The opinion of the court was delivered by: POLLACK
Contending that the complaint fails to present a case or controversy and fails to state a claim upon which relief may be granted, the defendants, the Clerk of the United States House of Representatives and the Comptroller General of the United States, have moved pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss this suit.
Plaintiffs are state or district officers of the Conservative Party in New York State and seek declaratory and injunctive relief in respect of the Federal Election Campaign Act of 1971 (the "Act" hereafter). They challenge the constitutionality of provisions which in effect serve to place a ceiling on the amounts which candidates may spend on communications media for election campaigns and which serve to police those allowable limits and other provisions which require political committees to register and make disclosure of the sources of contributed funds and of the identity of the persons administering and receiving such funds.
The declared purpose of the Act was to
Establish reasonable and adequate limitations on the amount of money that may be spent for use of the broadcast media and nonbroadcast media by or on behalf of legally qualified candidates for the offices of President, Vice-President, United States Senator or Representative, Delegate or Resident Commissioner to the Congress (Federal elective office) in primary, general and special elections.
The Act prescribes the limit which may be spent for use of communications media by or on behalf of a candidate's campaign. The spending limit is ten cents per voter in the relevant geographical area or $50,000., whichever is greater. 47 U.S.C. §§ 801-805; Title I, Federal Election Campaign Act of 1971. The candidate is required to file an account of his receipts and expenditures. 2 U.S.C. § 431-441; Title III idem. The prior law, the Corrupt Practices Act of 1925, likewise required an account of moneys spent on an election. 2 U.S.C. §§ 241, et seq. However, the earlier law did not necessarily yield a satisfactory account of the sources of funds, of all expenditures made on behalf of a candidate nor of the recipients thereof. For example, there were multiple lower echelon committees whose financial activities were unknown to and therefore unreported by the candidate's account. In part to close the loop-holes, the 1971 Act, Title I, deals specifically with communications media expenditures and places on media whose facilities are sought on behalf of a candidate, the obligation to inform the candidate of the cost to be incurred and the obligation to obtain from the candidate or his representative a certificate that the expenditure would not cause the candidate to exceed his spending limit. Sanctions are imposed for failure to observe these requirements against candidates who exceed their limits and against media organizations which accept payment for campaign advertising not certified as required by the Act.
Plaintiffs contend that the statute unconstitutionally restricts freedom of expression. They assert that the certification requirement hands a "veto" power to major-party candidates, who, by refusing the certificate can prevent plaintiffs and clubs and organizations they represent from propagandizing their views if those views do not meet the candidate's approval, as when the expression is critical of the candidate. Thus, say the plaintiffs, third-party discussion of major-party candidates is restricted to conform to the candidate's own thinking. Plaintiffs candidly state that they do espouse unpopular ideas.
Another section of the Act, Title III, is challenged as improperly infringing freedom of association. This section requires disclosure of the sources and disposition of contributions as well as of the identification of those handling and receiving the funds. Reluctance on the part of some to be publicly identified on behalf of a particular candidate or campaign will serve, they say, as a deterrent to some from serving as officers of plaintiffs' clubs and as a deterrent to others from contributing money to plaintiffs for use by the Conservative Party and the clubs of which they are officers. They say further that the requirement to report all persons on the payroll of plaintiffs and their clubs for amounts in excess of $100, although otherwise employed, may deter part-time party workers from taking temporary positions for fear of political reprisal in seeking other employment thereafter.
Analysis of the theses of the plaintiffs convinces the Court that the contentions are speculative, plainly lacking in merit as a result, and fail to raise a substantial question of constitutionality of the Act, as more fully appears hereafter.
Title I. The Statutory and Regulatory Scheme in Question
Congress passed Title I of the Act to deal with the impression that "only the rich man can run for public office, and that a candidate can buy an election by spending large amounts of money in a campaign." H.R. Rep. 92-564, 92d Cong., 1st Sess. 4.
Plaintiffs do not question the overall limitations imposed on broadcast and non-broadcast media expenditures by a candidate. Their attack is on what media may deem to be a prospective expenditure "on behalf of the candidacy".
The Act does not prohibit media organizations from providing free time or space for campaigning.
Pursuant to a grant of authority conferred by § 105 of Title I, 47 U.S.C. § 804, the Comptroller promulgated regulations now contained in Title II of the Code of Federal Regulations, published March 24, 1972 and effective April 7, 1972. 37 Fed. Reg. 6156. The meaning of "on behalf of" as it appears in § 104(b) of Title I is expressed in § 4.4 of the regulations as follows:
A use of communications media is deemed to be "on behalf of the candidacy" of any such candidate if the use (1) involves his participation by voice or image or advocates his candidacy; or (2) identifies the candidate, directly or by implication, or advocates his candidacy.
The regulations also contain provisions governing attribution of expenditures in opposition to a candidate. 37 Fed. Reg. 6158, §§ 4.4, 4.5.
Title I: The Ripeness Issue
Plaintiffs predict the situation in which a candidate refuses to certify for publication or broadcast critical views held by plaintiffs and they claim this would leave them with a sort of Hobson's choice: they would be compelled either not to publish or broadcast their critical views or to publish or broadcast and thereby risk prosecution under the penalty provisions of the Act. This dilemma is said to constitute a ...