Buckley v. Valeo – Oral Argument – November 10, 1975 (Part 1)

Media for Buckley v. Valeo

Audio Transcription for Opinion Announcement – January 30, 1976 in Buckley v. Valeo
Audio Transcription for Oral Argument – November 10, 1975 (Part 2) in Buckley v. Valeo

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Warren E. Burger:

We will hear arguments today in Buckley against Valeo and the others.

Counsel, you may proceed whenever you are ready.

Ralph K. Winter, Jr.:

Mr. Chief Justice and may it please the Court.

This case was brought on January 2nd of this year, first business day after the effective date of the Federal Election Campaign Act amendments of 1974, which I will refer to as the FECA.

It is about a declaratory judgment of unconstitutionality and a permanent injunction against the enforcement of major provisions of that law, the 1971, Federal Election Campaign Act in subtitle H of the Internal Revenue Code as amended by the FECA Amendments.

Pursuant to the expedited review provisions, the case was certified to the Court of Appeals for the District of Columbia Circuit, after a remand to the District Court for fact finding, a framing of the constitutional issues and a re-certification to the Court of Appeals.

The Court of Appeals and a three-judge district court considering always subtitle H, rendered their opinions on August 15.

The majority below upheld the constitutionality of every major provision of the law, but one and that provision was not appealed and is not an issue here.

The allocation of argument for both sides will be as follows.

I will discuss the statutory limits on campaign expenditures by political parties, committees and candidates, limits on contribution to political candidates and limits on independent expenditures.

My colleague Mr. Gora will discuss the challenge to the Act’s disclosure provisions and this afternoon, Mr. Clagett will argue the unconstitutionality of federal subsidies to political candidates and parties and of the Federal Election Commission.

For the Appellees, Mr. Friedman will discuss general principles and the disclosure provisions.

Mr. Cox will discuss the limits on expenditures and contributions.

In the afternoon, Mr. Cutler will discuss subtitle H and Mr. Spritzer, the constitutional alibi of the Federal Election Commission.

Let me briefly describe the statutory provisions relevant to my portion of argument.

Candidates for all federal offices are limited by Section 608 in the amounts they may spend for purposes of influencing on election.

National committee and State committees of a political party, may make expenditures on behalf of candidates which are in addition to the candidate’s expenditures.

Section 608 (e) prohibits expenditures independent of the candidate in excess of $1,000.00 so long is they are relative to a truly identified candidate and advocating the election or defeat of such candidate.

The statute also limits contributions to candidates.

No person may contribute in access of $1,000.00 to any candidates for Federal Office and political committees registered for 6 months, which have received contributions for more than 50 persons and have contributed to 5 or more candidates for Federal Office may make contributions to individual candidates up to $5,000.00 each?

Candidates may expend personal funds or the funds of their immediate family up to $50,000.00 in the case of a candidate for President, $35,000.00 in the case of a candidate for the Senate and $25,000.00 in the case of a candidate for the House.

Certain incidental out of pocket expenses incurred by volunteers in excess of $500.00 would constitute a contribution.

Potter Stewart:

Some of these limitations are annually, you can spend that much in any one year, is that true of all of them?

Ralph K. Winter, Jr.:

No, most of the limitations apply to primary or to (Voice Overlap) —

Potter Stewart:

To specific by the general explanation —

Ralph K. Winter, Jr.:

Races for the nomination and then also for the general election and in some cases they are different limits, depending on whether it is a primary or general election.

Potter Stewart:

But I am correct in my understanding that some of them do permit annual expenditures or contributions of that amount?

Ralph K. Winter, Jr.:

Well, I am not sure exactly what you mean, Justice Stewart.

Potter Stewart:

Well, I am just asking a question?

Ralph K. Winter, Jr.:

I believe, 608 — well, certainly the limits on expenditures apply to —

Audio Transcription for Oral Argument – November 10, 1975 (Part 2) in Buckley v. Valeo

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Potter Stewart:

You would have a federal election every two years?

Ralph K. Winter, Jr.:

That is right.

Potter Stewart:

The Presidential every four and Congressional every two?

Ralph K. Winter, Jr.:

Well, the limits on expenditures apply to each separate election and it is not annual.

The limits are independent expenditures in a year, so that is just the annual expenditure.

Potter Stewart:

Still I am not quite sure I understand the answer to my question?

Ralph K. Winter, Jr.:

Well, I think my answer is not —

Potter Stewart:

It is not year.

Ralph K. Winter, Jr.:

It is not slightly annual as I understand that the —

Potter Stewart:

They are geared to Federal Election?

Ralph K. Winter, Jr.:

That is right.

Potter Stewart:

And this is in anytime during the Federal Election Years.

Ralph K. Winter, Jr.:

Yes.

Potter Stewart:

Is that it?

Ralph K. Winter, Jr.:

I think so, yes.

Harry A. Blackmun:

Which is to say the definition of years in relation to the election not as an account?

Ralph K. Winter, Jr.:

That is right.

Harry A. Blackmun:

Is that it?

What difference does it make?

Ralph K. Winter, Jr.:

Yes, I am not sure it makes any different, sir.

Warren E. Burger:

But it would make a difference I suppose if some candidate was thinking about it and with one course of action he might be subject to a criminal charge or other sanctions and with the other course of action he would be in clear?

Ralph K. Winter, Jr.:

Well, that is certainly true, but the definition of expenditure is for the purpose of influencing an election and that is a factual determination to be made in each case as to which election the particular expenditure was designed to, you know, was intended to influence.

So, that conceivably under the Act, I take it that expenditures prior to a primary, prior to a nomination can be said by the FECA, by the Commission, or by a Court interpreting it, to in fact, have been for the purpose of General Election.

One of the principles duties of the Federal Election Commission will be to allocate to make a determination which expenditures in particular cases are for the purpose of which election.

The parties disagree as to the extent of Congressional Power to regulate political communication under the First Amendment, but they all agreed on one thing, which is that a statute which intrudes in a delicate area of this matter must be non-discriminatory on its face.

For if it were not the state would be able to regulate the unpopular and in effect regulate the content of speech.

I want to confront directly in detail the contention that the FECA is not facially discriminatory, for there are several theory cases official unconstitutionality.

Section 608 limits contributions to and expenditures by candidates as defined in Section 591, essentially if anything of value, given or employed to influence a federal election.

Title 39, U.S.C., Section 3210 which is on page 81 of our volume 3 of the appendix, that sub-section E and F explicitly makes explicit exceptions to the definitions of contribution and expenditures.

What the exceptions are, are funds used in preparing materials to be sent out under the frank as well as the postal value of sending it out.

Audio Transcription for Oral Argument – November 10, 1975 (Part 2) in Buckley v. Valeo

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Ralph K. Winter, Jr.:

Section 3210 (a) (3) defines the kinds of materials that maybe sent out under the Frank.

That describes a variety of relevant materials which clearly influence elections.

But most particularly, it includes “discussions of proposed or pending Legislation or Governmental actions and the positions of the members of Congress on and arguments for or against such matters.”

The only limitation is that Frank cannot be used within 28 days in election.

Now, since the presentation of arguments for and against actions by Congress obviously influence elections.

The effect is that Section 608 limits all contributions to or expenditures by challengers for purposes of mailings which debate governmental issues, while leaving totally unregulated and unlimited private contributions to incumbents to prepare materials which is then send out in unlimited amounts at government expense.

No party to this litigations so far as I know disagrees with this interpretation of the statute.

Indeed, even in the propose regulations of the Federal Elections Commission relating to office accounts, the Commission was at pains not to treat funds supporting the activities describe in Section 3210 as either contributions or expenditures.

The issue we raise is not whether a congressman should be able to communicate with their constituents.

The issue is whether Congress under the First Amendment made by law, limit the ability of challengers to communicate with the very same constituents without similarly limiting itself.

Of course, public officials need to communicate with voters, but so do challengers and if private contributions to challengers for use in mailing are to be limited, since they may corrupt or give the wealthy an unequal voice, then contributions to incumbents for the same purpose should also be limited.

The situation this statute establishes permits an incumbent congressman say in plausible hypothetical, to accept $40,000.00 from a source, any source, which can then be used to prepare and it does not have to be disclosed, which can then be used to prepare materials.

You can give the money,you can hire an advertising firm to prepare materials which can then be sent out under the Frank.

So that an incumbent congressman might except, give an advertising agency say $35,000.00 to prepare materials, send out a 150,000 copies of something, which I suppose is worth maybe around $15,000.00, none of which accounts either as a contribution or an expenditure.

If the challenger were to do exactly the same thing, with matters debating the pros and cons of governmental action, it would all be subject to the limits and indeed, in the hypothetical I have given, a challenger in the House would have used that well over half the expenditure limit and that is before he has hired his lawyer and his accountant to help them comply with the statute.

Potter Stewart:

Is this — are you directing yourself to the Fifth Amendment attack or First Amendment attack or both?

Ralph K. Winter, Jr.:

I think it is both, Justice Stewart.

It seems to me that it is a Fifth Amendment attack in that it is an invidious discrimination, but it is also a First Amendment attacking in that it clearly regulates content.

It permits more speech, greater speech by incumbents than by challengers.

I think it is almost exactly the case that the Court decided in Police Department against Mosley, involving a statute that prohibited all picketing, but picketing by a labor organization.

So, I think that the attack goes on both grounds.

Now, if that is not a facial discrimination then these words have lost their meaning.

It is not a minor exception.

Potter Stewart:

(Voice Overlap) does not have much to do with discrimination as such does it?

The Fifth Amendment does, of course?

Ralph K. Winter, Jr.:

Yes, it does.

I find it difficult, Justice Stewart though to see why a statute which prohibits the speech of some, but not others in a discriminatory fashion does not violate the First Amendment.

Potter Stewart:

If the advice is directed to the content, it certainly does.

Ralph K. Winter, Jr.:

Well, that is content in a very real, very, very real sense and not only that the First Amendment at the core is the protection of those outside the government.

This smacks very much of the repression of political opponents in that people outside the government are not allowed to speak as much as people in and I think that is — if the Court finds the statute does that, it is a clear violation of First Amendment.

Audio Transcription for Oral Argument – November 10, 1975 (Part 2) in Buckley v. Valeo

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Ralph K. Winter, Jr.:

It is not a minor exception.

It involves millions and millions of dollars.

More money is found in the Frank by congressman then spent by all congressional challengers and all campaign activities.

In October 1974 on the eve of the congressional election the Congress which past Section 608, set out almost $22 million pieces of Frank mail and the budget for 1976, includes $46 million for use of the Frank.

