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per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | the Commission shall render an advisory opinion, in writing, within a reasonable time with respect to whether any specific transaction or activity by such individual, candidate, or political committee would constitute a violation of this Act, of chapter 95 or chapter of Title 26 or of section 608, 611, 614, 615, 616, or of Title 18. (b) Presumption of compliance with provisions based on good faith actions. Notwithstanding any other provision of law, any person with respect to whom an advisory opinion is rendered under subsection (a) of this section who acts in good faith in accordance with the provisions and findings of such advisory opinion shall be presumed to be in compliance with the provision of this Act, of chapter 95 or chapter of Title 26, or of section 608, 611, 614, 615, 616, or of Title 18, with respect to which such advisory opinion is rendered. (c) Requests made public; transmittal to Commission of comments of interested parties with respect to such requests. Any request made under subsection (a) shall be made public by the Commission. The Commission shall before rendering an advisory opinion with respect to such request, provide any interested party with an opportunity to transmit written comments to the Commission with respect to such request. *169 437g. Enforcement. (a) Violations; complaints and referrals; notification and investigation by Commission: venue, judicial orders; referral to law enforcement authorities: civil actions by Attorney : venue, judicial orders, bond; subpenas; review by courts of appeals: time for petition, finality of judgment; review by Supreme Court; docket: advancement and priorities. (1) (A) Any person who believes a violation of this Act or of section 608, 611, 614, 615, 616, or of Title 18 has occurred may file a complaint with the Commission. (B) In any case in which the Clerk of the House of Representatives or the Secretary of the Senate (who receive reports and statements as custodian for the Commission) has reason to believe a violation of this act or section 608, 611, 614, 615, 616, or of Title 18 has occurred he shall refer such apparent violation to the Commission. (2) The Commission upon receiving any complaint under paragraph (1) (A), or a referral under paragraph (1) (B), or if it has reason to believe that any person has committed a violation of any such provision, shall notify the person involved of such apparent violation and shall (A) report such apparent violation to the Attorney ; or (B) make an investigation of such apparent violation. (3) Any investigation under paragraph (2) (B) shall be conducted expeditiously and shall |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | under paragraph (2) (B) shall be conducted expeditiously and shall include an investigation of reports and statements filed by any complainant under this subchapter, if such complainant is a candidate. Any notification or investigation made under paragraph (2) shall not be made public by the Commission or by *170 any other person without the written consent of the person receiving such notification or the person with respect to whom such investigation is made. (4) The Commission shall, at the request of any person who receives notice of an apparent violation under paragraph (2), conduct a hearing with respect to such apparent violation. (5) If the Commission determines, after investigation, that there is reason to believe that any person has engaged, or is about to engage in any acts or practices which constitute or will constitute a violation of this Act, it may endeavor to correct such violation by informal methods of conference, conciliation, and persuasion. If the Commission fails to correct the violation through informal methods, it may institute a civil action for relief, including a permanent or temporary injunction, restraining order, or any other appropriate order in the district court of the United for the district in which the person against whom such action is brought is found, resides, or transacts business. Upon a proper showing that such person has engaged or is about to engage in such acts or practices, the court shall grant a permanent or temporary injunction, restraining order, or other order. (6) The Commission shall refer apparent violations to the appropriate law enforcement authorities to the extent that violations of provisions of chapter 29 of Title 18 are involved, or if the Commission is unable to correct apparent violations of this Act under the authority given it by paragraph (5), or if the Commission determines that any such referral is appropriate. (7) Whenever in the judgment of the Commission, after affording due notice and an opportunity for a hearing, any person has engaged or is about to engage in any acts or practices which constitute or will constitute a violation of any provision of this Act or of section 608, 611, 614, 615, 616, or of Title 18, *171 upon request by the Commission the Attorney on behalf of the United shall institute a civil action for relief, including a permanent or temporary injunction, restraining order, or any other appropriate order in the district court of the United for the district in which the person is found, resides, or transacts business. Upon a proper showing that such person has engaged or is about to engage |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | that such person has engaged or is about to engage in such acts or practices, a permanent or temporary injunction, restraining order, or other order shall be granted without bond by such court. (8) In any action brought under paragraph (5) or (7) of this subsection, subpenas for witnesses who are required to attend a United district court may run into any other district. (9) Any party aggrieved by an order granted under paragraph (5) or (7) of this subsection may, at any time within 60 days after the date of entry thereof, file a petition with the United court of appeals for the circuit in which such order was issued for judicial review of such order. (10) The judgment of the court of appeals affirming or setting aside, in whole or in part, any such order of the district Court shall be final, subject to review by the Supreme Court of the United upon certiorari or certification as provided in section 1254 of Title 28. (11) Any action brought under this subsection shall be advanced on the docket of the court in which filed, and put ahead of all other actions (other than other actions brought under this subsection or under section 437h of this title). (b) Reports of Attorney to Commission respecting action taken; reports of Commission respecting status of referrals. In any case in which the Commission refers an apparent violation to the Attorney the Attorney *172 shall respond by report to the Commission with respect to any action taken by the Attorney regarding such apparent violation. Each report shall be transmitted no later than 60 days after the date the Commission refers any apparent violation, and at the close of every 30-day period thereafter until there is final disposition of such apparent violation. The Commission may from time to time prepare and publish reports on the status of such referrals. 437h. Judicial review. (a) Actions, including declaratory judgments, for construction of constitutional questions; eligible plaintiffs; certification of such questions to courts of appeals sitting en banc. The Commission, the national committee of any political party, or any individual eligible to vote in any election for the office of President of the United may institute such actions in the appropriate district court of the United including actions for declaratory judgment, as may be appropriate to construe the constitutionality of any provision of this Act or of section 608, 611, 614, 615, 616, or of Title 18. The district court immediately shall certify all questions of constitutionality of this Act or of section 608, 611, 614, 615, 616, |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | this Act or of section 608, 611, 614, 615, 616, or of Title 18, to the United court of appeals for the circuit involved, which shall hear the matter sitting en banc. (b) Appeal to Supreme Court; time for appeal. Notwithstanding any other provision of law, any decision on a matter certified under subsection (a) of this section shall be reviewable by appeal directly to the Supreme Court of the United Such appeal shall be brought no later than days after the decision of the court of appeals. (c) Advancement on appellate docket and expedited deposition of certified questions. *173 It shall be the duty of the court of appeals and of the Supreme Court of the United to advance on the docket and to expedite to the greatest possible extent the disposition of any matter certified under subsection (a) of this section. Administrative and judicial provisions. (a) Federal Election Commission; duties. It shall be the duty of the Commission (1) Forms. To develop and furnish to the person required by the provisions of this Act prescribed forms for the making of the reports and statements required to be filed with it under this subchapter; (2) Manual for uniform bookkeeping and reporting methods. To prepare, publish, and furnish to the person required to file such reports and statements a manual setting forth recommended uniform methods of bookkeeping and reporting; (3) Filing, coding, and cross-indexing system. To develop a filing, coding, and cross-indexing system consonant with the purposes of this subchapter; (4) Public inspection; copies; sale or use restrictions. To make the reports and statements filed with it available for public inspection and copying, commencing as soon as practicable but not later than the end of the second day following the day during which it was received, and to permit copying of any such report or statement by hand or by duplicating machine, as requested by any person, at the expense of such person: Provided, That any information copied from such reports and statements shall not be sold or utilized by any person for the purpose of soliciting contributions or for any commercial purpose; (5) Preservation of reports and statements. To preserve such reports and statements for a period of *174 10 years from date of receipt, except that reports and statements relating solely to candidates for the House of Representatives shall be preserved for only 5 years from the date of receipt; (6) Index of reports and statements; publication in Federal Register. To compile and maintain a cumulative index of reports and statements filed with it, which shall be published |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | reports and statements filed with it, which shall be published in the Federal Register at regular intervals and which shall be available for purchase directly or by mail for a reasonable price; (7) Special reports; publication. To prepare and publish from time to time special reports listing those candidates for whom reports were filed as required by this subchapter and those candidates for whom such reports were not filed as so required; (8) Audits; investigations. To make from time to time audits and field investigations with respect to reports and statements filed under the provisions of this subchapter, and with respect to alleged failures to file any report or statement required under the provisions of this subchapter; (9) Enforcement authorities; reports of violations. To report apparent violations of law to the appropriate law enforcement authorities; and (10) Rules and To prescribe suitable rules and regulations to carry out the provisions of this subchapter, in accordance with the provisions of subsection (c) of this section. (b) Commission; duties: national clearinghouse for information; studies, scope, publication, copies to general public at cost. It shall be the duty of the Commission to serve as a national clearinghouse for information in respect to the administration of elections. In carrying out its duties under this subsection, the Commission shall enter into contracts for the purpose of conducting independent *175 studies of the administration of elections. Such studies shall include, but shall not be limited to, studies of (1) the method of selection of, and the type of duties assigned to, officials and personnel working on boards of elections; (2) practices relating to the registration of voters; and (3) voting and counting methods. Studies made under this subsection shall be published by the Commission and copies thereof shall be made available to the general public upon the payment of the cost thereof. (c) Proposed rules or regulations; statement, transmittal to Congress; Presidential elections and Congressional elections; "legislative days" defined. (1) The Commission, before prescribing any rule or regulation under this section, shall transmit a statement with respect to such rule or regulation to the Senate or the House of Representatives, as the case may be, in accordance with the provisions of this subsection. Such statement shall set forth the proposed rule or regulation and shall contain a detailed explanation and justification of such rule or regulation. (2) If the appropriate body of the Congress which receives a statement from the Commission under this subsection does not, through appropriate action, disapprove the proposed rule or regulation set forth in such statement no later than 30 legislative days |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | forth in such statement no later than 30 legislative days after receipt of such statement, then the Commission may prescribe such rule or regulation. In the case of any rule or regulation proposed to deal with reports or statements required to be filed under this subchapter by a candidate for the office of President *176 of the United and by political committees supporting such a candidate both the Senate and the House of Representatives shall have the power to disapprove such proposed rule or regulation. The Commission may not prescribe any rule or regulation which is disapproved under this paragraph. (3) If the Commission proposes to prescribe any rule or regulation dealing with reports or statements required to be filed under this subchapter by a candidate for the office of Senator, and by political committees supporting such candidate, it shall transmit such statement to the Senate. If the Commission proposes to prescribe any rule or regulation dealing with reports or statements required to be filed under this subchapter by a candidate for the office of Representative, Delegate, or Resident Commissioner, and by political committees supporting such candidate, it shall transmit such statement to the House of Representatives. If the Commission proposes to prescribe any rule or regulation dealing with reports or statements required to be filed under this subchapter by a candidate for the office of President of the United and by political committees supporting such candidate it shall transmit such statement to the House of Representatives and the Senate. (4) For purposes of this subsection, the term "legislative days" does not include, with respect to statements transmitted to the Senate, any calendar day on which the Senate is not in session, and with respect to statements transmitted to the House of Representatives, any calendar day on which the House of Representatives is not in session, and with respect to statements transmitted to both such bodies, any calendar day on which both Houses of the Congress are not in session. *177 (d) Rules and regulations; issuance; custody of reports and statements; Congressional cooperation. (1) The Commission shall prescribe suitable rules and regulations to carry out the provisions of this subchapter, including such rules and regulations as may be necessary to require that (A) reports and statements required to be filed under this subchapter by a candidate for the office of Representative in, or Delegate or Resident Commissioner to, the Congress of the United and by political committees supporting such candidate, shall be received by the Clerk of the House of Representatives as custodian for the Commission; (B) reports and statements |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | Representatives as custodian for the Commission; (B) reports and statements required to be filed under this subchapter by a candidate for the office of Senator, and by political committees supporting such candidate, shall be received by the Secretary of the Senate as custodian for the Commission; and (C) the Clerk of the House of Representatives and the Secretary of the Senate, as custodians for the Commission, each shall make the reports and statements received by him available for public inspection and copying in accordance with paragraph (4) of subsection (a) of this section, and preserve such reports and statements in accordance with paragraph (5) of subsection (a) of this section. (2) It shall be the duty of the Clerk of the House of Representatives and the Secretary of the Senate to cooperate with the Commission in carrying out its duties under this Act and to furnish such services and facilities as may be required in accordance with this section. *178 439. Statements filed with State officers. (a) "Appropriate State" defined. A copy of each statement required to be filed with the Commission by this subchapter shall be filed with the Secretary of State (or, if there is no office of Secretary of State, the equivalent State officer) of the appropriate State. For purposes of this subsection, the term "appropriate State" means (1) for reports relating to expenditures and contributions in connection with the campaign for nomination for election, or election, of a candidate to the office of President or Vice President of the United each State in which an expenditure is made by him or on his behalf, and (2) for reports relating to expenditures and contributions in connection with the campaign for nomination for election, or election, of a candidate to the office of Senator or Representative in, or Delegate or Resident Commissioner to, the Congress of the United the State in which he seeks election. (b) Duties of State officers. It shall be the duty of the Secretary of State, or the equivalent State officer, under subsection (a) of this section (1) to receive and maintain in an orderly manner all reports and statements required by this subchapter to be filed with him; (2) to preserve such reports and statements for a period of 10 years from date of receipt, except that reports and statements relating solely to candidates for the House of Representatives shall be preserved for only 5 years from the date of receipt; (3) to make the reports and statements filed with him available for public inspection and copying during regular office hours, commencing as |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | public inspection and copying during regular office hours, commencing as soon *179 as practicable but not later than the end of the day during which it was received, and to permit copying of any such report or statement by hand or by duplicating machine, requested by any person, at the expense of such person; and (4) to compile and maintain a current list of all statements or parts of statements pertaining to each candidate. 439a. Use of contributed amounts for certain purposes; rules of Commission. Amounts received by a candidate as contributions that are in excess of any amount necessary to defray his expenditures, and any other amounts contributed to an individual for the purpose of supporting his activities as a holder of Federal office, may be used by such candidate or individual, as the case may be, to defray any ordinary and necessary expenses incurred by him in connection with his duties as a holder of Federal office, may be contributed by him to any organization described in section 170 (c) of Title 26, or may be used for any other lawful purpose. To the extent any such contribution, amount contributed, or expenditure thereof is not otherwise required to be disclosed under the provisions of this subchapter, such contribution, amount contributed, or expenditure shall be fully disclosed in accordance with rules promulgated by the Commission. The Commission is authorized to prescribe such rules as may be necessary to carry out the provisions of this section. 4. Penalties for violations. (a) Any person who violates any of the provisions of this subchapter shall be fined not more than $1,000 or imprisoned not more than 1 year, or both. *180 (b) In case of any conviction under this subchapter, where the punishment inflicted does not include imprisonment, such conviction shall be deemed a misdemeanor conviction only. SUBCHAPTER II.GENERAL PROVISIONS 454. Partial invalidity. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the validity of the remainder of the Act and the application of such provision to other persons and circumstances shall not be affected thereby. 456. Additional enforcement authority. (a) Findings, after notice and hearing, or failure to file timely reports; disqualification for prescribed period from candidacy in future Federal elections. In any case in which the Commission, after notice and opportunity for a hearing on the record in accordance with section 554 of Title 5, makes a finding that a person who, while a candidate for Federal office, failed to file a report required by subchapter I of this chapter, and |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | a report required by subchapter I of this chapter, and such finding is made before the expiration of the time within which the failure to file such report may be prosecuted as a violation of such subchapter I, such person shall be disqualified from becoming a candidate in any future election for Federal office for a period of time beginning on the date of such finding and ending one year after the expiration of the term of the Federal office for which such person was a candidate. (b) Judicial review of findings. Any finding by the Commission under subsection (a) of this section shall be subject to judicial review in accordance with the provisions of chapter 7 of Title 5. *181 TITLE 18. CRIMES AND CRIMINAL PROCEDURE CHAPTER 29ELECTIONS AND POLITICAL ACTIVITIES 591. Definitions. Except as otherwise specifically provided, when used in this section and in sections 5, 599, 600, 602, 608, 611, 614, 615, and of this title (a) "election" means (1) a general, special, primary, or runoff election, (2) a convention or caucus of a political party held to nominate a candidate, (3) a primary election held for the selection of delegates to a national nominating convention of a political party, or (4) a primary election held for the expression of a preference for the nomination of persons for election to the office of President; (b) a "candidate" means an individual who seeks nomination for election, or election, to Federal office, whether or not such individual is elected, and, for purposes of this paragraph, an individual shall be deemed to seek nomination for election, or election, to Federal office, if he has (1) taken the action necessary under the law of a State to qualify himself for nomination for election, or election, or (2) received contributions or made expenditures, or has given his consent for any other person to receive contributions or make expenditures, with a view to bringing about his nomination for election, or election, to such office; (c) "Federal office" means the office of President or Vice President of the United or Senator *182 or Representative in, or Delegate or Resident Commissioner to, the Congress of the United ; (d) "political committee" means any committee, club, association, or other group of persons which receives contributions or makes expenditures during a calendar year in an aggregate amount exceeding $1,000; (e) "contribution" (1) means a gift, subscription, loan, advance, or deposit of money or anything of value (except a loan of money by a national or State bank made in accordance with the applicable banking laws and regulations |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | made in accordance with the applicable banking laws and regulations and in the ordinary course of business, which shall be considered a loan by each endorser or guarantor, in that proportion of the unpaid balance thereof that each endorser or guarantor bears to the total number of endorsers or gurantors), made for the purpose of influencing the nomination for election, or election, of any person to Federal office or for the purpose of influencing the results of a primary held for the selection of delegates to a national nominating convention of a political party or for the expression of a preference for the nomination of persons for election to the office of President of the United ; (2) means a contract, promise, or agreement, express or implied, whether or not legally enforceable, to make a contribution for such purposes; (3) means funds received by a political committee which are transferred to such committee from another political committee or other source; *183 (4) means the payment, by any person other than a candidate or a political committee, of compensation for the personal services of another person which are rendered to such candidate or political committee without charge for any such purpose; but (5) does not include (A) the value of services provided without compensation by individuals who volunteer a portion or all of their time on behalf of a candidate or political committee; (B) the use of real or personal property and the cost of invitations, food, and beverages, voluntarily provided by an individual to a candidate in rendering voluntary personal services on the individual's residential premises for candidate-related activities; (C) the sale of any food or beverage by a vendor for use in a candidate's campaign at a charge less than the normal comparable charge, if such charge for use in a candidate's campaign is at least equal to the cost of such food or beverage to the vendor; (D) any unreimbursed payment for travel expenses made by an individual who on his own behalf volunteers his personal services to a candidate; or (E) the payment by a State or local committee of a political party of the costs of preparation, display, or mailing or other distribution incurred by such committee with respect to a printed slate card or sample *184 or other printed listing, of three or more candidates for any public office for which an election is held in the State in which such committee is organized, except that this clause shall not apply in the case of costs incurred by such committee with respect to a display |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | costs incurred by such committee with respect to a display of any such listing made on broadcasting stations, or in newspapers, magazines or other similar types of general public political advertising; to the extent that the cumulative value of activities by any person on behalf of any candidate under each of clauses (B), (C), and (D) does not exceed $500 with respect to any election; (f) "expenditure" (1) means a purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value (except a loan of money by a national or State bank made in accordance with the applicable banking laws and regulations and in the ordinary course of business), made for the purpose of influencing the nomination for election, or election, of any person to Federal office or for the purpose of influencing the results of a primary held for the selection of delegates to a national nominating convention of a political party or for the expression of a preference for the nomination of persons for election to the office of President of the United ; (2) means a contract, promise, or agreement, express or implied, whether or not legally enforceable, to make any expenditure; and (3) means the transfer of funds by a political committee to another political committee; but *185 (4) does not include (A) any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication, unless such facilities are owned or controlled by any political party, political committee, or candidate; (B) nonpartisan activity designed to encourage individuals to register to vote or to vote; (C) any communication by any membership organization or corporation to its members or stockholders, if such membership organization or corporation is not organized primarily for the purpose of influencing the nomination for election, or election, of any person to Federal office; (D) the use of real or personal property and the cost of invitations, food, and beverages, voluntarily provided by an individual to a candidate in rendering voluntary personal services on the individual's residential premises for candidate-related activities; (E) any unreimbursed payment for travel expenses made by an individual who on his own behalf volunteers his personal services to a candidate; (F) any communication by any person which is not made for the purpose of influencing the nomination for election, or election, of any person to Federal office; (G) the payment by a State or local committee of a political party of the costs of *186 preparation, display, or mailing or other distribution incurred by such committee with respect to a |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | other distribution incurred by such committee with respect to a printed slate card or sample or other printed listing, of three or more candidates for any public office for which an election is held in the State in which such committee is organized, except that this clause shall not apply in the case of costs incurred by such committee with respect to a display of any such listing made on broadcasting stations, or in newspapers, magazines or other similar types of general public political advertising; (H) any costs incurred by a candidate in connection with the solicitation of contributions by such candidate, except that this clause shall not apply with respect to costs incurred by a candidate in excess of an amount equal to percent of the expenditure limitation applicable to such candidate under section 608 (c) of this title; or (I) any costs incurred by a political committee (as such term is defined by section 608 (b) (2) of this title) with respect to the solicitation of contributions to such political committee or to any general political fund controlled by such political committee, except that this clause shall not apply to exempt costs incurred with respect to the solicitation of contributions to any such political committee made through broadcasting stations, newspapers, magazines, outdoor advertising facilities, and *187 other similar types of general public political advertising; to the extent that the cumulative value of activities by any individual on behalf of any candidate under each of clauses (D) or (E) does not exceed $500 with respect to any election; (g) "person" and "whoever" mean an individual, partnership, committee, association, corporation, or any other organization or group of persons; (h) "State" means each State of the United the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United ; (i) "political party" means any association, committee, or organization which nominates a candidate for election to any Federal office whose name appears on the election as the candidate of such association, committee, or organization; (j) "State committee" means the organization which, by virtue of the bylaws of a political party, is responsible for the day-to-day operation of such political party at the State level, as determined by the Federal Election Commission; (k) "national committee" means the organization which, by virtue of the bylaws of the political party, is responsible for the day-to-day operation of such political party at the national level, as determined by the Federal Election Commission established under section 437c (a) of Title 2; and (l) "principal campaign committee" means the principal campaign committee |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | and (l) "principal campaign committee" means the principal campaign committee designated by a candidate under section 4 (f) (1) of Title 2. 