Ct. 2318, 33 L. Ed. 2d 154 (1972), *fn12" the specific allegations of harassment in this case, if substantiated, provide the record ripeness necessary to adjudicate SWP's associational claims. Moreover, the Socialist Workers' Party can properly assert this claim for its members, for "to require that it be claimed by the members themselves would result in nullification of the right at the very moment of its assertion." NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 459, 78 S. Ct. 1163, 1170, 2 L. Ed. 2d 1488.

 Plaintiffs allege instances in the past of government harassment, government initiation or sparking of private harassment, and private harassment independent of any government "invitation" to initiate it. We hold that at least where the government can be shown to have gone beyond mere enforcement of a valid general policy and to have used its special powers to embark on active facilitation of private harassment, the resulting "chilling" intermesh of governmental and private harassment improperly violates 1st Amendment rights. We do not address the separate question of whether independently initiated private harassment based on membership disclosure would give rise to a constitutional violation. In the context of a compelling government interest in disclosure as a means of avoidance of corruption and enhancing public awareness of and confidence in the electoral process, some incidental burden on associational rights may have to be tolerated.

 The balance between associational rights and governmental interests must necessarily be delicately drawn where both government and private rights are substantial. This is not a case like NAACP v. Alabama ex rel. Patterson, supra note 7 where the insubstantiality of the government interest was patent and where any infringement of First Amendment rights was suspect. The validity of the governmental approach here instead is enhanced by permitting contributions below a cutoff point to be made and received without disclosure, a provision that covers a large percentage of political contributors, gives some privacy to the individual who wishes to participate and some elbow room for the party to get contributions even from those concerned with privacy. Nor will petitioners be deprived of all rights "to engage in lawful association in support of their common beliefs" if they are not exempted from disclosure 357 U.S. at 460, 78 S. Ct. at 1170. Their interest in running candidates for election is substantial, for the Supreme Court has already made it clear that the principle of fluidity in American political life is hospitable to the presentations of independent candidates and third parties. See American Party of Texas v. White, 415 U.S. 767, 787, 94 S. Ct. 1296, 39 L. Ed. 2d 744 (1974) quoting Jenness v. Fortson, supra, 403 U.S. at 439, 91 S. Ct. 1970; Lubin v. Panish, 415 U.S. 709, 716, 94 S. Ct. 1315, 39 L. Ed. 2d 702 (1974); Williams v. Rhodes, supra. Running candidates is not, however, the only mode of political participation available to them. But when the chills and fears of the minority party arising from public disclosure of contributions are buttressed by a substantial history of government harassment and reprisal intermeshed with private action, we have a combination of substantial, effective impingement of associational freedoms on the one hand and a lack of consequent state interest on the other. The capabilities of government deliberately employed to facilitate private community pressures offer a powerful engine to undermine group association, "particularly where a group espouses dissident beliefs." NAACP v. Alabama ex rel. Patterson, 357 U.S. at 462, 78 S. Ct. at 1172.

 To avoid misunderstanding, we do not contemplate carving out of the statute an exception making disclosure requirements broadly inapplicable to minority parties and independent candidates. Disclosure may well shrink contributions to minority parties. Indeed, disclosure may well shrink contributions to major parties -- middle rank executives of corporations may be concerned lest their colleagues (and especially their superiors) learn of their contributions to a labor-oriented party, and middle rank executives of labor unions might likewise be concerned lest their colleagues and superiors learn of contributions to a business-oriented party. The limitation on political privacy beyond the cutoff point may affect a wide array of personal concerns that cannot be dismissed as fanciful. But the legislative program serves too important an interest to subject it to excisions on "allegations of a subjective 'chill'" based on the real or perceived "controversial" character of the candidate. Such allegations "are not an adequate substitute for a claim of specific present objective harm," Laird v. Tatum, 408 U.S. at 14, 92 S. Ct. at 2326.

 Our view suggests a very limited inapplicability of disclosure requirements and does not countenance secrecy for the party concerned. It would still be subject to the general regulatory scheme, apart from public disclosure, to limits specified for contributions and expenditures and to the requirements that it keep records, and be subject to an audit, established in order that those limits can be monitored. *fn14" There would thus always be possibility of disclosure to the appropriate government agency, both in enforcing maximum limits on contributions and expenditures and in investigating to make certain that the party is a genuine political organization and not a shield. But such disclosures to agencies administering general statutes are a lesser intrusion on privacy then reports made public to the world at large. In addition, there would be a possibility of disclosure to the public incident to monitoring, if there were probable cause to believe violations had occurred. But the elimination of routine and automatic public disclosure of contributors to unpopular minority parties that have been harassed, would remove a measure that opens the door to further harassment, in a context where it is unlikely that what will be disclosed will bear significantly on the election, *fn15" and where the particular withholding of disclosure will not undercut the overall objectives of election reform maintainable through the Act's other provisions. In these circumstances, the net balance of state interest in disclosure is too slight to justify the encroachment on associational freedoms.


 Our conclusion that the Act would be potentially unconstitutional as applied to the plaintiffs does not necessarily lead to a constitutional ruling per se. This is rather a case where constitutional doctrine constitutes background that serves, together with our duty to construe statutes so as to avoid serious constitutional questions, to point our way toward an interpretation of the statute that enables the Board to provide an appropriate remedy. Even where the constitutional questions must be ruled on directly, it is within this court's power to direct the Board to provide a suitable forum for plaintiffs' claims and, should those claims be proved, an appropriate remedy. See Cleveland Board of Education v. LaFleur, 414 U.S. 632, 647-48, 94 S. Ct. 791, 39 L. Ed. 2d 52 (1974); Vlandis v. Kline, 412 U.S. 441, 93 S. Ct. 2230, 37 L. Ed. 2d 63 (1973); Bell v. Burson, 402 U.S. 535, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971). We conclude that the statute empowers the Board to issue declarations of the Act's inapplicability, a power derived from the Board's broad rulemaking function *fn16" and its authority to issue advisory opinions as to whether "any specific transaction or activity . . . would constitute a violation of any provision of this Act. *fn17" . . ." We are aware that the Board has indicated by advisory opinion that it has no jurisdiction to issue an exemption. We have no quarrel with the approach that the Board has no authority to exercise administrative discretion to carve an exception out of the Act's coverage. What we hold is that the Board has authority to issue a ruling as to the limited coverage of the Act. In considering a petition for an inapplicability ruling, the Board would establish regulations governing availability of such rulings and then hold a hearing pursuant to those regulations and this court's opinion on whether the Act can be applied constitutionally to a party requesting such a ruling. While it is true that administrative bodies do not normally consider questions going to the constitutionality of the legislation from which their authority derives, "we commit to administrative agencies the power to determine constitutional applicability." *fn18"

 At this time, the court will enter its order denying defendants' motion to dissolve the three-judge court, and denying defendants' motion to dismiss the complaint on the merits. The court will enter an order dismissing the complaint without prejudice, in order that plaintiffs may exhaust the administrative remedy available to them, as set forth in the opinion of this court.

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