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.
The doctrine evolved principally in cases enjoining disclosure of membership in the N.A.A.C.P.,
but extends broadly to instances where "identification and fear of reprisal might deter perfectly peaceful discussions of public matters of importance."
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).
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.
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)
and in Laird v. Tatum, 408 U.S. 1, 92 S. Ct. 2318, 33 L. Ed. 2d 154 (1972),
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.
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,
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
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.
. . ." 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."
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.