608. Limitations on contributions and expenditures. (a) Personal funds of candidate and family. (1) No candidate may make expenditures from *188 his personal funds, or the personal funds of his immediate family, in connection with his campaigns during any calendar year for nomination for election, or for election, to Federal office in excess of, in the aggregate (A) $50,000, in the case of a candidate for the office of President or Vice President of the United ; (B) $35,000, in the case of a candidate for the office of Senator or for the office of Representative from a State which is entitled to only one Representative; or (C) $25,000, in the case of a candidate for the office of Representative, or Delegate or Resident Commissioner, in any other State. For purposes of this paragraph, any expenditure made in a year other than the calendar year in which the election is held with respect to which such expenditure was made, is considered to be made during the calendar year in which such election is held. (2) For purposes of this subsection, "immediate family" means a candidate's spouse, and any child, parent, grandparent, brother, or sister of the candidate, and the spouses of such persons. (3) No candidate or his immediate family may make loans or advances from their personal funds in connection with his campaign for nomination for election, or for election, to Federal office unless such loan or advance is evidenced by a written instrument fully disclosing the terms and conditions of such loan or advance. (4) For purposes of this subsection, any such loan or advance shall be included in computing the total amount of such expenditures only to the extent *189 of the balance of such loan or advance outstanding and unpaid. (b) Contributions by persons and committees. (1) Except as otherwise provided by paragraphs (2) and (3), no person shall make contributions to any candidate with respect to any election for Federal office which, in the aggregate, exceed $1,000. (2) No political committee (other than a principal campaign committee) shall make contributions to any candidate with respect to any election for Federal office which, in the aggregate, exceed $5,000. Contributions by the national committee of a political party serving as the principal campaign committee of a candidate for the office of President of the United shall not exceed the limitation imposed by the preceding sentence with respect to any other candidate for Federal office. For |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | with respect to any other candidate for Federal office. For purposes of this paragraph, the term "political committee" means an organization registered as a political committee under section 433, Title 2, United Code, for a period of not less than 6 months which has received contributions from more than 50 persons and, except for any State political party organization, has made contributions to 5 or more candidates for Federal office. (3) No individual shall make contributions aggregating more than $25,000 in any calendar year. For purposes of this paragraph, any contribution made in a year other than the calendar year in which the election is held with respect to which such contribution was made, is considered to be made during the calendar year in which such election is held. (4) For purposes of this subsection (A) contributions to a named candidate made *190 to any political committee authorized by such candidate, in writing, to accept contributions on his behalf shall be considered to be contributions made to such candidate; and (B) contributions made to or for the benefit of any candidate nominated by a political party for election to the office of Vice President of the United shall be considered to be contributions made to or for the benefit of the candidate of such party for election to the office of President of the United (5) The limitations imposed by paragraphs (1) and (2) of this subsection shall apply separately with respect to each election, except that all elections held in any calendar year for the office of President of the United (except a general election for such office) shall be considered to be one election. (6) For purposes of the limitations imposed by this section, all contributions made by a person, either directly or indirectly, on behalf of a particular candidate, including contributions which are in any way earmarked or otherwise directed through an intermediary or conduit to such candidate, shall be treated as contributions from such person to such candidate. The intermediary or conduit shall report the original source and the intended recipient of such contribution to the Commission and to the intended recipient. (c) Limitations on expenditures. (1) No candidate shall make expenditures in excess of (A) $10,000,000, in the case of a candidate for nomination for election to the office of President of the United except that * the aggregate of expenditures under this subparagraph in any one State shall not exceed twice the expenditure limitation applicable in such State to a candidate for nomination for election to the office of Senator, Delegate, or Resident Commissioner, |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | election to the office of Senator, Delegate, or Resident Commissioner, as the case may be; (B) $,000,000, in the case of a candidate for election to the office of President of the United ; (C) in the case of any campaign for nomination for election by a candidate for the office of Senator or by a candidate for the office of Representative from a State which is entitled to only one Representative, the greater of (i) 8 cents multiplied by the voting age population of the State (as certified under subsection (g)); or (ii) $100,000; (D) in the case of any campaign for election by a candidate for the office of Senator or by a candidate for the office of Representative from a State which is entitled to only one Representative, the greater of (i) 12 cents multiplied by the voting age population of the State (as certified under subsection (g)); or (ii) $150,000; (E) $70,000, in the case of any campaign for nomination for election, or for election, by a candidate for the office of Representative in any other State, Delegate from the District of Columbia, or Resident Commissioner; or (F) $15,000, in the case of any campaign for nomination for election, or for election, by * a candidate for the office of Delegate from Guam or the Virgin (2) For purposes of this subsection (A) expenditures made by or on behalf of any candidate nominated by a political party for election to the office of Vice President of the United shall be considered to be expenditures made by or on behalf of the candidate of such party for election to the office of President of the United ; and (B) an expenditure is made on behalf of a candidate, including a vice presidential candidate, if it is made by (i) an authorized committee or any other agent of the candidate for the purposes of making any expenditure; or (ii) any person authorized or requested by the candidate, an authorized committee of the candidate, or an agent of the candidate, to make the expenditure. (3) The limitations imposed by subparagraphs (C), (D), (E), and (F) of paragraph (1) of this subsection shall apply separately with respect to each election. (4) The Commission shall prescribe rules under which any expenditure by a candidate for presidential nomination for use in 2 or more shall be attributed to such candidate's expenditure limitation in each such State, based on the voting age population in such State which can reasonably be expected to be influenced by such expenditure. (d) Adjustment of limitations based on |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | influenced by such expenditure. (d) Adjustment of limitations based on price index. (1) At the beginning of each calendar year (commencing in 16), as there become available necessary * data from the Bureau of Labor Statistics of the Department of Labor, the Secretary of Labor shall certify to the Commission and publish in the Federal Register the per centum difference between the price index for the 12 months preceding the beginning of such calendar year and the price index for the base period. Each limitation established by subsection (c) and subsection (f) shall be increased by such per centum difference. Each amount so increased shall be the amount in effect for such calendar year. (2) For purposes of paragraph (1) (A) the term "price index" means the average over a calendar year of the Consumer Price Index (all itemsUnited city average) published monthly by the Bureau of Labor Statistics; and (B) the term "base period" means the calendar year 14. (e) Expenditure relative to clearly identified candidate. (1) No person may make any expenditure (other than an expenditure made by or on behalf of a candidate within the meaning of subsection (c) (2) (B)) relative to a clearly identified candidate during a calendar year which, when added to all other expenditures made by such person during the year advocating the election or defeat of such candidate, exceeds $1,000. (2) For purposes of paragraph (1) (A) "clearly identified" means (i) the candidate's name appears; (ii) a photograph or drawing of the candidate appears; or *194 (iii) the identity of the candidate is apparent by unambiguous reference; and (B) "expenditure" does not include any payment made or incurred by a corporation or a labor organization which, under the provisions of the last paragraph of section would not constitute an expenditure by such corporation or labor organization. (f) Exceptions for national and State committees. (1) Notwithstanding any other provision of law with respect to limitations on expenditures or limitations on contributions, the national committee of a political party and a State committee of a political party, including any subordinate committee of a State committee, may make expenditures in connection with the general election campaign of candidates for Federal office, subject to the limitations contained in paragraphs (2) and (3) of this subsection. (2) The national committee of a political party may not make any expenditure in connection with the general election campaign of any candidate for President of the United who is affiliated with such party which exceeds an amount equal to 2 cents multiplied by the voting age population of the United |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | cents multiplied by the voting age population of the United (as certified under subsection (g)). Any expenditure under this paragraph shall be in addition to any expenditure by a national committee of a political party serving as the principal campaign committee of a candidate for the office of President of the United (3) The national committee of a political party, or a State committee of a political party, including any subordinate committee of a State committee, may not make any expenditure in connection with the general election campaign of a candidate for *195 Federal office in a State who is affiliated with such party which exceeds (A) in the case of a candidate for election to the office of Senator, or of Representative from a State which is entitled to only one Representative, the greater of (i) 2 cents multiplied by the voting age population of the State (as certified under subsection (g)); or (ii) $,000; and (B) in the case of a candidate for election to the office of Representative, Delegate, or Resident Commissioner in any other State, $10,000. (g) Voting age population estimates. During the first week of January and every subsequent year, the Secretary of Commerce shall certify to the Commission and publish in the Federal Register an estimate of the voting age population of the United of each State, and of each congressional district as of the first day of July next preceding the date of certification. The term "voting age population" means resident population, 18 years of age or older. (h) Knowing violations. No candidate or political committee shall knowingly accept any contribution or make any expenditure in violation of the provisions of this section. No officer or employee of a political committee shall knowingly accept a contribution made for the benefit or use of a candidate, or knowingly make any expenditure on behalf of a candidate, in violation of any limitation imposed on contributions and expenditures under this section. (i) Penalties. Any person who violates any provision of this section shall be fined not more than $25,000 or imprisoned not more than 1 year, or both. *1 Contributions or expenditures by national banks, corporations or labor organizations. It is unlawful for any national bank, or any corporation organized by authority of any law of Congress, to make a contribution or expenditure in connection with any election to any political office, or in connection with any primary election or political convention or caucus held to select candidates for any political office, or for any corporation whatever, or any labor organization to make a contribution or |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | whatever, or any labor organization to make a contribution or expenditure in connection with any election at which presidential and vice presidential electors or a Senator or Representative in, or a Delegate or Resident Commissioner to Congress are to be voted for, or in connection with any primary election or political convention or caucus held to select candidates for any of the foregoing offices, or for any candidate, political committee, or other person to accept or receive any contribution prohibited by this section. Every corporation or labor organization which makes any contribution or expenditure in violation of this section shall be fined not more than $25,000; and every officer or director of any corporation, or officer of any labor organization, who consents to any contribution or expenditure by the corporation or labor organization, as the case may be, and any person who accepts or receives any contribution, in violation of this section, shall be fined not more than $1,000 or imprisoned not more than 1 year, or both; and if the violation was willful, shall be fined not more than $50,000 or imprisoned not more than 2 years or both. For the purposes of this section "labor organization" means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exist for the purpose, *1 in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work. As used in this section, the phrase "contribution or expenditure" shall include any direct or indirect payment, distribution, loan, advance, deposit, or gift of money, or any services, or anything of value (except a loan of money by a national or State bank made in accordance with the applicable banking laws and regulations and in the ordinary course of business) to any candidate, campaign committee, or political party or organization, in connection with any election to any of the offices referred to in this section; but shall not include communications by a corporation to its stockholders and their families or by a labor organization to its members and their families on any subject; nonpartisan registration and get-out-the-vote campaigns by a corporation aimed at its stockholders and their families, or by a labor organization aimed at its members and their families; the establishment, administration, and solicitation of contributions to a separate segregated fund to be utilized for political purposes by a corporation or labor organization: Provided, That it shall be unlawful for such a fund to make a contribution or expenditure by utilizing |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | a fund to make a contribution or expenditure by utilizing money or anything of value secured by physical force, job discrimination, financial reprisals, or the threat of force, job discrimination, or financial reprisal; or by dues, fees, or other monies required as a condition of membership in a labor organization or as a condition of employment, or by monies obtained in any commercial transaction. 611. Contributions by Government contractors. Whoever (a) entering into any contract with the United or any department or agency thereof either *198 for the rendition of personal services or furnishing any material, supplies, or equipment to the United or any department or agency thereof or for selling any land or building to the United or any department or agency thereof, if payment for the performance of such contract or payment for such material, supplies, equipment, land, or building is to be made in whole or in part from funds appropriated by the Congress, at any time between the commencement of negotiations for and the later of (1) the completion of performance under, or (2) the termination of negotiations for, such contract or furnishing of material, supplies, equipment, land or buildings, directly or indirectly makes any contribution of money or other thing of value, or promises expressly or impliedly to make any such contribution, to any political party, committee, or candidate for public office or to any person for any political purpose or use; or (b) knowingly solicits any such contribution from any such person for any such purpose during any such period; shall be fined not more than $25,000 or imprisoned not more than 5 years, or both. This section does not prohibit or make unlawful the establishment or administration of, or the solicitation of contributions to, any separate segregated fund by any corporation or labor organization for the purpose of influencing the nomination for election, or election, of any person to Federal office, unless the provisions of section of this title prohibit or make unlawful the establishment or administration of, or the solicitation of contributions to, such fund. For purposes of this section, the term "labor organization" *199 has the meaning given it by section of this title. TITLE 26. INTERNAL REVENUE CODE 60. Designation by individuals. (a) In general. Every individual (other than a non-resident alien) whose income tax liability for the taxable year is $1 or more may designate that $1 shall be paid over to the Presidential Election Campaign Fund in accordance with the provisions of section 9006 (a). In the case of a joint return of husband and wife having an |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | of a joint return of husband and wife having an income tax liability of $2 or more, each spouse may designate that $1 shall be paid to the fund. (b) Income tax liability. For purposes of subsection (a), the income tax liability for an individual for any taxable year is the amount of the tax imposed by chapter 1 on such individual for such taxable year (as shown on his return), reduced by the sum of the credits (as shown in his return) allowable under sections 33, 37, 38, 40, and (c) Manner and time of designation. A designation under subsection (a) may be made with respect to any taxable year (1) at the time of filing the return of the tax imposed by chapter 1 for such taxable year, or (2) at any other time (after the time of filing the return of the tax imposed by chapter 1 for such taxable year) specified in regulations prescribed by the Secretary or his delegate. Such designation shall be made in such manner as the Secretary or his delegate prescribes by regulations except that, if such designation is made at the time of filing the return of the tax imposed by chapter 1 for such taxable year, such designation shall be made either on the *0 first page of the return or on the page bearing the taxpayer's signature. CHAPTER 95PRESIDENTIAL ELECTION CAMPAIGN FUND 9001. Short title. This chapter may be cited as the "Presidential Election Campaign Fund Act." 9002. Definitions. For purposes of this chapter (1) The term "authorized committee" means, with respect to the candidates of a political party for President and Vice President of the United any political committee which is authorized in writing by such candidates to incur expenses to further the election of such candidates. Such authorization shall be addressed to the chairman of such political committee, and a copy of such authorization shall be filed by such candidates with the Commission. Any withdrawal of any authorization shall also be in writing and shall be addressed and filed in the same manner as the authorization. (2) The term "candidate" means, with respect to any presidential election, an individual who (A) has been nominated for election to the office of President of the United or the office of Vice President of the United by a major party, or (B) has qualified to have his name on the election (or to have the names of electors pledged to him on the election ) as the candidate of a political party for election to either such office in 10 |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | political party for election to either such office in 10 or more For purposes of paragraphs (6) and (7) of this section and purposes of section 9004 (a) (2), the term "candidate" means, with respect to any preceding presidential *1 election, an individual who received popular votes for the office of President in such election. (3) The term "Commission" means the Federal Election Commission established by section 437c (a) (1) of Title 2, United Code. (4) The term "eligible candidates" means the candidates of a political party for President and Vice President of the United who have met all applicable conditions for eligibility to receive payments under this chapter set forth in section 9003. (5) The term "fund" means the Presidential Election Campaign Fund established by section 9006 (a). (6) The term "major party" means, with respect to any presidential election, a political party whose candidate for the office of President in the preceding presidential election received, as the candidate of such party, 25 percent or more of the total number of popular votes received by all candidates for such office. (7) The term "minor party" means, with respect to any presidential election, a political party whose candidate for the office of President in the preceding presidential election received, as the candidate of such party, 5 percent or more but less than 25 percent of the total number of popular votes received by all candidates for such office. (8) The term "new party" means, with respect to any presidential election, a political party which is neither a major party nor a minor party. (9) The term "political committee" means any committee, association, or organization (whether or not incorporated) which accepts contributions or makes expenditures for the purpose of influencing, or attempting to influence, the nomination or election of one or more individuals to Federal, State, or local elective public office. *2 (10) The term "presidential election" means the election of presidential and vice-presidential electors. (11) The term "qualified campaign expense" means an expense (A) incurred (i) by the candidate of a political party for the office of President to further his election to such office or to further the election of the candidate of such political party for the office of Vice President, or both, (ii) by the candidate of a political party for the office of Vice President to further his election to such office or to further the election of the candidate of such political party for the office of President, or both, or (iii) by an authorized committee of the candidates of a political party for the |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | committee of the candidates of a political party for the offices of President and Vice President to further the election of either or both of such candidates to such offices; (B) incurred within the expenditure report period (as defined in paragraph (12)), or incurred before the beginning of such period to the extent such expense is for property, services, or facilities used during such period; and (C) neither the incurring nor payment of which constitutes a violation of any law of the United or of the State in which such expense is incurred or paid. An expense shall be considered as incurred by a candidate or an authorized committee if it is incurred by a person authorized by such candidate or such committee, as the case may be, to incur such expense on behalf of such candidate or such committee. If an authorized committee of the candidates of a political party for *3 President and vice President of the United also incurs expenses to further the election of one or more other individuals to Federal, State, or local elective public office, expenses incurred by such committee which are not specifically to further the election of such other individual or individuals shall be considered as incurred to further the election of such candidates for President and Vice President in such proportion as the Commission prescribes by rules or (12) The term "expenditure report period" with respect to any presidential election means (A) in the case of a major party, the period beginning with the first day of September before the election, or, if earlier, with the date on which such major party at its national convention nominated its candidate for election to the office of President of the United and ending 30 days after the date of the presidential election; and (B) in the case of a party which is not a major party, the same period as the expenditure report period of the major party which has the shortest expenditure report period for such presidential election under subparagraph (A). 