Buckley v. Valeo – Oral Argument – November 10, 1975 (Part 2)

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 1) in Buckley v. Valeo

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Warren E. Burger:

Mr. Cox.

Archibald Cox:

Mr. Chief Justice and may it please the Court.

Before the recess, I had to confess to Justice Brennan my ignorance on one point, but is now been relieved Mr. Justice.

An analysis of the relationship between possible spending ceilings and past experience based, of course, on 72 rather than 74 because 74 had not happened, it was submitted to the congressional committees chiefly by common cause and it was essentially the same kind of analysis that I made.

If you care for the references, you will find it in the hearings on H-7612, 93rd Congress, First Session which was in October and November 1973, and similarly on hearings on S-1103 at the same Congress and the same session.

At that time, I may say, and then I would like to go on, the common cause representatives were arguing that care must be taken not to set the ceilings too low and the quotations that my friend has referred to, complaining that if the ceiling was too low, it would discriminate against challenges.

It was during a time when much lower ceilings were being discussed than appear in the statute.

Now, I would like, during the moments remaining to me, to address myself to Section 608 (e) of the statute which has been mentioned several times this morning, that is the Section which deals with the so called independent expenditures.

If an expenditure, a spending of money in the loose sense, is requested by a candidate or his committee or is otherwise made with his authority, then it is a contribution and counts against this overall ceilings.

If the spending is done without any kind of authority from the candidate than it falls under Section 608 (e) and if it exceeds $1,000.00, it would be unlawful.

To put the discussion of that Section in context, may I first recall portions that I will have to leave to my brief, having stated as we did, the applicable constitutional principle this morning, then of course a complete exposition would call first three showings I did seek to show that adequate opportunities were to remain.

Second, that the purposes of this legislation where indeed compelling, the purposes as we see them are first, to protect the honor and integrity of government operations in both the legislative and executive branches against the corrosive influence of large contributions, the pressure to raise large money and the resulting sense of indebtedness which of course does not affect every contribution, but there appear to have been too many of that character.

Its concern with the public’s confidence in its government against the appearance of things when government favors, follow such large contributions and its concern with giving the small donor an equal voice with the large donor, not in speaking, but in opportunity to reach that candidate, the large donor money.

Now, we say that Section 608 (e), the limit on independent expenditures is essential to the effectuation of those purposes.

Very briefly, if there were no such provision in the statute, then instead of making a contribution of 5, 10 or $50,000.00, someone would just spend it, take over all a candidate’s advertising in Lawrence, Massachusetts or take over the broadcasting of film clips of his previous speeches or his television spot and surely in this aspect of 608 (e), it is essentially like a contribution, it is money that a person who spends it is putting out.

He is not putting out his own words or his own ideas. He is not engaged in personal activity.

William H. Rehnquist:

Well, Mr. Cox, I notice that distinction in your brief too.

How about the Ad that was bought in New York Times against Sullivan.

Well, would that be under your definition of personal activity or that just be money?

Archibald Cox:

I think the Ad and of course that is not in support of a candidate, we both understand that —

William H. Rehnquist:

No, but I need the Ad.

Archibald Cox:

— would not be affected at all.

It would depend how much the individuals contributed to its composition, quite practically.

William H. Rehnquist:

So my act in just signing an Ad that someone else has prepared, does not have the same First Amendment protection as if I (Voice Overlap)

Archibald Cox:

Well, I would think, I would suggest that it is under the First Amendment of course.

I do not say anything.

I would it was entitled to less protection than it is when you yourself compose the Ad or make the speech.

I have a lesser role if I used to have a lesser role when I signed the brief as Solicitor General that Mr. Spritzer had written then when I wrote a brief myself and I am suggesting that there is something of a lining.

Now, I am not making anything turn on that except by assertion that in the case where the individual has no personal participation, it is just like a contribution, then I say —

William H. Rehnquist:

How about a ticket that is carrying a placard that someone else wrote.

Audio Transcription for Oral Argument – November 10, 1975 (Part 1) in Buckley v. Valeo

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William H. Rehnquist:

I mean, is he pretty well down to bottom of the First Amendment values?

Archibald Cox:

I think these cases shade indistinguishably one into another and I cannot draw an intelligible line.

Indeed, my essential proposition is that an intelligible line cannot be drawn and that the reason Congress included 608 (e) as it did, was that it decided that the most sensible line was between personal participation in campaigning or in speaking, in doing things yourselves in personal services and spending money and it drew the line there because there was no other very satisfactory way of doing it.

William H. Rehnquist:

But if they could — if there is no intelligible line to be drawn then presumably under your analysis, they could equally well have forbidden the expenditure of more than a certain number of hours of personal service?

Archibald Cox:

No.

Well, I think where it is truly personal services, that is distinguishable from spending money.

Now —

William H. Rehnquist:

You do make something turn on the point then?

Archibald Cox:

I make something turn between truly personal services in speaking and putting up money.

I agree that they shade one into the other and that the question is where is the most satisfactory place to draw a line and I suggest that the most satisfactory place to draw the line which Congress considered very carefully was between allowing people to do things themselves and allowing, and seeking to spend more than $1,000.00, also really more than $1,500.00 because you get $500.00 in incidental expenses if you do it yourself and I am —

Byron R. White:

This is the least and intelligible?

Archibald Cox:

This is the most daily claim.

Byron R. White:

Yes.

Archibald Cox:

This is the clearest [Laughter]

I would make — I would make if I may just two further sentences.

First, I would say that in fact individuals do not, just a matter of observation, spend large sums of money, broadcasting their own speeches, putting their own writings in newspapers and second, the reason I emphasize my agreement with the proposition that the line can hardly be drawn between personal involvement in a paid advertisement that no real personal involvement in the paid advertisement, the reason I stress that is that they chose the importance of Section 608 (e) to the whole plan, that this would be as the Court below recognize an exceedingly serious loophole.

I do not think it would render the whole plan inoperable, but it would be an exceedingly serious loophole which would raise the whole pressure over again, but I express just one last thought on this point Mr. Chief Justice.

I point out that there is no plaintiff here who alleges that he or she desires to spend money publicizing his or her own speech and that this most extreme application of 608 (e) might well be treated as hypothetical, not properly before the Court and the argument of overbreadth could and I think should be rejected on the ground that through most of its application, Section 608 (e) is like the restriction on contributions, and that therefore, the doctrine of overbreadth does not apply and the particular cases can be dealt with if and when they ever arise.

Thank you, Mr. Chief Justice.

Lewis F. Powell, Jr.:

Mr. Cox, before you sit down may I ask this question?

Section 608 (e) limits citizens in what they may stand, advocating the election or defeat and I think the language is a clearly identified candidate.

Does the Act give any assistance as to how one determines who is a clearly identified candidate or does the Citizen Act it is parallel?

Archibald Cox:

Well, to say any citizen may ask the Federal Elections Commission for a ruling on that part and will be protected in following the ruling.

Lewis F. Powell, Jr.:

Take the present situation.

Suppose that question was put to the Commission today in this forum, as of today, who are candidates for President in 1976, what could the Commission say that would be accurate?

Archibald Cox:

I do not think that the Commission has and it would any occasion to answer that question.

The question that would be put to it would be whether the speech with sufficient clarity identified a candidate and whether it urged nomination or election that I suppose in this sense, if the —

William J. Brennan, Jr.:

You mean, even as to a candidate not formally declared to be such, the Commission might find him nevertheless a candidate?

I want an advice or the opinion for purposes of 608 (e)?

Archibald Cox:

As Section 591 (b) on page 37 of the Statute, defines a candidate is an individual who seeks nomination for election and so forth.

Audio Transcription for Oral Argument – November 10, 1975 (Part 1) in Buckley v. Valeo

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Archibald Cox:

So it involves some seeking on the part of the person.

William J. Brennan, Jr.:

You mean a formal declaration that he is a candidate?

Archibald Cox:

Well, I suppose there is a question, what seeking means and I am not aware of that interpretation.

William J. Brennan, Jr.:

There are as I read the newspapers and listen to this news, television news reports and so forth, some individuals who say they are not yet decided whether they are candidates or not (Voice Overlap)

Archibald Cox:

I know nothing beyond the statue on this point.

If I would take it that someone who is disclaiming concerned who says they would not accept the nomination is not a candidate whatever the newspaper say.

Lewis F. Powell, Jr.:

Mr. Cox, before the Republican convention in 1916, Charles Evans Hughes, I take it was not a candidate, but suppose citizens had been spending large amounts of money promoting him, indeed some people did, would this Act apply to him?

Archibald Cox:

I confess that I do not recall the facts of 1916 election well enough to say that.[Laughter]

I would — 1924, I can speak to when Calvin Collin said, “I do not choose to run,” I suppose he was not seeking the nomination, although —

Lewis F. Powell, Jr.:

How about 1952, up to a point Adlai Stevenson was very shy?

Archibald Cox:

Well, I do not deny that cases could be put that are close to line on this point Mr. Justice.

I do not think there is any statute that could possibly avoid that question.

The same problem has come up in deciding whose names must go on primaries and election list.

I just have to imagine that anyone seriously risking prosecution under 608 (e) because of they are writing a letter, urging that so and so who is not yet a candidate ought to run or something like that.

Sending a $1,000.00 check?

Criminal penalties?

Archibald Cox:

It is a certain — I am referred and I do not want to take the Court’s time to be enlightened on my ignorance for which I apologize, I think if you will read 591 (b) and with care, you will find that it throws more light than I have been able to give on this question.

I am sorry to espouse.

Harry A. Blackmun:

Well, I gather Mr. Cox that advisory opinions are not available to any citizen, only to candidates and protocol committees, are they not?

I cannot go to the Federal Election Commission and ask them, if John Jones has risen to candidate?

Archibald Cox:

Well, you would have no statutory right to it.

I am not sure if the Commission will refuse it.

Warren E. Burger:

Mr. Winter.

Ralph K. Winter, Jr.:

Mr. Chief Justice and may it please the Court.

Let me just briefly clear up one part point of confusion, found on one of our appendix page 39.

It alleged that Steward Mott desires to make independent expenditures on behalf of a candidate in excess of $1,000.00 and the other candidates who are plaintiffs, appellants here make allegations that they wish to have people make such expenditures on their behalf.

Let me also address the question of the meaning of Section 610 in the segregated funds.

I must confess that we see vagueness there as else where and we are not able to endorse the Attorney General’s flat position that Unions and Corporations may spend unlimited amounts from segregated funds.

I do not think in any sense that even if it is read to mean that they must spend through six-month political committees, the statute still gives them relatively far more power than they had previously.

They are permitted, first under Pipe Fitters, the Unions and the Corporations clearly control the dispersal of the funds.

Audio Transcription for Oral Argument – November 10, 1975 (Part 1) in Buckley v. Valeo

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Ralph K. Winter, Jr.:

That is the explicit language of Mr. Justice Brennan’s decision, I believe it was, is that we hold, at page 384, we hold that such a fund must be separate from the sponsoring Union only in the sense that there must be strict segregation of its moneys from Union dues and assessments.

And I take it that continues now, otherwise it would violate, if the Union or Corporation did not control the funds, it violate the probation on earmarking, so that they do control the funds.