Challengers to Congressional incumbents in 1974 spent only slightly $20 million on everything. Let me make it clear, we claim no misused of the Frank.

We do not say, 3210 is unconstitutional.

It serves legitimate official purposes, separating the proper use of the Frank from the improper use is simply intractable.

It would make every mailing of the Frank a constitutional issue.

But the Frank does influence elections and as stipulated by the parties and found by the District Court, it is heaviest use is just prior to election.

Attempts in Congress by Senator Scott to have the mailing privileges given to a challenger, given to all candidates for Federal office had been defeated.

It seems to me that the Frank cannot be using this word or that you cannot limit challengers in responding without even giving them Franking privileges or limiting Congress’ own use of it.

We do not abandon by means all of the the contentions, but if the Court were to find that these provisions are unconstitutional for these reasons, that would dispose of both contributions and expenditures under 608 and the other constitutional issues can be left to another day.

Byron R. White:

It was out before the Senate and House –?

Ralph K. Winter, Jr.:

Yes, sir.

Not, yes sir, the presidency might be different because it is penalty mail, but I would submit that it —

Byron R. White:

You have to say something else about the case, about the presidency case?

Ralph K. Winter, Jr.:

Yes sir.

The penalty mail situation, sir is precisely the same.

The president also has mailing privileges which are very similar to those which incumbent congressman have.

I would think that it would clearly — that the theory would clearly fit within that and although 3210 does not explicitly make the same kind of explicit exception to fit to the 591 definitions, the case there is exactly the same.

The President is permitted to send out mailings like that.

The statute, I should say that basically this argument I think is applicable to all of the many resources which are available to incumbents which they can vote themselves at will and which are detailed in the briefs and in the papers of the party and I will not go into it.

I emphasized 3210 because it did have that explicit statutory language.

The FECA also and this applies to all Federal races, officially discriminates against independent candidates for office by permitting party committees to support their candidates over and above the candidate expenditure limit.

Candidate such as Senator McCarthy who wish to demonstrate their independence from traditional political alliances can do so only at the price of having less power to communicate with voters.

No matter how often the word Watergate is repeated, it really offers no valid explanation much less justification.

Forth, although the statute was passed in the midst of rhetoric about reducing the influence of wealth and politics, in fact increases the advantage of wealthy candidates.

The less wealthy candidate is prohibited from rising seed money or contributions for other purposes in amounts over a $1,000.00.

The wealthy candidate on the other hand can support his campaign from personal funds, including large early initial loans to the campaign which can later be repaid.

No reason which would stand the scrutiny has been given to justify giving the wealthy disadvantage in communication with the voters.

Audio Transcription for Oral Argument – November 10, 1975 (Part 2) in Buckley v. Valeo

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Ralph K. Winter, Jr.:

Fifth, we also claim to this facial discrimination for the statute to permit large contributions by political committees which have been registered for six months.

They are permitted to spend five times as much other kinds of committees and we believe that provision necessarily will help groups which have permanent organization, which have continuous professional contact, namely organized interest groups.

Ideological groups are less well knit.

Their members are dispersed.

They are not in continuous professional contact.

They tend to be generated by campaign activities which will occur too late for compliance for the six months requirement and they tend to call it less only in response to unanticipated events.

It is certainly true that more ideological organizations such as the national committee for an effective Congress or the conservative victory fund will continue to exist.

They will, however, be limited by the $5,000.00 limit and will be less able to proliferate the number of six months committees in existence.

Organized interest groups, at least those with a geographic basis, which can organize horizontally are able to proliferate committees and that is why it seems to us that is very clear that the practice of this industry which have been heavily relied upon in the Court below can continue to occur under the statute, since they can organize their political committees on a county basis.

Contrary to the rhetoric which accompany passage of the FECA, the statute in particular favors the use of corporate and union money for political activities.

Both are permitted to spend statutorily unlimited sums to raise money for so called segregated funds to finance six-month political committees.

Union or corporate money is thus spent to raise money and that money is distributed without reference to the wishes to the donors.

In effect to some extent, the FECA reformed the problem of legal corporate contributions when making them less necessary.

Sisson speculation, since the enactment of the statute, there has been very sharp increase in the number of corporate political action committees with no visible increase in illogically oriented groups.

I should say that the change statute made was to include corporations with government contracts in their provisions permitting corporations to setup segregated funds.

Six, whatever facial neutrality the statute may have, it is only skin deep.

In its operation it inevitably works great discrimination among various candidates and various causes.

Candidates and political movements never began from positions of equality.

Some who are initially disadvantaged moreover can overcome this disadvantage only by heavy spending, no matter how much the opponent spends.

Differences in name recognition, disadvantages on the issues.

The record indicates, for example, in 1972 that Attorney General Kelly may well have been able to raise, wage a stronger race against Senator Griffin, had he been able to obtain a level of campaign spending, enabling him to focus the voters attention more on economic issues in which he was thought to be strong, rather than on the raging busing controversy where he was thought to be weak.

In that kind of situation the busing was a controversial issue, independent of any activities of Senator Griffin could be overcome only by a vigorous campaign by Senator Kelly, no matter how many resources were available to Senator Griffin.

Appellees believe these propositions are common sense propositions.

We do not think there is speculation at all.

Indeed, they are now the law of the FECA, according to a ruling of Commission.

In an advisory ruling, involving Senator Benson, the Commission explicitly relied on the fact that an incumbent’s exposure is the equivalent of substantial campaign expenditures.

Senator Benson has announced that he intends to run in both the Texas Presidential and Senatorial primaries.

The Commission, fearful that his combined expenditures will influence each of these simultaneous campaigns, ruled that Senator Benson may only spend the amount permissible for the Senate primary, all together.

His major anticipated adversary in the Presidential primary, Governor Wallas was less free to out spend him two to one since Presidential Primary Candidates can spend twice the Senate limit.

In handing down this ruling, the Commission said “within Texas, the reduced Presidential Primary expenditure limitation applicable to Senator Benson are compensated for by the fact that he is already the Senator from Texas and thus within Texas begins with the significant exposure advantage over his rivals.

Audio Transcription for Oral Argument – November 10, 1975 (Part 2) in Buckley v. Valeo

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William H. Rehnquist:

Mr. Winter, how much can we get into a particular ruling like that.

I mean, Senator Benson is not a party here, Governor Wallas is not a party?

Ralph K. Winter, Jr.:

The point I am making, Justice Rehnquist is at while the Commission in this Court is claiming that kind of proposition as speculation and would not justify the Court holding expenditures limits unconstitutional for the reasons I have said.

Now, the point is that they themselves are relaying on that proposition to make decisions below.

I am not arguing whether the ruling was correct or incorrect.

I am just arguing that it is a well-known proposition known to everyone.

So, well known that Commission relied on it and had no problems whatsoever.

I think these propositions are as much common sense propositions as the proposition that equal space statute say in Tornillo, made Detroit Newspapers from printing controversial editorials.

I think every First Amendment of this Court involves judgments as to the factual impact of the statute.

William H. Rehnquist:

But in Tornillo we were discussing the language of the statute as such as applied by the Florida Courts and here you are asking us to take into a considerations a ruling by the Commission in a particular controversy?

Ralph K. Winter, Jr.:

I am only asking you to take the rationale of the consideration.

I am not asking you to address yourself to the merits of whether Governor Wallas and other Presidential aspirants should be able to outspend Senator Benson two to one.

I think the merits of that are irrelevant to the argument here, except insofar as they demonstrate the belief of those, the widespread belief that exposure is the equivalent of substantial campaign expenditures.

They are also relevant I might say to show the kind of deep intrusion the statute makes in that the Commission will be asked time and again to address the question, how much will this candidate be able to speak in election and how much will another.

I am not sure, I am being responsive Justice Rehnquist.

I think that similar disadvantages are visited upon challengers by the limits on contributions.

Incumbents are as we described in our papers, large advantages in raising contributions under the statute because of mailing list they develop from the Frank and the like.

Indeed, although one might have anticipated that fundraising would be more difficult, the figures show that by September 30th of this year, incumbent Senators up the next time have already raised over $2 million.

At a corresponding time in 1974, they have raised less than a million-and-a-half.

So, they are not having any trouble raising it because they have all of this time to raise it which challengers do not and time is critical when you are raising small contributions.

There is one argument; well, the argument that the statute helps challengers because offsets the superior fund raising ability of incumbents seems to us to be an error.

The greatest differential in funds is in those races in which the challengers simply as little or no plausible chance of election.

The limits in those circumstances have little impact because the outcome is certain and because spending is often less than the limits.

The impact in those races which are competitive, however, will be drastic, but those races are the very races in which the differential in funds is leased.

In 1974, in the House, if you take all the races in which the challenger did raise 70,000 or more, the amount raised by all such challengers in fact substantially exceeded the amounts raised by the incumbents is they faced.

The limits already have an effect on those races where equality is greatest at the present moment.

The burden of the FECA rest full heavily on those challenging the status quo by impairing the ability of challengers both to raise and spend money.

This legislation makes it acutely difficult for them to overcome the exposure, incumbents already enjoy.

I do not think there could be any question about this.

If they were five restaurants in the town and someone was about to open a new one, an ordinance severely limiting the amount of newspaper advertising restaurants might buy, would be recognized for what it is, an attempt by the existing restaurants to freeze out new comers.

Audio Transcription for Oral Argument – November 10, 1975 (Part 2) in Buckley v. Valeo

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Ralph K. Winter, Jr.:

I do not make claim of intent on the part of Congress to drive out and to freeze out new comers.

I do claim, however, that the effect will be to do that.

I think the record demonstrates these propositions.

The vast majority of Congressional challengers in the last two elections have spent over what are now the FECA limits, if appropriate adjustments were made for inflation.

Senator McCarthy’s 1968 New Hampshire campaign, which seemed hopeless in the beginning, which was widely reported as a campaign run mostly by volunteers was in fact a very heavily monied campaign, one of the most money campaigns up to date.

Senator McCarthy spent $12.00 per vote received as against $.077 spent in the General Election by Richard Nixon that it — and it adjusted for inflation, that is around $18.00.

If his spending had been otherwise, the outcome would been otherwise and had been limited, the outcome would been otherwise and the efforts of his many volunteer supporters, who are also helped by the heavy spending would have been for naught.

The same is true of the reliance of challengers on large contributions.

Again, the McCarthy Campaign in 1968 is detailed in the record, as is Senator Buckley’s 1970 campaign in which the landlords and the phone company would not even talk to him, unless he came up with certified checks for $36,000.00.

His beginning efforts were financed through a large loan which the FECA would outlaw.

The record also demonstrates beyond any question that Senator McGovern’s campaign would have floundered if the FECA had been in effect.

