Bread Political Action Committee v. Federal Election Commission

PETITIONER: Bread Political Action Committee
RESPONDENT: Federal Election Commission
LOCATION: Furnace Woods School

DOCKET NO.: 80-1481
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Seventh Circuit

CITATION: 455 US 577 (1982)
ARGUED: Jan 19, 1982
DECIDED: Mar 08, 1982

Charles Nevett Steele - on behalf of the Appellees
Jeffrey Cole - on behalf of the Appellants

Facts of the case


Media for Bread Political Action Committee v. Federal Election Commission

Audio Transcription for Oral Argument - January 19, 1982 in Bread Political Action Committee v. Federal Election Commission

Warren E. Burger:

We will hear arguments first this morning in Bread Political Action Committee and others against Federal Election Commission.

Jeffrey Cole:

Mr. Chief Justice, and may it please the Court:

The case is here on appeal from a divided court of appeals to the United States Court of Appeals for the Seventh Circuit.

The case presents the questions of whether the prohibitions and limitations on trade association solicitation contained in 1976 Amendments to the Federal Election Campaign Act can survive the exacting scrutiny demanded by the First and Fifth Amendments.

It is our position in brief that the restrictions and limitations are unconstitutional.

I think in order to fully appreciate the genesis of the case and the precise nature of the prohibitions that are involved, one must go back to a time prior to May of 1976, which was the effective date of the 1976 Amendments.

Prior to that time, trade associations solicited voluntary political contributions from a wide and broad range of people, basically who fell within... people who shared a commonality or affinity of political interests.

Those political solicitations were undertaken without regard to whether or not the prospective contributor was an employee of a member corporation of the trade association.

And, most importantly, they were undertaken without obtaining the prior permission of anyone.

With the coming of the 1967 Amendments, however, trade association solicitation underwent a radical and drastic transformation.

For now, no longer could trade associations solicit from this rather broad group of people who shared a commonality of purpose and interests; rather, they were restricted by the Act to either their own shareholders or their own executives and administrators... and that range of people was very small by virtue of the inherent characteristics of trade associations... and/or they could solicit the executives and administrative personnel and the stockholders of those member corporations.

But in addition to these restrictions, perhaps the most throttling restriction was that before even that narrow solicitation could be undertaken, the trade association political action committee had to receive the permission from the member corporation.

That is to say, the executive or administrative employee could not make a determination on his own of whether or not he wanted to be solicited.

That task was entrusted by the Act to the corporation.

The corporation had sole and unthrottled discretion in the matter.

It was unreviewable by anybody, and indeed, it could be denied without regard to the wishes of the corporate employee himself.

In addition to that restriction, the Act imposed one final restriction, and that was even if all of the other statutory prohibitions had been satisfied, and even if the corporation in its largesse gave permission, the potential contributor could only be solicited by one trade association, regardless of the amount of overlap of membership in other separate, distinct and autonomous associations.

Mr. Cole, is there anything in the Act that prevents a trade association from seeking to add these people as members of the trade association?

Jeffrey Cole:

Mr. Justice Rehnquist, there is absolutely nothing except the practical realities of life.

The Act itself, as you rightly point out, does not restrict a trade association from going out and soliciting people to join with it as a member.

The difficulty is, and the record makes clear, that trade associations have rather large operating budgets.

Individuals do not have the wherewithal... and I suspect they do not have the inclination... to be able to support a trade association's activities.

So the right to solicit for individual membership is largely illusory.

But even if it were not, Your Honor, if underlying your question is the suggestion that has been made by the government that we could thus avoid the restraints of the sections of the Act, then I think we are giving constitutional significance to an irrelevancy.

I am aware of no case in the history of this Court, or any court, which has said otherwise unconstitutional prohibitions are okay and are palatable simply because there is a method of avoiding them.

And that is what the Seventh Circuit said and that is what the government is suggesting to this Court.

The effect of these various restrictions, both collectively and individually, was I think as the district court's unchallenged findings of fact make clear, at once profound and immediate.

The district court found that the Act found that the Act had substantially curtailed the solicitation activities of the trade associations; that it had impaired substantially their right to collect voluntary political contributions and thus to make further contributions; and perhaps most importantly, it had limited the rights of potential solicitees, those people having this commonality of political interests, from being able to affiliate with the trade association political action committee and with other like-minded people.

As a consequence of these restraints and as a consequence of the impositions imposed by the Act, we filed suit in the United States District Court for the Northern District for Illinois.

After some very protracted proceedings in that court and in the Court of Appeals, the case ultimately came on for hearing before the Seventh Circuit sitting en banc pursuant to Section 437h of the Act.