Now, they are permitted —

Lewis F. Powell, Jr.:

Mr. Winter.

Ralph K. Winter, Jr.:

Yes sir.

Lewis F. Powell, Jr.:

While you are in this subject, is there any limitation, assuming that the committee limitation applies to Unions and Corporations on the number of committees that a Union or a Corporation could organize?

Ralph K. Winter, Jr.:

We say no in the statute, Your Honor.

Lewis F. Powell, Jr.:

It cannot run under the Pipe Fitters, is there?

Ralph K. Winter, Jr.:

No, I would think that it would have to — I would think that the FEC would have the rule by theater or however they do it.

Lewis F. Powell, Jr.:

You could probably have a committee at a minimum for each subsidiary Corporation and each local Union?

Ralph K. Winter, Jr.:

I would certainly think that is true, yes and where you have interest like the daily interest on a County basis, that can be done horizontally across the country.

There is three reasons why Unions and Corporations have great power under statute relative to other groups.

The first is that they can engage in unlimited spending to raise money for the segregated funds.

As far as we can tell from a statute they are permitted to spend as much as they want from their treasuries to raise money from a members, employees and stockholders.

Second they can spend unlimited funds to communicate with employee, members and stockholders and this alleged or is believed of great value because communications with those people necessarily reach large numbers of other voters.

William H. Rehnquist:

How does this fit into your constitutional argument?

You say that Unions and Corporations have great power, but that by itself does not demonstrate that the statute is unconstitutional?

Ralph K. Winter, Jr.:

I think it does and it fits in two ways.

One, I think it is facial discrimination and a regulation of content.

Here we have almost exactly the situation faced by the Court in Mosley where there is a general probation on a certain kind of a speech with an exception made for labor organizations.

Secondly, Justice Rehnquist, I think it shows beyond any question that there is no rational relationship between the ends that are used to justify the statute and the means employed.

This record, this appendix is thick with contributions by business and Union interests which the statute is alleged to diminish, whose influence the statute was supposed to stop and indeed the allegation is made over and over again, that the prime source of corruption or improper obligation comes from organized economic interest groups.

I think if we show that in fact under the statute and I think we shown, convincingly, that under the statute that those groups have more power relative — relatively more power because of the limitation placed on other groups and the freedom left to them, I think we have shown its unconstitutionality.

The third way in which they are made relatively more powerful is that the six-month political committee provision is really tailored to their use for purposes I have explained before and allows them to spend five times as much as other kinds of committees and individuals.

There is nothing anywhere that I know off in the legislative history of the statute, suggesting in anyway that any justification for those provisions and that have to do with the asserted justifications for the statute.

Now, reference has been made to the legislative history of the limits, I think when the Court addresses the legislative history or finds it, it is quite simple, they kept going down.

From the original proposals, they got lower and lower and indeed we are in some disagreement with Mr. Cox’s description of the situation and I believe it was November, 1973 when common clause testified before Congress.

I am reading from Mr. Gardner’s testimony.

The bill passed by the Senate would allow candidates for the House to spend $90,000.00 in primary races and another $90,000.00 in the general election.

Some have advocated expenditure limits substantially lower than those contained in that Bill, 35, 000; 42,500; 50, 000 are among the figures which have been mentioned as preferable.

Audio Transcription for Oral Argument – November 10, 1975 (Part 1) in Buckley v. Valeo

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Ralph K. Winter, Jr.:

Common clause considers that any substantial reduction of the figures in S-372 which was 90,000 in both elections, would virtually guarantee a permanent re-election of incumbent members of Congress.

Now, of course they did reduce the limits after that and in fact it would not adjust for inflation, the limits of the senate bill at that time were a $100,800.00 for each election.

So there was a various substantial reduction after that.

The legislative history in the Senate, repeatedly, floor managers and the like in the Senate stated that the House could write their ticket to the Senate or not review what the House was doing.

Now, I think it is clear in our brief what our objections to their statistical figures and in particular the comparison with the overall combined limit in that the statute in no way permits candidates to aggregate.

You have to spend to influence a particular election and comparison — comparing previous spending with an overall combine limit, comparing that with previous spending by candidates who had one serious race, simply does not make any sense.

I might also say, suppose it does not for a challengers, suppose it is as even handed, no one really denies that it is not going to affect the outcome of elections.

No one really plans that is not going to have an impact.

Indeed the whole reason was to reduce the amount of political speech in which people were engaging.

That seems to me clearly the party will affect the outcome of elections.

It does not matter who is affected, it is still a First Amendment problem.

The public will suffer because of this expose to less and less information, less and less the debate, the less participatory activities by volunteers and the like. Virtually, all the evils that have been suggested in this Court, in no real sense call for limitations on candidate expenditures.

The ones we have now because it costs so much to raise large contributions, really induce candidates to try and raise contributions in as high amount as they possibly can because they save that much on fund raising.

Also, there is no reason certainly to limit campaigns, the amount campaigns can spend whether or not they are raising in a large contributions.

This statute limits — would have put limits on the campaign of a candidate like Ramsey Clark who has announced, who did announce that he would not spend over — would not receive contributions over a $100.00.

Now, I have not heard anything today which would call for limits on expenditures, extraordinary spending provisions for state and national party committees, distinctions between kinds of committees which permit greater freedom to some than to others and indeed, I would think that if Congress was serious about what it was claiming it was doing or if it had sought and considered a far simpler law, it might have had a better solution, not just the better one but one more constitutional.

A law that restricted total contributions of individuals, to candidates or committees to say something like a total of $35,000.00 in an election year and adequate disclosure provisions for timely notice of large contributions, would prevent corruption, bring about a quality at least as much as the FECA and yet would not have the same stringent impact on challengers, to incumbents or other candidates.

We do not say it is a constitutional, but of all the major constitutional issues in this Court, all but one, disappear with a law of that kind.

Nothing demonstrated in Congress or in the record here calls for either the complexities or the intrusiveness of the FECA.

We filed this Amicus attack is for the extend of our challenge, but this complex network of intricate distinction is just wholly unrelated to the purposes of the statute and itself is a signal that more loopholes more, more inequalities are being created.

I think that 608 (e) demonstrates the intrusiveness of this law.

The idea that a law putting almost a flat ban on the purchase of political advertising by individuals, can be called a loophole-closing provision.

It is not only contrary to the major trust Court’s decisions for years, but demonstrates just how intrusive this statute is on the free political debate in this country.

Potter Stewart:

Mr. Winter, we were told by Mr. Cox and perhaps others that a vast majority of the individual 50 States have analogs, statutory analogs to the disclosure provisions of this legislation and to the limitations, provisions of this legislation both upon contributions and expenditures.

Do you know — are there any state analogs to 608 (e)?

Ralph K. Winter, Jr.:

I think in Florida — Florida I believe has one.

Yes.

Most of the state laws as I understand it, the Florida law is the stringent, most of the state laws resemble the prior Federal law which was not —

Potter Stewart:

Which was disclosure primarily and —

Ralph K. Winter, Jr.:

Well no, it had limit —

Audio Transcription for Oral Argument – November 10, 1975 (Part 1) in Buckley v. Valeo

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Potter Stewart:

And limitation?

Ralph K. Winter, Jr.:

But not effective limitation.

Potter Stewart:

I know.

Ralph K. Winter, Jr.:

So that —

Potter Stewart:

But you said that you know of at least one state (Voice Overlap)

Ralph K. Winter, Jr.:

I understand Florida that — I think — I believe and I might be wrong, but the Florida provision I believe gives the candidate a veto on expenditures.

I am not sure that.

It is similar to the –

Potter Stewart:

To the predecessor of 608 (e)?

Ralph K. Winter, Jr.:

Right.

I think that is right, but I could be wrong.

I think that the extent of pebble in First Amendment law is nowhere better demonstrated in the arguments and briefs presented here.

Every time the appellees put their First minute positions in the form of a generalization, it is just foreign to established notions of freedom of expression.

Instead of a robust, uninhibited debate, they draw analogies between oral arguments in Courts with equal page links and equal time for argument and explicit call for a drastic application, I would think of something like red-line to the whole political process.

Byron R. White:

Mr. Winter, what do you suggest Congress was trying to do in this statute?

I understand perfectly well what you think.

Whatever it was trying to do was unconstitutional.

What do you think it was trying to do?

I suppose we must accept the — what on its face it seems it was trying to do.

It was aimed at limiting corruption, I supposed.

Do you say it was aimed at something else?

Ralph K. Winter, Jr.:

I have trouble.

I think that Congress because of Watergate, was under enormous political pressure to do something.

Byron R. White:

Explaining why — tell me what do you it was trying to do if it was not trying to do that?

Ralph K. Winter, Jr.:

Well, Your Honor our opinion I gather is —

Byron R. White:

You probably do not have to (Voice Overlap)

Ralph K. Winter, Jr.:

— draw inference, is that they were under pressure to do something and as one unidentified Congressman was alleged to have said and was quoted in the papers, any time they could vote for reform and freeze out, vote for what was called reform and freeze out opponents at the same time, there was only one thing they could do and I am being pushed to make an argument, I think I — but that is our opinion.

Byron R. White:

Well, I do not know I think it — do you accept the goal that the Congress was aiming at or not?

Ralph K. Winter, Jr.:

The elimination of corruption?

Yes sir.

Audio Transcription for Oral Argument – November 10, 1975 (Part 1) in Buckley v. Valeo

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Byron R. White:

Then what time to do that?

Ralph K. Winter, Jr.:

No, I accept that as a proper goal.

I do not think that —

Byron R. White:

But you do not need — you say Congress was not really seriously attempting to point.

Ralph K. Winter, Jr.:

Yes sir and I can point to explicit provisions.

They reduced the statute of limit, dropped the statue of limitations by two years for Watergate related crimes.

They passed the provision explicitly permitting them to spend their excess campaign funds for —

Byron R. White:

Limitations on expenditures or contributions you would not accept those as any serious effort by Congress?

Ralph K. Winter, Jr.:

No I think —

Byron R. White:

Through Court of law?

Ralph K. Winter, Jr.:

I think arguably the limits on contributions does seem to move in that direction.

Expenditures absolutely, I think that does move any direction of —

Byron R. White:

Any alternative suggestions what they were trying to do with expenditure limitations?

Ralph K. Winter, Jr.:

For what they were trying to do?

I think that both of those provisions badly damage challengers to incumbents and I —

Byron R. White:

You think they have resisted.

The incumbents were just riding themselves into a permanent seat, is that what you say?

Ralph K. Winter, Jr.:

Well, they are under a lot of political pressure to do something and this was the most palatable thing that could be done.

Warren E. Burger:

Were you suggesting in polite way that this was cosmetic legislation?

Ralph K. Winter, Jr.:

Well if so, it is something that the Consumer Product Safety Commission should look at because it is a cosmetic that involves asset and is given only to challengers.

I suspect, I see very few limits in here on things that might lead to corruption.

For instance, they can take unlimited, undisclosed funds for office accounts and for preparing materials to send out under the fact.

That is simply inconsistent with a desire to eliminate corruption.

It is just totally inconsistent with it, quite apart from the discriminatory effect against challengers.

Lewis F. Powell, Jr.:

Mr. Winter, it is not clear to me what happens to excess contributions.