From the beginning of his campaign, until the New Hampshire Primary, until three days after the New Hampshire Primary, Senator McGovern would have lost $636,882.00 in contributions.

Since direct mail techniques in which he was relying heavily, required the much of the return — the much of the contributions of the return on contributions be plowed back in, these large contributions had to be critical to his early efforts.

The answer to the question is this law that reform a claims to be is clearly no, quite apart from its discriminatory effect.

There is no rational relationship between stated ends and the means adopted.

In fact, there are remedies which are available, are readily available with greater efficacy and had considerably less impact on First Amendment values.

The record demonstrates something about the effectiveness of disclosure.

In going to the record, it appears in 1972 that large, large numbers of the large contributions and the suspicious contributions which led to the passage of the FECA were passed before the disclosure provisions were in effect or after the election when it was too late for them to go before the record.

The appellees state that 153 contributors give $20 million to the Nixon Campaign.

From the source they sighted, we calculate that $16 million of that was given before April 7, 1972.

All parties have agreed and District Court found that there was no effective disclosure before that date.

Indeed on April 5th and April 6th $5.5 million was raised and a total of 20 million was raised by the Nixon Campaign before the disclosure date.

Great finding 147 on page 204 to 205 of appendix 2, lists contribution solicited by Herbert Colenback (ph), 83% were made before April 7th.

Great finding 124, page 155, lists contributions by Ambassadors appointed by President Nixon.

Thurgood Marshall:

Mr. Winter from reading the briefs from the other side with all their figures and all these things you have been throwing at us for the last half hour, where are we going to put them all in the computer?

Ralph K. Winter, Jr.:

I do not think that the figures that I have been throwing at you were Justice Marshall need to go in a computer.

It seems to me that these –if this statute —

Thurgood Marshall:

In the first place, we do not have one.[Laughter]

Ralph K. Winter, Jr.:

That made my answer to the question easy.

It seems to me that most of the figures that are there, are fairly clear in their import and there is another factor which I think is critical, that is, if the statute is upheld, you lose the controller group.

Audio Transcription for Oral Argument – November 10, 1975 (Part 2) in Buckley v. Valeo

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Ralph K. Winter, Jr.:

You will never again have high spending challengers to look to, to see whether this high spending is necessary for them to defeat incumbents.

Once the statute is in effect and running, there will be no more figures before any Court to be able to demonstrate what effect the statute is having.

These are the only figures that ever going to be available to make a thorough judgment on the constitutionality of this law.

The only figures you will have from now on would be incumbency rate.

You will never know whether high spending challenge — whether high spending is necessary to challengers or not.

The figures I am discussing right now, demonstrate in their totality, only that large contributors and contributors with improper motives fear disclosure to the voters.

William H. Rehnquist:

Well, Mr. Winter is it your contention that these people would not have contributed, had they had to do so under a disclosure requirement?

Ralph K. Winter, Jr.:

I think that is very likely true in a large number of cases.

I would think —

William H. Rehnquist:

What is your basis for it?

It does not seem to me it is proved by showing that because they could contribute without any disclosure before April 7th, they choose to do that rather than to contribute after April 7th?

Ralph K. Winter, Jr.:

Well, I think that the best way — I of course cannot give an equivocal answer that they would not have contributed, but April 7th is a very, very early day and contributions, large contributions after an election are too late for disclosure and particularly in election like 1972 where there was little doubt about the outcome, it seems to me, strongly suggest a powerful desire to avoid disclosure.

Now, whether they would given or not, I do not know.

I suspect the milk people probably would not have.

I suspect in the case of the ambassadorships, they probably would not have, but disclosure does have one virtue that no other remedy has and that is it leaves it to the voter.

Even if they did continue to give, the voter would be able to decide in each case whether he — whether that voter thought that a particular candidate was going to be overly beholden to, if you want to call them special interest, was receiving to many large contributions from a particular source, whether people will continue to give after effective disclosure depends on what the voters think and that is the way it should be in a democratic system.

William H. Rehnquist:

Now, Congress has apparently decided otherwise in this case?

They have said that they do not want people to appear to beholden, even though the voters knowing that they appear to be beholden would nonetheless elect them.

It that an impermissible judgment for Congress to make?

Ralph K. Winter, Jr.:

Yes, I think it is impermissible for Congress to attempt to bring about these remedies by lowering the level of political communication when disclosure is available and when other remedies are also available.

Remedy such as prohibitions on large late contributions which is certainly a viable remedy, it responds to everything that was cited in support of the FECA and it is not in the statute.

I think that, while Congress in deciding to have disclosure, has considerable discretion in determining what kind of disclosure and when, but I do not think that they can really try, that they can remedy this by stopping essentially political speech.

Certainly limits on candidates expenditures, Justice Rehnquist cannot be justified by any theory that the FECA, any evil the FECA claims the remedy, certainly limits on independent expenditure, it seems to me cannot be justified that way.

The problem has to be, if there is a problem in equality argument and in the argument that the candidates, once they assumed office, will be overly beholden and obligated to certain contributors.

In the case of the equality argument I think it is demonstrated in the record that you cannot bring about equality without producing more inequality, either that or silence itself.

That the challengers, people are challenging the status quo, rely heavily on money and you have to freeze them out in the name of equality and that is wrongs.

Second, equality is an impermissible goal in any event because the danger sought to be remedied when you try to reduce equality, inequality in political voice, the dangers stems from the communicative nature of the act itself.

It is not like O’Brien where you had a congressional purpose unrelated to free speech.

It is like Tucker and other cases where the danger was perceived in communicative act.

So, it seems, as for the obligation of candidates, I think candidates are obligated to their voters.

Audio Transcription for Oral Argument – November 10, 1975 (Part 2) in Buckley v. Valeo

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Ralph K. Winter, Jr.:

They want votes, they do not want money.

They need money to communicate with the voters and I think their ultimate obligation is to them and I think if there was effective disclosure, they will not become overly burdened with obligations.

I might also say, if you speculate for a moment about when obligations are most likely to be created, it would not be in the case of safe seats, it is only in the case of close or highly competitive seats.

That is where people do need money to run effective campaigns, but those are also cases in which the person has to be the most fearful of what the voters thinks has to be the most sensitive to voters’ wishes.

When you are dealing with safe seats, large contributions do create real dangers, but the remedy for that is to be sure that the candidate receiving the contributions, makes expenditures only for voter persuasion and is not permitted as the present statute does — permits him, to use campaign funds for a variety of non-speech purposes.

By regulating expenditures you can solve the obligation problem in safe seats.

Now, virtually a large numbers of the large contributions or improper contributions described in the appendix were made well before April 7th or after the election.

This statute violates I think the coherent and established case law in this Court.

It seems to me in The New York Times against.

Sullivan, Tornillo, Mills, O’Brien, Red Lion and Letter Carriers are not inconsistent.

The principle of non-interference in political communication in every case is consistent with the outcome in those decisions.

It seems to me that this statute, there is no way, that this statute can be viewed other than as an attempt to regulate political communication, indeed to regulate the content of political communication by intricate web of statutory and administrative rulings which redirect and re-channel political speech as well as limit it.

The greatest campaign reform law ever enacted was the First Amendment, relying the proposition that good speech will drive out bad and all appellants ask is, the Court enforce that.

Warren E. Burger:

Mr. Gora.

Joel M. Gora:

Mr. Chief Justice and may it please the Court.

I will address myself to the disclosure provisions of the challenged legislation and in that argument, I occupy I think a unique role in this preceding in that, these are provisions that we do not challenge as inherently are invalid.

In fact, we think as Professor Winter indicated that disclosure provisions properly and carefully drawn to focus on the problems that generated this legislation, provide the proper solution.

William J. Brennan, Jr.:

(Inaudible) is that provisions do this?

Joel M. Gora:

They do, but unfortunately, Justice Brennan they do much more than that.

By virtue of their sweep in terms of the coverage and in terms of the depth of reporting, they go well beyond in our submission, the valid area of regulation supported by governmental interests.

Warren E. Burger:

You relate that to the amounts?

Joel M. Gora:

Yes sir, I do Mr. Chief Justice, both of the amounts in terms of the threshold of reporting and the scope in terms of who is covered.

This statute requires that all political committees must keep a detailed and exact account of the identification that is a statutory term, it means name and residence address, the identification of each person who contributes in excess of $10.00 a year.

That is a virtual monitoring of everyone who makes a political contribution in the United States.

Similarly, all candidates and political committees, whether they be the committee to re-elect the President or a local small minority party in California, all political committees for all offices have to file reports, disclosing the identity of their contributors in excess of $100.00 a year.

And finally, any citizen who on his own spends more than $100.00 a year on Federal politics, independent of any candidate, just goes and prints out some leaflets attacking his local member of Congress, must register and file reports with this Commission, indicating the source and nature of his expenditures.

Lewis F. Powell, Jr.:

What is the penalty for failure to comply?

Joel M. Gora:

The penalty for non-compliance with the disclosure reporting requirements is I believe a 1-year in jail and I believe it is a thousand dollars fine.

Lewis F. Powell, Jr.:

For a citizen who fails to report a hundred dollar contribution?

Joel M. Gora:

A hundred dollar independent expenditure contribution.

Audio Transcription for Oral Argument – November 10, 1975 (Part 2) in Buckley v. Valeo

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Joel M. Gora:

If I for example, run an ad in the Village Voice in New York or some comparable paper, spend $125.00 on it saying defeat so and so, vote for so and so, I have to file a detailed report with the Commission, giving the source of my money, how it was spent and so forth.

William J. Brennan, Jr.:

But if we were to agree with you and to that extent suppose the provision go to far and strike them to that extent, would you then be satisfied towards that?

Joel M. Gora:

Well, striking independent — the disclosure requirements independent speech —

William J. Brennan, Jr.:

Both aspects –?

Joel M. Gora:

Yes, I think we would.

I think if this Court were to indicate that the statute reached too deeply in terms of the threshold and swept too widely in terms of the reach, yes, we would be — that is our position, that it is not properly focused to those interests that the government can properly require disclosure for.

The problem is that the government interests and associational privacy have run up against each other in this area.

Depending on where Congress draws the line, will determine for example for a smaller, unpopular party whether they in their adherence are going to be essentially free from government harassment or have to expose their contributors.

But even for the contributor to a major — the Democrats or the Republicans the $125.00 contributor, where the threshold is drawn is going to determined whether his name might go on an enemies list or not and we suggest that we are —

Potter Stewart:

Well accept for it is being very awkward and unwieldy perhaps and maybe impractical to sweep so broadly, how constitutionally does it differ?