9003. Condition for eligibility for payments. (a) In general. In order to be eligible to receive any payments under section 9006, the candidates of a political party in a presidential election shall, in writing (1) agree to obtain and furnish to the Commission such evidence as it may request of the qualified campaign expenses of such candidates; (2) agree to keep and furnish to the Commission such records, books, and other information as it may request; and (3) agree to an audit and examination by the * Commission under section 9007 |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | audit and examination by the * Commission under section 9007 and to pay any amounts required to be paid under such section. (b) Major parties. In order to be eligible to receive any payments under section 9006, the candidates of a major party in a presidential election shall certify to the Commission, under penalty of perjury, that (1) such candidates and their authorized committees will not incur qualified campaign expenses in excess of the aggregate payments to which they will be entitled under section 9004; and (2) no contributions to defray qualified campaign expenses have been or will be accepted by such candidates or any of their authorized committees except to the extent necessary to make up any deficiency in payments received out of the fund on account of the application of section 9006 (d), and no contributions to defray expenses which would be qualified campaign expenses but for subparagraph (C) of section 9002 (11) have been or will be accepted by such candidates or any of their authorized committees. Such certification shall be made within such time prior to the day of the presidential election as the Commission shall prescribe by rules or (c) Minor and new parties. In order to be eligible to receive any payments under section 9006, the candidates of a minor or new party in a presidential election shall certify to the Commission, under penalty of perjury, that (1) such candidates and their authorized committees will not incur qualified campaign expenses in excess of the aggregate payments to which the eligible candidates of a major party are entitled under section 9004; and *5 (2) such candidates and their authorized committees will accept and expend or retain contributions to defray qualified campaign expenses only to the extent that the qualified campaign expenses incurred by such candidates and their authorized committees certified to under paragraph (1) exceed the aggregate payments received by such candidates out of the fund pursuant to section 9006. Such certification shall be made within such time prior to the day of the presidential election as the Commission shall prescribe by rules or 9004. Entitlement of eligible candidates to payments. (a) In general. Subject to the provisions of this chapter (1) The eligible candidates of each major party in a presidential election shall be entitled to equal payments under section 9006 in an amount which, in the aggregate, shall not exceed the expenditure limitations applicable to such candidates under section 608 (c) (1) (B) of Title 18, United Code. (2) (A) The eligible candidates of a minor party in a presidential election shall be |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | of a minor party in a presidential election shall be entitled to payments under section 9006 equal in the aggregate to an amount which bears the same ratio to the amount allowed under paragraph (1) for a major party as number of popular votes received by the candidate for President of the minor party, as such candidate, in the preceding presidential election bears to the average number of popular votes received by the candidates for President of the major parties in the preceding presidential election. (B) If the candidate of one or more political parties (not including a major party) for the office of President was a candidate for such office in the preceding presidential election and received 5 percent *6 or more but less than 25 percent of the total number of popular votes received by all candidates for such office, such candidate and his running mate for the office of Vice President, upon compliance with the provisions of section 9003 (a) and (c), shall be treated as eligible candidates entitled to payments under section 9006 in an amount computed as provided in subparagraph (A) by taking into account all the popular votes received by such candidate for the office of President in the preceding presidential election. If eligible candidates of a minor party are entitled to payments under this subparagraph, such entitlement shall be reduced by the amount of the entitlement allowed under subparagraph (A). (3) The eligible candidates of a minor party or a new party in a presidential election whose candidate for President in such election receives, as such candidate, 5 percent or more of the total number of popular votes cast for the office of President in such election shall be entitled to payments under section 9006 equal in the aggregate to an amount which bears the same ratio to the amount allowed under paragraph (1) for a major party as the number of popular votes received by such candidate in such election bears to the average number of popular votes received in such election by the candidates for President of the major parties. In the case of eligible candidates entitled to payments under paragraph (2), the amount allowable under this paragraph shall be limited to the amount, if any, by which the entitlement under the preceding sentence exceeds the amount of the entitlement under paragraph (2). (b) Limitations. The aggregate payments to which the eligible candidates of a political party shall be entitled *7 under subsections (a) (2) and (3) with respect to a presidential election shall not exceed an amount equal to the |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | presidential election shall not exceed an amount equal to the lower of (1) the amount of qualified campaign expenses incurred by such eligible candidates and their authorized committees, reduced by the amount of contributions to defray qualified campaign expenses received and expended or retained by such eligible candidates and such committees; or (2) the aggregate payments to which the eligible candidates of a major party are entitled under subsection (a) (1), reduced by the amount of contributions described in paragraph (1) of this subsection. (c) Restrictions. The eligible candidates of a political party shall be entitled to payments under subsection (a) only (1) to defray qualified campaign expenses incurred by such eligible candidates or their authorized committees; or (2) to repay loans the proceeds of which were used to defray such qualified campaign expenses, or otherwise to restore funds (other than contributions to defray qualified campaign expenses received and expended by such candidates or such committees) used to defray such qualified campaign expenses. 9005. Certification by Commission. (a) Initial certifications. Not later than 10 days after the candidates of a political party for President and Vice President of the United have met all applicable conditions for eligibility to receive payments under this chapter set forth in section 9003, the Commission shall certify to the Secretary for payment to such eligible candidates under section 9006 payment in full of amounts to which such candidates are entitled under section 9004. *8 (b) Finality of certifications and determinations. Initial certifications by the Commission under subsection (a), and all determinations made by it under this chapter shall be final and conclusive, except to the extent that they are subject to examination and audit by the Commission under section 9007 and judicial review under section 9011. 9006. Payments to eligible candidates. (a) Establishment of campaign fund. There is hereby established on the books of the Treasury of the United a special fund to be known as the "Presidential Election Campaign Fund." The Secretary shall, from time to time, transfer to the fund an amount not in excess of the sum of the amounts designated (subsequent to the previous Presidential election) to the fund by individuals under section 60. There is appropriated to the fund for each fiscal year, out of amounts in the general fund of the Treasury not otherwise appropriated, an amount equal to the amounts so designated during each fiscal year, which shall remain available to the fund without fiscal year limitation. (b) Transfer to the general fund. If, after a Presidential election and after all eligible candidates have been paid the amount |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | and after all eligible candidates have been paid the amount which they are entitled to receive under this chapter, there are moneys remaining in the fund, the Secretary shall transfer the moneys so remaining to the general fund of the Treasury. (c) Payments from the fund. Upon receipt of a certification from the Commission under section 9005 for payment to the eligible candidates of a political party, the Secretary shall pay to such candidates out of the fund the amount certified by the Commission. Amounts paid to any such candidates shall be under the control of such candidates. (d) Insufficient amounts in fund. If at the time of a * certification by the Commission under section 9005 for payment to the eligible candidates of a political party, the Secretary or his delegate determines that the moneys in the fund are not, or may not be, sufficient to satisfy the full entitlements of the eligible candidates of all political parties, he shall withhold from such payment such amount as he determines to be necessary to assure that the eligible candidates of each political party will receive their pro rata share of their full entitlement. Amounts withheld by reason of the preceding sentence shall be paid when the Secretary or his delegate determines that there are sufficient moneys in the fund to pay such amounts, or portions thereof, to all eligible candidates from whom amounts have been withheld, but, if there are not sufficient moneys in the fund to satisfy the full entitlement of the eligible candidates of all political parties, the amounts so withheld shall be paid in such manner that the eligible candidates of each political party receive their pro rata share of their full entitlement. 9007. Examinations and audits; repayments. (a) Examinations and audits. After each presidential election, the Commission shall conduct a thorough examination and audit of the qualified campaign expenses of the candidates of each political party for President and Vice President. (b) Repayments. (1) If the Commission determines that any portion of the payments made to the eligible candidates of a political party under section 9006 was in excess of the aggregate payments to which candidates were entitled under section 9004, it shall so notify such candidates, and such candidates shall pay to the Secretary an amount equal to such portion. (2) If the Commission determines that the eligible candidates of a political party and their authorized * committees incurred qualified campaign expenses in excess of the aggregate payments to which the eligible candidates of a major party were entitled under section 9004, it shall notify |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | major party were entitled under section 9004, it shall notify such candidates of the amount of such excess and such candidates shall pay to the Secretary an amount equal to such amount. (3) If the Commission determines that the eligible candidates of a major party or any authorized committee of such candidates accepted contributions (other than contributions to make up deficiencies in payments out of the fund on account of the application of section 9006 (d)) to defray qualified campaign expenses (other than qualified campaign expenses with respect to which payment is required under paragraph (2)), it shall notify such candidates of the amount of the contributions so accepted, and such candidates shall pay to the Secretary an amount equal to such amount. (4) If the Commission determines that any amount of any payment made to the eligible candidates of a political party under section 9006 was used for any purpose other than (A) to defray the qualified campaign expenses with respect to which such payment was made; or (B) to repay loans the proceeds of which were used, or otherwise to restore funds (other than contributions to defray qualified campaign expenses which were received and expended) which were used to defray such qualified campaign expenses, it shall notify such candidates of the amount so used, and such candidates shall pay to the Secretary an amount equal to such amount. (5) No payment shall be required from the eligible *211 candidates of a political party under this subsection to the extent that such payment, when added to other payments required from such candidates under this subsection, exceeds the amount of payments received by such candidates under section 9006. (c) Notification. No notification shall be made by the Commission under subsection (b) with respect to a presidential election more than 3 years after the day of such election. (d) Deposit of repayments. All payments received by the Secretary under subsection (b) shall be deposited by him in the general fund of the Treasury. 9008. Payments for presidential nominating conventions. (a) Establishment of accounts. The Secretary shall maintain in the fund, in addition to any account which he maintains under section 9006 (a), a separate account for the national committee of each major party and minor party. The Secretary shall deposit in each such account an amount equal to the amount which each such committee may receive under subsection (b). Such deposits shall be drawn from amounts designated by individuals under section 60 and shall be made before any transfer is made to any account for any eligible candidate under section 9006 |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | to any account for any eligible candidate under section 9006 (a). (b) Entitlement to payments from the fund. (1) Major parties. Subject to the provisions of this section, the national committee of a major party shall be entitled to payments under paragraph (3), with respect to any presidential nominating convention, in amounts which, in the aggregate, shall not exceed $2 million. (2) Minor parties. Subject to the provisions of this section, the national committee of a minor party *212 shall be entitled to payments under paragraph (3), with respect to any presidential nominating convention, in amounts which, in the aggregate, shall not exceed an amount which bears the same ratio to the amount the national committee of a major party is entitled to receive under paragraph (1) as the number of popular votes received by the candidate for President of the minor party, as such candidate, in the preceding presidential election bears to the average number of popular votes received by the candidates for President of the United of the major parties in the preceding presidential election. (3) Payments. Upon receipt of certification from the Commission under subsection (g), the Secretary shall make payments from the appropriate account maintained under subsection (a) to the national committee of a major party or minor party which elects to receive its entitlement under this subsection. Such payments shall be available for use by such committee in accordance with the provisions of sub-section (c). (4) Limitation. Payments to the national committee of a major party or minor party under this subsection from the account designated for such committee shall be limited to the amounts in such account at the time of payment. (5) Adjustment of entitlements. The entitlements established by this subsection shall be adjusted in the same manner as expenditure limitations established by section 608 (c) and section 608 (f) of Title 18, United Code, are adjusted pursuant to the provisions of section 608 (d) of such title. (c) Use of funds. No part of any payment made under subsection (b) shall be used to defray the expenses *213 of any candidate or delegate who is participating in any presidential nominating convention. Such payments shall be used only (1) to defray expenses incurred with respect to a presidential nominating convention (including the payment of deposits) by or on behalf of the national committee receiving such payments; or (2) to repay loans the proceeds of which were used to defray such expenses, or otherwise to restore funds (other than contributions to defray such expenses received by such committee) used to defray such expenses. (d) |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | received by such committee) used to defray such expenses. (d) Limitation of expenditures. (1) Major parties. Except as provided by paragraph (3), the national committee of a major party may not make expenditures with respect to a presidential nominating convention which, in the aggregate, exceed the amount of payments to which such committee is entitled under subsection (b) (1). (2) Minor parties. Except as provided by paragraph (3), the national committee of a minor party may not make expenditures with respect to a presidential nominating convention which, in the aggregate, exceed the amount of the entitlement of the national committee of a major party under subsection (b) (1). (3) Exception. The Commission may authorize the national committee of a major party or minor party to make expenditures which, in the aggregate, exceed the limitation established by paragraph (1) or paragraph (2) of this subsection. Such authorization shall be based upon a determination by the Commission that, due to extraordinary and unforeseen circumstances, such expenditures are necessary *214 to assure the effective operation of the presidential nominating convention by such committee. (e) Availability of payments. The national committee of a major party or minor party may receive payments under subsection (b) (3) beginning on July 1 of the calendar year immediately preceding the calendar year in which a presidential nominating convention of the political party involved is held. (f) Transfer to the fund. If, after the close of a presidential nominating convention and after the national committee of the political party involved has been paid the amount which it is entitled to receive under this section, there are moneys remaining in the account of such national committee, the Secretary shall transfer the moneys so remaining to the fund. (g) Certification by Commission. Any major party or minor party may file a statement with the Commission in such form and manner and at such times as it may require, designating the national committee of such party. Such statement shall include the information required by section 433 (b) of Title 2, United Code, together with such additional information as the Commission may require. Upon receipt of a statement filed under the preceding sentences, the Commission promptly shall verify such statement according to such procedures and criteria as it may establish and shall certify to the Secretary for payment in full to any such committee of amounts to which such committee may be entitled under subsection (b). Such certifications shall be subject to an examination and audit which the Commission shall conduct no later than December 31 of the calendar year in which the |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | than December 31 of the calendar year in which the presidential nominating convention involved is held. (h) Repayments. The Commission shall have the same authority to require repayments from the national *215 committee of a major party or a minor party as it has with respect to repayments from any eligible candidate under section 9007 (b). The provisions of section 9007 (c) and section 9007 (d) shall apply with respect to any repayment required by the Commission under this subsection. 9009. Reports to Congress; (a) Reports. The Commission shall, as soon as practicable after each presidential election, submit a full report to the Senate and House of Representatives setting forth (1) the qualified campaign expenses (shown in such detail as the Commission determines necessary) incurred by the candidates of each political party and their authorized committees; (2) the amounts certified by it under section 9005 for payment to eligible candidates of each political party; (3) the amount of payments, if any, required from such candidates under section 9007, and the reasons for each payment required; (4) the expenses incurred by the national committee of a major party or minor party with respect to a presidential nominating convention; (5) the amounts certified by it under section 9008 (g) for payment to each such committee; and (6) the amount of payments, if any, required from such committees under section 9008 (h), and the reasons for each such payment. Each report submitted pursuant to this section shall be printed as a Senate document. (b) Regulations, etc. The Commission is authorized to prescribe such rules and regulations in accordance with the provisions of subsection (c), to conduct such *216 examinations and audits (in addition to the examinations and audits required by section 9007 (a)), to conduct such investigations, and to require the keeping and submission of such books, records, and information, as it deems necessary to carry out the functions and duties imposed on it by this chapter. (c) Review of (1) The Commission, before prescribing any rule or regulation under subsection (b), shall transmit a statement with respect to such rule or regulation to the Senate and to the House of Representatives, in accordance with the provisions of this subsection. Such statement shall set forth the proposed rule or regulation and shall contain a detailed explanation and justification of such rule or regulation. (2) If either such House does not, through appropriate action, disapprove the proposed rule or regulation set forth in such statement no later than 30 legislative days after receipt of such statement, then the Commission may prescribe such rule or |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | such statement, then the Commission may prescribe such rule or regulation. The Commission may not prescribe any rule or regulation which is disapproved by either such House under this paragraph. (3) For purposes of this subsection, the term "legislative days" does not include any calendar day on which both Houses of the Congress are not in session. 9010. Participation by Commission in judicial proceedings. (a) Appearance by counsel. The Commission is authorized to appear in and defend against any action filed under section 9011, either by attorneys employed in its office or by counsel whom it may appoint without regard to the provisions of Title 5, United Code, governing appointments in the competitive service, and *217 whose compensation it may fix without regard to the provisions of chapter 51 and subchapter III of chapter 53 of such title. (b) Recovery of certain payments. The Commission is authorized through attorneys and counsel described in subsection (a) to appear in the district courts of the United to seek recovery of any amounts determined to be payable to the Secretary as a result of examination and audit made pursuant to section 9007. (c) Declaratory and injunctive relief. The Commission is authorized through attorneys and counsel described in subsection (a) to petition the courts of the United for declaratory or injunctive relief concerning any civil matter covered by the provisions of this subtitle or section 60. Upon application of the Commission an action brought pursuant to this subsection shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of Title 28, United Code, and any appeal shall lie to the Supreme Court. It shall be the duty of the judges designated to hear the case to assign the case for hearing at the earliest practicable date, to participate in the hearing and determination thereof, and to cause the case to be in every way expedited. (d) Appeal. The Commission is authorized on behalf of the United to appeal from, and to petition the Supreme Court for certiorari to review, judgments or decrees entered with respect to actions in which it appears pursuant to the authority provided in this section. 9011. Judicial review. (a) Review of certification, determination, or other action by the Commission. Any certification, determination, or other action by the Commission made or taken pursuant to the provisions of this chapter shall be subject to review by the United Court of Appeals for * the District of Columbia upon petition filed in such Court by any interested person. Any petition filed pursuant to this |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | by any interested person. Any petition filed pursuant to this section shall be filed within 30 days after the certification, determination, or other action by the Commission for which review is sought. (b) Suits to implement chapter. (1) The Commission, the national committee of any political party, and individuals eligible to vote for President are authorized to institute such actions, including actions for declaratory judgment or injunctive relief, as may be appropriate to implement or contrue[1] any provisions of this chapter. (2) The district courts of the United shall have jurisdiction of proceedings instituted pursuant to this subsection and shall exercise the same without regard to whether a person asserting rights under provisions of this subsection shall have exhausted any administrative or other remedies that may be provided at law. Such proceedings shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of Title 28, United Code, and any appeal shall lie to the Supreme Court. It shall be the duty of the judges designated to hear the case to assign the case for hearing at the earliest practicable date, to participate in the hearing and determination thereof, and to cause the case to be in every way expedited. 9012. Criminal penalties. (a) Excess expenses. (1) It shall be unlawful for an eligible candidate of a political party for President and Vice President in a presidential election or any of his authorized committees knowingly and willfully to incur qualified * campaign expenses in excess of the aggregate payments to which the eligible candidates of a major party are entitled under section 9004 with respect to such election. It shall be unlawful for the national committee of a major party or minor party knowingly and willfully to incur expenses with respect to a presidential nominating convention in excess of the expenditure limitation applicable with respect to such committee under section 9008 (d), unless the incurring of such expenses is authorized by the Commission under section 9008 (d) (3). (2) Any person who violates paragraph (1) shall be fined not more than $5,000, or imprisoned not more than 1 year or both. In the case of a violation by an authorized committee, any officer or member of such committee who knowingly and willfully consents to such violation shall be fined not more than $5,000, or imprisoned not more than 1 year, or both. (b) Contributions. (1) It shall be unlawful for an eligible candidate of a major party in a presidential election or any of his authorized committees knowingly and willfully to accept |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | any of his authorized committees knowingly and willfully to accept any contribution to defray qualified campaign expenses, except to the extent necessary to make up any deficiency in payments received out of the fund on account of the application of section 9006 (d), or to defray expenses which would be qualified campaign expenses but for subparagraph (C) of section 9002 (11). (2) It shall be unlawful for an eligible candidate of a political party (other than a major party) in a presidential election or any of his authorized committees knowingly and willfully to accept and expend or retain contributions to defray qualified *2 campaign expenses in an amount which exceeds the qualified campaign expenses incurred with respect to such election by such eligible candidate and his authorized committees. (3) Any person who violates paragraph (1) or (2) shall be fined not more than $5,000, or imprisoned not more than 1 year, or both. In the case of a violation by an authorized committee, any officer or member of such committee who knowingly and willfully consents to such violation shall be fined not more than $5,000, or imprisoned not more than 1 year, or both. (c) Unlawful use of payments. (1) It shall be unlawful for any person who receives any payment under section 9006, or to whom any portion of any payment received under such section is transferred, knowingly and willfully to use, or authorize the use of, such payment or such portion for any purpose other than (A) to defray the qualified campaign expenses with respect to which such payment was made; or (B) to repay loans the proceeds of which were used, or otherwise to restore funds (other than contributions to defray qualified campaign expenses which were received and expended) which were used, to defray such qualified campaign expenses. (2) It shall be unlawful for the national committee of a major party or minor party which receives any payment under section 9008 (b) (3) to use, or authorize the use of, such payment for any purpose other than a purpose authorized by section 9008 (c). (3) Any person who violates paragraph (1) shall *221 be fined not more than $10,000, or imprisoned not more than 5 years, or both. (d) False statements, etc. (1) It shall be unlawful for any person knowingly and willfully (A) to furnish any false, fictitious, or fraudulent evidence, books, or information to the Commission under this subtitle, or to include in any evidence, books, or information so furnished any misrepresentation of a material fact, or to falsify or conceal any evidence, books, or |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | fact, or to falsify or conceal any evidence, books, or information relevant to a certification by the Commission or an examination and audit by the Commission under this chapter; or (B) to fail to furnish to the Commission any records, books, or information requested by it for purposes of this chapter. (2) Any person who violates paragraph (1) shall be fined not more than $10,000, or imprisoned not more than 5 years, or both. (e) Kickbacks and illegal payments. (1) It shall be unlawful for any person knowingly and willfully to give or accept any kickback or any illegal payment in connection with any qualified campaign expense of eligible candidates or their authorized committees. It shall be unlawful for the national committee of a major party or minor party knowingly