Take a congressman, he is limited to $70,000.00.

Suppose its contribution has totaled $100,000.00, what would he do with that $30,000.00?

Ralph K. Winter, Jr.:

Well he can do several things.

He can put it in an office account —

Lewis F. Powell, Jr.:

His office account?

Audio Transcription for Oral Argument – November 10, 1975 (Part 1) in Buckley v. Valeo

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Ralph K. Winter, Jr.:

Yes or he can — the statute explicitly says he can use it for any lawful purpose, to any lawful purposes for the ward.

Lewis F. Powell, Jr.:

And he gave it to the body for constituents?

Ralph K. Winter, Jr.:

That is the way we read it sir.

Lewis F. Powell, Jr.:

What happens to the appellant who loses, who has $30,000.00 in excess?

Ralph K. Winter, Jr.:

I do not — it does not say what he can do.

Lewis F. Powell, Jr.:

Can he give a party for his clients?

Ralph K. Winter, Jr.:

That I suppose would be up for the FEC.

Warren E. Burger:

Mr. Clagett.

Brice M. Clagett:

Mr. Chief Justice and may it please the Court.

Appellant’s position is; first, that any mechanism for direct federal funding of political parties and candidates is unconstitutional and second that the particular mechanism Congress has chosen, embraces a number of unconstitutional discriminations among particular candidates and parties.

With the Court’s indulgence, I will reverse the order of our briefs and discuss the second question first.

I begin with Chapter 95 which provides for general election federal subsidies for some, but not all presidential candidates.

The basic device of course is the distinction between major parties, which one more than 25% of the vote in the prior election.

Minor parties which won between 5% and 25% and so called new parties which are they really are new or else are old won less than 5% at the prior election.

Major party candidates are wholly relieved of the need to seek private contributions.

They are furnished their entire expenditure limit $20 million at the outset of the campaign.

Minor parties, if there are any which they would not be in 1976, receive a prorata share, dependent on the ratio of their prior vote to the average vote of the major parties.

New parties receive nothing, but if they win over 5% of the vote in the in the current election, they purportedly can receive post election funding, though we shall see that, that alleged entitlement is almost completely illusory.

Independent candidates not identified with the party, receive nothing at any stage, no matter what their vote is.

A most serious problem with this scheme is the treatment of new parties.

We think the 5% threshold first, although this is not the most serious objection, is too high.

It is much more onerous than the nominally similar threshold sustained for ballot access in Jeness versus Fortson because that scheme allowed petition signed by persons who at the prior election have voted for other parties.

Since this is clearly a prior vote qualification it requires that the member of the 5% not have voted for anyone else and not to stay at home.

The Jeness court relied heavily on the open aspects of the 5% that anyone could sign the petition even if he just voted in a primary two weeks before that for another party and in Jeness you upheld that 5% figure with strong intimations that were not for those open features not present here, 5% would be too high.

William J. Brennan, Jr.:

Mr. Clagett I know this is not — I just to get it.

If one is a presidential candidate, elects to take public funding, he cannot take private contributions, can he?

Brice M. Clagett:

Not if it is a major candidate, Justice Brennan then he gets his full 20 million and he has to promise and address that he would not take any private contributions.

William J. Brennan, Jr.:

And if any is contributed what happens what happens to it?

Brice M. Clagett:

I think practical answer would be that he would know, he is not the major party candidate who qualifies until after the convention and surely by the time the convention or immediately thereafter he would make his decision which route he is going.

If he is a minor party candidate, he just has to agree not to take any contributions that would put him over to the limit and it says in addition to whatever public funds he gets.

Audio Transcription for Oral Argument – November 10, 1975 (Part 1) in Buckley v. Valeo

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Byron R. White:

What about primary?

Brice M. Clagett:

Primary expenses well that Chapter 96 which I like to deal with separately if I might.

Potter Stewart:

That is matching funds?

Brice M. Clagett:

That is matching funds and the issues are quite different.

Potter Stewart:

Quite different.

Brice M. Clagett:

The 5% requirement involved in this statute is very much like the 5% requirement which you are unable to accept in Storer versus Brown, very much like it functionally.

It is relevant here by the way I think that 42 states for ballot access have 1% or less as a petition requirement.

The other side is relied for other purposes on state practice and the general state practice is that 1% is about the maximum which is thought reasonable to require on petitions for ballot access.

Potter Stewart:

That is for ballot position, ballot access?

Brice M. Clagett:

Yes, Justice Stewart.

Potter Stewart:

Has nothing to do with financing as such?

Brice M. Clagett:

Well, except to the extent that the two factors maybe comparable by analysis.

Potter Stewart:

To the extent that the states do publicly finance their elections?

Brice M. Clagett:

Ten or fewer.

Potter Stewart:

Yes.

Brice M. Clagett:

Yes sir.

The most egregious discrimination in Chapter 95 is that no way is provided for new parties to qualify by petition at all.

They are excluded entirely on the basis of prior vote performance.

I want to make it clear again that throughout, I will be using new parties in the sense the statute does, that party could be a hundred years old and still be a new party.

In view of the dead hand of the prior election in wholly excluding new parties, the reliance of appellees and of the Court of Appeals indeed on Jeness versus Fortson, we think is completely misplaced because the statute upheld in that case permitted a petition requirement, the 5% there was a petition 5%, not a prior vote 5%.

Indeed every one of the ballot access cases involved a petition alternative route to get on the ballot, instead of being limited or excluded on the basis of prior vote statistics.

Some of those means you have held too onerous, and some of them you have held reasonable, but in everyone of the cases there was a route.

Here there is not route, no way.

If a party one year after the 1976 election or three years after the 1976 election comes into existence, there will be no way it can receive prior pre-election funding in the 1980 election.

Appellees have failed to suggest any reason whatever, like qualification for federal funds by a petition could not and should not have been incorporated in Chapter 95.

Such a readily available mechanism while solving all constitutional problems, would have provided a new party with some means to qualify.

It will avoid that the plain irrationality of making illegibility for these subsidies depend entirely on four-year old election statistics when conditions may have been totally different.

Post election funding which the statute purports to provide is no solution.

Obviously, funds provided after the election is over are off no use whatever to a party in trying to win the election or to make the substantial impact on it.

Moreover, if that were enough, this theoretical entitlement to post election funding is rendered almost completely illusory by the provision that it can be used only to repay loans, which is what the statutes says.

Audio Transcription for Oral Argument – November 10, 1975 (Part 1) in Buckley v. Valeo

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Brice M. Clagett:

The result will be that only a tiny fraction of a new party’s expenditures, if any, will be reimbursable, even though the party otherwise qualifies.

No reason has ever been suggested to our knowledge why that restriction could not have been omitted and new party is allowed to recover post election funding, if they qualify by five or some other percent, could recover subsidies equivalent to the amount of their expenditures, not of their expenditures made through loans, then they could have used that money for their general party purposes or to prepare for the next election.

They at least would have gotten something that might do them some good in the future, even though it would not do them any good in the current election.

William H. Rehnquist:

Which of the appellant Mr. Clagett is a new party as defined in the statute?

Brice M. Clagett:

The Libertarian party, the Conservative Party of New York.

Potter Stewart:

Republican Party of Mississippi?

Brice M. Clagett:

No sir that is a part of the National Republican Party which is a major party.[Laughter]

If we had congressional public financing, it might well qualify and the Appellees are trying to get that too.

Senator Metcalf’s amicus brief points out entirely accurately that this incredible restriction that you can only get post election funding to pay back loans that you have made that you have incurred, that this restriction penalizes new parties for having been able to raise contributions rather than make expenditures on credit.

Whereas for major parties under Chapter 96, major party candidates of the primary stage are rewarded for getting contributions, just makes no sense to us, unless the purpose is discriminatory, certain the result is.

This system, especially when coupled with the expenditure and contribution limits, leaves new parties far worse off than they are now.

They are declared unworthy, if federal funding because of their modest support, but simultaneously they are denied the right to try to increase that support by seeking large contributions to pay for heightened campaign activity.

In fact, in presidential general elections since the major parties are fully subsidized.

The contribution limits apply only to minor and new parties and independent candidates.

Only they must bear the burden of those limitations and must incur the large cost of trying to raise small contributions.

The contribution limits of the Presidential Election, the general election stage have no effect whatever on the major parties.

Byron R. White:

Would it cure your problems if the minor parties or the new parties were not subject to the contribution limits?

Brice M. Clagett:

No, Justice White, it would not.

We think that the —

Byron R. White:

(Voice overlap) the expenditure?

Brice M. Clagett:

Well, the expenditure limits are bit academic as a part to minor parties at least at the Presidential level.

Byron R. White:

The contribution limits?

Brice M. Clagett:

The contributions limits are by no means are academic, but even if minor parties were free to raise large contributions, they would still have to raise money privately while the major parties were being subsidized by the Federal government and we know of a no rational basis for that discrimination, certainly not at the 5% prior vote threshold level.

Possibly at a 1% current petition threshold level maybe.

We are not saying there is no threshold that might not be constitutional, excuse me, that might be constitutional.

Appellees answer to all these discriminations as the third parties and independents are benefited by the expenditure limitation since they will now be able to spend more in relation to major party spending, but you cannot spend money if you cannot raise it and nobody gives it to you.

Even besides that, a minor party is not concerned with what a major party spends.

It is sole interest is being able to raise and spend itself enough to wage a viable campaign thus for someone like the appellant Libertarian Party, I can assure you that it does not feel fortunate because the Democrats and Republicans are now limited to $20 million each when it is cut off from every reasonable sources of funds to wage any kind of campaign that could get itself better known and maybe gradually over a process of years make some progress towards becoming a major party, which is of course it is objective.

Warren E. Burger:

That this party of the kind you have just described is waging an issue campaign without any real hope through electing its candidates necessarily?

Brice M. Clagett:

I do not believe the Libertarian candidate for President this year believes he will elected, but it is not only an issue campaign.

Audio Transcription for Oral Argument – November 10, 1975 (Part 1) in Buckley v. Valeo

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Brice M. Clagett:

I think any party of this nature will be looking ahead down the road to future elections, maybe eight years from now, maybe 12 years from now.

That is a party of the kind of Libertarian party’s nature.

Now, there are other kinds of third parties which would be also new parties under the statute.

The American Independent Party would have been a new party in 1968 and would have been completely shut out from campaign financing.

Potter Stewart:

Was the Republican Party under the statute had been a new party in 1860, when Abraham Lincoln first (Inaudible)?

Brice M. Clagett:

No sir, it would have been a new party in 1856 and that is where it would have had its throat cut.[Laughter]

Potter Stewart:

He would never have got in 1865, in your submission?

Brice M. Clagett:

Precisely.

One bizarre result of this statute is that if a third party ever does manage to qualify for federal funds, its life will be unnaturally and artificially prolonged.

If these provisions have been in effect in 1972, John Schmitz would have received more than $6 million in federal general election subsidies on the basis of George Wallace’s election day performance in 1968.

Harry A. Blackmun:

The other side of that coin of course is that Governor Wallace did a lot of noise and was heard four years before?

Brice M. Clagett:

Yes sir, but third parties typically arise we think and George Wallace’s 1968 candidacy is maybe not wholly typical, but it is not wholly a typical either.

