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GREENBERG v. BOLGER

June 20, 1980

Gary GREENBERG, Richard Savadel, Free Libertarian Party, William D. Burt, Socialist National Committee, Socialist Party of America, Kenrick G. Kissell, Bill Douglas, Peace and Freedom Party, Lewis B. McCammon, Plaintiffs, J. Daniel Mahoney as State Chairman and on behalf of the Conservative Party of the State of New York, Plaintiff-Intervenor, Bert DeLeeuw as Executive Director and on behalf of Citizens' Party, Plaintiff-Intervenor, John B. Anderson, National Unity Campaign for John Anderson, and Uriel P. Bauer, Plaintiffs-Intervenors,
v.
W. F. BOLGER, Theodore Troy, George F. Shuman, United States Postal Service, Board of Governors of the United States Postal Service, Postal Rate Commission, Defendants



The opinion of the court was delivered by: WEINSTEIN

MEMORANDUM AND ORDER

This action by five political parties and the National Unity Campaign for John Anderson and Uriel P. Bauer, seeks an injunction either invalidating a portion of the Postal Service Appropriation Act, 1980, Pub.L.No. 96-74 Title II, 93 Stat. 562 (1979), as unconstitutional, or, alternatively, directing defendants to afford plaintiffs the special reduced rates for bulk third class mailings available to the National, State and Congressional committees of the Democratic and Republican parties. The two major parties pay 3.1 cents per letter, while all other parties pay 8.4 cents.

 A critical duty of the courts in our system of constitutional government is to protect a minority against a majority's attempt to reduce human rights. In our democratic republic it is essential that each person be afforded the right of equal access to the marketplace of political ideas and the opportunity of influencing governmental policy through election and persuasion of government officials.

 The vital role played by third parties and independent candidates in changing the political environment; the constitutional rights such parties have to communicate programs, goals and candidacies; the monopoly that is enjoyed by the Postal Service; and the very real burdens denial of preferred postal rates places on small or new political parties, require that the plaintiffs enjoy access to the mails equal to that of the Democrats and Republicans.

 I. BACKGROUND

 The postal service is a monopoly; no competing private agency for carrying mails is permitted. 18 U.S.C. § 1696 (crime to establish private postal system); 39 U.S.C. §§ 601-606; United States Postal Service v. Brennan, 574 F.2d 712 (2d Cir. 1978), cert. denied, 439 U.S. 1115, 99 S. Ct. 1018, 59 L. Ed. 2d 73 (1979); National Ass'n of Letter Carriers v. Independent Postal System, 470 F.2d 265 (10th Cir. 1972). As "one of the main government facilities relevant to a system of freedom of expression . . .," T. Emerson, The System of Freedom of Expression 647 (1970), access to the post is indispensable to the exchange of ideas.

 A. Statutory Scheme

 The Postal Reorganization Act of 1970 created the Postal Service as "an independent establishment of the executive branch of the Government of the United States." 39 U.S.C. § 201. Though generally prohibiting subsidization of one category or class of mail by customers who send other types of mail, 39 U.S.C. §§ 101(d), 3622, exceptions authorize special treatment for certain types of mail. For example, special rates were authorized for bulk third class mailings of qualified non-profit organizations and the 1970 Act allows Congressional appropriations to the Postal Service to reimburse the Service for any loss caused by this lower-than-cost-based rate. 39 U.S.C. § 4452(b). These special rates are available, however, only if Congress makes the necessary appropriations.

 In 1978, as part of the Overseas Citizens Voting Rights Act Amendments, Pub.L.No. 95-593, § 11(c), 92 Stat. 2538 (1978) (1978 Act), Congress amended Title 39 extending the benefit of reduced rates to "qualified political committees" defined as "a national or state committee of a political party, the Republican and Democratic Senatorial Campaign Committees, the Democratic National Congressional Committee, and the National Republican Congressional Committee." 39 U.S.C. § 3626(e)(1), (2). As a result of this amendment, the original plaintiff political parties, Socialist Party of America, Libertarian Party, Peace and Freedom Party and plaintiff-intervenor, the Conservative Party of New York, among others, enjoyed reduced third class bulk mail rates.

 This preferred rate allowed plaintiffs substantially to increase the frequency and volume of their mailings. Plaintiff Free Libertarian Party was able to increase its mailings from approximately 700 pieces per month to as many as 2000 per month. Testimony of Gary Greenberg, Transcript of Hearing of March 6, 1980, at p. 13. The other original plaintiffs achieved similar increases, Testimony of Kenrick G. Kissell (Socialist Party), Transcript of Hearing of March 5, 1980, at pp. 12-13, as did intervenor Conservative Party, Affidavit of J. Daniel Mahoney.