and willfully to give or accept any kickback or any illegal payment in connection with any expense incurred by such committee with respect to a presidential nominating convention. (2) Any person who violates paragraph (1) shall be fined not more than $10,000, or imprisoned not more than 5 years, or both. *222 (3) In addition to the penalty provided by paragraph (2), any person who accepts any kickback or illegal payment in connection with any qualified campaign expense of eligible candidates or their authorized committees, or in connection with any expense incurred by the national committee of a major party or minor party with respect to a presidential nominating convention, shall pay to the Secretary, for deposit in the general fund of the Treasury, an amount equal to 125 percent of the kickback or payment received. (f) Unauthorized expenditures and contributions. (1) Except as provided in paragraph (2), it shall be unlawful for any political committee which is not an authorized committee with respect to the eligible candidates of a political party for President and Vice President in a presidential election knowingly and willfully to incur expenditures to further the election of such candidates, which would constitute qualified campaign expenses if incurred by an authorized committee of such candidates, in an aggregate amount exceeding $1,000. (2) This subsection shall not apply to (A) expenditures by a broadcaster regulated by the Federal Communications Commission, or by a periodical publication, in reporting the news or in taking editorial positions; or (B) expenditures by any organization described in section 501 (c) which is exempt from tax under section 501 (a) in communicating to its members the views of that organization. (3) Any political committee which violates paragraph (1) shall be fined not more than $5,000, and any officer or member of such committee |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | than $5,000, and any officer or member of such committee who knowingly and willfully consents to such violation and *223 any other individual who knowingly and willfully violates paragraph (1) shall be fined not more than $5,000, or imprisoned not more than 1 year, or both. (g) Unauthorized disclosure of information. (1) It shall be unlawful for any individual to disclose any information obtained under the provisions of this chapter except as may be required by law. (2) Any person who violates paragraph (1) shall be fined not more than $5,000, or imprisoned not more than 1 year, or both. CHAPTER PRESIDENTIAL PRIMARY MATCHING PAYMENT ACCOUNT 9031. Short title. This chapter may be cited as the "Presidential Primary Matching Payment Account Act." 90. Definitions. For the purposes of this chapter (1) The term "authorized committee" means, with respect to the candidates of a political party for President and Vice President of the United any political committee which is authorized in writing by such candidates to incur expenses to further the election of such candidates. Such authorization shall be addressed to the chairman of such political committee, and a copy of such authorization shall be filed by such candidates with the Commission. Any withdrawal of any authorization shall also be in writing and shall be addressed and filed in the same manner as the authorization. (2) The term "candidate" means an individual who seeks nomination for election to be President of the United For purposes of this paragraph, *224 an individual shall be considered to seek nomination for election if he (A) takes the action necessary under the law of a State to qualify himself for nomination for election; (B) receives contributions or incurs qualified campaign expenses; or (C) gives his consent for any other person to receive contributions or to incur qualified campaign expenses on his behalf. (3) The term "Commission" means the Federal Election Commission established by section 437c (a) (1) of Title 2, United Code. (4) Except as provided by section 9034 (a), the term "contribution" (A) means a gift, subscription, loan, advance, or deposit of money, or anything of value, the payment of which was made on or after the beginning of the calendar year immediately preceding the calendar year of the presidential election with respect to which such gift, subscription, loan, advance, or deposit of money, or anything of value, is made for the purpose of influencing the result of a primary election; (B) means a contract, promise, or agreement, whether or not legally enforceable, to make a contribution for any such purpose; (C) means funds |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | make a contribution for any such purpose; (C) means funds received by a political committee which are transferred to that committee from another committee; and (D) means the payment by any person other than a candidate, or his authorized committee, of compensation for the personal services of another person which are rendered to the candidate or committee without charge; but *225 (E) does not include (i) except as provided in subparagraph (D), the value of personal services rendered to or for the benefit of a candidate by an individual who receives no compensation for rendering such service to or for the benefit of the candidate; or (ii) payments under section 9037. (5) The term "matching payment account" means the Presidential Primary Matching Payment Account established under section 9037 (a). (6) The term "matching payment period" means the period beginning with the beginning of the calendar year in which a general election for the office of President of the United will be held and ending on the date on which the national convention of the party whose nomination a candidate seeks nominates its candidate for the office of President of the United or, in the case of a party which does not make such nomination by national convention, ending on the earlier of (A) the date such party nominates its candidate for the office of President of the United ; or (B) the last day of the last national convention held by a major party during such calendar year. (7) The term "primary election" means an election, including a runoff election or a nominating convention or caucus held by a political party, for the selection of delegates to a national nominating convention of a political party, or for the expression of a preference for the nomination of persons for election to the office of President of the United *226 (8) The term "political committee" means any individual, committee, association, or organization (whether or not incorporated) which accepts contributions or incurs qualified campaign expenses for the purpose of influencing, or attempting to influence, the nomination of any person for election to the office of President of the United (9) The term "qualified campaign expense" means a purchase, payment, distribution, loan, advance, deposit, or gift of money or of anything of value (A) incurred by a candidate, or by his authorized committee, in connection with his campaign for nomination for election; and (B) neither the incurring nor payment of which constitutes a violation of any law of the United or of the State in which the expense is incurred or paid. For purposes |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | in which the expense is incurred or paid. For purposes of this paragraph, an expense is incurred by a candidate or by an authorized committee if it is incurred by a person specifically authorized in writing by the candidate or committee, as the case may be, to incur such expense on behalf of the candidate or the committee. (10) The term "State" means each State of the United and the District of Columbia. 9033. Eligibility for payments. (a) Conditions. To be eligible to receive payments under section 9037, a candidate shall, in writing (1) agree to obtain and furnish to the Commission any evidence it may request of qualified campaign expenses; (2) agree to keep and furnish to the Commission any records, books, and other information it may request; and (3) agree to an audit and examination by the *227 Commission under section 9038 and to pay any amounts required to be paid under such section. (b) Expense limitation; declaration of intent; minimum contributions. To be eligible to receive payments under section 9037, a candidate shall certify to the Commission that (1) the candidate and his authorized committees will not incur qualified campaign expenses in excess of the limitation on such expenses under section 9035; (2) the candidate is seeking nomination by a political party for election to the office of President of the United ; (3) the candidate has received matching contributions which in the aggregate, exceed $5,000 in contributions from residents of each of at least ; and (4) the aggregate of contributions certified with respect to any person under paragraph (3) does not exceed $. 9034. Entitlement of eligible candidates to payments. (a) In general. Every candidate who is eligible to receive payments under section 9033 is entitled to payments under section 9037 in an amount equal to the amount of each contribution received by such candidate on or after the beginning of the calendar year immediately preceding the calendar year of the presidential election with respect to which such candidate is seeking nomination, or by his authorized committees, disregarding any amount of contributions from any person to the extent that the total of the amounts contributed by such person on or after the beginning of such preceding calendar year exceeds $. For purposes of this subsection and section 9033 (b), the term "contribution" means a gift of money made by a written instrument which identifies *228 the person making the contribution by full name and mailing address, but does not include a subscription, loan, advance, or deposit of money, or anything of value or anything described |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | deposit of money, or anything of value or anything described in subparagraph (B), (C), or (D) of section 90 (4). (b) Limitations. The total amount of payments to which a candidate is entitled under subsection (a) shall not exceed 50 percent of the expenditure limitation applicable under section 608 (c) (1) (A) of Title 18, United Code. 9035. Qualified campaign expense limitation. No candidate shall knowingly incur qualified campaign expenses in excess of the expenditure limitation applicable under section 608 (c) (1) (A) of Title 18, United Code. 9036. Certification by Commission. (a) Initial certifications. Not later than 10 days after a candidate establishes his eligibility under section 9033 to receive payments under section 9037, the Commission shall certify to the Secretary for payment to such candidate under section 9037 payment in full of amounts to which such candidate is entitled under section 9034. The Commission shall make such additional certifications as may be necessary to permit candidates to receive payments for contributions under section 9037. (b) Finality of determinations. Initial certifications by the Commission under subsection (a), and all determinations made by it under this chapter, are final and conclusive, except to the extent that they are subject to examination and audit by the Commission under section 9038 and judicial review under section 90. 9037. Payments to eligible candidates. (a) Establishment of account. The Secretary shall maintain in the Presidential Election Campaign Fund *229 established by section 9006 (a), in addition to any account which he maintains under such section, a separate account to be known as the Presidential Primary Matching Payment Account. The Secretary shall deposit into the matching payment account, for use by the candidate of any political party who is eligible to receive payments under section 9033, the amount available after the Secretary determines that amounts for payments under section 9006 (c) and for payments under section 9008 (b) (3) are available for such payments. (b) Payments from the matching payment account. Upon receipt of a certification from the Commission under section 9036, but not before the beginning of the matching payment period, the Secretary or his delegate shall promptly transfer the amount certified by the Commission from the matching payment account to the candidate. In making such transfers to candidates of the same political party, the Secretary or his delegate shall seek to achieve an equitable distribution of funds available under subsection (a), and the Secretary or his delegate shall take into account, in seeking to achieve an equitable distribution, the sequence in which such certifications are received. 9038. Examinations and audits; repayments. (a) Examinations |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | certifications are received. 9038. Examinations and audits; repayments. (a) Examinations and audits. After each matching payment period, the Commission shall conduct a thorough examination and audit of the qualified campaign expenses of every candidate and his authorized committees who received payments under section 9037. (b) Repayments. (1) If the Commission determines that any portion of the payments made to a candidate from the matching payment account was in excess of the aggregate amount of payments to which such candidate was entitled under section 9034, it shall *230 notify the candidate, and the candidate shall pay to the Secretary or his delegate an amount equal to the amount of excess payments. (2) If the Commission determines that any amount of any payment made to a candidate from the matching payment account was used for any purpose other than (A) to defray the qualified campaign expenses with respect to which such payment was made; or (B) to repay loans the proceeds of which were used, or otherwise to restore funds (other than contributions to defray qualified campaign expenses which were received and expended) which were used, to defray qualified campaign expenses; it shall notify such candidate of the amount so used, and the candidate shall pay to the Secretary or his delegate an amount equal to such amount. (3) Amounts received by a candidate from the matching payment account may be retained for the liquidation of all obligations to pay qualified campaign expenses incurred for a period not exceeding 6 months after the end of the matching payment period. After all obligations have been liquidated, that portion of any unexpended balance remaining in the candidate's accounts which bears the same ratio to the total unexpended balance as the total amount received from the matching payment account bears to the total of all deposits made into the candidate's accounts shall be promptly repaid to the matching payment account. (c) Notification. No notification shall be made by the Commission under subsection (b) with respect to a matching payment period more than 3 years after the end of such period. * (d) Deposit of repayments. All payments received by the Secretary or his delegate under subsection (b) shall be deposited by him in the matching payment account. 9039. Reports to Congress; (a) Reports. The Commission shall, as soon as practicable after each matching payment period, submit a full report to the Senate and House of Representatives setting forth (1) the qualified campaign expenses (shown in such detail as the Commission determines necessary) incurred by the candidates of each political party and their authorized committees; (2) |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | candidates of each political party and their authorized committees; (2) the amounts certified by it under section 9036 for payment to each eligible candidate; and (3) the amount of payments, if any, required from candidates under section 9038, and the reasons for each payment required. Each report submitted pursuant to this section shall be printed as a Senate document. (b) Regulations, etc. The Commission is authorized to prescribe rules and regulations in accordance with the provisions of subsection (c), to conduct examinations and audits (in addition to the examinations and audits required by section 9038 (a)), to conduct investigations, and to require the keeping and submission of any books, records, and information, which it determines to be necessary to carry out its responsibilities under this chapter. (c) Review of (1) The Commission, before prescribing any rule or regulation under subsection (b), shall transmit a statement with respect to such rule or regulation to the Senate and to the House of Representatives, *2 in accordance with the provisions of this subsection. Such statement shall set forth the proposed rule or regulation and shall contain a detailed explanation and justification of such rule or regulation. (2) If either such House does not, through appropriate action, disapprove the proposed rule or regulation set forth in such statement no later than 30 legislative days after receipt of such statement, then the Commission may prescribe such rule or regulation. The Commission may not prescribe any rule or regulation which is disapproved by either such House under this paragraph. (3) For purposes of this subsection, the term "legislative days" does not include any calendar day on which both Houses of the Congress are not in session. 9040. Participation by Commission in judicial proceedings. (a) Appearance by counsel. The Commission is authorized to appear in and defend against any action instituted under this section, either by attorneys employed in its office or by counsel whom it may appoint without regard to the provisions of Title 5, United Code, governing appointments in the competitive service, and whose compensation it may fix without regard to the provisions of chapter 51 and subchapter III of chapter 53 of such title. (b) Recovery of certain payments. The Commission is authorized, through attorneys and counsel described in subsection (a), to institute actions in the district courts of the United to seek recovery of any amounts determined to be payable to the Secretary or his delegate as a result of an examination and audit made pursuant to section 9038. *233 (c) Injunctive relief. The Commission is authorized, through attorneys and counsel described in |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | The Commission is authorized, through attorneys and counsel described in subsection (a), to petition the courts of the United for such injunctive relief as is appropriate to implement any provision of this chapter. (d) Appeal. The Commission is authorized on behalf of the United to appeal from, and to petition the Supreme Court for certiorari to review, judgments or decrees entered with respect to actions in which it appears pursuant to the authority provided in this section. 90. Judicial review. (a) Review of agency action by the Commission. Any agency action by the Commission made under the provisions of this chapter shall be subject to review by the United Court of Appeals for the District of Columbia Circuit upon petition filed in such court within 30 days after the agency action by the Commission for which review is sought. (b) Review procedures. The provisions of chapter 7 of Title 5, United Code, apply to judicial review of any agency action, as defined in section 551 (13) of Title 5, United Code, by the Commission. 9042. Criminal penalties. (a) Excess campaign expenses. Any person who violates the provisions of section 9035 shall be fined not more than $25,000, or imprisoned not more than 5 years, or both. Any officer or member of any political committee who knowingly consents to any expenditure in violation of the provisions of section 9035 shall be fined not more than $25,000, or imprisoned not more than 5 years, or both. (b) Unlawful use of payments. (1) It is unlawful for any person who receives any payment under section 9037, or to whom any portion * of any such payment is transferred, knowingly and willfully to use, or authorize the use of, such payment or such portion for any purpose other than (A) to defray qualified campaign expenses; or (B) to repay loans the proceeds of which were used, or otherwise to restore funds (other than contributions to defray qualified campaign expenses which were received and expended) which were used, to defray qualified campaign expenses. (2) Any person who violates the provisions of paragraph (1) shall be fined not more than $10,000, or imprisoned not more than 5 years, or both. (c) False statements, etc. (1) It is unlawful for any person knowingly and willfully (A) to furnish any false, fictitious, or fraudulent evidence, books, or information to the Commission under this chapter, or to include in any evidence, books, or information so furnished any misrepresentation of a material fact, or to falsify or conceal any evidence, books, or information relevant to a certification by the Commission |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | books, or information relevant to a certification by the Commission or an examination and audit by the Commission under this chapter; or (B) to fail to furnish to the Commission any records, books, or information requested by it for purposes of this chapter. (2) Any person who violates the provisions of paragraph (1) shall be fined not more than $10,000, or imprisoned not more than 5 years, or both. (d) Kickbacks and illegal payments. (1) It is unlawful for any person knowingly and willfully to give or accept any kickback or any illegal * payment in connection with any qualified campaign expense of a candidate, or his authorized committees, who receives payments under section 9037. (2) Any person who violates the provisions of paragraph (1) shall be fined not more than $10,000, or imprisoned not more than 5 years, or both. (3) In addition to the penalty provided by paragraph (2), any person who accepts any kickback or illegal payment in connection with any qualified campaign expense of a candidate or his authorized committees shall pay to the Secretary for deposit in the matching payment account, an amount equal to 125 percent of the kickback or payment received. MR. CHIEF JUSTICE BURGER, concurring in part and dissenting in part. For reasons set forth more fully later, I dissent from those parts of the Court's holding sustaining the statutory provisions (a) for disclosure of small contributions, (b) for limitations on contributions, and (c) for public financing of Presidential campaigns. In my view, the Act's disclosure scheme is impermissibly broad and violative of the First Amendment as it relates to reporting contributions in excess of $10 and $100. The contribution limitations infringe on First Amendment liberties and suffer from the same infirmities that the Court correctly sees in the expenditure ceilings. The system for public financing of Presidential campaigns is, in my judgment, an impermissible intrusion by the Government into the traditionally private political process. More broadly, the Court's result does violence to the intent of Congress in this comprehensive scheme of campaign finance. By dissecting the Act bit by bit, and casting off vital parts, the Court fails to recognize that the whole of this Act is greater than the sum of its parts. *236 Congress intended to regulate all aspects of federal campaign finances, but what remains after today's holding leaves no more than a shadow of what Congress contemplated. I question whether the residue leaves a workable program. (1) DISCLOSURE PROVISIONS Disclosure is, in principle, the salutary and constitutional remedy for most of the ills Congress was seeking to |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | remedy for most of the ills Congress was seeking to alleviate. I therefore agree fully with the broad proposition that public disclosure of contributions by individuals and by entitiesparticularly corporations and labor unionsis an effective means of revealing the type of political support that is sometimes coupled with expectations of special favors or rewards. That disclosure impinges on First Amendment rights is conceded by the Court, ante, at 64-, but given the objectives to which disclosure is directed, I agree that the need for disclosure outweighs individual constitutional claims. Disclosure is, however, subject to First Amendment limitations which are to be defined by looking to the relevant public interests. The legitimate public interest is the elimination of the appearance and reality of corrupting influences. Serious dangers to the very processes of government justify disclosure of contributions of such dimensions reasonably thought likely to purchase special favors. These fears have been at the root of the Court's prior decisions upholding disclosure requirements, and I therefore have no disagreement, for example, with Burroughs v. United (4). The Court's theory, however, goes beyond permissible limits. Under the Court's view, disclosure serves broad informational purposes, enabling the public to be fully informed on matters of acute public interest. Forced disclosure of one aspect of a citizen's political activity, *237 under this analysis, serves the public right to know. This open-ended approach is the only plausible justification for the otherwise irrationally low ceilings of $10 and $100 for anonymous contributions. The burdens of these low ceilings seem to me obvious, and the Court does not try to question this. With commendable candor, the Court acknowledges: "It is undoubtedly true that public disclosure of contributions to candidates and political parties will deter some individuals who otherwise might contribute." Ante, at 68. Examples come readily to mind. Rank-and-file union members or rising junior executives may now think twice before making even modest contributions to a candidate who is disfavored by the union or management hierarchy. Similarly, potential contributors may well decline to take the obvious risks entailed in making a reportable contribution to the opponent of a well-entrenched incumbent. This fact of political life did not go unnoticed by the Congress: "The disclosure provisions really have in fact made it difficult for challengers to challenge incumbents." 1 Cong. Rec. 34392 (remarks of Sen. Long). See (ED Ark.), aff'd per curiam, The public right to know ought not be absolute when its exercise reveals private political convictions. Secrecy, like privacy, is not per se criminal. On the contrary, secrecy and privacy as to political preferences and convictions are |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | secrecy and privacy as to political preferences and convictions are fundamental in a free society. For example, one of the great political reforms was the advent of the secret as a universal practice. Similarly, the enlightened labor legislation of our time has enshrined the secrecy of choice of a bargaining representative for *238 workers. In other contexts, this Court has seen to it that governmental power cannot be used to force a citizen to disclose his private affiliations, even without a record reflecting any systematic harassment or retaliation, as in For me it is far too late in the day to recognize an ill-defined "public interest" to breach the historic safeguards guaranteed by the First Amendment. We all seem to agree that whatever the legitimate public interest in this area, proper analysis requires us to scrutinize the precise means employed to implement that interest. The balancing test used by the Court requires that fair recognition be given to competing interests. With respect, I suggest the Court has failed to give the traditional standing to some of the First Amendment values at stake here. Specifically, it has failed to confine the particular exercise of governmental power within limits reasonably required. "In every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom." U.S. 2, "Unduly" must mean not more than necessary, and until today, the Court has recognized this criterion in First Amendment cases: "In the area of First Amendment freedoms, government has the duty to confine itself to the least intrusive regulations which are adequate for the purpose." (Emphasis added.) Similarly, the Court has said: "[E]ven though the governmental purpose be legitimate *239 and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose." In light of these views,[1] it seems to me that the threshold limits fixed at $10 and $100 for anonymous contributions are constitutionally impermissible on their face. As the Court's opinion notes, ante, 3, Congress gave little or no thought, one way or the other, to these limits, but rather lifted figures out of a 65-year-old statute.