They typically arise either to give some outlet to a transient wave of popular sentiment or is the vehicle of a particular candidate which was certainly true of Wallace in 1968.

John Schmitz just did not have the capacity to draw that kind of vote.

If a party of that sort makes a substantial impact in one election, then the usual consequence is that it goes on to higher things or else the other party is adjusted and it is absorbed back into one of the major parties.

But artificial preservation of third parties whose time has passed is an inevitable result of basing federal subsidies on prior election performance.

I must say something about Chapter 96, the matching grant provision.

The subsidy amount that candidates can receive under matching grounds is made wholly dependent on the private contributions that candidate has raised, that is it is a wealth criterion, similar to one you struck down in Bullock versus Carter and Lubin versus Panish.

Surely what should matter is the number of contributors to or supporters of a candidate.

Instead a single contributor can command the matching firms checked off by 250 of his fellow citizens on their tax returns.

The entire scheme rewards the candidate who gets into the race earliest, who can command the largest number of $250 contributors and who is supported by a special interests, which can easily help him meet the 20-state requirement.

A candidate who comes in at the later stage, perhaps in response to some new development or some newly perceived political issue is heavily disadvantaged.

The provision is in fact working exactly in this way.

That is demonstrated by the figures on page 52 of our reply brief, showing what the presidential candidates have raised to date and what they have on hand.

It is apparent from those figures that the great bulk of available federal funds is likely to go to only two of the twelve present candidates, Governor Wallace and Senator Jackson.

Most of the others even though have raised substantial private funds, have dissipated almost all of them before the campaign for votes even begins.

Potter Stewart:

What page of your reply brief?

Brice M. Clagett:

52.

Potter Stewart:

Thank you.

Brice M. Clagett:

— have dissipated almost all the funds they raised, you can see that by the right hand column showing what they have on hand, in a desperate attempt to raise more small contributions.

Audio Transcription for Oral Argument – November 10, 1975 (Part 1) in Buckley v. Valeo

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Brice M. Clagett:

Most of these candidates will be so crippled for funds that whatever federal matching grounds they receive will not prevent them from being driven out of the race at very early stage.

This legislation has made money more important in campaigning than it was before, not less important as it allegedly was supposed to do.

Those problems are compounded by the fact that the mechanism for dispersing the matching grounds is so fraught with uncertainty and so dependent on diaphanous prophesies that have to made long before they can be made, that the results maybe unfair or random in the extreme.

We set out some of these problems at pages 70 through 73 of our reply brief.

The day after that brief was filed, the Assistant Secretary of the Treasury, testifying before the Federal Election Commission, confirmed everyone of those concerns we had expressed and added some new ones.

We have lodged this testimony with the Court.

It is now clear after his testimony that funds maybe inadequate to pay all the candidates who qualify and that what funds are made available will depend on guesses as to what third parties may enter the ultimate general action campaign and what their election day performance might be, this in December or January and there is a distinct possibility that all the available funds will be exhausted by the first two candidates who qualify, Wallace and Jackson, thus discriminating against those who qualify thereafter.

Finally, the difficult decisions that must be made by a partisan political appointee.

President Ford, the Secretary of the Treasury is going to decide how much money President Ford and Mr. Reagan get for the New Hampshire primary, that is a curious litigate for forum.

There are other discriminations that I have not even been able to touch on like the exclusion of appellant McCarthy solely on the ground that he is an independent rather than affiliated with a political party from any subsidies at any stage.

We think that some problems of this nature, whether the same ones or other ones will be present in any kind of Federal subsidy scheme that is formulated.

Any such scheme will establish some parties by favoring them over others, just as this scheme establishes the two existing major parties.

As Mr. Justice Douglas wrote in Abington School District versus Schempp, the most effective way to establish any institution is to finance it.

Such political establishments, we think, cannot be squared with freedom of speech of association or with the general welfare or indeed with the provisions of Articles 1 and 2 which contemplate free elections in this country.

Most of these objections would not apply to a genuine check off scheme, whereby each citizen would designate party or a candidate to receive the sum he checked off.

There is nothing impractical about a scheme like that as we have shown in our reply brief.

If there is anyone for federal involvement in the campaign funding mechanism at all, such a method would plainly be less intrusive mean.

Thank you.

Warren E. Burger:

Mr. Cutler.

Lloyd N. Cutler:

Mr. Chief Justice and may it please the Court.

Since Mr. Clagett has not invested much of his oral argument in his arguments as to the power of the Federal Government under the general welfare clause to provide for public financing of election campaigns and since he has not devoted much time to his argument that any such plan violates the Establishment Clause of the First Amendment which he moves by implication over into the free speech Section of the First Amendment.

I shall concentrate, as he did, on the alleged discriminatory effects of this particular proposed public financing plan against the smaller parties.

I would like to first stress that the appellants show little proof of injury to them to support their claim that these provisions should be voided before they have had a chance to work in a single election.

Of the twelve plaintiffs in this action, only four assert any interest in the public financing of presidential campaigns.

One is Eugene McCarthy whose claim is wholly academic as to discrimination because he has testified on deposition in this case, that he would have not accepted public financing even if he was eligible.

William H. Rehnquist:

He has no standing for that reason to complaint that somebody else has get it?

Lloyd N. Cutler:

If this were an attack on any public financing, Mr. Justice Rehnquist, yes.

But the attack at least on the discrimination front is an attack that the public financing provided to the so called major parties is a discrimination against him.

William H. Rehnquist:

And you say he cannot attack that because he would be —

Lloyd N. Cutler:

We say he presents no case to you that he is being discriminated against by reason of the 5% provision or the money before or money after provisions when he says I would not take it anyway, if it were offered.

Audio Transcription for Oral Argument – November 10, 1975 (Part 1) in Buckley v. Valeo

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Lloyd N. Cutler:

The same is true of course of his party, his committee for a constitutional presidency which is a second plaintiff.

The same is true of the Libertarian Party which testified on deposition that it would not accept public financing if offered and in the case of the fourth plaintiff, the Conservative Party of New York has never nominated a presidential candidate who was not also a candidate of the major party and thus entitled to the full allotment.

And no other political party or any present aspirant for their 76 nominations is before you in this case, although the Socialist Workers Party has filed an amicus brief.

So most of the fascinating hypotheticals which fill appellant’s briefs and our replies what would have happen in 1856, Mr. Justice Stewart, whether the equal amounts for the first and second parties are unfair as between the two of them or vis-a-vis third party, what would have happen of, Bull Moose, Eugene Debs, we say or just at the moment at least fascinating hypotheticals for the political huts totally that can justly and should better be left for another day.

Warren E. Burger:

Mr. Cutler, refresh my memory if you can on the largest percentage of vote that any third party has ever received in our history?

Lloyd N. Cutler:

It depends on how you define third party Mr. Chief Justice.

If you define —

Warren E. Burger:

Well third, went after the first two in any particular election?[Laughter]

Lloyd N. Cutler:

Well, if you say after the first two in any particular election and if you ignore some of the very early elections in the 1832 period and there abouts, I suppose the largest percentage would be the percentage compiled by Bull Moose, by Mr. Roosevelt when he was running in 1912, which I believe is of the order of 29% to 30%.

The reason I asked about how you define the third party is there are several other new parties running for the first time in a new election that did much better than that.

There are some if I can find my reference for a moment such as —

Warren E. Burger:

The next nearest to Mr. Theodore Roosevelt support the Senator LaFollette back in the 20’s?

Lloyd N. Cutler:

I have not.

Senator LaFollette, got about 9% I believe.

All of these figures are — well, I believe they are in the joint appendix at about pages 34 and 35 of Volume 2 (a), but there are candidates of course like Mr. Fremont, the Republican candidate in 1956, who finished as the second candidate in that year.

There are candidates like Governor Wallace in 1968 who got I believe something like 12 ½% to 13 ½ % of the total vote.

Indeed there are in the 36 elections, since 1832, defining small parties as parties coming on the scene for the first time or too small parties.

There are ten examples in that table I referred you to.

It is pages 35 to 42 of Volume 2 (a), ten examples in 36 elections of candidates who achieved better than 5% so it is a no sense an impossible dream.

The appellant’s focus on the 5% floor based on votes in the preceding election as a condition of pre-election financing and based on votes in the current election as a condition of post election financing as their principal claim of discrimination.

And I would like to deal with that first from the standpoint of the floor itself and second as from the standpoint of the alleged discrimination between pre-election and post-election financing.

These provisions are attacked as showing a studied congressional disregard for the third parties, but to the contrary as the Court of Appeals found, that Congress took great care neither to favor nor to disfavor the smaller parties and it fixed on the 5% floor and the other objectively measurable features of this plan in a careful effort that it was found in belief that it was following the guidance of this Court.

The original public financing measures, you may recall was enacted in 1966.

It set a floor of 7% based entirely on results in the preceding election.

Nothing whatever was provided based on results in the current election.

That law was suspended by Congress the following year.

In the next year, in 1968, you decided Williams against Rhodes and in 1971, you decided Jeness against Fortson and it was based on the guidelines provided by those two opinions that Congress in 1971, just a few months later enacted the fore runner of Chapter 95.

And, the 5% figure was taken directly as I said from Jeness, based on the holding that before providing access to the credit ballot, a state can reasonably require a showing of a significant modicum of support and that 5% was a reasonable flow for that purpose.

And if you look at the report of the Senate Rules Committee, proposing that legislation, you will see it refers specifically to Jeness and to Williams against Rhodes that it specifically recognizes the constitutional right of a minor party to grow into a major political force and that it correctly, we believe said quoting Jeness, that it’s Bill did not freeze the political status quo.

William H. Rehnquist:

Mr. Cutler, do you think that perhaps the state might have more latitude than Congress since the state that is responsible for the physical preparation of the ballot and the limitation somehow of the size of the ballot, whereas presumably Congress does not face exactly that problem doling out money?

Audio Transcription for Oral Argument – November 10, 1975 (Part 1) in Buckley v. Valeo

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Lloyd N. Cutler:

I see a distinction, Justice Rehnquist, between the preparation or between a standard for qualification to be on the printed ballot perhaps and qualification to receive federal financing, but I do not see any other distinction between the constitutional standards applicable to the state and those applicable to the federal government or the need that either is trying to serve in disposing of frivolous candidacies and doing its best to see that the election itself does not suffer from splintering and serves the idea of a two-party system as long as it does not favor two particular parties.

William H. Rehnquist:

What interest is Congress pursuing in as you say making sure that thing does not splinter?

I mean, how would you define that, is it a legitimate or desirable goal on the part (Inaudible)?

Lloyd N. Cutler:

Well, if I would define it and precisely the way I believe the this Court defined it in Storer Against Brown, in American party Against White and in others of state ballot and state primary financing cases in which you held that one of the legitimate public aims of the government would be to foster some stability in the political process by having the ultimate election at least be one that was not an opportunity to continue the sort of intra party fights that had going on during primaries and during the preparatory process, so that the ultimate outcome of the election could come as close as possible to reflecting the views of a majority.