 The category of political organizations eligible for benefits flowing from Congressional appropriations were, however, defined more narrowly by the 1980 Postal Service Appropriation Act (1980 Act). It provides, in pertinent part, that, "no funds appropriated . . . shall be available for implementing special bulk third-class rates for "qualified' political committees authorized by Public Law 95-593 (1978 Act), other than the National, State, or Congressional committee of a major or minor party as defined in Public Law 92-178." Pub.L.No. 96-74, Title II.

 Public Law 92-178, the Presidential Election Campaign Fund Act, 26 U.S.C. §§ 9001-9013 (Campaign Fund Act), defines a "major" party as "a political party whose candidate for the office of President in the preceding presidential election received, as the candidate of such party, 25 percent or more of the total number of popular votes received by all candidates for such office." 26 U.S.C. § 9002(6). A "minor" party is defined as one whose last presidential candidate received more than 5 percent but less than 25 percent of the total popular vote. 26 U.S.C. § 9002(7). A party whose candidate received less than 5 percent of the vote is a "new" party. 26 U.S.C. § 9002(8).

 Congressional debate demonstrates what is clear from the provision itself that the 1980 limitation was adopted to preserve the special rate for the two dominant political parties while denying it to all others. Representative Glickman proposed at the beginning of the debate on the 1980 Act an amendment to eliminate the special rate for all political committees. 125 Cong.Rec. H-5888 (July 13, 1979). Responding to objections that this amendment would "throw the baby out with the bath water," id. at H-5891, Representative Ford proposed the limitation that was enacted. He expressly described the purpose: "we did not intend that the American Nazi Party or the Communist Party, could automatically walk in and get this privilege." Id. Despite the observation of Representative Glickman that the amendment would sharply restrict minority parties' access to the mails, id. at 5895, and Representative Bedell's remark that "if a new party was formed . . . that . . . had substantial support, it would be placed at a disadvantage as compared to" the Republican and Democratic Parties, id., the Ford Amendment was adopted.

 The statutory scheme presents some difficulties. The definitions of "major", "minor" and "new" parties are derived from the Campaign Fund Act. 26 U.S.C. §§ 9001-9013. But, unlike the Campaign Fund Act, the 1978 Act does not require major or minor parties to accept expenditure or contribution limitations as a condition of the receipt of public funds in the form of a postal subsidy. Moreover, the 1978 Act unlike the Campaign Fund Act makes no provision for the possible reimbursement of a political party unable to qualify for advance funds given past results (or the lack of results in the case of a newly created party), but making the requisite showing in a current election. In addition, the 5 percent requirement reflects a concern for national impact neglecting the local or statewide success that some third parties enjoy. Finally, there is no specific reference to independent candidates.

 Pursuant to the 1980 Act, the Governors of the Postal Service adopted a resolution denying the preferred rate for bulk third class mailings to committees of "new political parties" i.e., those neither Democratic nor Republican. 39 U.S.C. § 3627. Plaintiff political committees, together with twenty-four other "new" political committees, were informed by letter that, as of December 16, 1979, they would no longer be entitled to the special mailing rate. This raised their cost of mailing from 3.1 cents to 8.4 cents per piece and sharply restricted their ability to use the mails. Affidavit of Theodore W. Troy, PP 16, 17; Affidavit of Gary Greenberg, P 9; Affidavit of Lewis McCammon, P 6; Affidavit of J. Daniel Mahoney, P 4.

 B. Plaintiffs

 The "new" political parties and the independent candidacy of John Anderson present views to the electorate substantially different from those of the two major parties.

 1. Socialist Party of America

 The Socialist Party of America was founded in 1901 when the Socialist Democratic Party merged with the Rochester wing of the Socialist Labor Party. Kenrick Kissell, the National Secretary of the party, described the party philosophy as follows:

 
we believe it is essential to have some form of economic as well as political democracy in that the democratic decision-making process should be extended to other views of life other than simply the political or government.

 Transcript, March 5, 1980, at p. 5.

 The Socialist Party of America has 500 members, 40 of whom reside in New York, and its mailings go to more than 3000 recipients. Its local chapters form state committees. Delegates to a National Convention select a National Committee.