[2] As we are all painfully aware, the 16 dollar is not what it used to be and is surely not the dollar of 0. Ten dollars in 16 will, for example, purchase only what $1.68 would buy in 0. United Dept. of Labor, Handbook |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | $1.68 would buy in 0. United Dept. of Labor, Handbook of Labor Statistics p. 313 To argue that a 16 contribution of $10 or $100 entails a risk of corruption or its appearance is simply too extravagant to be maintained. No public right to know justifies the compelled disclosure of such contributions, at the risk of discouraging them. There is, in short, no relation whatever between the means used and the legitimate goal of ventilating possible undue influence. Congress has used a shotgun to kill wrens as well as hawks. *240 In saying that the lines drawn by Congress are "not wholly without rationality," the Court plainly fails to apply the traditional test: "Precision of regulation must be the touchstone in an area so closely touching on our most precious freedoms." (8). See, e. g., ; United v. Robel, (17); The Court's abrupt departure[3] from traditional standards is wrong; surely a greater burden rests on Congress than merely to avoid "irrationality" when regulating in the core area of the First Amendment. Even taking the Court at its word, the particular dollar amounts fixed by Congress that must be reported to the Commission fall short of meeting the test of rationality when measured by the goals sought to be achieved. Finally, no legitimate public interest has been shown in forcing the disclosure of modest contributions that are the prime support of new, unpopular, or unfashionable political causes. There is no realistic possibility that such modest donations will have a corrupting influence especially on parties that enjoy only "minor" status. Major parties would not notice them; minor parties need them. Furthermore, as the Court candidly recognizes, ante, 0, minor parties and new parties tend to be sharply ideological in character, and the public can readily discern where such parties stand, without resorting to the indirect device of recording the names of financial supporters. To hold, as the Court has, that privacy must sometimes yield to congressional investigations of alleged subversion, is quite different from making domestic political *2 partisans give up privacy. Cf. Eastland v. United Servicemen's Fund, In any event, the dangers to First Amendment rights here are too great. Flushing out the names of supporters of minority parties will plainly have a deterrent effect on potential contributors, a consequence readily admitted by the Court, ante, 1, 83, and supported by the record.[4] I would therefore hold unconstitutional the provisions requiring reporting of contributions of more than $10 and to make a public record of the name, address, and occupation of a contributor of more than $100. (2) CONTRIBUTION AND EXPENDITURE |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | a contributor of more than $100. (2) CONTRIBUTION AND EXPENDITURE LIMITS I agree fully with that part of the Court's opinion that holds unconstitutional the limitations the Act puts on campaign expenditures which "place substantial and direct restrictions on the ability of candidates, citizens, and associations to engage in protected political expression, restrictions that the First Amendment cannot tolerate." Ante, 8-59. Yet when it approves similarly stringent limitations on contributions, the Court ignores the reasons it finds so persuasive in the context of expenditures. For me contributions and expenditures are two sides of the same First Amendment coin. By limiting campaign contributions, the Act restricts the amount of money that will be spent on political activity *242 and does so directly. Appellees argue, as the Court notes, that these limits will "act as a brake on the skyrocketing cost of political campaigns," ante, at 26. In treating campaign expenditure limitations, the Court says that the "First Amendment denies government the power to determine that spending to promote one's political views is wasteful, excessive, or unwise." Ante, 7. Limiting contributions, as a practical matter, will limit expenditures and will put an effective ceiling on the amount of political activity and debate that the Government will permit to take place. The argument that the ceiling is not, after all, very low as matters now stand gives little comfort for the future, since the Court elsewhere notes the rapid inflation in the cost of political campaigning.[5]Ante, 7. The Court attempts to separate the two communicative aspects of political contributionsthe "moral" support that the gift itself conveys, which the Court suggests is the same whether the gift is $10 or $10,000,[6] and the *243 fact that money translates into communication. The Court dismisses the effect of the limitations on the second aspect of contributions: "[T]he transformation of contributions into political debate involves speech by someone other than the contributor." Ante, at 21. On this premisethat contribution limitations restrict only the speech of "someone other than the contributor"rests the Court's justification for treating contributions differently from expenditures. The premise is demonstrably flawed; the contribution limitations will, in specific instances, limit exactly the same political activity that the expenditure ceilings limit,[7] and at least one of the "expenditure" *244 limitations the Court finds objectionable operates precisely like the "contribution" limitations.[8] The Court's attempt to distinguish the communication inherent in political contributions from the speech aspects of political expenditures simply "will not wash." We do little but engage in word games unless we recognize that peoplecandidates and contributorsspend money on political activity because they wish to communicate |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | contributorsspend money on political activity because they wish to communicate ideas, and their constitutional interest in doing so is precisely the same whether they or someone else utters the words. The Court attempts to make the Act seem less restrictive by casting the problem as one that goes to freedom of association rather than freedom of speech. I have long thought freedom of association and freedom of expression were two peas from the same pod. The contribution limitations of the Act impose a restriction on certain forms of associational activity that are for the most part, as the Court recognizes, ante, at 29, harmless in fact. And the restrictions are hardly incidental in their effect upon particular campaigns. Judges are ill-equipped to gauge the precise impact of legislation, but a law that impinges upon First Amendment rights requires us to make the attempt. It is not simply speculation to think that the limitations on contributions will foreclose some candidacies.[9] The limitations will also alter the nature of some electoral contests drastically.[10] *245 At any rate, the contribution limits are a far more severe restriction on First Amendment activity than the sort of "chilling" legislation for which the Court has shown such extraordinary concern in the past. See, e. g., ; see also cases reviewed in 3 U.S. 15 ; (17); 383 U.S. 3 If such restraints can be justified at all, they must be justified by the very strongest of state interests. With this much the Court clearly agrees; the Court even goes so far as to note that legislation cutting into these important interests must employ "means closely drawn to avoid unnecessary abridgment of associational freedoms." Ante, at 25. After a bow to the "weighty interests" Congress meant to serve, the Court then forsakes this analysis in one sentence: "Congress was surely entitled to conclude that disclosure was only a partial measure, and that contribution ceilings were a necessary legislative concomitant to deal with the reality or appearance of corruption" Ante, at 28. In striking down the limitations on campaign expenditures, the Court relies in part on its conclusion that other meansnamely, disclosure and contribution ceilingswill adequately serve the statute's aim. It is not clear why the same analysis is not also appropriate in weighing the need for contribution ceilings in addition to disclosure requirements. Congress may well be *246 entitled to conclude that disclosure was a "partial measure," but I had not thought until today that Congress could enact its conclusions in the First Amendment area into laws immune from the most searching review by this Court. Finally, |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | immune from the most searching review by this Court. Finally, it seems clear to me that in approving these limitations on contributions the Court must rest upon the proposition that "pooling" money is fundamentally different from other forms of associational or joint activity. But see ante, at I see only two possible ways in which money differs from volunteer work, endorsements, and the like. Money can be used to buy favors, because an unscrupulous politician can put it to personal use; second, giving money is a less visible form of associational activity. With respect to the first problem, the Act does not attempt to do any more than the bribery laws to combat this sort of corruption. In fact, the Act does not reach at all, and certainly the contribution limits do not reach, forms of "association" that can be fully as corrupt as a contribution intended as a quid pro quo such as the eleventh-hour endorsement by a former rival, obtained for the promise of a federal appointment. This underinclusiveness is not a constitutional flaw, but it demonstrates that the contribution limits do not clearly focus on this first distinction. To the extent Congress thought that the second problem, the lesser visibility of contributions, required that money be treated differently from other forms of associational activity, disclosure laws are the simple and wholly efficacious answer; they make the invisible apparent. (3) PUBLIC FINANCING I dissent from Part III sustaining the constitutionality of the public financing provisions of Subtitle H. Since the turn of this century when the idea of Government *247 subsidies for political campaigns first was broached, there has been no lack of realization that the use of funds from the public treasury to subsidize political activity of private individuals would produce substantial and profound questions about the nature of our democratic society. The Majority Leader of the Senate, although supporting such legislation in 17, said that "the implications of these questions go to the very heart and structure of the Government of the Republic."[11] The Solicitor in his amicus curiae brief states that "the issues involved here are of indisputable moment."[12] He goes on to express his view that public financing will have "profound effects in the way candidates approach issues and each other."[13] Public financing, he notes, "affects the role of the party in campaigns for office, changes the role of the incumbent government vis-a-vis all parties, and affects the relative strengths and strategies of candidates vis-a-vis each other and their party's leaders."[14] The Court chooses to treat this novel public financing of political activity as |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | to treat this novel public financing of political activity as simply another congressional appropriation whose validity is "necessary and proper" to Congress' power to regulate and reform elections and primaries, relying on United v. Classic, and Burroughs v. United (4). No holding of this Court is directly in point, because no federal scheme allocating public funds in a comparable manner has ever been before us. The uniqueness of the plan is not relevant, of course, to whether Congress has power to enact it. Indeed, I do not question the power of Congress to regulate elections; nor do I *248 challenge the broad proposition that the Welfare Clause is a grant, not a limitation, of power. 4 ; United v. Butler, 2 U.S. 1, (6). I would, however, fault the Court for not adequately analyzing and meeting head on the issue whether public financial assistance to the private political activity of individual citizens and parties is a legitimate expenditure of public funds. The public monies at issue here are not being employed simply to police the integrity of the electoral process or to provide a forum for the use of all participants in the political dialogue, as would, for example, be the case if free broadcast time were granted. Rather, we are confronted with the Government's actual financing, out of general revenues, a segment of the political debate itself. As Senator Howard Baker remarked during the debate on this legislation: "I think there is something politically incestuous about the Government financing and, I believe, inevitably then regulating, the day-to-day procedures by which the Government is selected "I think it is extraordinarily important that the Government not control the machinery by which the public expresses the range of its desires, demands, and dissent." 1 Cong. Rec. 82 If this "incest" affected only the issue of the wisdom of the plan, it would be none of the concern of judges. But, in my view, the inappropriateness of subsidizing, from general revenues, the actual political dialogue of the peoplethe process which begets the Government itself is as basic to our national tradition as the separation of church and state also deriving from the First Amendment, see ; 3 U.S. 4, 8-9 (10), *249 or the separation of civilian and military authority, see neither of which is explicit in the Constitution but both of which have developed through case-by-case adjudication of express provisions of the Constitution. Recent history shows dangerous examples of systems with a close, "incestuous" relationship between "government" and "politics"; the Court's opinion simply dismisses possible dangers by noting that: "Subtitle H is |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | simply dismisses possible dangers by noting that: "Subtitle H is a congressional effort, not to abridge, restrict, or censor speech, but rather to use public money to facilitate and enlarge public discussion and participation in the electoral process, goals vital to a self-governing people." Ante, at 92-93. Congress, it reassuringly adds by way of a footnote, has expressed its determination to avoid such a possibility.[15]Ante, at 93 n. 126. But the Court points to no basis for predicting that the historical pattern of "varying measures of control and surveillance," which usually accompany grants from Government will not also follow in this case.[16] Up to now, the Court has always been extraordinarily sensitive, when dealing with First Amendment rights, to the risk that the "flag tends to follow the dollars." Yet, here, where Subtitle H specifically requires the auditing of records of political parties and candidates by Government inspectors,[17] the Court shows * little sensitivity to the danger it has so strongly condemned in other contexts. See, e. g., Up to now, this Court has scrupulously refrained, absent claims of invidious discrimination,[18] from entering the arena of intraparty disputes concerning the seating of convention delegates. summarily aff'd, (16); ; O'Brien v. (12). An obvious underlying basis for this reluctance is that delegate selection and the management of political conventions have been considered a strictly private political matter, not the business of Government inspectors. But once the Government finances these national conventions by the expenditure of millions of dollars from the public treasury, we may be providing a springboard for later attempts to impose a whole range of requirements on delegate selection and convention activities. Does this foreshadow judicial decisions allowing the federal courts to "monitor" these conventions to assure compliance with court orders or regulations? Assuming, arguendo, that Congress could validly appropriate public money to subsidize private political activity, it has gone about the task in Subtitle H in a manner which is not, in my view, free of constitutional infirmity.[19] I do not question that Congress has "wide discretion in the manner of prescribing details of expenditures" in some contexts, Cincinnati Soap Co. v. United 1 Here, however, Congress has not itself appropriated a specific sum to attain the ends of the Act but has delegated to a limited group *251 of citizensthose who file tax returnsthe power to allocate general revenue for the Act's purposesand of course only a small percentage of that limited group has exercised the power. There is nothing to assure that the "fund" will actually be adequate for the Act's objectives. Thus, I find it |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | be adequate for the Act's objectives. Thus, I find it difficult to see a rational basis for concluding that this scheme would, in fact, attain the stated purposes of the Act when its own funding scheme affords no real idea of the amount of the available funding. I agree with MR. JUSTICE REHNQUIST that the scheme approved by the Court today invidiously discriminates against minor parties. Assuming, arguendo, the constitutionality of the overall scheme, there is a legitimate governmental interest in requiring a group to make a "preliminary showing of a significant modicum of support." 403 U.S. But the present system could preclude or severely hamper access to funds before a given election by a group or an individual who might, at the time of the election, reflect the views of a major segment or even a majority of the electorate. The fact that there have been few drastic realignments in our basic two-party structure in 0 years is no constitutional justification for freezing the status quo of the present major parties at the expense of such future political movements. Cf. discussion, ante, 3. When and if some minority party achieves majority status, Congress can readily deal with any problems that arise. In short, I see grave risks in legislation, enacted by incumbents of the major political parties, which distinctly disadvantages minor parties or independent candidates. This Court has, until today, been particularly cautious when dealing with enactments that tend to perpetuate those who control legislative power. See I would also find unconstitutional the system of *252 matching grants which makes a candidate's ability to amass private funds the sole criterion for eligibility for public funds. Such an arrangement can put at serious disadvantage a candidate with a potentially large, widely diffusedbut poorconstituency. The ability of a candidate's supporters to help pay for his campaign cannot be equated with their willingness to cast a for him. See ; (12). (4) I cannot join in the attempt to determine which parts of the Act can survive review here. The statute as it now stands is unworkable and inequitable. I agree with the Court's holding that the Act's restrictions on expenditures made "relative to a clearly identified candidate," independent of any candidate or his committee, are unconstitutional. Ante, at 39-51. Paradoxically the Court upholds the limitations on individual contributions, which embrace precisely the same sort of expenditures "relative to a clearly identified candidate" if those expenditures are "authorized or requested" by the "candidate or his agents." Ante, at 24 n. 25. The Act as cut back by the Court thus places intolerable |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | Act as cut back by the Court thus places intolerable pressure on the distinction between "authorized" and "unauthorized" expenditures on behalf of a candidate; even those with the most sanguine hopes for the Act might well concede that the distinction cannot be maintained. As the Senate Report on the bill said: "Whether campaigns are funded privately or publicly. controls are imperative if Congress is to enact meaningful limits on direct contributions. Otherwise, wealthy individuals limited to a $3,000 direct contribution [$1,000 in the bill as finally enacted] could also purchase one hundred thousand *253 dollars' worth of advertisements for a favored candidate. Such a loophole would render direct contribution limits virtually meaningless." S. Rep. No. p. 18 Given the unfortunate record of past attempts to draw distinctions of this kind, see ante, at 61-62, it is not too much to predict that the Court's holding will invite avoidance, if not evasion, of the intent of the Act, with "independent" committees undertaking "unauthorized" activities in order to escape the limits on contributions. The Court's effort to blend First Amendment principles and practical politics has produced a strange offspring. Moreover, the Actor so much as the Court leaves standingcreates significant inequities. A candidate with substantial personal resources is now given by the Court a clear advantage over his less affluent opponents, who are constrained by law in fundraising, because the Court holds that the "First Amendment cannot tolerate" any restrictions on spending. Ante, 9. Minority parties, whose situation is difficult enough under an Act that excludes them from public funding, are prevented from accepting large single-donor contributions. At the same time the Court sustains the provision aimed at broadening the base of political support by requiring candidates to seek a greater number of small contributors, it sustains the unrealistic disclosure thresholds of $10 and $100 that I believe will deter those hoped-for small contributions. Minor parties must now compete for votes against two major parties whose expenditures will be vast. Finally, the Act's distinction between contributions in money and contributions in services remains, with only the former being subject to any limits. As Judge Tamm put it in dissent from the Court of Appeals' opinion: "[T]he classification created only regulates certain *254 types of disproportional influences. Under section 591 (e) (5), services are excluded from contributions. This allows the housewife to volunteer time that might cost well over $1000 to hire on the open market, while limiting her neighbor who works full-time to a regulated contribution. It enhances the disproportional influence of groups who command large quantities of these volunteer services and |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | groups who command large quantities of these volunteer services and will continue to magnify this inequity by not allowing for an inflation adjustment to the contribution limit. It leads to the absurd result that a lawyer's contribution of services to aid a candidate in complying with FECA is exempt, but his first amendment activity is regulated if he falls ill and hires a replacement." 171 U. S. App. D. C. 172, 2, One need not call problems of this order equal protection violations to recognize that the contribution limitations of the Act create grave inequities that are aggravated by the Court's interpretation of the Act. The Court's piecemeal approach fails to give adequate consideration to the integrated nature of this legislation. A serious question is raised, which the Court does not consider:[] when central segments, key operative provisions, of this Act are stricken, can what remains function in anything like the way Congress intended? The incongruities are obvious. The Commission is now eliminated, yet its very purpose was to guide candidates and campaign workersand their accountants and lawyers through an intricate statutory maze where a misstep can lead to imprisonment. All candidates can now spend freely; affluent candidates, after today, can spend their own money without limit; yet, contributions for the ordinary *255 candidate are severely restricted in amountand small contributors are deterred. I cannot believe that Congress would have enacted a statutory scheme containing such incongruous and inequitable provisions. Although the statute contains a severability clause, 2 U.S. C. 454 (10 ed., Supp. IV), such a clause is not an "inexorable (4). The clause creates a rebuttable presumption that " `eliminating invalid parts, the legislature would have been satisfied with what remained.' " Welsh v. United (10) (Harlan, J., concurring, quoting from Champlin Rfg. 286 U.S. (2)). Here just as the presumption of constitutionality of a statute has been overcome to the point that major proportions and chapters of the Act have been declared unconstitutional, for me the presumption of severability has been rebutted. To invoke a severability clause to salvage parts of a comprehensive, integrated statutory scheme, which parts, standing alone, are unworkable and in many aspects unfair, exalts a formula at the expense of the broad objectives of Congress. Finally, I agree with the Court that the members of the Federal Election Commission were unconstitutionally appointed. However, I disagree that we should give blanket de facto validation to all actions of the Commission undertaken until today. The issue is not before us and we cannot know what acts we are ratifying. I would leave this issue to |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | acts we are ratifying. I would leave this issue to the District Court to resolve if and when any challenges are brought. In the past two decades the Court has frequently *256 spoken of the broad coverage of the First Amendment, especially in the area of political dialogue: "[T]o assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people," ; and: "[T]here is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs [including] discussions of candidates" ; and again: "[I]t can hardly be doubted that the constitutional guarantee [of the First Amendment] has its fullest and most urgent application precisely to the conduct of campaigns for political office." Monitor Patriot To accept this generalization one need not agree that the Amendment has its "fullest and most urgent application" only in the political area, for others would think religious freedom is on the same or even a higher plane. But I doubt that the Court would tolerate for an instant a limitation on contributions to a church or other religious cause; however grave an "evil" Congress thought the limits would cure, limits on religious expenditures would most certainly fall as well. To limit either contributions or expenditures as to churches would plainly restrict "the free exercise" of religion. In my view Congress can no more ration political expression than it can ration religious expression; and limits on political or religious contributions and expenditures effectively curb expression in both areas. There are many prices we pay for the freedoms secured by the First Amendment; the risk of undue * influence is one of them, confirming what we have long known: Freedom is hazardous, but some restraints are worse. MR. JUSTICE WHITE, concurring in part and dissenting in part. I concur in the Court's answers to certified questions 1, 2, 3 (b), 3 (c), 3 (e), 3 (f), 3 (h), 5, 6, 7 (a), 7 (b), 7 (c), 7 (d), 8 (a), 8 (b), 8 (c), 8 (d), 8 (e), and 8 (f). I dissent from the answers to certified questions 3 (a), 3 (d), and 4 (a). I also join in Part III of the Court's opinion and in much of Parts I-B, II, and IV. I It is accepted that Congress has power under the Constitution to regulate the election of federal officers, including the President and the Vice President. This includes the authority to protect the elective processes against the "two great natural and historical enemies of all republics, open violence |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | great natural and historical enemies of all republics, open violence and insidious corruption," Ex parte Yarbrough, ; for "[i]f this government is anything more than a mere aggregation of delegated agents of other and governments, each of which is superior to the general government, it must have the power to protect the elections on which its existence depends from violence and corruption," the latter being the consequence of "the free use of money in elections, arising from the vast growth of recent wealth" at -, 7. This teaching from the last century was quoted at length and reinforced in Burroughs v. United (4). In that case the Court sustained the Federal Corrupt Practices Act of 5, Title III of the Act of Feb. 28, 5, which, among other things, required political committees to keep *258 records and file reports concerning all contributions and expenditures received and made by political committees for the purposes of influencing the election of candidates for federal office. The Court noted the conclusion of Congress that public disclosure of contributions would tend to prevent the corrupt use of money to influence elections; this, together with the requirement "that the treasurer's statement shall include full particulars in respect of expenditures," made it "plain that the statute as a whole is calculated to discourage the making and use of contributions for purposes of corruption." U.S., 48. Congress clearly had the power to further as it did that fundamental goal: "The power of Congress to protect the election of President and Vice President from corruption being clear, the choice of means to that end presents a question primarily addressed to the judgment of Congress. If it can be seen that the means adopted are really calculated to attain the end, the degree of their necessity, the extent to which they conduce to the end, the closeness of the relationship between the means adopted and the end to be attained, are matters for congressional determination alone." 