William H. Rehnquist:

And you see no distinction the state’s role and Congress’ role —

Lloyd N. Cutler:

Well, I do not see it, Mr. Justice Rehnquist, in the sense that the same interest, if it is applicable at the state level is infinitely more applicable at the national level, considering that many responsibilities on the national government and the interest that must exist at the national level to not to have the problems of many splinter parties none of which has a majority and not to have a President elected either by a plurality or perhaps even by a minority of the electorate.

Appellants have argued that the 5% figure upheld in Jeness was less restrictive because it was a figure for a petition that could include voters who had voted for other candidates in the preceding election or who had signed other petitions.

But the 5% in this floor may well be a less onerous requirement because it is 5% of a much smaller universe.

It is 5% of the 60% or 70% of the electorate at votes which is something in the national scale of the order of 4 million people, rather than 5% of those registered as eligible to vote which must be well over 5 million because the number of eligible, when I say — I will correct myself, not eligible to vote, registered to vote, because of the number of eligible voters in 1976 is estimated to be something of the order of 150 million people of whom or probably well over 100 million will actually be registered.

Appellants have not proven as the Court said in Jeness that one 5% goal as any significantly harder to reach than the other and it would seem to us that this one satisfies not only the test of Jeness, but also the test of Storer against Brown which also was 5% of the votes cast in the preceding election, although it was on petition basis, but the Court had trouble with that level in Storer against Brown not because it was 5% of the voters in the preceding election, but because excluded from that universe or any people who had voted in the primaries, something that does not happen here.

We would also say that even if Congress was constitutionally wrong in setting a 5% floor of votes as a condition for public financing that would not require the chapter to be invalidated in its entirely.

When a statue discriminates unconstitutionally because of under inclusion, the Court need not declare that statue a nullity, but can extend the coverage of the statute to those who are grieved by the exclusion if that would better effectuate the legislative purpose and of course you did that last term in Weinberger against Wiesenfield in which you found it was unconstitutional to bar Social Security coverage for widowers while giving it to widows.

You did not declare it unconstitutional to pay widows, instead you took care of it on an under inclusion basis by saying that widowers also had to be paid.

Applying the same theory here, we say it would consist, that certainly be more consistent with the congressional intent rather than to strike down the entire public financing scheme to extend public financing on a proportional basis to parties or to candidates who garnered less than 5% of the votes in the preceding election.

Next, the attack is on any floor based on results in the preceding election because it bars the candidates of parties falling below that floor as well as candidates of no parties or of new parties from receiving any public financing before the election.

They have not suggested anymore workable method of proving before an election and then a significant modicum of support.

The latest idea that Mr. Clagett has put forth signatures of 5% of the eligible voters on a petition, as in the case of Jeness, we would say is highly impractical and certainly whether or not Congress could have chosen that method.

One, it is entitled to have rejected it.

5% of the registered voters in Georgia was 88,000 voters.

5% of the registered voters in the United States as I indicated earlier is probably well over 5 million voters.

For a candidate to compile into the FEC election Commission have to verify some 5 million signatures, voters in 40 to 50 states raises enough questions about cost and feasibility and Jeness according to the stipulation in that case at page 87 on file of the Court, the cost to Georgia of verifying the 88,000 signatures was approximately a dollar for signature.

That cost was something like 75 to $80,000.00 for each of the two petitions that the Court has reasoned that Georgia had recently cleared in that case.

Moreover, as the Court of Appeals found, the appellants have failed to show that the inability of those who fail the 5% test to obtain pre-election financing, disadvantages them in any way.

Of course, pre-election money would be better than post election money, but even before the advent of major party financing — of public financing I am sorry, the major party candidates were able to raise pre-election money to a vastly greater extent than the smaller party candidates.

And Chapter 95 is not going to change that differential to the detriment of the smaller candidates.

In 1972, the Republican candidate raise nearly $60 million privately, most of it before the election.

The Democratic candidate nearly $39 million privately, most of it before the election.

Even if you applied retroactively the rule of the new statute against contributions in excess of $1,000.00 and eliminated all of those excesses from the 1972 figures, each candidate raised well over $24 million dollars.

All of the minor party, presidential candidates combined, raise approximately $1 million.

1% of the 100 million that the major party candidates raised, if you ignore the $1,00.00 ceiling and 2% of what they raised if you apply the $1,00.00 ceiling.

Audio Transcription for Oral Argument – November 10, 1975 (Part 1) in Buckley v. Valeo

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Lloyd N. Cutler:

So we would say to you that in 1976, at least if you look at the 1972 figures, the small party candidates and any no party candidates certainly are not going to be worse off vis-a-vis the major party candidates in terms of pre-election funding because of Chapter 95.

In fact, if you take into account, the ceilings on contributions and the ceilings on expenditures, it looks as if they would very likely be better off.

And at the very least as the Court of Appeals agreed, they have not proven any real danger that they are going to be worse off.

Next, I would like to come to Mr. Clagett’s point about the constitutionally required alternative means for pre-election financing.

Leaving aside the distinction between pre-election and post election financing, of course, an alternative means is provided in the statute because a party which does achieve the 5% level in the current election will receive post election money and I will get to Mr. Clagett’s ,point about the lone distinction in just a moment.

Warren E. Burger:

Mr. Cutler, if the First Amendment violation is found to exist, determined to exist, does it make any difference then whether it operates against small and new parties or for them or against or for the major parties?

Lloyd N. Cutler:

I would suppose not Mr. Chief Justice, but I do not apprehend the argument about discrimination in the statute to be a First Amendment argument.

I understand it to be a Fifth Amendment argument.

They are only First Amendment argument against public financing is one which Mr. Clagett did not really address him self to in the oral argument.

Both of us have discussed it extensively in our briefs.

That is the claim that it somehow violates the establishment language of the religion clause of the First Amendment which he would move by osmosis into the speech and assembly portion of the First Amendment.

Byron R. White:

Does the Fifth Amendment had question take on a different aspect if you are in the voting — in election area in terms of what you have to — what the government might have to show?

Lloyd N. Cutler:

Well, I would certainly agree Justice White that any public financing scheme or ballot access scheme which discriminated unfairly against minor parties or new parties would be unconstitutional, perhaps it is just as unconstitutional under the First Amendment as under the Fifth Amendment, but the essence of the showing would be a showing of discrimination.

And absent the showing of discrimination, it would seem to me that the power to provide for the public welfare —

Byron R. White:

You are not saying that there is discrimination that is testified, you are saying that no discrimination?

Lloyd N. Cutler:

We are saying there no unconstitutionally invidious discrimination.

Byron R. White:

There is some discrimination?

Lloyd N. Cutler:

At the very least, there is recognition of the differences between the larger parties and the fringe parties just as there was recognition of those differences in Jeness against Fortson.

Byron R. White:

And so there is discrimination and you say there is reason enough for it?

Lloyd N. Cutler:

I would go back to Mr. Justice Stewart’s phrase that sometimes (Voice Overlap) yes,[Laughter]

Potter Stewart:

It is differentiation?

Lloyd N. Cutler:

Yes.

I would like to come back though to the alternative means that have been provided for pre-election financing.

First, just as the Court in Jeness found that this was one of the alternative means there, an individual aspirant for the presidency, instead of competing for the nomination of a minor party or going it alone, could as plaintiff McCartney did in 1968, compete for the nomination of a major party and if he succeeds, he would have of course get the full entitlement of the funds.

If he prefers the nomination of the minor non qualifying party, Chapter 95 permits its candidate as well as those who are entitled to some public financing, but less than the full allotment to continue to raise private contributions, while it requires those who qualify and except the full 20 million not to raise any private contributions.

So that any small party or no party candidate will demonstrate sufficient strength, will be free to raise pre-election funds commensurate with that strength and as was noted a few moments ago, George Wallace did precisely that in 1968.

He raised almost $7 million which was 12 ½ % of what all presidential candidates raised at a time when he accounted for 13 ½% of the total presidential vote and certainly a lot of that strength was visible before the election and that is why he was able to raise the money.

More —

Potter Stewart:

In other words, Mr.– are you directing yourself Mr. Cutler to the situation where a candidate runs in let us say Democratic party primaries in the various states?

Well, some runs well and some runs badly in others and then at the Democratic National Convention he is not nominated and then that same man decides to run as a no party person, an independent person, what happens to the matching funds that he has collected as a primary candidate if they are unexpended?

Audio Transcription for Oral Argument – November 10, 1975 (Part 1) in Buckley v. Valeo

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Lloyd N. Cutler:

I have to admit Justice Stewart that is a question I have not thought of that any candidate would have money spend it matching (Voice Overlap)

Potter Stewart:

Money spent (Inaudible) speculative situation?

Lloyd N. Cutler:

No, but I would think his funds are his funds if he was running in the primary and that they would be available to him thereafter and certainly he could thereafter running as an independent and having run as an independent, he might make himself eligible for funds in the next election.

I would like to deal very briefly if I could with the point that post election financing is illusory because it can only be used to repay loans.

Well, of course, it is perfectly possible to raise money before the election on a contingent loan basis.

Many, many contributions so called are given in the form of loans to be repaid, if the candidate is in a position to repay those loans.

Potter Stewart:

Incidentally, this is taking us back to the subject to this morning.

Are these limitations on contributions and on expenditures, contributions particularly, do they cover loans or do they deal with loans?

Lloyd N. Cutler:

Loan, a contribution includes a loan —

Potter Stewart:

It does.

Lloyd N. Cutler:

— except for this particular purpose of defining what a recipient of post election public financing can spend.

He may repay, use some of that money to repay a loan and that loan is excluded from the definition of contribution for that purpose.

Potter Stewart:

Just for that purpose?

Lloyd N. Cutler:

Right.

I would like to go very briefly to plaintiff McCarthy who says that he can never be entitled to this public financing he sustains because he is not a party candidate.

The answer to that as the Court of Appeals indicated is there is no definition of party in this portion of the statute.

He has a committee for a constitutional candidacy, I believe it is called McCarthy 1976.

That committee could very well be defined as a party and the FEC is holding rule making proceedings considering that very issue right now.

I have not had time to get to the less restrictive means of the voucher plan and the tax return check off.

I would like to discuss them if I could just vary briefly.

The voucher plan has a number of difficulties of which the most significant is the danger of block trading of vouchers, vouchers would be like money people could buy them.

They would also be very high administrative cost in dealing with vouchers worth only $1 or $2 that cost in collecting those, might very well turn out to be more than what they would be worth in the end.

So far as the check off for a candidate of your choice is concerned, since the check offs are keyed to the four tax dates, it is not even clear on the last of those dates April 15, 1976 who the candidates are really going to be.

Moreover, Congress wanted and I think, again this was a legitimate congressional purpose to have equal allotments of funds to any party that got over 25% in order as much as possible to balance things out for a two or three party race in the next election and a candidate of your choice check off provision could not be accommodated to that sort of a system.

Lastly there is to matching suggestion which is not advocated by appellants because they object to matching on other grounds, but it is suggested by the Attorney General and matching, we submit suitable as it maybe for the primary period is wholly unsuitable for the regular election for the very same reason I have mentioned earlier, Mr. Justice Rehnquist, for legitimate interest of either the Federal Government of the State Government in trying to develop some kind of a majority choice at federal election.

So a proliferation of many, many candidates in the final election is something Congress, we say, could constitutionally prefer not to encourage.