How constitutionally it is a greater violation of John Jone’s rights to Private Associational confidentiality, if his $125.00 expenditures needs to be recorded?

How is that a greater violation than it is of Mr. Mott’s or Mr. Stone’s rights, if as you concede Congress could enact a statutory provision, requiring that he make a disclosure of his million dollar contribution.

Joel M. Gora:

I think in principle there is no difference.

However, I think that the disclosure of one’s political activities at whatever volume is presumptively invalid, but have the volume of the large contribution, countervailing government interest in informing the electorate of those individuals who make large contributions in preventing corruption, those countervailing interests come into play.

So that that is how I would make the distinction between the interest in knowing in breaching the privacy of the $125.00 contributor and the interest in breaching the political privacy of the $125,000.00 contributor.

That is how I would draw the line Mr. Justice Stewart.

Potter Stewart:

And one other question now that interrupted you.

You said you be quite satisfied if the — with what would be left after the Court accepted your position and struck down these disclosure provisions, what would be left vis-a-vis disclosure, nothing, would it not?

Joel M. Gora:

Well, it would depend on how the Court choose to approach that remedy.

There is a severability section in the disclosure provision —

Potter Stewart:

But would you say you would be quite satisfied with what would be left with respect to the disclosure requirements after we struck down that you tell us we should strike down, that is after we have held that the constitution makes it impermissible.

There were be nothing left with respect to any disclosure requirements, would it not?

Joel M. Gora:

You mean in terms of this present statute?

Potter Stewart:

Exactly.

Joel M. Gora:

Well, that would depend Justice Stewart on the remedy that this Court choose to employ.

Now, in terms of dealing with sweeping and over broad statutes, one remedy, the potent medicine is to invalidate on its face.

I am not sure that necessary here.

Section 454 of the Act has in effect the severability Section, which reads if any provision of this Title or the application thereof to any person or circumstance is held invalid, the rest of the Act stands.

This Court would determine, for example, that the failure to make distinctions between the two major parties and all the others small minors parties in terms of disclosure warranted invalidating the statute.

I assume a ruling of that kind would leave the regular disclosure provisions in effect.

Audio Transcription for Oral Argument – November 10, 1975 (Part 2) in Buckley v. Valeo

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Joel M. Gora:

It might be more difficult for the Court to make a separation out in terms of the threshold, so I would grant that, but I think that the statute itself obviously contains vaince for separating out major and minor parties.

Thurgood Marshall:

Mr. Gora, how long have we had disclosure and political contributions in this country?

Joel M. Gora:

Technically, Justice Marshall since 1910, practically since April 7th 1972.

Thurgood Marshall:

What you say, they have been there all that time?

Joel M. Gora:

Pardon me?

Thurgood Marshall:

It has been there all the time?

Joel M. Gora:

Just has not been challenged that we are aware of in terms of the kinds of First Amendment Association and political privacy arguments that we are making here.

Byron R. White:

How many states have disclosure provisions?

Joel M. Gora:

Justice White, the bulk of them do.

The count varies, you get a different figure in each of the briefs on the other side.

Byron R. White:

Were the bulk of those be vulnerable in your –?

Joel M. Gora:

I think not necessarily.

I think there are two differences.

We argue the minor party point and the threshold point.

Now, it seems to me that at the state level, the level of spending for any comparable race, a state senate seat, a state assembly seat, the governor’s seat is probably on the whole much lower than the level of spending in any comparable Congressional or Presidential race.

I doubt that there are very many State Representative races that spend 70 or 80 or hundred thousand dollars, so that —

Byron R. White:

(Inaudible) constitutionally the state case will come out differently that the (Voice Overlap)

Joel M. Gora:

Yes, I am suggesting that it might be shown, that since the average that is spent, let us say in a house race in a state, in assembly race is $20,000.00 that this Court might find that threshold disclosure there might have to be lower than it is in the case where the spending limits in a Congressional race id $100,00.00.

Byron R. White:

We would should pick out some figures and some threshold figures or —

Joel M. Gora:

No, I am not suggesting at all.

I am trying to respond to your concern about the effect of the decision that we seek on state law and I am suggesting that in terms of thresholds, the difference between Federal Elections and State Elections is such that it would not necessarily be controlling and I would say the same thing about the problem of minority parties.

William H. Rehnquist:

Before you leave that point, if we say $100.00 is too low a threshold, we would surely have to articulate some basis for our reasoning as to why $100.00 is too low, but some other figure would be acceptable?

Joel M. Gora:

Well, I think the basis is to look for the purpose of disclosure.

The primary purposed that has been advances for it is the preventing of corruption and improper influence on Governmental officials.

I think this Court could in a constitutional way require that the disclosure provisions be geared to the level at which improper influence can be brought to bear by virtue of a contribution.

William J. Brennan, Jr.:

But how do we know that?

Joel M. Gora:

Well, I think Justice Brennan, I do not think it is this Court obligation to pinpoint that I think it is —

William J. Brennan, Jr.:

Are you suggesting we should pick out $1,000.00 or 500 —

Joel M. Gora:

No.

I think that this Court should require the Congress to look at these problems and to draw some lines.

Audio Transcription for Oral Argument – November 10, 1975 (Part 2) in Buckley v. Valeo

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Joel M. Gora:

I have looked at a good chunk of the alleged —

William J. Brennan, Jr.:

I must say if the fact so then the answer Mr. Justice Stewart’s questions is that there is anything left and we have to strike it down facially —

Joel M. Gora:

There, I think there is a difference between the minority party point, but there lines in the other Section of this Act, regrettably lines which discriminating against minority party and the threshold problem which is a little harder to make distinctions on, but I would suggest that the problem is that Congress seemed to me, to my study of the legislative history to be essentially indifferent to these problems.

And I think what we would request of this Court is that Congress be required to think about these things, to think about whether you really want to require the public identification of the $125,000.00 contributor to the small party or even to the Presidential Party.

William H. Rehnquist:

Should we include that in our opinion that the Congress ought to think more carefully about this?

Joel M. Gora:

Well, one would certainly hope so, but I think that as I said there are basis in the statute Justice Rehnquist for validating the application to smaller and minor parties.

The threshold problem presents a different one —

Warren E. Burger:

I take your argument Mr. Gora, to be that there is no valid rational public interest in flushing out in publicizing the names of $100.00 contributors or $101.00 contributors, none that can be justified constitutionally, but that there is indeed a real public interest in knowing about $10,000.00 or a $100,000.00 or $500,000.00, is that true?

Joel M. Gora:

Yes, that is our essential submission that in —

Warren E. Burger:

You cannot pick the point where the line should be drawn?

Joel M. Gora:

Well, again the point I think has to be attempted to be drawn in reference to the purpose of having disclosure.

If the purpose is not just promiscuous to find out whether your neighbor gives 125 bucks to the local congressional candidate, there is a presumption that is one’s politics are one’s own business.

That is why when the purpose is in terms of the prevention of corruption then this Court and the Congress must ask whether the disclosure levels are drawn to meet that purpose, that is what we are saying.

Warren E. Burger:

We must mean in there that the public interest in knowing about the large one is that $10,000.00 or $100,000.00 or $500,000.00 might conceivably buy something improperly, but that $100.00 or $125.00 could not conceivably buy anything —

Joel M. Gora:

Precisely our point.

Warren E. Burger:

— these days?

Joel M. Gora:

Yes, Mr. Chief Justice, that is our point —

Warren E. Burger:

It does not buy much radio time; it does not buy much newspaper space and certainly not much influence?

Joel M. Gora:

That is the argument.

Thurgood Marshall:

And when you get to figure, will it go up each year, go up with the cost of living?

Joel M. Gora:

Well, I think it certainly might.

I mean, they are cost of living adjustments in the statute, but again, I think that the major point we are trying to make is that this Court has to require the Congress to think about these problems, to think about these line drawn problems, both in terms of the threshold of reporting, the $10.00 record keeping and the $100.00 from the reporting end in terms of the application to minor parties.

Finally, let me just turn for a moment to Section 434 (e).

As I indicated in response to questions, that Section requires that any private citizen has nothing to do with the Candidate, Political Committees, not making contribution to a candidate or political committee wants to get involved in political activity, wants to condemn his local congressman and run off some leaflets and spend more than $100.00 doing it, that person has to register with the Federal Election Commission and supply the reports required of political committees.

We think that provision is virtually impossible to justify.

It seems to us that it is flatly in contravention of the principles in the Talley case where this Court protected the right of political speech and unanimity and we think it is also in conflict with the principles of the Thomas case where this Court rejected the application of just a mere registration requirement upon giving a speech.

Section 434 (e) runs afoul of both of those decisions.

And let me finally if I might, in terms of the discrimination against small and minor parties that this disclosure statute involves, it has been our contention that Congress simply failed to consider what alternatives were available to deal with the valid interest served by disclosure.

The same Act which did draw a sharp and unconstitutional distinctions when it came to dispersing the benefit of public financing, for example, to know such distinctions in imposing the burdens on association entailed in reporting and disclosure.

Instead, Congress indiscriminately cast a net across the entire range of political association, that is manifest by contributions to a party without regard to the very widely varying interest at stake.

Audio Transcription for Oral Argument – November 10, 1975 (Part 2) in Buckley v. Valeo

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Joel M. Gora:

Analytically this Court found such an approach insufficient in Robell and the other communist membership cases and we would submit that it should find that approach insufficient here.

Potter Stewart:

Mr. Gora, I guess I missed something and perhaps I did.

I think neither you nor Mr. Winter specifically separated and identified Section 608 (e) for special attention, did you?

Joel M. Gora:

No, we have not.

Section 608 (e) is a flat ceiling on the speech of persons completely unconnected to any political candidate or committee.

In a statute with a lot of unconstitutionality, we submit that that stands out.

William H. Rehnquist:

Well, I should think if there is a problem in requiring someone who spends $100.00 to disclose it, there would be even more of a problem in flatly prohibiting a person from spending over $1,000.00?

Joel M. Gora:

That is our submission, Mr. Justice Rehnquist.

Thank you Mr. Chief Justice.

Warren E. Burger:

Very well, Mr. Gora.

Mr. Friedman.

Daniel M. Friedman:

Mr. Chief Justice and may it please the Court.

As has been indicated, I will begin by outlining the problems that Congress was dealing within this statute and then rather briefly showing how the particular solution selected accomplished those objectives and then I will discuss in some detail, the reporting in disclosure provisions.

Mr. Cox will then follow and discuss the contribution and expenditures limitations.

Since early in this century, there has been, in the language of this Court in the Autoworkers case, a long series of congressional efforts calculated to avoid the deleterious influences on Federal Elections, resulting from use of money by those who exercise control over large aggregations of capital.