47-548. Pursuant to this undoubted power of Congress to vindicate the strong public interest in controlling corruption and other undesirable uses of money in connection with election campaigns, the Federal Election Campaign Act substantially broadened the reporting and disclosure requirements that so long have been a part of the federal law. Congress also concluded that limitations on contributions and expenditures were essential if the aims of the Act were to be achieved fully. In another major innovation, aimed at insulating candidates from the time-consuming and entangling task of raising huge sums of *259 money, provision was made for public financing of political campaigns for |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | provision was made for public financing of political campaigns for federal office. A Federal Election Commission (FEC) was also created to administer the law. The disclosure requirements and the limitations on contributions and expenditures are challenged as invalid abridgments of the right of free speech protected by the First Amendment. I would reject these challenges. I agree with the Court's conclusion and much of its opinion with respect to sustaining the disclosure provisions. I am also in agreement with the Court's judgment upholding the limitations on contributions. I dissent, however, from the Court's view that the expenditure limitations of 18 U.S. C. 608 (c) and (e) (10 ed., Supp. IV) violate the First Amendment. Concededly, neither the limitations on contributions nor those on expenditures directly or indirectly purport to control the content of political speech by candidates or by their supporters or detractors. What the Act regulates is giving and spending money, acts that have First Amendment significance not because they are themselves communicative with respect to the qualifications of the candidate, but because money may be used to defray the expenses of speaking or otherwise communicating about the merits or demerits of federal candidates for election. The act of giving money to political candidates, however, may have illegal or other undesirable consequences: it may be used to secure the express or tacit understanding that the giver will enjoy political favor if the candidate is elected. Both Congress and this Court's cases have recognized this as a mortal danger against which effective preventive and curative steps must be taken. Since the contribution and expenditure limitations are neutral as to the content of speech and are not motivated by fear of the consequences of the political speech *260 of particular candidates or of political speech in general, this case depends on whether the nonspeech interests of the Federal Government in regulating the use of money in political campaigns are sufficiently urgent to justify the incidental effects that the limitations visit upon the First Amendment interests of candidates and their supporters. Despite its seeming struggle with the standard by which to judge this case, this is essentially the question the Court asks and answers in the affirmative with respect to the limitations on contributions which individuals and political committees are permitted to make to federal candidates. In the interest of preventing undue influence that large contributors would have or that the public might think they would have, the Court upholds the provision that an individual may not give to a candidate, or spend on his behalf if requested or authorized by the |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | spend on his behalf if requested or authorized by the candidate to do so, more than $1,000 in any one election. This limitation is valid although it imposes a low ceiling on what individuals may deem to be their most effective means of supporting or speaking on behalf of the candidatei. e., financial support given directly to the candidate. The Court thus accepts the congressional judgment that the evils of unlimited contributions are sufficiently threatening to warrant restriction regardless of the impact of the limits on the contributor's opportunity for effective speech and in turn on the total volume of the candidate's political communications by reason of his inability to accept large sums from those willing to give. The congressional judgment, which I would also accept, was that other steps must be taken to counter the corrosive effects of money in federal election campaigns. One of these steps is 608 (e), which, aside from those funds that are given to the candidate or spent at his *261 request or with his approval or cooperation, limits what a contributor may independently spend in support or denigration of one running for federal office. Congress was plainly of the view that these expenditures also have corruptive potential; but the Court strikes down the provision, strangely enough claiming more insight as to what may improperly influence candidates than is possessed by the majority of Congress that passed this bill and the President who signed it. Those supporting the bill undeniably included many seasoned professionals who have been deeply involved in elective processes and who have viewed them at close range over many years. It would make little sense to me, and apparently made none to Congress, to limit the amounts an individual may give to a candidate or spend with his approval but fail to limit the amounts that could be spent on his behalf. Yet the Court permits the former while striking down the latter limitation. No more than $1,000 may be given to a candidate or spent at his request or with his approval or cooperation; but otherwise, apparently, a contributor is to be constitutionally protected in spending unlimited amounts of money in support of his chosen candidate or candidates. Let us suppose that each of two brothers spends $1 million on TV spot announcements that he has individually prepared and in which he appears, urging the election of the same named candidate in identical words. One brother has sought and obtained the approval of the candidate; the other has not. The former may validly be prosecuted under 608 (e); under the |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | former may validly be prosecuted under 608 (e); under the Court's view, the latter may not, even though the candidate could scarcely help knowing about and appreciating the expensive favor. For constitutional purposes it is difficult to see the difference between the two situations. I would take the word of those who knowthat limiting *262 independent expenditures is essential to prevent transparent and widespread evasion of the contribution limits. In sustaining the contribution limits, the Court recognizes the importance of avoiding public misapprehension about a candidate's reliance on large contributions. It ignores that consideration in invalidating 608 (e). In like fashion, it says that Congress was entitled to determine that the criminal provisions against bribery and corruption, together with the disclosure provisions, would not in themselves be adequate to combat the evil and that limits on contributions should be provided. Here, the Court rejects the identical kind of judgment made by Congress as to the need for and utility of expenditure limits. I would not do so. The Court also rejects Congress' judgment manifested in 608 (c) that the federal interest in limiting total campaign expenditures by individual candidates justifies the incidental effect on their opportunity for effective political speech. I disagree both with the Court's assessment of the impact on speech and with its narrow view of the values the limitations will serve. Proceeding from the maxim that "money talks," the Court finds that the expenditure limitations will seriously curtail political expression by candidates and interfere substantially with their chances for election. The Court concludes that the Constitution denies Congress the power to limit campaign expenses; federal candidates and I would suppose state candidates, tooare to have the constitutional right to raise and spend unlimited amounts of money in quest of their own election. As an initial matter, the argument that money is speech and that limiting the flow of money to the speaker violates the First Amendment proves entirely too much. Compulsory bargaining and the right to strike, both provided for or protected by federal law, inevitably have *263 increased the labor costs of those who publish newspapers, which are in turn an important factor in the recent disappearance of many daily papers. Federal and state taxation directly removes from company coffers large amounts of money that might be spent on larger and better newspapers. The antitrust laws are aimed at preventing monopoly profits and price fixing, which gouge the consumer. It is also true that general price controls have from time to time existed and have been applied to the newspapers or other media. But it has |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | applied to the newspapers or other media. But it has not been suggested, nor could it be successfully, that these laws, and many others, are invalid because they siphon off or prevent the accumulation of large sums that would otherwise be available for communicative activities. In any event, as it should be unnecessary to point out, money is not always equivalent to or used for speech, even in the context of political campaigns. I accept the reality that communicating with potential voters is the heart of an election campaign and that widespread communication has become very expensive. There are, however, many expensive campaign activities that are not themselves communicative or remotely related to speech. Furthermore, campaigns differ among themselves. Some seem to spend much less money than others and yet communicate as much as or more than those supported by enormous bureaucracies with unlimited financing. The record before us no more supports the conclusion that the communicative efforts of congressional and Presidential candidates will be crippled by the expenditure limitations than it supports the contrary. The judgment of Congress was that reasonably effective campaigns could be conducted within the limits established by the Act and that the communicative efforts of these campaigns would not seriously suffer. In this posture *264 of the case, there is no sound basis for invalidating the expenditure limitations, so long as the purposes they serve are legitimate and sufficiently substantial, which in my view they are. In the first place, expenditure ceilings reinforce the contribution limits and help eradicate the hazard of corruption. The Court upholds the overall limit of $25,000 on an individual's political contributions in a single election year on the ground that it helps reinforce the limits on gifts to a single candidate. By the same token, the expenditure limit imposed on candidates plays its own role in lessening the chance that the contribution ceiling will be violated. Without limits on total expenditures, campaign costs will inevitably and endlessly escalate. Pressure to raise funds will constantly build and with it the temptation to resort in "emergencies" to those sources of large sums, who, history shows, are sufficiently confident of not being caught to risk flouting contribution limits. Congress would save the candidate from this predicament by establishing a reasonable ceiling on all candidates. This is a major consideration in favor of the limitation. It should be added that many successful candidates will also be saved from large, overhanging campaign debts which must be paid off with money raised while holding public office and at a time when they are already preparing or |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | and at a time when they are already preparing or thinking about the next campaign. The danger to the public interest in such situations is self-evident. Besides backing up the contribution provisions, which are aimed at preventing untoward influence on candidates that are elected, expenditure limits have their own potential for preventing the corruption of federal elections themselves. For many years the law has required the disclosure of expenditures as well as contributions. As Burroughs indicates, the corrupt use of money by candidates *265 is as much to be feared as the corrosive influence of large contributions. There are many illegal ways of spending money to influence elections. One would be blind to history to deny that unlimited money tempts people to spend it on whatever money can buy to influence an election. On the assumption that financing illegal activities is low on the campaign organization's priority list, the expenditure limits could play a substantial role in preventing unethical practices. There just would not be enough of "that kind of money" to go around. I have little doubt in addition that limiting the total that can be spent will ease the candidate's understandable obsession with fundraising, and so free him and his staff to communicate in more places and ways unconnected with the fundraising function. There is nothing objectionableindeed it seems to me a weighty interest in favor of the provisionin the attempt to insulate the political expression of federal candidates from the influence inevitably exerted by the endless job of raising increasingly large sums of money. I regret that the Court has returned them all to the treadmill. It is also important to restore and maintain public confidence in federal elections. It is critical to obviate or dispel the impression that federal elections are purely and simply a function of money, that federal offices are bought and sold or that political races are reserved for those who have the facilityand the stomachfor doing whatever it takes to bring together those interests, groups, and individuals that can raise or contribute large fortunes in order to prevail at the polls. The ceiling on candidate expenditures represents the considered judgment of Congress that elections are to be decided among candidates none of whom has overpowering advantage by reason of a huge campaign war chest. At least so long as the ceiling placed upon the candidates *2 is not plainly too low, elections are not to turn on the difference in the amounts of money that candidates have to spend. This seems an acceptable purpose and the means chosen a commonsense way to |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | acceptable purpose and the means chosen a commonsense way to achieve it. The Court nevertheless holds that a candidate has a constitutional right to spend unlimited amounts of money, mostly that of other people, in order to be elected. The holding perhaps is not that federal candidates have the constitutional right to purchase their election, but many will so interpret the Court's conclusion in this case. I cannot join the Court in this respect. I also disagree with the Court's judgment that 608 (a), which limits the amount of money that a candidate or his family may spend on his campaign, violates the Constitution. Although it is true that this provision does not promote any interest in preventing the corruption of candidates, the provision does, nevertheless, serve salutary purposes related to the integrity of federal campaigns. By limiting the importance of personal wealth, 608 (a) helps to assure that only individuals with a modicum of support from others will be viable candidates. This in turn would tend to discourage any notion that the outcome of elections is primarily a function of money. Similarly, 608 (a) tends to equalize access to the political arena, encouraging the less wealthy, unable to bankroll their own campaigns, to run for political office. As with the campaign expenditure limits, Congress was entitled to determine that personal wealth ought to play a less important role in political campaigns than it has in the past. Nothing in the First Amendment stands in the way of that determination. For these reasons I respectfully dissent from the Court's answers to certified questions 3 (a), 3 (d), and 4 (a). *267 II I join the answers in Part IV of the Court's opinion, ante, at 1-142, n. 177, to the questions certified by the District Court relating to the composition and powers of the FEC, i. e., questions 8 (a), 8 (b), 8 (c), 8 (d) (with the qualifications stated infra, at 282-286), 8 (e), and 8 (f). I also agree with much of that part of the Court's opinion, including the conclusions that these questions are properly before us and ripe for decision, that the FEC's past acts are de facto valid, that the Court's judgment should be stayed, and that the FEC may function de facto while the stay is in effect. The answers to the questions turn on whether the FEC is illegally constituted because its members were not selected in the manner required by Art. II, 2, cl. 2, the Appointments Clause. It is my view that with one exception Congress could endow a properly constituted |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | that with one exception Congress could endow a properly constituted commission with the powers and duties it has given the FEC.[1] Section 437c creates an eight-member FEC. Two members, the Secretary of the Senate and the Clerk of the House of Representatives, are ex officio members *268 without the right to vote or to hold an FEC office.[2] Of the remaining six, two are appointed by the President pro tempore of the Senate upon the recommendation of the majority and minority leaders of that body; two are similarly appointed by the Speaker of the House; and two are appointed by the President of the United The appointment of each of these six members is subject to confirmation by a majority of both Houses of Congress. 437c (a) (1). Each member is appointed for a term of years; none can be an elected or appointed officer or employee of any branch of the Government at the time of his appointment. 437c (a) (2), (3). The FEC is empowered to elect its own officers, 437c (a) (5), and to appoint a staff director and general counsel. 437c (f). Decisions are by a majority vote. 437c (c). It is apparent that none of the members of the FEC is selected in a manner Art. II specifies for the appointment of officers of the United The Appointments Clause provides: "[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may 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."[3] Although two of the members of the FEC are initially selected by the President, his nominations are subject to confirmation by both Houses of Congress. Neither *269 he, the head of any department, nor the Judiciary has any voice in the selection of the remaining members of the FEC. The challenge to the FEC, therefore, is that its members are officers of the United the mode of whose appointment was required to, but did not, conform to the Appointments Clause. That challenge is well taken. The Appointments Clause applies only to officers of the United whose appointment is not "otherwise provided for" in the Constitution. Senators and Congressmen are officers of the United but the Constitution expressly provides the mode of their selection.[4] |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | but the Constitution expressly provides the mode of their selection.[4] The Constitution also expressly provides that each House of Congress is to appoint its own officers.[5] But it is not contended here that FEC members are officers of either House selected pursuant to these express provisions, if for no other reason, perhaps, than that none of the Commissioners was selected in the manner specified by these provisionsnone of them was finally selected by either House acting alone as Art. I authorizes. The appointment power provided in Art. II also applies only to officers, as distinguished from employees,[6] of the United but there is no claim the Commissioners are employees of the United rather than officers. That the Commissioners are among those officers of the United referred to in the Appointments Clause of Art. II is evident from the breadth of their * assigned duties and the nature and importance of their assigned functions. The functions and duties of the FEC relate to three different aspects of the election laws: First, the provisions of the Criminal Code, 18 U.S. C. 608- (10 ed., Supp. IV), which establish major substantive limitations on political contributions and expenditures by individuals, political organizations, and candidates; second, the reporting and disclosure provisions contained in 2 U.S. C. -437b (10 ed., Supp. IV), these sections requiring the filing of detailed reports of political contributions and expenditures; and third, the provisions of 26 U.S. C. 9001-9042 (10 ed., Supp. IV) with respect to the public financing of Presidential primary and general election campaigns. From the "representative examples of [the FEC's] various powers" the Court describes, ante, at -113, it is plain that the FEC is the primary agency for the enforcement and administration of major parts of the election laws. It does not replace or control the executive agencies with respect to criminal prosecutions, but within the wide zone of its authority the FEC is independent of executive as well as congressional control except insofar as certain of its regulations must be laid before and not be disapproved by Congress. (c); 26 U.S. C. 9009 (c), 9039 (c) (10 ed., Supp. IV). With duties and functions such as these, members of the FEC are plainly "officers of the United " as that term is used in Art. II, 2, cl. 2. It is thus not surprising that the FEC, in defending the legality of its members' appointments, does not deny that they are "officers of the United " as that term is used in the Appointments Clause of Art. II.[7] Instead, *271 for reasons the Court outlines, ante, |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | Art. II.[7] Instead, *271 for reasons the Court outlines, ante, 1-1, 133-134, its position appears to be that even if its members are officers of the United Congress may nevertheless appoint a majority of the FEC without participation by the President.[8] This position that Congress may itself appoint the members of a body that is to administer a wide-ranging statute will not withstand examination in light of either the purpose and history of the Appointments Clause or of prior cases in this Court. The language of the Appointments Clause was not mere inadvertence. The matter of the appointment of officers of the new Federal Government was repeatedly debated by the Framers, and the final formulation of the Clause arrived at only after the most careful debate and consideration of its place in the overall design of government. The appointment power was a major building block fitted into the constitutional structure designed to avoid the accumulation or exercise of arbitrary power by the Federal Government. The basic approach was that official power should be divided among the Executive, Legislative, and Judicial Departments. The separation-of-powers principle was implemented by a series of provisions, among which was the knowing decision that Congress was to have no power whatsoever to appoint federal officers, except for the power of each House to appoint its own officers serving in the strictly legislative * processes and for the confirming power of the Senate alone. The decision to give the President the exclusive power to initiate appointments was thoughtful and deliberate. The Framers were attempting to structure three departments of government so that each would have affirmative powers strong enough to resist the encroachment of the others. A fundamental tenet was that the same persons should not both legislate and administer the laws.[9] From the very outset, provision was made to prohibit members of Congress from holding office in another branch of the Government while also serving in Congress. There was little if any dispute about this incompatibility provision which survived in Art. I, 6, of the Constitution as finally ratified.[10] Today, no person may serve in Congress and at the same time be Attorney Secretary of State, a member of the judiciary, a United attorney, or a member of the Federal Trade Commission or the National Labor Relations Board. Early in the 1787 Convention it was also proposed that members of Congress be absolutely ineligible during the term for which they were elected, and for a period thereafter, for appointment to any state or federal office.[11] But to meet substantial opposition to so stringent a provision, ineligibility |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | to meet substantial opposition to so stringent a provision, ineligibility for state office was first eliminated,[12] and under the language ultimately adopted, Congressmen *273 were disqualified from being appointed only to those offices which were created, or for which the emoluments were increased, during their term of office.[13] Offices not in this category could be filled by Representatives or Senators, but only upon resignation. Immediately upon settling the ineligibility provision, the Framers returned to the appointment power which they had several times before debated and postponed for later consideration.[14] From the outset, there had been no dispute that the Executive alone should appoint, and not merely nominate, purely executive officers,[15] but at one stage judicial officers were to be selected by the entire Congress.[16] This provision was subsequently changed to lodge the power to choose judges in the Senate,[17] which was later also given the power to appoint ambassadors and other public ministers.[18] But following resolution of the dispute over the ineligibility provision, which served both to prevent members of Congress from appointing themselves to federal office and to limit their being appointed to federal office, it was determined that the appointment of all principal officers, whether executive or not, should originate with the President and that the Senate should have only the power of advice and consent.[19] Inferior officers *274 could be otherwise appointed, but not by Congress itself.[] This allocation of the appointment power, in which for the first time the Executive had the power to initiate appointment to all principal offices and the Senate was empowered to advise and consent to nominations by the Executive,[21] was made possible by adoption of the ineligibility provisions and was formulated as part of the fundamental compromises with respect to the composition of the Senate, the respective roles of the House and Senate, and the placement of the election of the President in the electoral college. Under Art. II as finally adopted, law enforcement authority was not to be lodged in elected legislative officials subject to political pressures. Neither was the Legislative Branch to have the power to appoint those who were to enforce and administer the law. Also, the appointment power denied Congress and vested in the President was not limited to purely executive officers but reached officers performing purely judicial functions as well as all other officers of the United I thus find singularly unpersuasive the proposition that because the FEC is implementing statutory policies with respect to the conduct of elections, which policies Congress has the power to propound, its members may be appointed by Congress. One might |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | propound, its members may be appointed by Congress. One might as well argue that the exclusive and plenary power of Congress over interstate commerce authorizes Congress to appoint the members of the Interstate Commerce Commission and of many other regulatory commissions; that its exclusive power to provide for patents and copyrights would permit the administration of the patent laws to be carried out by a congressional committee; or that the exclusive power of the Federal Government to establish post offices authorizes *275 Congress itself or the Speaker of the House and the President pro tempore of the Senate to appoint postmasters and to enforce the postal laws. Congress clearly has the power to create federal offices and to define the powers and duties of those offices, Myers v. United U.S. 52, -129 (6), but no case in this Court even remotely supports the power of Congress to appoint an officer of the United aside from those officers each House is authorized by Art. I to appoint to assist in the legislative processes. In Myers, a postmaster of the first class was removed by the President prior to the expiration of his statutory four-year term. Challenging the President's power to remove him contrary to the statute, he sued for his salary. The challenge was rejected here. The Court said that under the Constitution the power to appoint the principal officers of the Executive Branch was an inherent power of the President: "[T]he reasonable implication, even in the absence of express words, was that as part of his executive power [the President] should select those who were to act for him under his direction in the execution of the laws." Further, absent express limitation in the Constitution, the President was to have unrestricted power to remove those administrative officers essential to him in discharging his duties. These fundamental rules were to extend to those bureau and department officers with power to issue regulations and to discharge duties of a quasi-judicial naturethose members of "executive tribunal whose decisions after hearing affect interests of individuals." 