Finally, with respect to the primary system, the matching for primaries, we will have to rely on our briefs for most of that, but I do want to point out to the Court that there is not a single plaintiff before it who intends to enter the primaries or who has pleaded that he intends to do that.

Of all the hypothetical issues raised in this case, all put before you by non plaintiffs or involving non plaintiffs, the one least related to these particular plaintiffs is entering a national primary.

William H. Rehnquist:

Mr. Cutler, in view of your contentions about standing, it becomes fairly important whether this public financing question is regarded as a First Amendment question or a Fifth Amendment question, does it not, because ordinarily we would not apply overbreadth if we just to have Fifth Amendment?

Lloyd N. Cutler:

Well, certainly the appellants have raised First Amendment issues which I did not cover, namely these establishment clause issues.

Audio Transcription for Oral Argument – November 10, 1975 (Part 1) in Buckley v. Valeo

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Lloyd N. Cutler:

That aside, we would argue it is essentially a Fifth Amendment rather than a First Amendment question.

Thank you very much.

Warren E. Burger:

Very well, Mr. Cutler.

(Inaudible) reserve five minutes for rebuttal.

Brice M. Clagett:

Thank you Mr. Chief Justice.

One of Mr. Cutler’s last point was that the check off was impractical because designations are key to the April 15 income tax date.

The answer to that is found in our brief.

There is no reason in the world why there need be.

You could have a check off, which was made by a separate form immediately after the nominating conventions for example or something of that nature and that could apply for all the four years.

You would not have a $1.00 check off every year, but a $4.00 check off say immediately after the conventions and election years.

It is perfectly practical simple system which would avoid all this business of Congresses deciding who gets the money and when and what basis.

It would maybe mean that the Government was acting as a simple conduit for money that went from the taxpayers.

William J. Brennan, Jr.:

Are you going to address the (Inaudible)

Brice M. Clagett:

Yes, Your Honor.

We definitely have a First Amendment argument as well as a Fifth Amendment argument here.

If you consider for example your decision in International Machinists Association versus Street where you held that it violated First Amendment freedom of speech for a labor union with the union-shop contract to spend members’ dues to support political candidacies with which some members disagreed.

Just here, tax funding is used to pay candidates without reference to which candidates, the taxpayer wishes to support.

Appellees’ argument that the check off is voluntary is wholly beside the point.

A taxpayer not checking off does not have his taxes reduced.

The money for the fund comes out of the general treasury and thus is involuntarily contributed by all taxpayers.

Potter Stewart:

Well, Mr. Clagett, this constitutionally equivalence simply to in appropriation by a Congress from the general funds —

Brice M. Clagett:

No.

Potter Stewart:

— stands for this purpose?

Brice M. Clagett:

No because —

Potter Stewart:

What does the check off really constitutionally have to do with this?

Brice M. Clagett:

No, the check off is illusory that is my whole point —

Potter Stewart:

(Voice Overlap) one of my question.

Brice M. Clagett:

It is just like a general appropriation.

It is just like the appropriation out of its general funds that the labor union made in the Street case and what made that unconstitutional was that money was being used to support some and not all political speech, without regard to what political speech the people’s money it was wished to support.

Potter Stewart:

Well, is it not the essence of Majoritarian Government, Mr. Clagett to have Congress appropriate money for variety of different purposes that many taxpayers think is quite wrong?

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Brice M. Clagett:

Yes, Your Honor and the Street decision made the same distinction.

It said we are not saying that in labor union cannot dues and do lots of things with which individual union members disagree.

The one thing it cannot do, you held was to subsidize political speech with which some members disagreed to support political candidates with which some members disagreed.

You said that was different.

That posed a First Amendment problem.

We think exactly the same analysis applies here.

Byron R. White:

Did the Street suggest that a labor union could not solicit from its members contributions for political purposes?

Brice M. Clagett:

Not at all Justice White.

Byron R. White:

And that did it suggest that if it did solicit for political purposes it can only spend it for the particular candidates that individual contributors designated?

Brice M. Clagett:

No sir.

This was dues that I was talking about.

Just as here we are talking —

Byron R. White:

And also the dues that law required them to collect?

Brice M. Clagett:

Yes sir.

Byron R. White:

It was not just some voluntary item.

It was — because the force of law was behind them?

Brice M. Clagett:

That is absolutely correct, just as here the collection of taxes as the force of all behind it and the check off is academic because the money comes out of the general treasury.

William J. Brennan, Jr.:

They not be that separate Mr. Clagett, but there of course the remedy was for the attack of the union member to get it back.

Here, he may check off or not as he pleases, but it does not get his dollar back.

Those in the general treasury is taxed.

Byron R. White:

And he certainly has not consented to the legality use for political — to subsidize political speech?

Brice M. Clagett:

The people who have not checked off, have not consented to that and it is their money that is really being used, that is my point.

Byron R. White:

A person who checks it off, however, is —

Brice M. Clagett:

He has consented.

Byron R. White:

He has consented.

Brice M. Clagett:

He has consented, there is no question.

Byron R. White:

But if other people complain because there had not been a check off, this would be in the general fund.

Brice M. Clagett:

That is correct.

Byron R. White:

Somebody else’s taxes are being reduced?

Brice M. Clagett:

That is exactly right.

Audio Transcription for Oral Argument – November 10, 1975 (Part 1) in Buckley v. Valeo

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Warren E. Burger:

All of those problems would have been resolved, would they not largely, if not all, if the check off had been to add a dollar to the taxpayer’s bill and then give that money to this general fund?

Brice M. Clagett:

Yes, Mr. Chief Justice.

We would have no problem with that.

Along the lines I have indicated if it resulted still in the money being paid out pursuant to an allocation by a Congress, we would still have at least the discrimination point and perhaps more.

Warren E. Burger:

Your time has expired, Mr. Clagett.

Brice M. Clagett:

Yes, one final word on this credit point that Mr. Cutler mentioned.

The exemption of loans from the contribution definition or rather from the contribution limits for post election funding applies only to bank loans and banks are not going to lend money to new or minor political parties without a guarantee and the contribution limit does apply to the guarantee.

Therefore, the remedy Mr. Cutler suggests is utterly illusory.

Lewis F. Powell, Jr.:

Mr. Clagett one final question.

You are not saying as I understand your position that public financing by the government, rather the general treasury for example is invalid per se, you are saying it is invalid when it is discriminatory?

Brice M. Clagett:

We do not believe there can be a non discriminatory system.

Lewis F. Powell, Jr.:

Oh! You do not?

Brice M. Clagett:

No, we do not.

Lewis F. Powell, Jr.:

No way?

Brice M. Clagett:

No way, but this certainly is not is one that comes closest to it.

I can think of a lot less discriminatory ones than this.

Potter Stewart:

But as I understand from your brief at least that you say that even assuming there could be a non discriminatory system, it is nonetheless unconstitutional, violative of the First Amendment?

Brice M. Clagett:

Yes sir and one —

Potter Stewart:

(Voice Overlap) say that?

Brice M. Clagett:

Indeed and one reason I suggest that is that in Ripen Society case, the DC circuit just a couple of weeks after it decided this case, said that this very public financing scheme probably turned all political party activities in to state action —

Potter Stewart:

Right.

Brice M. Clagett:

— for Fifth and Fourteenth Amendment purposes.

And in Cousins v. Wigoda and the O’Brien versus Brown, you expressed great concern that political parties have some substantial measure of control over their own affairs.

This would destroy all that.

That is one of the several reasons why do we believe that yes it is per se unconstitutional.

Warren E. Burger:

You may now proceed to your argument chief and then on the third point Mr. Clagett?

Brice M. Clagett:

Yes sir.

This part of the case presents the questions whether Congress may establish to administer and enforce the federal action law with the complete panoply of powers appropriate to that end.

An agency which is neither part of the executive branch nor an independent agency, but rather an alter ego of Congress itself which the Commission has conceded to be.

No one, I think denies that the question is substantial and indeed serious.

Audio Transcription for Oral Argument – November 10, 1975 (Part 1) in Buckley v. Valeo

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Brice M. Clagett:

Certainly Congress’ normal function in our constitutional scheme is the pass laws, not to administer or enforce them.

It is urged at the outset that these questions are not ripe for decision and that we have no standing to raise them.

I turn then first to rightness.

Insofar as we attack the method of appointment of the Commission, it is right to exist is constituted.

We are talking of course about appointments which were made many months ago.

The Commission is so appointed as in full operation.

Everyday it is taking actions which have vast impact on the political process.

William H. Rehnquist:

But I would think Mr. Clagett that if you were to be able to challenge that without the Commission ever having done anything to any of your clients, you would have to validate virtually a taxpayer’s action for the Federal Government which this Court has never done?

Brice M. Clagett:

Not at all, I submit Justice Rehnquist.

The appellants are all members of the class which have a right to seek advisory opinions.

As political candidates and parties and committees, they are directly impacted by the Commission’s rules and regulations.

The Commission has done things that effect them directly and which harm them.

Just two or three examples, as challengers which most of these appellants are and as parties an interest supporting challengers, these plaintiffs are drastically injured, not by what the Commission did ironically in the office account rule, but in Congress’ veto of that rule which the Commission passed.

The Commission passed the rule which would to some slight modest extent had mitigated incumbent advantages, and therefore, benefited the appellants and Congress used the legislative veto on it.

So the result of the establishment of the Commission as a legislative agency and subject to the legislative veto is that appellants were injured.

William H. Rehnquist:

But they not injured not by the action of the Commission, but by Congress’ action over turning the Commission?

Brice M. Clagett:

They were injured by the establishment of the Commission, by the vesting of enforcement and interpretation parallel to this statute, in an agency which could not insist on its own rule, but which was subject to Congress’ legislative veto.

William H. Rehnquist:

But then that stems from the availability of the veto and not the composition of the Commission?

Brice M. Clagett:

What we challenge is the Commission as a legislative agency.

It is made in legislative agency by several things, but essentially by two things.

First, the appointment powers, second, the legislative veto.

In this particular instance it was the legislative veto that was the more conspicuous element of legislative control.

This is not the only thing the Commission has done that hurts appellants.

The advisory opinion, subjecting lawyers and accountant’s fees to the expenditure limits which came down about ten days ago I believe and which we have lodged with the Court, was as the two dissenting Commissioners said terribly hostile to the interest of new comers and challengers to the political scene, who have greater burdens in trying to figure out what this legislation means and to comply with it than incumbents do.

This advisory opinion expressly injured challengers directly in that sense. Senator McCarthy, the Commission has tried to audit him.

They have threatened him with the use of their civil enforcement power.

They backed off a bit after this litigations terminated query whether they will continue backing off on that.

Certainly he believes that he is directly injured by attempts to audit him to find out the identity of his contributors down as low as $100.00 and so on.

The disclosure regulations which there is just a notice so far and they have not been formerly adopted yet, the great burdensomeness of those of those regulations, what a number of observers have called the almost incredible complexity and the new conditions, the new requirements that the Commission is planning on top of the statutory requirements.

For example keeping photostats of every check which there is nothing about in the statute.

Audio Transcription for Oral Argument – November 10, 1975 (Part 1) in Buckley v. Valeo

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Brice M. Clagett:

These similarly impact directly on appellant’s to the extent that they have to file reports which they almost all of them do.