Congress first faced this problem back in 1907 by enacting a statute prohibiting certain contributions by corporations in connection with elections.

In the Autoworkers case, this Court traced it at some length.

The history of the congressional regulation of this problem what it described as series of acts to protect the political process from what Congress deemed to be the corroding effect of money, employed in elections by aggregated power.

Unfortunately however, as these statutes were enacted, they proved to have so many loopholes that they were virtually ineffective in doing anything about the problem.

And beginning in 1960’s, in the late 1960’s, Congress held a series of detailed hearings, exploring all aspects of the problem.

These culminated in a 1971 Act, the initial Federal Elections Campaign Act and was followed by the present amendment in 1954.

Now, this statute therefore, is not something that came out of the blue.

It represents the result of many, many years of study, three quarters of a century by the Congress, the body that is particularly expert in knowing the problems, resulting from the use of money, the corrupting effect of money on Federal Elections and Congress has studied the problem, has recognized that when things do not work, changes are necessary and Congress has been willing to change in this area and to try the devise a scheme that will once and for all, we hope put an end to this problem.

The present statute of course is a direct out growth of the disclosures of the 1972 campaign.

There is no need to go into any detail with that sorry and sordid story.

It is set out in the record.

It is a matter of public knowledge.

The huge campaign contributions, the gifts for people who wanted to be ambassadors, the campaign, specific large contributions in connection with anticipated favorable Government actions such as the milk producers, a large number of corporate officials who were convicted and many whom pleaded guilty to illegal campaign contributions and the evidence that developed of the vast increase in the cost of campaigns in this Country.

Warren E. Burger:

Three quarters of the century of study of this problem by the Congress, you suggested that was sustained study or sporadic study?

Daniel M. Friedman:

I would say Mr. Chief Justice, it was sporadic in the sense that Congress was not constantly looking at the problem, but over a number of times, there are a large numbers of statutes over the years in 1900, starting in 1907 and 1910, in the middle of the second decade, the Corrupt Practices Act of 1925.

Audio Transcription for Oral Argument – November 10, 1975 (Part 2) in Buckley v. Valeo

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Daniel M. Friedman:

Gradually over the years, Congress realized that what it had done up to then was not enough to solve the problem and looked at the situation and devised what appeared to be more and more comprehensive regulatory things.

It expanded the type of controls that extended during war, the prohibition on gifts from corporations to unions, as problems developed Congress studied them.

But my point is that over a long period of time, Congress has considered these problems, studied them and devised schemes to deal with what it perceived to be an increasingly serious evil in the body politic, the corruption of Federal Elections by the use of money and the cost of these campaigns has risen at the staggering rate.

It is really the staggering rate and at page 35 of Mr. Cox’s brief, there is a chart which shows the increase in campaign cost reflected to show increases in a consumer price index.

And what it shows is over a 20-year period, from 1952, the 1972, after adjustments to reflect increases in the cost of living, the cost of congressional races increased more than 300% and over the 10-year period, 1962 to 1972, the cost of Presidential races with the similar adjustment increased more than 450%.

And by 1972, it was estimated that the total cost of elections in this Country exceeded approximately $400 million.

Now, what is the consequence of this escalating cost?

It is a vicious circle because when one candidate sees another candidate spending more and more, he feels impelled to spend more and more.

As the cost of these campaigns increase, the candidates naturally turn to where the money is, the easiest source of money, those are the wealthy interests.

Once a wealthy interest gives a campaign contribution, his competitors, other businessmen also feel obliged to give because they are concerned that if they do not give, either they will be discriminated against by Government officials or their competitors will gain an advantage as result for these contributions.

And thus, the candidates as result of this thing feel more and more obligated to the sources, the large sources of campaign contribution.

And it is not surprising with this history, that by the early 1970’s, there was a tremendous feeling in this country that you could not trust the Government, a lack of electric confidence in our Government Officials, the notion that somehow people could be bought.

If you gave enough money, people could be bought and conversely correspondingly really, the average man who was not very affluent, who did have access to all these sources, he believed that it was rather feel for him to try to play an active role in the campaign.

For one thing if you want to run through office, he knew he could not raise these sources money and secondly if he wanted to try —

Potter Stewart:

(Voice Overlap) It is not you painted with a very simple brush, it a much, it is considerably more subtle than though you describe it to us, is it not?

Daniel M. Friedman:

Well, I think —

Potter Stewart:

People often make contributions to a candidate who expresses the donors views.

They do not go out and buy them, do they?

Daniel M. Friedman:

Well —

Potter Stewart:

It is not as simple at least, through a little more subtle than you describe, you would conceived that, would you not?

Daniel M. Friedman:

It may not be quite as simple Mr. Justice, but I do think it is a very serious problem.

As a good example, I think of this is evidence in the record that in many campaigns in recent years the same interests have contributed to two candidates who running against each other.

Potter Stewart:

Yes.

Daniel M. Friedman:

And that hardly suggests that they have a strong commitment to one candidate.

Those people are obviously hopeful —

Potter Stewart:

But if it is the same amount of money, it is the same as though that donor made no contribution at all, is it not?

Daniel M. Friedman:

Well, perhaps and perhaps not, but with this exception Mr. Justice that both of these people, whoever is the victorious is likely to feel the sense of obligation to the person who gave him this contribution.

That this —

William J. Brennan, Jr.:

(Inaudible) it does not care about the contribution (Inaudible)

Daniel M. Friedman:

I am sorry?

Audio Transcription for Oral Argument – November 10, 1975 (Part 2) in Buckley v. Valeo

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William J. Brennan, Jr.:

And that the victor hopes that the donor does not care about or the other donor hopes that the victorious candidate does care about the donors’ contribution, is elusive?

Daniel M. Friedman:

I would assume so.

I suspect perhaps some people in the Congress are aware of this and I think this is one of the things that influenced them to require both limits on contributions and disclosure.

Warren E. Burger:

Let us analyze that a little bit?

You made this a very broad general statement.

Would you see any corrupt or improper motive if a very wealthy man said that he would put up a half million dollars or a million, whatever it takes for a series of three national television debates between two candidates or within a state if it is senatorial race.

Now, he is contributing to both sides, is he not, when he finances that?

Anything improper in that?

Could that be explained by a dedication to the First Amendment idea that the issues should be debated?

Daniel M. Friedman:

Surely Mr. Chief Justice, but that I do not think was the problem that concerned Congress in this legislation.

Harry A. Blackmun:

But the limits would apply?

Daniel M. Friedman:

The limits would apply, if it — well, it would depend whether this — they may not apply because that would not be, I do not think a contribution directed to the influencing the election or nomination of the particular candidate.

I do not think that it will be anything in the statute prohibiting that kind of a sponsorship of a public forum.

Warren E. Burger:

In another occasion and the situation you hypothesized with Mr. Justice Stewart, a man giving $10,000.00 to each of the two major party candidates perhaps just wants to make sure that one of two men that he regards as responsible will be elected and the third party candidate will not be elected.

Those are all valid motivations, are they not?

Daniel M. Friedman:

Those would be valid motivations, Mr. Chief Justice, but I think that has to be weighed against the judgment of Congress that overall, overall the evils resulting from the substantial increase in campaign spending and the giving of large contributions, that these evils are as such as to require some regulation to try to stop this increasing spiral of campaign cost and try to restore public confidence.

I think it is important element that the lack of public confidence, if the public believes, if the public believes that large contributions have a corrupting effect upon electoral process and upon Government and the record here contains a lot of evidence to that effect.

That is a valid consideration for Congress to take into account.

Warren E. Burger:

I took the argument of your friends to mean that, yes, indeed there is a public interest in limiting expenditures, but that when balanced against the First Amendment rights of the small contributor, the First Amendment rights shall prevail over $100.00 limit.

What do you have to say about that?

Daniel M. Friedman:

Well, let me if I may — that is a $100.00 disclosure limit, that is the small contributes a thousand dollars.

Our answer to that is the disclosure —

Warren E. Burger:

That is the limit of it, the limit that you can give out having his name flushed out?

Daniel M. Friedman:

Yes, but he can give up to a thousand, he can give up to a thousand, but more than — if he gives more than a hundred, that has to be disclosed.

Our answer to that is disclosure serves two important objectives.

One, which I think our opponents have recognized, is that it does serve an informing function.

It tells the electoral whose backing whom.

It shows who their friends are and this is an important element because in making the choice, when the electorate makes the choice it should know who is behind whom in these cases.

Indeed, I dispose a rather simple hypothetical.

Suppose you have a keen congressional race in which both candidates are urging that they are dedicated to improving in cleaning up the environment and this is keenly contested thing, each one accuses the other of not being sympathetic to the environment.

Audio Transcription for Oral Argument – November 10, 1975 (Part 2) in Buckley v. Valeo

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Daniel M. Friedman:

I think it would be highly significant to the voters in this district, if they knew that a large number officials of several of the firms in this district that were accused of being the leading polluters had all contributed to one of the candidates, that would be very significant.

Now, let me add one other thing on the $100.00 amount which —

Lewis F. Powell, Jr.:

Are you going to leave the hypothetical that you just put?

If you are, I beg to leave it.

I would like to ask this question.

As I understand it that cooperation and unions are exempted from the spending and contribution requirements of this Act?

Daniel M. Friedman:

To the extent that Section 610 permits it.

That is, they have to have a separate independent fund from which contributions are made.

All of these activities —

Lewis F. Powell, Jr.:

Is there is any limitation on that fund?

Daniel M. Friedman:

I do not think so.

Once it gets into the separate fund, but they —

Lewis F. Powell, Jr.:

That is right, the union and the cooperation as the case maybe has the authority on the 610 to organize that fund and they solicit the money for the fund from stockholders, employees and union members.

Now, you are talking about the corrosive or corroding effect of large concentrations of wealth.

How do you explain the exception of cooperations and unions from this Act?

I think the brief filed by your colleague, the Attorney General stated in a footnote on page 31 that in the 1974 congressional elections, unions spent $4.3 million, corporations $1.6 million, medical association $1.5 million and so on?

What about those concentration of corroding wealth?

Daniel M. Friedman:

I am not sure Mr. Justice that all of those contributions would be permitted because under this Court’s decision in the Pipefitters case, the fund, the independent fund cannot be under the control of the either the corporation or the union.

It is has to be an independent fund and I do not know how many of those contributions that you refer to, would in fact be permitted under the statute.

My other answer is that perhaps, perhaps at some point Congress will feel it necessary to close and cut down on the corporate and union contributions that are now permitted under 610, but that it seems to me is another matter.