5. As for inferior officers such as the plaintiff postmaster, the same principles were to govern if Congress chose to place the appointment in the President with the advice and consent of the Senate, as *276 was the case in Myers. Under the Appointments Clause, Congress couldbut did not in the Myers casepermit the appointment of inferior officers by the heads of departments, in which event, the Court said, Congress would have the authority to establish a term of office and limit the reasons for their removal. But in |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | office and limit the reasons for their removal. But in no circumstance could Congress participate in the removal: "[T]he Court never has held, nor reasonably could hold, although it is argued to the contrary on behalf of the appellant, that the excepting clause enables Congress to draw to itself, or to either branch of it, the power to remove or the right to participate in the exercise of that power. To do this would be to go beyond the words and implications of that clause and to infringe the constitutional principle of the separation of governmental powers." Humphrey's Executor v. United (5), limited the reach of the Myers case. There the President attempted to remove a member of the Federal Trade Commission prior to the expiration of his statutory term and for reasons not specified in the statute. The Court ruled that the Presidential removal power vindicated in Myers related solely to "purely executive officers," from whom the Court sharply distinguished officers such as the members of the Federal Trade Commission who were to be free from political dominance and control, whose duties are "neither political nor executive, but predominantly quasi-judicial and quasi-legislative." at Contrary to the dicta in Myers, such an officer was thought to occupy "no place in the executive department," to exercise "no part of the executive power vested by the Constitution in the President," and to be immune from removal by the President except on terms specified by Congress. The Commissioners were described as being *277 in part an administrative body carrying out legislative policies and in part an agency of the Judiciary, ibid.; such a body was intended to be "independent of executive authority, except in its selection, and free to exercise its judgment without the leave or hindrance of any other official or any department of the government." (Emphasis in original.) The holding in Humphrey's Executor was confirmed in Wiener v. United but the Court did not question what Humphrey's Executor had expressly recognizedthat members of independent agencies are not independent of the Executive with respect to their appointments. Nor did either Wiener or Humphrey's Executor suggest that Congress could not only create the independent agency, specify its duties, and control the grounds for removal of its members but could also itself appoint or remove them without the participation of the Executive Branch of the Government. To have so held would have been contrary to the Appointments Clause as the Myers case recognized. It is said that historically Congress has used its own officers to receive and file the reports of campaign expenditures and |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | to receive and file the reports of campaign expenditures and contributions as required by law and that this Court should not interfere with this practice. But the Act before us creates a separate and independent campaign commission with members, some nominated by the President, who have specified terms of office, are not subject to removal by Congress, and are free from congressional control in their day-to-day functions. The FEC, it is true, is the designated authority with which candidates and political committees must file reports of contributions and expenditures, as required by the Act. But the FEC may also make rules and regulations with respect to the disclosure requirements, may investigate reported violations, issue subpoenas, hold its own hearings *278 and institute civil enforcement proceedings in its own name. Absent a request by the FEC, it would appear that the Attorney has no role in the civil enforcement of the reporting and disclosure requirements. The FEC may also issue advisory opinions with respect to the legality of any particular activities so as to protect those persons who in good faith have conducted themselves in reliance on the FEC's opinion. These functions go far beyond mere information gathering, and there is no long history of lodging such enforcement powers in congressional appointees. Nor do the FEC's functions stop with policing the reporting and disclosure requirements of the Act. The FEC is given express power to administer, obtain compliance with, and "to formulate general policy"[22] with respect to 18 U.S. C. 608-, so much so that the Act expressly provides that "[t]he Commission has primary jurisdiction with respect to the civil enforcement of such provisions."[23] Following its own proceedings the FEC may request the Attorney to bring civil enforcement proceedings, a request which the Attorney must honor.[24] And good-faith conduct taken in accordance *279 with the FEC's advisory opinions as to whether any transaction or activity would violate any of these criminal provisions "shall be presumed to be in compliance with" these sections.[25] 437f (b). Finally, the FEC has the central role in administering and enforcing the provisions *280 of Title 26 contemplating the public financing of political campaigns.[26] It is apparent that the FEC is charged with the enforcement of the election laws in major respects. Indeed, except for the conduct of criminal proceedings, it would appear that the FEC has the entire responsibility for enforcement of the statutes at issue here. By no stretch of the imagination can its various functions in this respect be considered mere adjuncts to the legislative process or to the powers of Congress to judge |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | legislative process or to the powers of Congress to judge the election and qualifications of its own members. It is suggested, without accounting for the President's role in appointing some of its members, that the FEC would be willing to forgo its civil enforcement powers and that absent these functions, it is left with nothing that purely legislative officers may not do. The difficulty is that the statute invests the FEC not only with the authority but with the duties that unquestionably make its members officers of the United fully as much as the members of other commissions charged with the major responsibility for administering statutes. What is more, merely forgoing its authority to bring suit would still leave the FEC with the power to issue rules and regulations, its advisory opinion authority, and primary duties to enforce the Act. Absent notice and hearing by the FEC and a request on its part, it would not appear that the Executive Branch of the Government would have any authority under the statute to institute civil enforcement proceedings with respect to the reporting and disclosure requirements or the relevant provisions of Titles 18 and 26. There is no doubt that the development of the administrative *281 agency in response to modern legislative and administrative need has placed severe strain on the separation-of-powers principle in its pristine formulation. See Any notion that the Constitution bans any admixture of powers that might be deemed legislative, executive, and judicial has had to give The independent agency has survived attacks from various directions: that it exercises invalidly delegated legislative power, Sunshine Coal U.S. 381 ; that it invalidly exercises judicial power, ibid.; and that its functions are so executive in nature that its members must be subject to Presidential control, Humphrey's Executor v. United (5). Until now, however, it has not been insisted that the commands of the Appointments Clause must also yield to permit congressional appointments of members of a major agency. With the Court, I am not convinced that we should create a broad exception to the requirements of that Clause that all officers of the United be appointed in accordance with its terms. The provision applies to all officers, however their duties may be classified; and even if some of the FEC's functions, such as rulemaking, are purely legislative, I know of no authority for the congressional appointment of its own agents to make binding rules and regulations necessary to or advisable for the administration and enforcement of a major statute where the President has not participated either in the appointment of each |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | President has not participated either in the appointment of each of the administrators or in the fashioning of the rules or regulations which they propound. I do not dispute the legislative power of Congress coercively to gather and make available for public inspection massive amounts of information relevant to the legislative process. Its own officers may, as they have *282 done for years, receive and file contribution and expenditure reports of candidates and political committees. Arguably, the Commissioners, although not properly appointed by the President, should at least be able to perform this function. But the members of the FEC are appointed for definite terms of office, are not removable by the President or by Congress, and even if their duties were to be severely limited, they would appear to remain Art. II officers. In any event, the task of gathering and publishing campaign finance information has been one of the specialties of the officers of the respective Houses, and these same officers under the present law continue to receive such information and to act as custodians for the FEC, at least with respect to the Senate and House political campaigns. They are also instructed to cooperate with the FEC. (d). For these reasons I join in the Court's answers to certified questions 8 (a), 8 (b), 8 (c), 8 (e) and 8 (f), and with the following reservations to question 8 (d). Question 8 (d) asks whether (c) violates the constitutional rights of one or more of the plaintiffs in that "it empowers the Federal Election Commission to make rules under the F. E. C. A. in the manner specified therein." Section (c) imposes certain preconditions to the effectiveness of "any rule or regulation under this section" but does not itself authorize the issuance of rules or That authorization is to be found in (a) (10), which includes among the duties of the FEC the task of prescribing "rules and regulations to carry out the provisions of this subchapter, in accordance with the provisions of subsection (c)." The "subchapter" referred to is the subchapter dealing with federal election campaigns and the reports of contributions and expenditures required to be filed with the FEC.[27] Subsection *283 (c), which is the provision expressly mentioned in question 8 (d), requires that any rule or regulation prescribed by the FEC under shall be transmitted to the Senate or the House, or to both as thereafter directed. After 30 legislative days,[28] the rule or regulation will become effective unless (1) either House has disapproved the rule if it relates to reports by Presidential candidates |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | the rule if it relates to reports by Presidential candidates or their supporting committees; (2) the House has disapproved it if it relates to reports to be filed by House candidates or their committees; or (3) the Senate has disapproved it if the rule relates to reports by Senate candidates or their related committees. By expressly referring to subsection (c), question 8 (d) appears to focus on the disapproval requirement; but the Court's answer is not responsive in these terms. Rather, the Court expressly disclaims holding that the FEC's rules and regulations are invalid because of the requirement that they are subject to disapproval by one or both Houses of Congress. Ante, at n. 176. As I understand it, the FEC's rules and regulations, whether or not issued in compliance with (c), are invalid because the members of the FEC have not been appointed in accordance with Art. II. To the extent that this is the basis for the Court's answer to the question, I am in agreement. If the FEC members had been nominated by the President and confirmed by the Senate as provided in Art. II, *284 nothing in the Constitution would prohibit Congress from empowering the Commission to issue rules and regulations without later participation by, or consent of, the President or Congress with respect to any particular rule or regulation or initially to adjudicate questions of fact in accordance with a proper interpretation of the statute. Sunshine Coal U.S. 381 ; ; Humphrey's Executor v. United (5). The President must sign the statute creating the rulemaking authority of the agency or it must have been passed over his veto, and he must have nominated the members of the agency in accordance with Art. II; but agency regulations issued in accordance with the statute are not subject to his veto even though they may be substantive in character and have the force of law. I am also of the view that the otherwise valid regulatory power of a properly created independent agency is not rendered constitutionally infirm, as violative of the President's veto power, by a statutory provision subjecting agency regulations to disapproval by either House of Congress. For a bill to become law it must pass both Houses and be signed by the President or be passed over his veto. Also, "Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary" is likewise subject to the veto power.[29] Under (c) the FEC's regulations are subject to disapproval; but for a regulation to become effective, neither House need |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | but for a regulation to become effective, neither House need approve it, pass it, or take any action at all with respect to it. The regulation becomes effective by nonaction. This no more invades the President's powers than does a regulation not required to be laid before Congress. Congressional influence over the substantive content of agency regulation may be enhanced, *285 but I would not view the power of either House to disapprove as equivalent to legislation or to an order, resolution, or vote requiring the concurrence of both Houses.[30] In terms of the substantive content of regulations and the degree of congressional influence over agency lawmaking, I do not suggest that there is no difference between the situation where regulations are subject to disapproval by Congress and the situation where the agency need not run the congressional gantlet. But the President's veto power, which gives him an important role in the legislative process, was obviously not considered an inherently executive function. Nor was its principal aim to provide another check against poor legislation. The major purpose of the veto power appears to have been to shore up the Executive Branch and to provide it with some bargaining and survival power against what the Framers feared would be the overweening power of legislators. As Hamilton said the veto power was to provide a defense against the legislative department's intrusion on the rights and powers of other departments; without such power, "the legislative and executive powers might speedily come to be blended in the same hands."[31] I would be much more concerned if Congress purported to usurp the functions of law enforcement, to control the outcome of particular adjudications, or to pre-empt the President's appointment power; but in the *286 light of history and modern reality, the provision for congressional disapproval of agency regulations does not appear to transgress the constitutional design, at least where the President has agreed to legislation establishing the disapproval procedure or the legislation has been passed over his veto. It would be considerably different if Congress itself purported to adopt and propound regulations by the action of both Houses. But here no action of either House is required for the agency rule to go into effect, and the veto power of the President does not appear to be implicated. MR. JUSTICE MARSHALL, concurring in part and dissenting in part. I join in all of the Court's opinion except Part I-C-2, which deals with 18 U.S. C. 608 (a) (10 ed., Supp. IV). That section limits the amount a candidate may spend from his personal funds, or |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | amount a candidate may spend from his personal funds, or family funds under his control, in connection with his campaigns during any calendar year. See ante, 1-52, n. 57. The Court invalidates 608 (a) as violative of the candidate's First Amendment rights. "[T]he First Amendment," the Court explains, "simply cannot tolerate 608 (a)'s restriction upon the freedom of a candidate to speak without legislative limit on behalf of his own candidacy." Ante, 4. I disagree. To be sure, 608 (a) affects the candidate's exercise of his First Amendment rights. But unlike the other expenditure limitations contained in the Act and invalidated by the Courtthe limitation on independent expenditures relative to a clearly identified candidate, 608 (e), and the limitations on overall candidate expenditures, 608 (c)the limitations on expenditures by candidates from personal resources contained in 608 (a) need never prevent the speaker from spending another *287 dollar to communicate his ideas. Section 608 (a) imposes no overall limit on the amount a candidate can spend; it simply limits the "contribution" a candidate may make to his own campaign. The candidate remains free to raise an unlimited amount in contributions from others. So long as the candidate does not contribute to his campaign more than the amount specified in 608 (a), and so long as he does not accept contributions from others in excess of the limitations imposed by 608 (b), he is free to spend without limit on behalf of his campaign. It is significant, moreover, that the ceilings imposed by 608 (a) on candidate expenditures from personal resources are substantially higher than the $1,000 limit imposed by 608 (e) on independent expenditures by noncandidates. Presidential and Vice Presidential candidates may contribute $50,000 of their own money to their campaigns, Senate candidates $35,000, and most House candidates $25,000. Those ceilings will not affect most candidates. But they will admittedly limit the availability of personal funds for some candidates, and the question is whether that limitation is justified. The Court views "[t]he ancillary interest in equalizing the relative financial resources of candidates" as the relevant rationale for 608 (a), and deems that interest insufficient to justify 608 (a). Ante, 4. In my view the interest is more precisely the interest in promoting the reality and appearance of equal access to the political arena. Our -access decisions serve as a reminder of the importance of the general interest in promoting equal access among potential candidates. See, e. g., ; (12). While admittedly those cases dealt with barriers to entry different from those we consider here, the barriers to which 608 (a) is |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | we consider here, the barriers to which 608 (a) is directed *288 are formidable ones, and the interest in removing them substantial. One of the points on which all Members of the Court agree is that money is essential for effective communication in a political campaign. It would appear to follow that the candidate with a substantial personal fortune at his disposal is off to a significant "headstart." Of course, the less wealthy candidate can potentially overcome the disparity in resources through contributions from others. But ability to generate contributions may itself depend upon a showing of a financial base for the campaign or some demonstration of pre-existing support, which in turn is facilitated by expenditures of substantial personal sums. Thus the wealthy candidate's immediate access to a substantial personal fortune may give him an initial advantage that his less wealthy opponent can never overcome. And even if the advantage can be overcome, the perception that personal wealth wins elections may not only discourage potential candidates without significant personal wealth from entering the political arena, but also undermine public confidence in the integrity of the electoral process.[1] The concern that candidacy for public office not become, or appear to become, the exclusive province of the wealthy assumes heightened significance when one considers the impact of 608 (b), which the Court today upholds. That provision prohibits contributions from individuals and groups to candidates in excess of $1,000, and contributions from political committees in excess of $5,000. While the limitations on contributions are neutral in the sense that *289 all candidates are foreclosed from accepting large contributions, there can be no question that large contributions generally mean more to the candidate without a substantial personal fortune to spend on his campaign. Large contributions are the less wealthy candidate's only hope of countering the wealthy candidate's immediate access to substantial sums of money. With that option removed, the less wealthy candidate is without the means to match the large initial expenditures of money of which the wealthy candidate is capable. In short, the limitations on contributions put a premium on a candidate's personal wealth. In view of 608 (b)'s limitations on contributions, then, 608 (a) emerges not simply as a device to reduce the natural advantage of the wealthy candidate, but as a provision providing some symmetry to a regulatory scheme that otherwise enhances the natural advantage of the wealthy.[2] Regardless of whether the goal of equalizing access would justify a legislative limit on personal candidate expenditures standing by itself, I think it clear that that goal justifies 608 (a)'s limits when they |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | clear that that goal justifies 608 (a)'s limits when they are considered in conjunction with the remainder of the * Act. I therefore respectfully dissent from the Court's invalidation of 608 (a). MR. JUSTICE BLACKMUN, concurring in part and dissenting in part. I am not persuaded that the Court makes, or indeed is able to make, a principled constitutional distinction between the contribution limitations, on the one hand, and the expenditure limitations, on the other, that are involved here. I therefore do not join Part I-B of the Court's opinion or those portions of Part that are consistent with Part I-B. As to those, I dissent. I also dissent, accordingly, from the Court's responses to certified questions 3 (b), (c), and (h). I would answer those questions in the affirmative. I do join the remainder of the Court's opinion and its answers to the other certified questions. MR. JUSTICE REHNQUIST, concurring in part and dissenting in part. I concur in Parts I, II, and IV of the Court's opinion. I concur in so much of Part III of the Court's opinion as holds that the public funding of the cost of a Presidential election campaign is a permissible exercise of congressional authority under the power to tax and spend granted by Art. I, but dissent from Part III-B-1 of the Court's opinion, which holds that certain aspects of the statutory treatment of minor parties and independent candidates are constitutionally valid. I state as briefly as possible my reasons for so doing. The limits imposed by the First and Fourteenth Amendments on governmental action may vary in their stringency depending on the capacity in which the government is acting. The government as proprietor, is, I believe, *291 permitted to affect putatively protected interests in a manner in which it might not do if simply proscribing conduct across the board. Similarly, the government as employer, and may prescribe conditions of employment which might be constitutionally unacceptable if enacted into standards of conduct made applicable to the entire citizenry. For the reasons stated in the dissenting opinion of Mr. Justice Jackson in 343 U.S. and by Mr. Justice Harlan in his dissenting opinion in I am of the opinion that not all of the strictures which the First Amendment imposes upon Congress are carried over against the by the Fourteenth Amendment, but rather that it is only the "general principle" of free speech, (5) that the latter incorporates. See 4-5 Given this view, cases which deal with state restrictions on First Amendment freedoms are not fungible with those which deal with restrictions imposed |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | are not fungible with those which deal with restrictions imposed by the Federal Government, and cases which deal with the government as employer or proprietor are not fungible with those which deal with the government as a lawmaker enacting criminal statutes applying to the population generally. The statute before us was enacted by Congress, not with the aim of managing the Government's property nor of regulating the conditions of Government employment, but rather with a view to the regulation of the citizenry as a whole. The case for me, then, presents the First Amendment interests of the appellants at their strongest, and the legislative authority of Congress in the position where it is most vulnerable to First Amendment attacks. *292 While this approach undoubtedly differs from some of the underlying assumptions in the opinion of the Court, opinions are written not to explore abstract propositions of law but to decide concrete cases. I therefore join in all of the Court's opinion except Part III-B-1, which sustains, against appellants' First and Fifth Amendment challenges, the disparities found in the congressional plan for financing general Presidential elections between the two major parties, on the one hand, and minor parties and candidacies on the other. While I am not sure that I agree with the Court's comment, ante, at 95, that "public financing is generally less restrictive of access to the electoral process than the -access regulations dealt with in prior cases," in any case that is not, under my view, an adequate answer to appellants' claim. The electoral laws relating to access which were examined in ; American Party of ; and all arose out of state efforts to regulate minor party candidacies and the actual physical size of the If the are to afford a republican form of government, they must by definition provide for general elections and for some standards as to the contents of the official s which will be used at those elections. The decision of the state legislature to enact legislation embodying such regulations is therefore not in any sense an optional one; there must be some standards, however few, which prescribe the contents of the official if the popular will is to be translated into a choice among candidates. Dealing thus by necessity with these issues, the have strong interests in "limiting places on the to those candidates who demonstrate substantial popular support," ante, at They have a like interest in discouraging *293 "splintered parties and unrestrained factionalism" which might proliferate the number of candidates on a state so as to make it virtually unintelligible to |
per_curiam | 1,976 | 200 | per_curiam | Buckley v. Valeo | https://www.courtlistener.com/opinion/109380/buckley-v-valeo/ | a state so as to make it virtually unintelligible to the average voter. Congress, on the other hand, while undoubtedly possessing the legislative authority to undertake the task if it wished, is not obliged to address the question of public financing of Presidential elections at all. When it chooses to legislate in this area, so much of its action as may arguably impair First Amendment rights lacks the same sort of mandate of necessity as does a State's regulation of access. Congress, of course, does have an interest in not "funding hopeless candidacies with large sums of public money," ante, at and may for that purpose legitimately require " `some preliminary showing of a significant modicum of support,' [403 U.S.] as an eligibility requirement for public funds." Ante, at But Congress in this legislation has done a good deal more than that. It has enshrined the Republican and Democratic Parties in a permanently preferred position, and has established requirements for funding minor-party and independent candidates to which the two major parties are not subject. Congress would undoubtedly be justified in treating the Presidential candidates of the two major parties differently from minor-party or independent Presidential candidates, in view of the long demonstrated public support of the former. But because of the First Amendment overtones of the appellants' Fifth Amendment equal protection claim, something more than a merely rational basis for the difference in treatment must be shown, as the Court apparently recognizes. I find it impossible to subscribe to the Court's reasoning that because no third party has posed a credible threat to the two major parties in Presidential *294 elections since 1860, Congress may by law attempt to assure that this pattern will endure forever. I would hold that, as to general election financing, Congress has not merely treated the two major parties differently from minor parties and independents, but has discriminated in favor of the former in such a way as to run afoul of the Fifth and First Amendments to the United Constitution. |