 In 1976, the Socialist candidate for President, Frank P. Zeidler, was on the ballot in seven states receiving approximately 6,000 votes or less than 0.01% of the total popular vote of 81,552,331. The highest percentage he achieved was in Wisconsin where he attained 0.2% of the total vote. See Congressional Quarterly, Guide to 1976 Elections (W. Walker ed. 1977).

 2. Libertarian Party

 The Libertarian Party was founded in 1971. Its National Committee charters new state organizations. These state organizations, in turn, send delegates to a national convention. Every state but one has a state organization. In New York, because of the state's election laws, the organization is called the Free Libertarian Party. The party has 6000 contributors and in 1979 there were 266 dues paying members.

 Its credo, briefly stated, is:

 
By contemporary labels, the Libertarian Party is neither left nor right wing. It bases its political position on one simple principle: each individual has the absolute right to exercise sole dominion over his or her own life, liberty and property (so long as he or she also respects the equal right of every other individual to do the same). The Party platform, applying this principle to the issues of the day, contains planks opposing the draft, censorship, coercive taxation and victimless crime laws. . . .
 
The libertarian vision looks forward to a society in which individuals are free to pursue their own happiness, cooperating with others voluntarily to seek common goals. A society with (not one but) many utopias, each built, individually or collectively, by the efforts of free and responsible human beings.

 See The Libertarian Party. An Introduction (1979).

 In 1976, the Libertarian candidate for President was Roger McBride. He received 173,019 votes 0.2% of the total popular vote. In Alaska, Mr. McBride had 5% of the popular vote; his next best showing was in Hawaii where he obtained 1.3% of the vote. See Congressional Quarterly, Guide to 1976 Elections, (W. Walker, ed. 1977).

 3. Peace and Freedom Party

 In 1976, Margaret Wright was the Peace and Freedom Party's candidate for President. Ms. Wright received 50,000 votes, .06% of the total popular vote. Her highest percentage was received in California where she garnered 0.5% of the total vote.

 4. Conservative Party of the State of New York (plaintiff-intervenor)

 The Conservative Party of the State of New York has run candidates for governor of the State in each gubernatorial election since 1962. In 1978, its candidate received 242,972 votes.

 The party has also been an influential force in other elections. In 1970, James L. Buckley was elected with 2,179,640 votes to the United States Senate against Democratic and Republican opposition. Conservative Party candidate James D. Griffin was elected Mayor of Buffalo, New York in 1978, over the opposition of candidates from the two major parties. See J. Daniel Mahoney Affidavit PP 2, 3.

 In 1976, the Conservative Party listed Gerald Ford on the ballot in New York as its candidate for President. He received 274,878 votes, or slightly more than 0.3 percent of the total national popular vote. The Conservative Party of New York provides a striking example of one of the serious consequences of the 1980 Act. Though quite successful on a state and local level, the party is unable to satisfy the requirement that it receive five percent of the nationwide popular vote.

 5. Citizens' Party (plaintiff-intervenor)

 The progenitor of the Citizens' Party, the Citizens' Committee, was established in April 1979 as a political committee. The Federal Election Commission indicated that the Citizens' Party would qualify as a "political party" pursuant to the Federal Election Campaign Act, 2 U.S.C. § 431(16), as soon as it nominated a candidate for any federal office whose name appeared on any state ballot. Advisory Opinion 1980-3, March 4, 1980.

 The Citizens' Party held a National Convention in April 1980. Barry Commoner and La Donna Harris were nominated as the Party's Presidential and Vice-Presidential candidates, respectively. Two hundred and seventy one delegates representing 32 states participated in the Convention.

 The Citizens' Party has approximately 5,000 members. It has 32 state committees and the candidates of the Party have thus far satisfied ballot access requirements in seven states. See Bert DeLeeuw Affidavit PP 3, 4, 5, 7, 9.

 6. John Anderson and the National Unity Campaign for John Anderson and Uriel P. Bauer (plaintiffs-intervenors)

 Unlike the other plaintiff political parties, John Anderson and the National Unity Campaign characterize their effort as an independent candidacy. The distinction, however, is, for purposes of legal implications relevant to this case, more one of form than substance. See discussion in III, infra.

 John B. Anderson is a ten-term Republican Congressman from Illinois who, after competing unsuccessfully in the Republican presidential primaries, in April 1980 announced his independent candidacy for the Presidency. Since its inception, the National Unity Campaign has secured a place for John Anderson's name on the ballot of eight states and it is seeking to meet ballot requirements in all states and the District of Columbia. This effort has resulted in the gathering thus far of more than 225,000 signatures. The campaign has also raised over $ 1,300,000 in private contributions in amounts of $ 1,000 or less as required by the Campaign Fund Act.