They have filed them and they injure appellants certainly insofar as they are challengers and new comers.

It emerges clearly from the statutory scheme that the law is to be administered and enforced primarily by the Commission itself through a whole spectrum of powers.

Statements of general policy, both interpretative and substantive rule making, advisory opinions, entertaining complaints, conducting investigations and audits, holding hearings on complaints and undertaking conciliation procedures, that battery of powers and the overwhelming majority of cases should be sufficient to compel the compliance with the Commission’s view of the law.

Resort to a civil enforcement proceeding or they are brought by the Commission itself or by the Attorney General at its direction should rarely be necessary.

The bulk of these powers have already been exercised.

The Commission has made rules.

It has issued advisory opinions.

It is administering the federal subsidy provisions, certifications and what not.

It has also investigated complaints, and conducted audits and it has we are informed, procured compliance with its views, through conciliations proceedings in at least 50 cases so far.

Those proceedings are secret, so they are not announced to the public, but were told there have been at least 50 of it that have been brought to conclusion so far.

The Commission is even exercised the power of which the Commission’s counsel tells you, the Commission does possess, that is the power to issue rules governing both the meaning and the administration of the expenditure and contribution limits.

I confess to a lively curiosity as to what precious Spritzer is going to tell you about that.

But as to all the powers except for rule making and bringing enforcement proceedings, the Commission and its counsel are in agreement that they apply to the expenditure and contribution limits as well as to the disclosure provisions.

In any event, Congress gave the Commission all of its powers.

Those exercised and those few such as the power to disqualify a candidate which are yet un-exercised and the issue here is the facial constitutionality of legislation which does that when the depository of power is an arm of Congress.

Can Congress validly set up this sort of agency with all these statutory powers by this method of appointment and subject to this legislative veto —

William H. Rehnquist:

Well, you say the facial constitutionality, now what does that mean outside of the First Amendment area?

Brice M. Clagett:

Separation of powers, Justice Rehnquist.

William H. Rehnquist:

Would you say that there is no need for the person challenging the Commission to have been affected or be in a controversy with that if he challenges the separation of powers?

Brice M. Clagett:

Well, that is a standing question and as to our standing, the Court of Appeals of course had no problem with it.

The citizen or taxpayer analogy we think it certainly wrong.

I have mentioned the number of aspects where we have been hurt by specific things that the Commission does, but even beyond that, separation of powers was not put into the constitution for the benefit of federal office holders.

It was put there to avoid tyranny that is what Madison said.

He said if the legislature determines the powers the honors and the emoluments of the office, we should be insecure if they were to designate the officer also.

Now, we think this case is just like Glidden company versus Zdanok.

There, the litigant was held to have standing to raise the article three question because the Court held that the article 3 provisions were put in there, at least to impart for the benefit of litigants.

William H. Rehnquist:

But of he had a case decided against him on the merits by the Court, including a judge of who may complain?

Brice M. Clagett:

Yes sir.

William H. Rehnquist:

And my question really is not so much to suggest that you do not have an actual case or controversy, but why do you refer to it as a facial attack?

Audio Transcription for Oral Argument – November 10, 1975 (Part 1) in Buckley v. Valeo

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William H. Rehnquist:

If in the fact the Commission has harmed you, why do you need to talk about the facial on constitutionality?

Brice M. Clagett:

We think the Commission harms this by existing in violation of the separation of powers and exercising regulatory control over us which it is doing everyday.

We have had to file reports with them.

We are subject to their opinions.

We are subject to their rules.

If we do something they do not like they will take us through this conciliation proceedings and if we do not knuckle under them then they will take this to the Court or have someone else do so.

Now, it is particularly poignant I think on that point that although far from necessary to our standing that appellants represent primarily challengers and new comers to the political process and we say that by having these laws administered by a legislative agency, Congress has deliberately retained enormous discretion, power and control over the enforcement and administration of these statutes which turn so sharply on the comparative fairness and equity as between challengers on the one hand and incumbents on the other.

One side has retained the power not only to set, but to administer and enforce the rules of the political game.

As challengers are newcomers, we think we have to have standing to question that and we do not think it goes anywhere near as far as standing in great many of your cases.

As to the merits, once the Commission is conceded to be a legislative agency which can do nothing that Congress could not do itself, how can its appointment and powers and the legislative veto possibly be justified?

The Commission’s answer is that there is something special about political campaigns which makes regulation of them different from every other subject to federal law.

Potter Stewart:

Beside and before you get that you say what is considered to be a legislative agency?

You say it is a legislative agency.

Brice M. Clagett:

Yes.

Potter Stewart:

Because of its membership, because of who appoints its member or majority with this membership?

Brice M. Clagett:

Who appoints the membership –

Potter Stewart:

Functions which are —

Brice M. Clagett:

Who appoints the membership plus the legislative veto.

There is ancillary things, for example, the oversight of budget functions which congressman Hayes has so vividly said is going to be used of the hell, but that is some to some extent at least prove any further plaintiff.

Potter Stewart:

For the plenary of the majority of its members are appointed by the Congress to ex-officio —

Brice M. Clagett:

Yes.

Potter Stewart:

— agents of Congress are members?

Brice M. Clagett:

Yes.

Potter Stewart:

And then four others out of the total of eight —

Brice M. Clagett:

Yes.

Potter Stewart:

— six voting numbers are appointed by the Congress, that is one reason?

Brice M. Clagett:

And all six are confirmed by both Houses?

Potter Stewart:

Right and then the other reason you said is, it is because Congress has an absolute veto of everything, anything it does?

Brice M. Clagett:

Exactly.

Potter Stewart:

Anything important it does?

Audio Transcription for Oral Argument – November 10, 1975 (Part 1) in Buckley v. Valeo

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Brice M. Clagett:

Exactly.

William H. Rehnquist:

And it is not — Congress is one house, is it not?

Brice M. Clagett:

Excuse me?

Either House, yes, Justice Rehnquist either house.

William J. Brennan, Jr.:

How is all the members of the presidential appointees, but either House could veto now and then?

Brice M. Clagett:

We think it would then be an executive agency, but the legislative veto would be bad.

William J. Brennan, Jr.:

It is just the legislative veto itself renders this —

Brice M. Clagett:

Yes.

William J. Brennan, Jr.:

— scheme on constitution.

Brice M. Clagett:

Oh! Yes, we think so, Your Honor.

Byron R. White:

And insofar as it relates to enforcement?

Brice M. Clagett:

Yes.

Byron R. White:

Would you say that if it where an executive agency, but the Congress retained the power to veto a regulation?

Brice M. Clagett:

There has been a great deal written about that sir.

Byron R. White:

So what is the answer?

What do you say the answer should be here?

Brice M. Clagett:

I am sort of a purest about it.

I think they are unconstitutional.

Byron R. White:

But even the Congress gives an agency power to strike out the statute by a regulation?

Brice M. Clagett:

Yes.

Byron R. White:

But Congress says we want you to submit it to us first to see if it really conforms with our legislative intent?

Brice M. Clagett:

Yes.

Byron R. White:

You say that is unconstitutional?

Brice M. Clagett:

Yes because Congress —

Byron R. White:

You know the President and the President cannot require it?

Brice M. Clagett:

The president cannot —

Byron R. White:

President could not require it?

Brice M. Clagett:

Could not require what?

Byron R. White:

An independent agency could not require them —

Brice M. Clagett:

No.

Audio Transcription for Oral Argument – November 10, 1975 (Part 1) in Buckley v. Valeo

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Byron R. White:

— to submit some regulation to him?

Brice M. Clagett:

That is correct.

William H. Rehnquist:

Because if you are right —

Brice M. Clagett:

But the President can, the President is entitled to participate in the making of new law.

Byron R. White:

Maybe our rules, maybe the rules of procedure of the constitution?

Brice M. Clagett:

Well, that does not post in executive legislative —

Byron R. White:

Yes.

Brice M. Clagett:

— problem in any of that, yes.

Byron R. White:

The judicial —

Brice M. Clagett:

Yes.

Byron R. White:

— the legislative one —

Brice M. Clagett:

Yes.

William H. Rehnquist:

If you right all the associate Justices of this Court would apparently still be making $39,000.00 a year, would they not?

I mean, all the Federal salary act provides for one House veto?

Brice M. Clagett:

Justice Rehnquist, the legislative veto can arise in a great number of different contexts.

For example, in the executive agreement context which so much has been written about, there it is a question of whether Congress is unduly intruding into the foreign affairs power.

There is no question of that sort here.

In some circumstances, it can arise when Congress is essentially making new law, or passing new statutes and there it has to have the concurrence of the President.

Here you have the legislative veto added to the appointment mechanism and we think that those two things put together, clearly make this Commission an arm of Congress, a legislative agency.

Now, all parties are agreed as to that.

The question then becomes, can a legislative agency, can an arm of Congress perform the functions, exercise the powers which Congress has been given here?

Could Congress perform these functions directly and if not, can it perform them through its controlled agent?

In other words, you do not, to resolve this case, have to hold that the legislative veto either as a general proposition or even in this one manifestation is itself unconstitutional.

The legislative veto comes in as one of those facts of life which make the Commission an arm of Congress and the question becomes whether the power, whether an arm of Congress can do this.

Byron R. White:

Just give me one example of what has the Commission done to you specifically, which in so doing represents a legislative rather than an executive function, whereas in executive function or the legislative function?

Brice M. Clagett:

They are executive functions.

Byron R. White:

Yes.

Brice M. Clagett:

But it cannot.

Byron R. White:

Name me one, name me one.

Brice M. Clagett:

Alright, the advisory opinion on attorneys’ and accountants’ fees.

Audio Transcription for Oral Argument – November 10, 1975 (Part 1) in Buckley v. Valeo

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Byron R. White:

Well now, that would be no difference in a regulation, would it?

Brice M. Clagett:

It could have done it by regulation, we assume it will.

Byron R. White:

So it is really — so you put that in a same category as the Congress retaining the power to pass on a regulation?

Brice M. Clagett:

Yes sir.

Byron R. White:

But it is no worse than that?

Brice M. Clagett:

Well, it will all depend on —

Byron R. White:

Is there anything any closer to sort of an enforcement action?

Brice M. Clagett:

Oh yes!

Byron R. White:

What is it?

That has not done any of these plaintiffs?

Brice M. Clagett:

Well, they asked to audit Senator McCarthy’s records. Senator McCarthy said, “I object!” They wrote back and this is on appendix to our brief, our first brief, not the reply brief.

They wrote back a letter which is attached there, it is page B 1 and B 2, the very last page of our first brief, in which they send, the Act assigned civil jurisdiction to the Commission of all apparent violations of the Act and of and then it goes and lists the expenditure and contribution limits and we have a right to conduct audits and so forth and we are charged to correct any apparent violations by informal methods of conciliation and if that does not work, we can bring an enforcement proceeding.

Warren E. Burger:

You are saying the enforcement proceeding function is exclusively an executive function?

Brice M. Clagett:

To enforce compliance with criminal statutes, yes Mr. Chief Justice, indeed, I am.

Byron R. White:

Including the investigative, the enforcement investigative functions?

Brice M. Clagett:

Yes indeed.