The fact that it is permitted under that particular provision, I do not think is a reason for saying that Congress cannot act under this statute as it has.

Potter Stewart:

I understood Mr. Friedman maybe mistakenly that there was a difference of opinion in the briefs as to whether the limitations of the present statute would extend to the kind of committees permitted under our Pipefitters construction of Section 610.

The question being whether or not they would be so called “committees” under the statute?

Daniel M. Friedman:

There are problems —

Potter Stewart:

Is their difference?

Is there —

Daniel M. Friedman:

I think there is a problem —

Potter Stewart:

And to the applicability of the existing statute to the kind of organizations that my brother Powell was referring to?

Daniel M. Friedman:

I think so and that is an issue that initially, I suppose the Federal Election Commission will have the resolve.

William J. Brennan, Jr.:

(Inaudible) that any limitation say on contributions to a particular candidate, out of the segregated union or corporate funds apply to those funds, does it, Pipefitters is the 610?

Audio Transcription for Oral Argument – November 10, 1975 (Part 2) in Buckley v. Valeo

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Daniel M. Friedman:

610.

William J. Brennan, Jr.:

Yes, I remember.

Daniel M. Friedman:

No, but we have to kind of pause this two together and see how you fit them together.

Congress did not intend.

I do not —

William J. Brennan, Jr.:

I do not see anything in 610 itself would subject contributions on those segregated funds to the limitation?

Daniel M. Friedman:

Not in terms, but it maybe —

Potter Stewart:

Of course, would there be committees on the existing limitation —

Daniel M. Friedman:

Yes, but in terms 610 which is an old statute, was not enacted with this in mind, but there will be problems of the extent to which the limitations of this statute would apply to those —

William J. Brennan, Jr.:

Do you suggest in the first instance the Commission would have to determine that?

Daniel M. Friedman:

I would think it would because a problem may come up whether a particular fund of a cooperation or union can make a sizable contribution.

Under the statute normally, this would be put to the Commission and the Commission could give an advisory opinion on it.

But let me if I may —

William H. Rehnquist:

Mr. Friedman before you go on, if your answer to Justice Powell is right, it is certainly stands the cases of this Court on the subject down their head because the thought had been that you could do to — you could prohibit contributions from corporations and labor unions in a way that you could not prohibit them from individuals and now if you are right, Congress comes a long and says we are prohibiting individual contributions, but corporations and labor unions are free to give what they want to?

Daniel M. Friedman:

Well, I do not say they are free to give what they want to it.

The question is whether or not these special funds have been locked in, if I may use the phrase or subjected to the limitations of the statute.

Now, there is a provision saying that political committees may give up $5,000.00.

That applies not only to — if these funds are political committee — I am not suggesting Mr. Justice that Congress is barred in anyway from imposing the limits upon cooperations.

The only question is whether Congress in this statute, whether Congress in this statute has not tied the knot and closed the ends as effectively as it perhaps it might have.

I do not think that Congress can be faulted because in dealing with what it perceived as the general problem of large corporations, it did not specifically say a no union fund or no cooperation fund may exceed these limitations.

I think Congress left it somewhat unclear because of the question whether these funds would be committees —

William H. Rehnquist:

Yes, but the history of our cases has been first to sustain corporate limitations with the thought that you probably would have a great deal more difficulty with individuals and then to say, well, you can treat unions the same what you do corporations, still intimating that you would have a great deal more difficulty with individuals.

And now you say, Congress has come along and stood the things on it his head that individuals are limited, but corporations and union are not?

Daniel M. Friedman:

No, I am sorry Mr. Justice.

Perhaps I misspoke myself and did not make myself clear.

This provisions apply not only to individuals, but to unions into corporations.

Congress has not said that corporations and unions are to be treated differently from individuals with —

William H. Rehnquist:

But the segregated funds are to be treated differently?

Daniel M. Friedman:

Perhaps, segregated funds, but then again all that Congress, all that has happened in this situation is Congress has not gone as far as it might gone in this statute.

William J. Brennan, Jr.:

But you suggested to me earlier namely whether or not these segregated funds are to be treated as political committees as a question in the first instance to be decided by the Commission.

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William J. Brennan, Jr.:

So, I take it we do not reach that question in this case for the purpose of deciding?

Daniel M. Friedman:

I would think not Mr. Justice because there has been as far as I know no ruling on that, thus far.

William J. Brennan, Jr.:

Well, I think you suggested that there could not be until after the Commission had in the first instance decided whether or not —

Daniel M. Friedman:

That is difficult question of exhaustion of remedies that I would be rotten to take a position on, but I think the normal practice, the way the Commission functions is if they were a question, a request would be made to the agency for an advisory opinion.

If I may come back to the disclosure —

Lewis F. Powell, Jr.:

Mr. Friedman, I do not want to deter you from proceeding, but I would like to invite your attention to a statement in the brief filed by the Attorney General as amicus.

On Page 74, the brief says, flatly that corporations and unions can accept and spend the funds without limit, supporting or advocating the defeat of candidates.

Now, of course the brief could be wrong as I think you suggest, but I wanted to call that to your attention, at page 74 —

Potter Stewart:

A footnote in another brief, that I cannot locate at the moment, takes issue with —

Lewis F. Powell, Jr.:

Takes issue with that?

Daniel M. Friedman:

I think there is some quite, I would have to say some doubt that because O do not — let me say this, if I may Mr. Justice.

I do not think nearly as clear as the statement in amicus brief suggests that corporations and unions as a practical matter may make unlimited contributions in the course of campaigns through the use of these funds.

If I may returned again —

Warren E. Burger:

The experts on this these subject, I suppose some people will have to act at their peril in deciding what to do without being sure whether they will or not go to the jail?

Daniel M. Friedman:

No, Mr. Chief Justice, they will not because under the statute and the statute explicitly provides that anyone who is a candidate for office can ask for an advisory opinion from the Federal Election Commission which the Commission is required to answer and if he gets that opinion, it is presumed that if he acts in reliance on this opinion, he has acted in accordance with law.

So, people are not left wholly at large to worry about it.

They can get an advisory ruling and the Commission has already given 20 to 30 advisory rulings on these topics.

So, there is not in this case the danger of somebody going to jail without being able to get some advice.

They can get advice from the expert agency.

Warren E. Burger:

But if he does not ask for the opinion and simply gets the opinion of his own lawyer one way and that turns off to be wrong, he has got problems I suppose?

Daniel M. Friedman:

I would suppose in much the same way that anyone who is subject to a regulatory statute has problems about whether or not he has violated the statute.

But, again that is not a problem it seems to me that is faced in this case because the time to really decide that question I would suppose is if and when someone is charged with having violated the statute by making that kind of a contribution.

Thurgood Marshall:

Can you please may back up a minute on your disclosure point, the $100.00 point?

You are talking about two parties, what about the third and unhappy and unlighted and crusade party?

Daniel M. Friedman:

They too can play a role in a election.

They can play a role —

Thurgood Marshall:

If the board is disclosing those names and this Court said, that they do not have to?

Daniel M. Friedman:

No, Mr. Justice I —

Thurgood Marshall:

That is what they say?

Daniel M. Friedman:

I think that the cases in which this Court has struck down disclosure requirements are cases in which one of two things have happened.

Audio Transcription for Oral Argument – November 10, 1975 (Part 2) in Buckley v. Valeo

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Daniel M. Friedman:

Either this been a clear evidence that disclosure will produce harassment or chills such as in some of the NAACP cases.

In NAACP, we have a battle where they put in uncontroverted evidence with respect to the adverse effects that resulted from this —

(Inaudible)

Daniel M. Friedman:

Well, again there were not.

Let me come to the other aspect of the equation, all cases in which there was no showing of any substantial compelling state interest.

Now, the record in this case is the Court of Appeals said was slam with respect to the possible harassment of disclosure.

There were three minor instances in which there was a slight suggestion and our position to that five representatives of minority parties indicated that as far as they could tell, there was no indication either the people would refused to contribute, if they were disclosed or that anyone whose disclosure had been made public, his contribution had been disclosed, was in fact subject to any harassment.

These minority parties play an important role.

They can affect the influence of an election by drawing votes away from one to the other.

At page 179, in footnote 210 of this blue brief filed by the Center for Public Financing of Elections and Others, they give three indications, three examples of the so called Stalking Horse Phenomenon in which a political party sponsors a minority candidate in the hope of drawing votes away from the opponent.

That is in —

Potter Stewart:

That Mr. Friedman is in that brief that I have now located the footnote to which I earlier referred, it is footnote 124 on page 107 and the accompanying text, that takes issue with the government’ amicus brief on pages 36 and 37 in the accompanying footnotes.

Daniel M. Friedman:

Thank you.

One other thing about these disclosure provisions which think is very important to remember.

On its face one might say, “Well, who cares about a $100.00 contribution.”

A $100.00 contribution is not going to corrupt anyone and why set the limit this low?

The answer I think is two-fold.

First, this is a very useful method for enforcing the statute because and particularly where the overall limit is $1,000.00, a contribution of a hundred cannot said to be in substantial, but equally or perhaps more important is the problem of culminating of combining contributions.

If you have a large number of people who are a affiliated, who do combine contributions again in this blue brief on page 174, an example is cited how a Senator on one day, in his senatorial campaign received 247 individual contributions totaling $28,000.00 from the employees of one single corporation.

Now, that it seems to me is the kind of information that is very useful to the electors.

They like to know if a large group of affiliated people have a sufficient community of interest that they all favor a candidate, that is again the same kind of thing as the general disclosure of who is backing the candidate.

That is the sort information that people would like to have.

This —

William J. Brennan, Jr.:

Mr. Friedman could that corporation have set-up a segregated fund and solicited or set-up a desk in the front office and said anyone who wants to contribute, contribute it and 247 came along, made contributions totaling $28,025.00 and then under the Attorney General’s suggestion I gather that could have been spend by that fund anyway they want it without any disclosures of the names of those 247?

Daniel M. Friedman:

If in fact, if the amicus brief is correct that this is not a political committee, but, again Mr. Justice I think the answer is that perhaps if it should turnout that this device of the contributions by independent funds is another technique that has been used to evade these statutory provisions as we have these mobile committees in the past, Congress may at some future date see fit once again to amend the Federal Election Campaign laws to close that loophole if it is prove to be loophole.

But our point is that the presence statute is a reasonable effort made by Congress to deal with this problem and that why we think there is a very little, if any, chilling effect to whatever extent there maybe some slide show we think that is more than off set by the very strong compelling Governmental interest in trying to protect the integrity of Federal Elections.