 The National Unity Campaign serves the same general functions as those performed by the political parties for their respective candidates. For example it plays the central role in raising funds; it determines the amount of money to be allocated to particular efforts in particular states; it coordinates the formulation and expression of the candidates' positions on political issues; and it is responsible for determining the content of national advertising campaigns. See Francis E. Sheehan, Jr. Affidavit PP 3, 4, 8, 9, 10, 12.

 This brief description of each of the plaintiff political parties and of the National Unity Campaign reveals that either because they are newly created or because their support is only local or statewide or because they failed to generate sufficient interest, none approached the nationwide 5 percent figure in the 1976 presidential election necessary to qualify for the preferred postal rate. Only the Democratic and Republican parties made the requisite showing. The position the plaintiffs find themselves in is not surprising given the history of independent candidates and third parties in the United States.

 C. Independent Candidates and Third Parties in the United States

 Since the earliest days of the Republic, political parties in general and third parties and independent candidates in particular have not been viewed with great favor by the majority partly because of fear that factions might split the nation. See N. Cunningham, The Making of the American Party System 19-20 (1965). This fear of factionalism has continued to the present day. See, e.g., Storer v. Brown, 415 U.S. 724, 736, 94 S. Ct. 1274, 1282, 39 L. Ed. 2d 714 (1974) (California statute requiring nominating petition signed by no less than five percent of voters in last general election valid to protect electoral process from "splintered parties and unrestrained factionalism" and to provide an understandable ballot).

 The place of independent candidates and third parties in the American political process can be understood only in light of this strong bias against splintering and the countervailing fear of creating and perpetuating an oppressive political majority. Writing in the early 1830's, Alexis de Tocqueville identified an essential concern of the framers of the Constitution when he suggested that the tyranny of the majority might be the basic flaw in the American system. His view was that:

 
the main evil of the present democratic institutions of the United States does not arise, as if often asserted in Europe, from their weakness, but from their irresistible strength. I am not so much alarmed at the excessive liberty which reigns in that country, as at the inadequate securities which one finds there against tyranny.

 A. de Tocqueville, Democracy in America 115 (R.D. Heffner, ed. 1956). See also, James Madison, Federalist, No. 51 ("Ambition must be made to counteract ambition."). This concern has recently been restated by Professor Ely. See J. H. Ely, Democracy and Distrust 69 (1980). See also, e.g., M. Perry, The Constitution, the Courts and Human Rights 3.46 (Preliminary ed. 1980); Ely, Toward a Representation Reinforcing Mode of Judicial Review, 37 Md.L.Rev. 451 (1978); Bork, Neutral Principles and Some First Amendment Problems, 47 Ind.L.J. 1, 3 (1971).

 1. History of Party System

 This tension between "tyranny of the majority" and "factionalism" is mitigated by the two party system. But, though political parties may have been an inevitable product of the political framework established in 1789, the two party structure was not foreseen. See R.A. Dahl, Pluralist Democracy in the United States 210 (1967).

 The factions, coalitions and alliances of earlier days lacked the requisite organization, permanence and identity of what we now call political parties. R.A. Dahl, Pluralist Democracy in the United States 205 (1967). See also, e.g., A.H.M. Jones, Athenian Democracy 130-31 (1957) (groups and cliques existed among politicians in Athens but were "probably based on personalities rather than principles, and seem to have been temporary."). Professor Dahl concludes his view of these early organizations explaining:

 
. . . like the Guelphs and the Ghibellines of medieval Italy or the Piagnoni and the Arrabblat of Savanarola's Florence, factions typically settled their differences sooner or later, as they had come to do during the last century of the Roman Republic, by bloodshed.

 Dahl at 205.

 The eighteenth century saw the development of groups more closely analogous to the modern political party. In Britain:

 
. . . Whigs and Tories did not constitute political parties as they came to be in the late nineteenth and twentieth centuries. Those labels were often adopted by, or foisted upon, men who had little in common and few or no real ties. In 1714 and for many years thereafter, the basic political unit was the group or connexion, often called a party, formed under the leadership of a successful politician.

 A.S. Foord, His Majesty's Opposition 1714-1830 20 (1964); see also, e.g., D.A. Rustow, The Politics of Compromise 11-12 (1955) (comparable Swedish developments). These short-lived groups possessed only the roughest similarities to present-day parties. ...


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