We see no reason why Congress directly or through an agent can go around investigating alleged violations of the election law any more than the account of the thrust law for purpose and enforcements.

Byron R. White:

Except for legislative purposes?

Brice M. Clagett:

Except for the legislative purposes.

Byron R. White:

Right.

Brice M. Clagett:

And that is — yes sir.

Thurgood Marshall:

(Inaudible) you say the statute is basically unconstitutional and all you bring us is what the Commission has done.

Does that have anything to do with whether it is spatially unconstitutional or not?

Brice M. Clagett:

The statutory language gives the Commission power to do those things, some of which it is done, some of which it has not done.

We think that it is–

Thurgood Marshall:

Are we free to interpret that without considering what the Commission has tried to do or do we have to be bound by what the Commission has done?

Brice M. Clagett:

We think the former, Your Honor.

You can consider not only those powers which the Commission has exercised, but those which it has.

It has exercise most of them.

There are only two as far as I know.

Audio Transcription for Oral Argument – November 10, 1975 (Part 1) in Buckley v. Valeo

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Thurgood Marshall:

You included that statement of the Commission and all in some memorandum I saw the other day.

You also referred us to New York Times or do you want us to consider that too, while we are at it?

Brice M. Clagett:

I think that was in the subsidy Section, was it not?

We think that all you need is the statute.

All you need is the statute, the powers which are given and the qualities that make it a legislative agency all are plain and set forth in the statute.

The only reason I have dwelt to any extent on what the Commission has done is that rightness in standing had been raised as issues.

Warren E. Burger:

How would you classify the power to strike the candidate from the ballot in which of the three categories, say that falls?

Brice M. Clagett:

I would have to put that in the fourth category Mr. Chief Justice and say that if something that no one can do, whether the executive, the legislator or the judiciary and I think Powell versus McCormack stands for that proposition.

It addressed to the later stage of the stage of exclusion, but if you can exclude a member when he comes for the house with the qualifications and the credentials I do not see how either Congress or anyone else could strike him off the ballot.

Warren E. Burger:

And you do not think that judicial review saves it any, the initial power of arrest with the Commission?

Brice M. Clagett:

No, I do not think that saves it all, Mr. Chief Justice.

It seems to me to be a power which the constitutional convention is quite clear.

It should not be exercised by anyone.

All the comments of the framers which are set out at such great length in Powell versus McCormack to the effect that it must be the people who chose their representatives and if there to be any limitations on who can become representatives, it must be the constitution itself which imposes them and no others, no others can sneak in there in any way whatsoever.

Madison and Hamilton were both crystal clear about that and it is all set forth in Powell versus McCormack and we think it follows necessarily from that that the disqualification power is on constitutional.

Warren E. Burger:

Now, what about a candidate who demonstratively not eligible to be a candidate?

This was not a citizen of the United States for an office which requires that.

You say no branch of the government will have any power to take him of the ballot?

Brice M. Clagett:

Well, there is no question that the house of course can exclude him —

Warren E. Burger:

After he is elected?

Brice M. Clagett:

— after he is elected.

The question then becomes whether one branch and if so which one could anticipate that and say we do not want you cluttering up the ballot when you are sure to be excluded when you show up.

I have not — I cannot say — I thought exhaustively about that question.

But the answer that immediately suggests itself for me, is that that should be left to the house at the time he shows up.

That it is to that house that the enforcement of those constitutional qualifications have been given and for anyone else to take him off the ballot would be to make someone other than the house, the judge of the qualification of its own members.

Warren E. Burger:

You mean that would be like the candidates who were refused to their seats because they held Commission as generals or in one case they held the Commission as the United States attorney with the same kind of mechanism?

Brice M. Clagett:

Yes sir.

Harry A. Blackmun:

Did you go so far as to a residential requirement?

Brice M. Clagett:

Our residential requirement is one of the constitutional requirements I believe.

Harry A. Blackmun:

Yes, but do you think anyone that no branch of government have government could enforce that except the house itself to which the person is elected?

Audio Transcription for Oral Argument – November 10, 1975 (Part 1) in Buckley v. Valeo

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Brice M. Clagett:

Well, the state can certainly keep him off the ballot, and I assume would do so.

Harry A. Blackmun:

Well, it succeeded in doing so in one of the Carolina last time, did it not?

Brice M. Clagett:

I am not familiar with that Your Honor.

Oh! Yes, of course I know yes, the governor —

Potter Stewart:

About the candidate Presidency who is not a native born citizen of the United States, natural born, excuse me, natural born citizens?

Brice M. Clagett:

I would think in pursuant of its power to regulate the time, place and manner of elections, Congress could certainly set up some mechanism to be administered by someone other than itself to make sure the people like that did not get on the ballot.

There is no question that the power — that the federal power — congressional power over elections is very broad, but it is a legislative power.

It is to be exercised by a law and there is all the difference in the world between saying that the Congress can legislate broadly on the subject on one hand and saying that it can retain to itself the enforcement within the administration power.

That is what wrong with the statute and the disclosure provisions do not have anything to do in our submission with the information gathering function on the ground that they are justified under.

Appellees themselves and Mr. Friedman this morning made it perfectly clear that legislative oversight is not the reason for the disclosure provisions.

The reason for the disclosure provisions are first to inform the public and second to enforce the contribution and expenditure limits and to call everything that the Commission does in the way of enforcing the disclosure provisions, mere information gathering is just we think completely spacious, they are just administering those as just as bad as administering the expenditure and contribution limits directly.

Warren E. Burger:

Mr. Spritzer.

Ralph S. Spritzer:

Mr. Chief Justice and may it please Your Honors.

I would like to take a moment at Mr. Cutler’s request to provide an item of information in response to a question asked earlier I think by Justice Stewart.

He would like to point out that it is Section 9038 (b) (3) which deals with matter of unexpanded primary matching funds and it does require that they be returned.

I propose of course to address myself to the question of the legitimacy of the Commission and of the powers that has been accorded it by the legislation.

And we do think as Justice Rehnquist’s questions have highlighted that there is a question of standing with respect to this part of the case which does lie at the threshold and does have to be addressed here.

By and large appellants accept the view that if this Commission had been appointed, all of its members by the President, that it would be able to exercise the powers that have been accorded it.

Warren E. Burger:

Did he answer that?

Ralph S. Spritzer:

There maybe an exemption, excuse me —

Warren E. Burger:

And the answer to that is the absence of the veto power also, I thought it coupled the two?

Ralph S. Spritzer:

He did Your Honor, but I think at least the fundamental objection to this Commission’s legitimacy is they put it into it having particular powers and I shall come to this veto, legislative veto point also.

I think their fundamental concern is the claim that this violates the President’s constitutional prerogatives to appoint officers of the United States.

And our point as to that is that it is hard to see how appellants have standing to act here as the President’s champion because this is a question which goes solely to the allocation of the appointed power within the federal establishment.

There is no question here, that all of these commissioners meet the statutory qualifications and when Mr. Clagett says that Commission is engaging in various forms of regulation it does not seem to us that supports an attack upon the legitimacy of the Commission because the allocation of the appointive power is between the President and the Congress is not designed for the protection of the public at large or taxpayers or of citizens and of course there is remedy here.

Potter Stewart:

If this Commission is doing something to restrict anyone of these plaintiffs, indeed then surely the plaintiffs have standing to attack the constitutional validity of the Commission and they are not being champions of the President, they are being champions self-appointed, if you will, of the constitution?

Ralph S. Spritzer:

Insofar, Your Honor is they are claiming that any action by the Commission violates a power that an agency can exercise or that the Commission has gone beyond the statute, I fully agree.

Insofar as the challengers bait solely on the proposition that the appointments were made by the President, I think we have a quite different question.

A question much like ex-parte letter in which a member of the bar sought to challenge a Justice of this Court on the ground that appointive process was defective.

Potter Stewart:

Probably this Court have not done anything to that?

Audio Transcription for Oral Argument – November 10, 1975 (Part 1) in Buckley v. Valeo

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Warren E. Burger:

Has not this Commission undertaken to do or something to Senator McCarthy already?

It made demands on him of some kind.

Ralph S. Spritzer:

Oh! I have question for a moment Your Honor that this Commission has functions to perform and if any of the actions which it takes or orders it issues or regulations which it should promulgates are unconstitutional for reasons apart from the question as to the allocation of the appointive power that they can be raised.

William H. Rehnquist:

How about Glidden against Zdanok?

Warren E. Burger:

That is only the question that Senator McCarthy could raise, just the power of the Commission to ask him some questions?

Ralph S. Spritzer:

He can raise any question going to the constitutionality of action taken by the Commission which effects him.

William H. Rehnquist:

Mr. Spritzer.

Ralph S. Spritzer:

Yes.

William H. Rehnquist:

How about the Glidden against Zdanok?

There the claim was it not that the Court of Appeals had made an improper decision for other reason, but there was judge who was sitting on it who had no business sitting there?

Ralph S. Spritzer:

Quite so and I think the Court was at pains to point out in Glidden that the provision for life tenure is for the benefit of litigants and that that was an exception to the general rule of standing that the a party is required only to raise his own interests and not a claim that somebody else’s prerogatives have been impinged.

William H. Rehnquist:

How about with the cases like United States against Musgrave where they said the original Court of Claims could not be ask to do what it did?

That was a litigant challenging, was it not?

Ralph S. Spritzer:

And I think the litigant could challenge just as he could challenge the failure of a judge to have life tenure in Glidden, the jurisdiction of the Court.

But there is no question here that the commissioners here meet the statutory qualifications.

The sole claim is that by adopting the method of appointment that it did, Congress impinged on executive prerogatives.

William H. Rehnquist:

Oh! There was no question in Musgrave that the judges of then Court acclaims met the statutory qualification, but this Court held that was not enough, there was constitutional problem?

Byron R. White:

it is just a claim Mr. Spritzer of saying that this is a legislative body that can do some things, but it has many jurisdiction to perform some of the functions that are assigned to it and some of the functions it does not have jurisdiction to perform?

Ralph S. Spritzer:

Well.

Byron R. White:

Or being exercise against these plaintiffs?

Ralph S. Spritzer:

Well, I certainly do not stand, though I think it is essential to raise it since it is a jurisdictional question on the standing question alone and indeed there are three propositions that I hope to develop in my remaining time.

The first proposition is that Article 2, Section 2, Clause 2, the Section of the constitution dealing with the appointment power is not preclusive of congressional authority to make appointments to offices where it appears that the function of those officers is substantially related to a constitutional responsibility of the Congress.

The second proposition we hope to develop is that the Congress has unique and pervasive responsibilities which are not confined solely to passage of legislation in relation to the federal electoral process.

And that leads us to the third proposition, that the powers which have been accorded to this Commission that an examination of them shows that they are substantially related or incidental to those constitutional responsibilities of the Congress.

It is true of course that Article 2 does provide for appointment of officers of the United States by the President.

It then does go on, however, in the but clause with which Your Honors are familiar to state that Congress made by law vest the appointment of such inferior officers as they think proper in the President alone in the Courts of law or in the heads of departments.

And we think it is fairly implicit in that Section, at least when it is read in the light of constitutional history and practice and the number of decisions of this Court that though Congress is not expressly granted the same power —