A compelling interest which we think under the decisions of this Court justifies any possibly slight showing effect that these provisions may have upon the exercise of that most fundamental of all our rights, the right to vote.

(Inaudible)

Daniel M. Friedman:

I do not believe so Mr. Justice.

I think the theory is that and the record indicates that large contributions have been made on both sides of the allied.

Audio Transcription for Oral Argument – November 10, 1975 (Part 2) in Buckley v. Valeo

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Daniel M. Friedman:

I think Congress was not concerned that the large contributions will favor in one side of the other.

Congress was concerned that the large contributions were having a corrupting effect on the electoral process.

(Inaudible)

Daniel M. Friedman:

Well, Mr. Justice I would say that this is — to us this is not speech.

This is money.

Money obviously called as important connection with speech, but it seems to me what Congress was concerned here was not with attempting to in anyway limit total speech limit conduct.

Congress was concerned here with the effect, the effect that these large contributions no matter what the political persuasion of the recipient, with the effect these large contributions would have upon the whole process.

And I think Congress as this Court’s decisions have made clear, going way back to Burroughs and Cannon (ph) in 1934, Congress has the power to deal with the corruption that results from this infusion of money.

And I do not think that. Congress was attempting to say that, well, there is too much speech here and what we going to do is cut down the amount of speech.

Congress was saying there too much money being spent and the money has bad effects and we are going to try to cut down the amount of money.

Now, to some extent to be sure, to some extent cutting down the money is going to cut down on the volume necessarily of speech, but it seems to me this is an incidental effect.

The main trust —

William J. Brennan, Jr.:

Well, you are suggesting that the issue it is not a personal remedy?

Daniel M. Friedman:

No, of course not Mr. Justice.

I am suggesting, I am suggesting that in this area when we doing with this kind of a restriction, when we are dealing with this kind of a restriction that the compelling interest —

William J. Brennan, Jr.:

That is what I thought you said —

Daniel M. Friedman:

Yes.

William J. Brennan, Jr.:

That the first Amendment problem, that any First Amendment rights are overridden by compelling the governmental interest —

Daniel M. Friedman:

Or if I may —

William J. Brennan, Jr.:

That is your basic argument?

Daniel M. Friedman:

That is our basic.

If I may we rephrase it slightly, any adverse impact upon first amendment rights is overridden by the compelling Government interest.

Potter Stewart:

(Inaudible) in speech and speeches money whether to be buying television or radio time or newspaper advertising or even buying pencils and papers and microphones, that is certainly clear, is it not?

Daniel M. Friedman:

Money affects speech, but I would not agree that money is the same thing as speech because not every contribution that is made to a political candidate is used for speech.

They maybe used for many things —

Potter Stewart:

But insofar as it used to buy people to vote, that is covered by other criminal statutes, so were obviously not talking about the that —

Daniel M. Friedman:

Well, Mr. Justice if it is rather difficult to (Voice Overlap) —

Potter Stewart:

And that is tried by other and older criminals’ statutes —

Daniel M. Friedman:

Specific bribery, yes.

Potter Stewart:

Or purchasing of votes given —

Audio Transcription for Oral Argument – November 10, 1975 (Part 2) in Buckley v. Valeo

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Daniel M. Friedman:

Purchasing a vote in the crude sense, if it is bribery.

But there are other subtle influences that work which may not come to the purchase of a vote, but which may nevertheless have the same effect.

Potter Stewart:

And the question is whether those so called subtle influences are influences protected by the constitution of the United States, specifically Amendment one there a —

Daniel M. Friedman:

We do not question that there is a First Amendment protection to these interests.

As we see the issue it is whether whatever adverse impact the statute has on the exercise of those rights is outweighed by what we deem to be the clearly compelling Government interest underlying the legislation.

Potter Stewart:

Again, just phrase down Mr. Friedman.

You did not precisely separately discuss Section 608 (e), did you?

Daniel M. Friedman:

No, I did not.

Mr. Cox will I think be discussing that.

William H. Rehnquist:

For a reason just before you were questioned by my brother Stewart and Brennan, you said that you thought the chilling effect here was justified by the interest in the most fundamental of all our rights, the right to vote.

Is it your position that the United States constitution places the right to vote in a position superior to the right to speak or publish?

Daniel M. Friedman:

No, I do not — but of course not Mr. Justice.

What I was suggesting is that this Court in a number of its decisions has recognized the key role that elections play in our democracy and I was suggesting that what Congress was doing in this statute was attempting to protect the integrity of that right to protect the integrity of the whole electoral process.

Harry A. Blackmun:

I think we have some more time.

Following to what Justice Stewart indicated, it seems to me in a distinct sense that one of your problems is to joist with this suggestion that money is speech and I think part of the argument of your opponents is very forceful in that respect.

It does produce speech.

Now; all of us of course recognize that there is a profound and disturbing problem that has existed.

I suppose the question is what are we going to do about it and does the statute do it effectively without unduly violating the First Amendment?

Daniel M. Friedman:

We think the statute does at least we think Congress is attempting to do — I would suggest Mr. Justice that when you are dealing with restraints upon First Amendment rights, you have spectrum.

You have the immediate prohibition that someone cannot speak, cannot publish then you begin to shift over and it is seems to me as the impact upon First Amendment rights becomes less direct and more incidental, you can give greater weight I would think to the compelling interest of the state in imposing those limitations.

Harry A. Blackmun:

Well, I just want to emphasize that I think it is unnecessary really for your side of the case to impress upon this Court that there is a problem.

I think we are aware of this one?

Daniel M. Friedman:

I am sure you are and I hope you would resolve it the way Congress has resolved it.

Warren E. Burger:

Mr. Cox.

Archibald Cox:

Mr. Chief Justice and may it please the Court.

So I come late in the argument.

I cannot resist saying just a word in recognition of the importance and weight of the responsibility that rests upon this Court in this case.

Judging the constitutionality of the statute even when there are few are issues, less complicated issues and there are here, is always a solemn occasion, but here the issues are of even greater magnitude, indeed of a magnitude greater than any of those in any Federal Legislation I can think of in several decades, except perhaps the Civil Rights Acts of the 1960’s and certainly none go any closer to the heart of our Political and Governmental system.

The attack I would emphasize, is leveled not only at the conclusions of the Congress and the President of the United States, but in substance it is leveled at the conclusions of a majority of the state legislatures and we must take it that much of this represents the conclusions of their people.

There are 44 States that have disclosure statutes in one form or another.

Audio Transcription for Oral Argument – November 10, 1975 (Part 2) in Buckley v. Valeo

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Archibald Cox:

There are 37 States that put limits on expenditures, many of them going back a number of decades and there 10 States that have been adopted public financing.

So, that in addition to the weight of the judgment of the Congress and the President to sign the legislation, there is this added problem of the state legislature.

Now of course if it is the court’s responsibility the whole the Act unconstitutional, it will do it as this Court always has, but I submit that those are considerations that should be weighed in the balance.

My argument is directed to the proposition that ceilings upon contributions and expenditures are consistent with the First and Fifth Amendments both as a back did on the face of the statute and as applied to any situation ripe for adjudication.

It is important at the outset to be clear about exactly what the ceilings on contributions and expenditures do and do not do.

The Act deals with conduct, the giving and spending of money.

The conduct is speech related, I acknowledge and indeed emphasize because money buys the facilities of best communications and leveraging the money available for political campaigns, available for spending may of course to some degree reduce the amount that is spent for mass communication.

But even so the conduct to speech related, I emphasize that it is conduct and not speech.

The FECA does not prohibit, punish or attached liability to utterance, communication or publication except in the very limited sense that in the case of expenditures one may have to look at the publication to see whether it urges the election or defeat of candidates.

So, it will be evidence as to purpose, but in no other sense —

Potter Stewart:

That would be only under —

Archibald Cox:

608 (e).

Potter Stewart:

— 608 (e), would it not?

Archibald Cox:

That is correct, Mr. Justice.

But there is no attempt under 608 (e) or anywhere else to censure directly or indirectly the ideas expressed or the verbal or pictorial form communication.

Equally apart, the public injuries at which the Act is directed are the consequences, not of speech, but of conduct.

Congress was not saying that there is too much speech.

The dangerous thoughts were being expressed, that the wrong people were expressing or that they were expressing them in dangerous ways.

Congress was concerned with what we call the arms race political expenditures.

With the pressure to raise vast financial resources, the corrosive influence of obligations to big contributors upon the conduct of Government, with the laws of public confidence in the honor and integrity of Government when money spent plays too big a role.

And with the political inequalities resulting not from the volume of speech, but from the need to raise money and the indebtedness to those who provide big money and I think those two characteristics of the statute fix the applicable First Amendment principles, although I do not suggest for a moment that they render the First Amendment irrelevant.

When the Governments attempts to deal with speech directly then a case for regulations has to be made wholly or in partly at least in terms of the danger, the danger of the consequences of the ideas.

Mills in Alabama’s are very good example.

The Alabama statute forbade last minute newspaper editorials on Election Day.

The only conceivable justification was that the ideas expressed would have somehow have too much impact upon the public and it was quite right for the court to reply as it did in that case, no test of reasonableness can save such as state law.

The reason is that censorship concerned for the ideas expressed may suppress the information or criticism essential to Self Government.

It carries danger of discrimination among ideas or speakers and there is sometimes have been said, it carries the seeds of an official ideology.

And, of course in such cases there is little or perhaps no room for balancing because the very purpose of the First Amendment as James Madison said “Is to withhold the censorial power from Government and retain it in the people.”

The cases that illustrate this proposition are the case of the Pentagon Papers, New York Times against Sullivan, Miami Herald against Tornillo and the Red Lion Broadcasting case.

I want to make clear — plain that we are not quarreling with those cases and we have no need to invoke any of them in our support.

Audio Transcription for Oral Argument – November 10, 1975 (Part 2) in Buckley v. Valeo

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Archibald Cox:

Cases like the present which involves the regulation of speech related conduct because of the public injury done by the conduct, quite apart from the speech call for an entirely difference step.

Such a law carries few with any of peculiar risk of censorship.

It does not suppress criticism, ideas or information.

It rests no discrimination.

It carries no seeds of official ideology.

Balancing in such cases is appropriate and has often been sustained by the Court.

Weinberger and Hayes is an admirable example.

They are the conduct, a duty to testify was of grave public important just as it has to giving evidence by all of us is grave public importance.

It was argued that regulating the conduct imposing that duty would tend to chill or deter of the flow of information to the public.

Both the opinion of the Court and the principle dissenting opinion as I read them, I agreed that the test was rather the consequential effect upon the flow of speech was justified by the public interest served by imposing the duty to testify.

The Draft Card burning case, United State against the O’Brien is another example.

After observing that the possession of the Draft Card contributed to the effective administration of the selective service laws, the Court observed the case at bar is therefore unlike one where the alleged Governmental interest in regulating conduct rises in some measure because the communication itself thought to be harmful and the Court will recall that it is went on to speak of the need for balancing and to hold that the public purposes, if compelling or paramount were sufficient to justify the purely consequential and in that sense coincidental impact upon speech.

I hold this part so important that I want to take one last example to elaborate.

The appellants and the Solicitor General assert that limiting the money spent to publish a newspaper would violet First Amendment and they are like in this case to the case of the newspaper.

I submit that they both speak too indiscriminately.

A limitation on the publishers’ expenditures would violate the First Amendment if it is rested upon some notion that the columns were too long, the editorials were to frequent, the circulation was too wide.

There were too many additions or something of that kind, but consider.

During the war time shortage, Congress certainly could limit the money that could be spent to buy newsprint even though the consequence was to reduce the circulation of the paper or the number of editions.

William H. Rehnquist:

What happens Mr. Cox, we have to limit it even handedly, would it not?

Archibald Cox:

Oh! Yes, but we say this statute does limit even handedly.

William H. Rehnquist:

Well, but it limits the amount of money that can be spent on political contributions or on 608 (e), the amount that can be spent for individual expressions in support of a candidate, but it does not limit any other kind of expenditure?

Archibald Cox:

I would have to agree that because the dangers that the statute is directed to operate in the area of political campaigns, the only speech that is consequentially effective is political speech.

I cannot dispute that.

I would simply say that again was not based on a congressional judgment as to something desirable or undesirable about political speech and certainly contained no kind of discrimination between different political ideas or parties or candidates.

Potter Stewart:

It does limit only a certain kind of political speech, now, whether not that maybe helpful to you, but I —

Archibald Cox:

Yes, I was thinking of kind in terms of ideas Mr. Justice.

You are quite right.

It will bear of course on the least personal forms of speech.

Well, it does not bear on an individual’s personal —

Potter Stewart:

General, political views if he wants to understand Section 608 (e), he can spend (Voice Overlap)

Audio Transcription for Oral Argument – November 10, 1975 (Part 2) in Buckley v. Valeo

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Archibald Cox:

I think we have the same idea.

I may have misspoken myself and I think that does in a very real sense help this up.

But I would say that this kind of discrimination Justice Rehnquist is coincidental or consequential and it is not the sort of selectivity or undesirability that would be enough to make a different test applicable.

Warren E. Burger:

Mr. Cox would not the limits that is the disclosure limits, the $100.00 limit, the $1,000.00, the expenditure limit could not they be so low or if they were cast so low, do you agree that they might then impinge on First Amendment rights?

Archibald Cox:

I would.

I would agree to two things that if they are set so low as really not to allow any use of the mass media that would present a very different case in the one here.

I would agree too that if they were set very, very low they might then discriminate against challengers to incumbents, but on both points I submit Mr. Chief Justice that the record is very clear that that it is not the consequence of the statute.

In terms of the expenditure ceilings it is quite clear and the figures are all in our brief, that the ceilings are very close to those which have governed in political campaigns in the past.

For example in 1972 and 1974 lumping the whole 2000 candidates for the house together, 97% spent less than the ceiling.

There is now suggestion that there was inadequate speech in those 97% of the campaigns.

Even in the case of presidential elections, the figure is very close to the average amount spent by the two candidates in 1968.

It is a little bit above the amount — a little bit below the amount spent by Senator McGovern in 1972.

It is way below the amount spent by his opponent, but it is higher than we spend in any previous campaign so that we say that it is closely related to what took place in the past.

That one has to conclude that Congress had a solid basis for judging that this would not seriously curtail the volume of political speech.

Potter Stewart:

I want to be sure that I understand your answer to the Chief Justice’s question.

You said that you would agree or you would believe that if the limits were set lower that there could be a point where they were I permissively low as a constitutional matter, is that your answer?

Archibald Cox:

Yes.

Potter Stewart:

Now, the limits on what contribution and expenditures be low —

Archibald Cox:

I was speaking of overall limits on expenditures.

Potter Stewart:

How about disclosure?

Archibald Cox:

Disclosure, I did not in my answer have that in mind.

I do not think the limit on disclosure, that there is any reason to suppose that will affect the volume of speech at all, not just like —

Potter Stewart:

In other words which would be just as constitutional, would it not, in your submission to require disclosure of a $1.00 contributor as it would be a million dollar contributor, so far as the constitution goes?

Archibald Cox:

Well, the constitutional argument is stronger in a case of requiring the disclosure —

Potter Stewart:

Why?

Archibald Cox:

Because there is more danger of the million dollar contribution being corrupted and there is more reason for the public to wish to know who is giving a million dollars to a political campaign.

Potter Stewart:

That is there is a greater invasion with respect to the —

Archibald Cox:

A greater what?

Potter Stewart:

Invasion of privacy with respect to the large contributor —

Archibald Cox:

No, I think the change in balance, if any, is on the justification, not on the invasion.

Audio Transcription for Oral Argument – November 10, 1975 (Part 2) in Buckley v. Valeo

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Archibald Cox:

So far as this record shows, there is very little — there is no showing of any deterrent effect that disclosure.

These laws have been on the books for a very long time.

Of course if one could contribute, especially if it is a group of corporate executives that are contributing they rather contribute before the disclosure law becomes effective than after as one of the Justices find it out, that does not show they would not contribute there.

Lewis F. Powell, Jr.:

Mr. Cox, I as understood you, you express the view that a challenger is not disadvantaged by this Act.

May I put this hypothetical to you? Suppose the challenger is in a District from which the member of Congress has said say for 10 or 15 years and therefore is very well known.

Assume further that the entire media in that District supports the incumbent.

Would you think he would have much of a chance, I realize that would depend on the facts and circumstances, but (Voice Overlap) disadvantage.

Archibald Cox:

I was speaking Justice Powell in terms of the general impact and I will agree that you can think of cases were the only way in which a man could win was by having to spend enormous sums of money himself because everything else was staked against him and I was thinking of the generality, I got into it by attempting to grab in answer to the Chief Justice’s question, that if the overall limit on spending were very, very low than the man who has recognition to begin with, of course, would have an advantage.

The point I was seeking to make was that the ceilings here are not that low and I think that again is shown by experience and of course the burden of showing is not those defending the statute, it is on those attacking.

But if you look at the ceilings, on the basis of the 1974 Election, it seems that they give ample chance to challengers to gain recognition.

And second that taking the Act as a whole, they hurt incumbents who probably have the greater money raising capacity more than challengers.

Let me give just a few things.

I pointed out a moment before that only 3% of all the candidates in house races, it is little less than 3% exceeded the ceilings in 1972, 1974 even after 1972 was adjusted for inflation.

Of the forty successful challengers in 1974, only one exceeded the ceilings.

Of the 28 challenger winners in close races, that is where the winner got less than 55% of the vote, the average spent was only $95,000.00 out of an overall ceiling of a $168,000.00 for the combined primary and general election.

Of the candidates in close races in both primary and general election, in 1974, only 459 exceeded the combined ceiling.

So, there really is very little ground for arguing, that these ceiling which really check the sky rocketing increase rather than cut anything very much back, particularly in the congressional races do not allow adequate opportunity to become known and I can find no basis for arguing that on the whole —

Alright.

Archibald Cox:

— they fail, they discriminate against challengers.

I think if they do anything they hurt incumbents more than challenger.

Harry A. Blackmun:

Mr. Cox that the legislative history show that the kind of analysis you just given us?

Archibald Cox:

Did Congress what?

Harry A. Blackmun:

Did Congress make the kind of analysis in fixing these limits that you just been suggesting?

Archibald Cox:

I am not able to say that it did, I think one most assume that many members of the staff and others did study these things and I am informed —

Harry A. Blackmun:

Well, I just wondered whether the legislative history reveal that kind of analysis?

Archibald Cox:

Perhaps I have a moment after lunch in which I could answer your question Justice Blackmun.

Byron R. White:

But at least the Congress decided what the amendments are going to be?

Archibald Cox:

Oh! Yes, after considerable discussion.

Byron R. White:

They apparently thought that this would be enough money for anybody to —

Archibald Cox:

And these were men who had run in many, many races, sometimes most recently as winners, but I have no doubt many of them sometimes disclose.

Audio Transcription for Oral Argument – November 10, 1975 (Part 2) in Buckley v. Valeo

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Byron R. White:

But the difference that you might give to a congressional judgment in how much money it might be appropriate, it may not be the same if when we are talking about how much incumbents thought can challengers might need.

Archibald Cox:

Well, I find it hard to believe that all 435 favor incumbents entirely.

I recognize the point.

I recognize too that this is a First Amendment case and that the judgment perhaps requires somewhat closest scrutiny, but I would think that the Court should simply act as a legislative body, I have — excuse me.

Byron R. White:

Your answer apparently is what you already given that they saw in history, incumbents would not do any better than challengers?

Archibald Cox:

That is correct and indeed I think the history shows much either way.

It is shows that the incumbents are hurt more because they nearly always spend more both when there successful and unsuccessful and this we draw from the figures on the close races.

Warren E. Burger:

I take it your answer give some weight to the incumbents on a lot of ability and assets that challenger do not have, namely large office staffs and branch offices out in the District that sort of thing?

Archibald Cox:

I recognize —

Warren E. Burger:

What is news, news worthiness to what they do that the challengers do not always have?

Archibald Cox:

There is no question that the incumbents have advantages sometimes the disadvantages, but they are likely through name recognition to be advantages.

My proposition is that this statute does not make challengers any worse off in that respect than they were before.

Now, some have mellifluous voices and others do not.

They are all kinds of injustices in the world.

I say this statute does not make it any worse and we developed that in some length in our brief.

I would add to that Mr. Chief Justice that the most that is contended, is that on the average as I understand it because the word generally is included in the heading in the brief that on the average they contend statistically somewhat more incumbents may benefit and challengers be hurt than the other way around.

But one does not make a case of unconstitutional discrimination by that kind of statistical average.

Furthermore, all it seems to me say is that challengers gain more from the pernicious practices and incumbents and we would say that the pernicious practices are the evils, Congress were meeting or was meeting are such that they justifies certainly any chance differentiation between them.

Warren E. Burger:

Well then I suppose you would say that were the whole area is foggy than the land drawing should be left to the Congress?

Archibald Cox:

I would certainly say that — yes Mr. Chief Justice?

Warren E. Burger:

We will resume there at 1 o’clock.