Justice Scalia | 1,990 | 9 | dissenting | Minnick v. Mississippi | https://www.courtlistener.com/opinion/112513/minnick-v-mississippi/ | The Court today establishes an irrebuttable presumption that a criminal suspect, after invoking his Miranda right to counsel, can never validly waive that right during any police-initiated encounter, even after the suspect has been provided multiple Miranda warnings and has actually consulted his attorney. This holding builds on foundations already established in but "the rule of Edwards is our rule, not a constitutional command; and it is our obligation to justify its expansion." Because I see no justification for applying the Edwards irrebuttable presumption when a criminal suspect has actually consulted with his attorney, I respectfully dissent. *157 I Some recapitulation of pertinent facts is in order, given the Court's contention that "[t]he case before us well illustrates the pressures, and abuses, that may be concomitants of custody." Ante, at 153. It is undisputed that the FBI agents who first interviewed Minnick on Saturday, August 23, 1986, advised him of his Miranda rights before any questioning began. Although he refused to sign a waiver form, he agreed to talk to the agents, and described his escape from prison in Mississippi and the ensuing events. When he came to what happened at the trailer, however, Minnick hesitated. The FBI agents then reminded him that he did not have to answer questions without a lawyer present. Minnick indicated that he would finish his account on Monday, when he had a lawyer, and the FBI agents terminated the interview forthwith. Minnick was then provided with an attorney, with whom he consulted several times over the weekend. As Minnick testified at a subsequent suppression hearing: "I talked to [my attorney] two different times andit might have been three different times He told me that first day that he was my lawyer and that he was appointed to me and to not to talk to nobody and not tell nobody nothing and to not sign no waivers and not sign no extradition papers or sign anything and that he was going to get a court order to have any of the policeI advised him of the FBI talking to me and he advised me not to tell anybody anything that he was going to get a court order drawn up to restrict anybody talking to me outside of the San Diego Police Department." App. 6-7. On Monday morning, Minnick was interviewed by Deputy Sheriff J. C. Denham, who had come to San Diego from Mississippi. Before the interview, Denham reminded Minnick of his Miranda rights. Minnick again refused to sign a *158 waiver form, but he did talk with Denham and did not ask for |
Justice Scalia | 1,990 | 9 | dissenting | Minnick v. Mississippi | https://www.courtlistener.com/opinion/112513/minnick-v-mississippi/ | he did talk with Denham and did not ask for his attorney. As Minnick recalled at the hearing, he and Denham "went through several different conversations about first, about how everybody was back in the county jail and what everybody was doing, had he heard from Mama and had he went and talked to Mama and had he seen my brother, Tracy, and several different other questions pertaining to such things as that. And, we went off into how the escape went down at the county jail" App. 50. Minnick then proceeded to describe his participation in the double murder at the trailer. Minnick was later extradited and tried for murder in Mississippi. Before trial, he moved to suppress the statements he had given the FBI agents and Denham in the San Diego jail. The trial court granted the motion with respect to the statements made to the FBI agents, but ordered a hearing on the admissibility of the statements made to Denham. After receiving testimony from both Minnick and Denham, the court concluded that Minnick's confession had been "freely and voluntarily given from the evidence beyond a reasonable doubt," and allowed Denham to describe Minnick's confession to the jury. The Court today reverses the trial court's conclusion. It holds that, because Minnick had asked for counsel during the interview with the FBI agents, he could notas a matter of lawvalidly waive the right to have counsel present during the conversation initiated by Denham. That Minnick's original request to see an attorney had been honored, that Minnick had consulted with his attorney on several occasions, and that the attorney had specifically warned Minnick not to speak to the authorities, are irrelevant. That Minnick was familiar with the criminal justice system in general or Miranda warnings in particular (he had previously been convicted of robbery in Mississippi and assault with a deadly *1 weapon in California) is also beside the point. The confession must be suppressed, not because it was "compelled," nor even because it was obtained from an individual who could realistically be assumed to be unaware of his rights, but simply because this Court sees fit to prescribe as a "systemic assuranc[e]," ante, at 155, that a person in custody who has once asked for counsel cannot thereafter be approached by the police unless counsel is present. Of course the Constitution's proscription of compelled testimony does not remotely authorize this incursion upon state practices; and even our recent precedents are not a valid excuse. II In this Court declared that a criminal suspect has a right to have counsel |
Justice Scalia | 1,990 | 9 | dissenting | Minnick v. Mississippi | https://www.courtlistener.com/opinion/112513/minnick-v-mississippi/ | that a criminal suspect has a right to have counsel present during custodial interrogation, as a prophylactic assurance that the "inherently compelling pressures," of such interrogation will not violate the Fifth Amendment. But Miranda did not hold that these "inherently compelling pressures" precluded a suspect from waiving his right to have counsel present. On the contrary, the opinion recognized that a State could establish that the suspect "knowingly and intelligently waived his right to retained or appointed counsel." For this purpose, the Court expressly adopted the "high standar[d] of proof for the waiver of constitutional rights," ib set forth in The Zerbst waiver standard, and the means of applying it, are familiar: Waiver is "an intentional relinquishment or abandonment of a known right or privilege," ; and whether such a relinquishment or abandonment has occurred depends "in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused," We have applied the Zerbst approach in many contexts where a State bears the burden of showing a waiver of constitutional criminal *160 procedural rights. See, e. g., ; ; (192) Notwithstanding our acknowledgment that Miranda rights are "not themselves rights protected by the Constitution but. instead measures to insure that the right against compulsory self-incrimination [is] protected," 17 U.S. 33, (197), we have adhered to the principle that nothing less than the Zerbst standard for the waiver of constitutional rights applies to the waiver of Miranda rights. Until Edwards, however, we refrained from imposing on the States a higher standard for the waiver of Miranda rights. For example, in 23 U.S. 96 we rejected a proposed irrebuttable presumption that a criminal suspect, after invoking the Miranda right to remain silent, could not validly waive the right during any subsequent questioning by the police. In North 1 U.S. 369 we rejected a proposed rule that waivers of Miranda rights must be deemed involuntary absent an explicit assertion of waiver by the suspect. And in 2 U.S. 707, we declined to hold that waivers of Miranda rights by juveniles are per se involuntary. Edwards, however, broke with this approach, holding that a defendant's waiver of his Miranda right to counsel, made in the course of a police-initiated encounter after he had requested counsel but before counsel had been provided, was per se involuntary. The case stands as a solitary exception to our waiver jurisprudence. It does, to be sure, have the desirable consequences described in today's opinion. In the narrow context in which it applies, it provides 100% assurance against confessions that are "the |
Justice Scalia | 1,990 | 9 | dissenting | Minnick v. Mississippi | https://www.courtlistener.com/opinion/112513/minnick-v-mississippi/ | applies, it provides 100% assurance against confessions that are "the result of coercive pressures," ante, at 151; it "`prevent[s] police from badgering a *161 defendant,'" ante, at 150 ); it "conserves judicial resources which would otherwise be expended in making difficult determinations of voluntariness," ante, at 151; and it provides "`"clear and unequivocal" guidelines to the law enforcement profession,'" ( 86 U. S., at 682). But so would a rule that simply excludes all confessions by all persons in police custody. The value of any prophylactic rule (assuming the authority to adopt a prophylactic rule) must be assessed not only on the basis of what is gained, but also on the basis of what is lost. In all other contexts we have thought the above-described consequences of abandoning Zerbst outweighed by "`the need for police questioning as a tool for effective enforcement of criminal laws,'" 75 U.S. 12, 26 "Admissions of guilt," we have said, "are more than merely `desirable'; they are essential to society's compelling interest in finding, convicting, and punishing those who violate the law." III In this case, of course, we have not been called upon to reconsider Edwards, but simply to determine whether its irrebuttable presumption should continue after a suspect has actually consulted with his attorney. Whatever justifications might support Edwards are even less convincing in this context. Most of the Court's discussion of Edwardswhich stresses repeatedly, in various formulations, the case's emphasis upon the "right `to have counsel present during custodial interrogation,'" ante, at 152, 51 U.S., at 82 is beside the point. The existence and the importance of the Miranda-created right "to have counsel present" are unquestioned here. What is questioned is why a State should not be given the opportunity to prove (under Zerbst) that the right was voluntarily waived by a suspect who, after having been read his Miranda rights twice and *162 having consulted with counsel at least twice, chose to speak to a police officer (and to admit his involvement in two murders) without counsel present. Edwards did not assert the principle that no waiver of the Miranda right "to have counsel present" is possible. It simply adopted the presumption that no waiver is voluntary in certain circumstances, and the issue before us today is how broadly those circumstances are to be defined. They should not, in my view, extend beyond the circumstances present in Edwards itselfwhere the suspect in custody asked to consult an attorney and was interrogated before that attorney had ever been provided. In those circumstances, the Edwards rule rests upon an assumption similar to that |
Justice Scalia | 1,990 | 9 | dissenting | Minnick v. Mississippi | https://www.courtlistener.com/opinion/112513/minnick-v-mississippi/ | the Edwards rule rests upon an assumption similar to that of Miranda itself: that when a suspect in police custody is first questioned he is likely to be ignorant of his rights and to feel isolated in a hostile environment. This likelihood is thought to justify special protection against unknowing or coerced waiver of rights. After a suspect has seen his request for an attorney honored, however, and has actually spoken with that attorney, the probabilities change. The suspect then knows that he has an advocate on his side, and that the police will permit him to consult that advocate. He almost certainly also has a heightened awareness (above what the Miranda warning itself will provide) of his right to remain silentsince at the earliest opportunity "any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to the police under any circumstances." 338 U.S. 9, (199) Under these circumstances, an irrebuttable presumption that any police-prompted confession is the result of ignorance of rights, or of coercion, has no genuine basis in fact. After the first consultation, therefore, the Edwards exclusionary rule should cease to apply. Does this mean, as the Court implies, that the police will thereafter have license to "badger" the suspect? Only if all one means by "badger" is asking, without such insistence or frequency as would constitute coercion, *163 whether he would like to reconsider his decision not to confess. Nothing in the Constitution (the only basis for our intervention here) prohibits such inquiry, which may often produce the desirable result of a voluntary confession. If and when postconsultation police inquiry becomes so protracted or threatening as to constitute coercion, the Zerbst standard will afford the needed protection. One should not underestimate the extent to which the Court's expansion of Edwards constricts law enforcement. Today's ruling, that the invocation of a right to counsel permanently prevents a police-initiated waiver, makes it largely impossible for the police to urge a prisoner who has initially declined to confess to change his mindor indeed, even to ask whether he has changed his mind. Many persons in custody will invoke the Miranda right to counsel during the first interrogation, so that the permanent prohibition will attach at once. Those who do not do so will almost certainly request or obtain counsel at arraignment. We have held that a general request for counsel, after the Sixth Amendment right has attached, also triggers the Edwards prohibition of police-solicited confessions, see 75 U.S. 625 and I presume that the perpetuality of prohibition announced in today's opinion applies |
Justice Scalia | 1,990 | 9 | dissenting | Minnick v. Mississippi | https://www.courtlistener.com/opinion/112513/minnick-v-mississippi/ | that the perpetuality of prohibition announced in today's opinion applies in that context as well. "Perpetuality" is not too strong a term, since, although the Court rejects one logical moment at which the Edwards presumption might end, it suggests no alternative. In this case Minnick was reapproached by the police three days after he requested counsel, but the result would presumably be the same if it had been three months, or three years, or even three decades. This perpetual irrebuttable presumption will apply, I might add, not merely to interrogations involving the original crime, but to those involving other subjects as well. See Besides repeating the uncontroverted proposition that the suspect has a "right to have counsel present," the Court stresses the clarity and simplicity that are achieved by today's *16 holding. Clear and simple rules are desirable, but only in pursuance of authority that we possess. We are authorized by the Fifth Amendment to exclude confessions that are "compelled," which we have interpreted to include confessions that the police obtain from a suspect in custody without a knowing and voluntary waiver of his right to remain silent. Undoubtedly some bright-line rules can be adopted to implement that principle, marking out the situations in which knowledge or voluntariness cannot possibly be established for example, a rule excluding confessions obtained after five hours of continuous interrogation. But a rule excluding all confessions that follow upon even the slightest police inquiry cannot conceivably be justified on this basis. It does not rest upon a reasonable prediction that all such confessions, or even most such confessions, will be unaccompanied by a knowing and voluntary waiver. It can be argued that the same is true of the category of confessions excluded by the Edwards rule itself. I think that is so, but, as I have discussed above, the presumption of involuntariness is at least more plausible for that category. There is, in any event, a clear and rational line between that category and the present one, and I see nothing to be said for expanding upon a past mistake. Drawing a distinction between police-initiated inquiry before consultation with counsel and police-initiated inquiry after consultation with counsel is assuredly more reasonable than other distinctions Edwards has already led us intosuch as the distinction between police-initiated inquiry after assertion of the Miranda right to remain silent, and police-initiated inquiry after assertion of the Miranda right to counsel, see Kamisar, The Edwards and Bradshaw Cases: The Court Giveth and the Court Taketh Away, in 5 The Supreme Court: Trends and Developments 153, 157 (J. Choper, Y. Kamisar, |
Justice Scalia | 1,990 | 9 | dissenting | Minnick v. Mississippi | https://www.courtlistener.com/opinion/112513/minnick-v-mississippi/ | Court: Trends and Developments 153, 157 (J. Choper, Y. Kamisar, & L. Tribe eds. 198) ("[E]ither Mosley was wrongly decided or Edwards was"); or the distinction between what is needed to prove waiver of the *165 Miranda right to have counsel present and what is needed to prove waiver of rights found in the Constitution. The rest of the Court's arguments can be answered briefly. The suggestion that it will either be impossible or ethically impermissible to determine whether a "consultation" between the suspect and his attorney has occurred is alarmist. Since, as I have described above, the main purpose of the consultation requirement is to eliminate the suspect's feeling of isolation and to assure him the presence of legal assistance, any discussion between him and an attorney whom he asks to contact, or who is provided to him, in connection with his arrest, will suffice. The precise content of the discussion is irrelevant. As for the "irony" that "the suspect whose counsel is prompt would lose the protection of Edwards, while the one whose counsel is dilatory would not," ante, at 155: There seems to me no irony in applying a special protection only when it is needed. The Edwards rule is premised on an (already tenuous) assumption about the suspect's psychological state, and when the event of consultation renders that assumption invalid the rule should no longer apply. One searching for ironies in the state of our law should consider, first, the irony created by Edwards itself: The suspect in custody who says categorically "I do not wish to discuss this matter" can be asked to change his mind; but if he should say, more tentatively, "I do not think I should discuss this matter without my attorney present" he can no longer be approached. To that there is added, by today's decision, the irony that it will be far harder for the State to establish a knowing and voluntary waiver of Fifth Amendment rights by a prisoner who has already consulted with counsel than by a newly arrested suspect. Finally, the Court's concern that "Edwards' protection could pass in and out of existence multiple times," ante, at 15, does not apply to the resolution of the matter I have proposed. *166 Edwards would cease to apply, permanently, once consultation with counsel has occurred. * * * Today's extension of the Edwards prohibition is the latest stage of prophylaxis built upon prophylaxis, producing a veritable fairyland castle of imagined constitutional restriction upon law enforcement. This newest tower, according to the Court, is needed to avoid "inconsisten[cy] with [the] |
Justice Scalia | 1,990 | 9 | dissenting | Minnick v. Mississippi | https://www.courtlistener.com/opinion/112513/minnick-v-mississippi/ | to the Court, is needed to avoid "inconsisten[cy] with [the] purpose" of Edwards' prophylactic rule, ante, at 15, which was needed to protect Miranda's prophylactic right to have counsel present, which was needed to protect the right against compelled self-incrimination found (at last!) in the Constitution. It seems obvious to me that, even in Edwards itself but surely in today's decision, we have gone far beyond any genuine concern about suspects who do not know their right to remain silent, or who have been coerced to abandon it. Both holdings are explicable, in my view, only as an effort to protect suspects against what is regarded as their own folly. The sharp-witted criminal would know better than to confess; why should the dull-witted suffer for his lack of mental endowment? Providing him an attorney at every stage where he might be induced or persuaded (though not coerced) to incriminate himself will even the odds. Apart from the fact that this protective enterprise is beyond our authority under the Fifth Amendment or any other provision of the Constitution, it is unwise. The procedural protections of the Constitution protect the guilty as well as the innocent, but it is not their objective to set the guilty free. That some clever criminals may employ those protections to their advantage is poor reason to allow criminals who have not done so to escape justice. Thus, even if I were to concede that an honest confession is a foolish mistake, I would welcome rather than reject it; a rule that foolish mistakes do not count would leave most offenders *167 not only unconvicted but undetected. More fundamentally, however, it is wrong, and subtly corrosive of our criminal justice system, to regard an honest confession as a "mistake." While every person is entitled to stand silent, it is more virtuous for the wrongdoer to admit his offense and accept the punishment he deserves. Not only for society, but for the wrongdoer himself, "admissio[n] of guilt if not coerced, [is] inherently desirable," United 31 U.S. 181, because it advances the goals of both "justice and rehabilitation," 17 U. S., at 8, n. 23 A confession is rightly regarded by the Sentencing Guidelines as warranting a reduction of sentence, because it "demonstrates a recognition and affirmative acceptance of personal responsibility for criminal conduct," U. S. Sentencing Commission, Guidelines Manual 3E1.1 which is the beginning of reform. We should, then, rejoice at an honest confession, rather than pity the "poor fool" who has made it; and we should regret the attempted retraction of that good act, rather than seek |
Justice Kennedy | 2,002 | 4 | concurring | Mickens v. Taylor | https://www.courtlistener.com/opinion/118492/mickens-v-taylor/ | In its comprehensive analysis the Court has said all that is necessary to address the issues raised by the question presented, and I join the opinion in full. The trial judge's failure to inquire into a suspected conflict is not the kind of error requiring a presumption of prejudice. We did not grant certiorari on a second question presented by petitioner: whether, if we rejected his proposed presumption, he had nonetheless established that a conflict of interest adversely affected his representation. I write separately to emphasize that the facts of this case well illustrate why a wooden rule requiring reversal is inappropriate for cases like this one. *177 At petitioner's request, the District Court conducted an evidentiary hearing on the conflict claim and issued a thorough opinion, which found that counsel's brief representation of the victim had no effect whatsoever on the course of petitioner's trial. See The District Court's findings depend upon credibility judgments made after hearing the testimony of petitioner's counsel, Bryan Saunders, and other witnesses. As a reviewing court, our role is not to speculate about counsel's motives or about the plausibility of alternative litigation strategies. Our role is to defer to the District Court's factual findings unless we can conclude they are clearly erroneous. See Lackawanna County District The District Court found that Saunders did not believe he had any obligation to his former client, Timothy Hall, that would interfere with the litigation. See Although the District Court concluded that Saunders probably did learn some matters that were confidential, it found that nothing the attorney learned was relevant to the subsequent murder case. See Indeed, even if Saunders had learned relevant information, the District Court found that he labored under the impression he had no continuing duty at all to his deceased client. See ). While Saunders' belief *178 may have been mistaken, it establishes that the prior representation did not influence the choices he made during the course of the trial. This conclusion is a good example of why a case-by-case inquiry is required, rather than simply adopting an automatic rule of reversal. Petitioner's description of roads not taken would entail two degrees of speculation. We would be required to assume that Saunders believed he had a continuing duty to the victim, and we then would be required to consider whether in this hypothetical case, the counsel would have been blocked from pursuing an alternative defense strategy. The District Court concluded that the prosecution's case, coupled with the defendant's insistence on testifying, foreclosed the strategies suggested by petitioner after the fact. According to the District |
Justice Kennedy | 2,002 | 4 | concurring | Mickens v. Taylor | https://www.courtlistener.com/opinion/118492/mickens-v-taylor/ | suggested by petitioner after the fact. According to the District Court, there was no plausible argument that the victim consented to sexual relations with his murderer, given the bruises on the victim's neck, blood marks showing the victim was stabbed before or during sexual intercourse, and, most important, petitioner's insistence on testifying at trial that he had never met the victim. See The basic defense at the guilt phase was that petitioner was not at the scene; this is hardly consistent with the theory that there was a consensual encounter. The District Court said the same for counsel's alleged dereliction at the sentencing phase. Saunders' failure to attack the character of the 17-year-old victim and his mother had nothing to do with the putative conflict of interest. This strategy was rejected as likely to backfire, not only by Saunders, but also by his co-counsel, who owed no duty to Hall. See These facts, and others relied upon by the District Court, provide compelling evidence that a theoretical conflict does *179 not establish a constitutional violation, even when the conflict is one about which the trial judge should have known. The constitutional question must turn on whether trial counsel had a conflict of interest that hampered the representation, not on whether the trial judge should have been more assiduous in taking prophylactic measures. If it were otherwise, the judge's duty would not be limited to cases where the attorney is suspected of harboring a conflict of interest. The Sixth Amendment protects the defendant against an ineffective attorney, as well as a conflicted one. See It would be a major departure to say that the trial judge must step in every time defense counsel appears to be providing ineffective assistance, and indeed, there is no precedent to support this proposition. As the Sixth Amendment guarantees the defendant the assistance of counsel, the infringement of that right must depend on a deficiency of the lawyer, not of the trial judge. There is no reason to presume this guarantee unfulfilled when the purported conflict has had no effect on the representation. With these observations, I join the opinion of the Court. |
Justice Roberts | 2,009 | 0 | concurring | Harbison v. Bell | https://www.courtlistener.com/opinion/145892/harbison-v-bell/ | I agree with much of the Court’s opinion. 18 U.S. C. entitles indigent federal habeas petitioners to appointed counsel “in accordance with” subsection (e). Subsection (e) specifies that the appointed counsel “shall represent the defendant throughout every subsequent stage of available judicial proceedings and shall also represent the defendant in such proceedings for execu tive or other clemency as may be available to the defen dant.” Nothing in the text of excludes proceed ings for available state clemency, and, as the Court points out, there are good reasons to expect federal habeas coun sel to carry on through state clemency proceedings. See ante, at 12–14. At the same time, the “plain language of ante, at 8, does not fully resolve this case. The obligation in sub section (e) that the appointed counsel represent the defen dant in “every subsequent stage of available judicial pro ceedings” is not on its face limited to “federal” proceedings, just as there is no such limitation with respect to clem ency. Yet it is highly unlikely that Congress intended federal habeas petitioners to keep their federal counsel during subsequent state judicial proceedings. See Hain v. Mullin, (Briscoe, J., dissenting) (“[I]t cannot seriously be suggested that Con 2 HARBISON v. BELL ROBERTS, C. J., concurring in judgment gress intended, in the event a state capital prisoner ob tains federal habeas relief and is granted a new trial, to provide federally-funded counsel to represent that pris oner in the ensuing state trial, appellate, and post conviction proceedings”). Harbison concedes as much. Reply Brief for Petitioner 11–12; Tr. of Oral Arg. 5–6, 15. If there were no way to read the words of the statute to avoid this problematic result, I might be forced to accept the Government’s invitation to insert the word “federal” into —a limitation that would have to apply to clemency as well. But fortunately the best reading of the statute avoids the problem: Section 3599(e)’s reference to “subsequent stage[s] of available judicial proceedings” does not include state judicial proceedings after federal habeas, because those are more properly regarded as new judicial proceedings. The meaning of that phrase is not entirely plain, but it is plain that not every lawsuit involving an inmate that arises after the federal habeas proceeding is included. Surely “subsequent stage[s]” do not include, for example, a challenge to prison conditions or a suit for divorce in state court, even if these available judicial proceedings occur subsequent to federal habeas. That must be because these are new proceedings rather than “subsequent stage[s]” of the proceedings for which federal counsel is available. |
Justice Roberts | 2,009 | 0 | concurring | Harbison v. Bell | https://www.courtlistener.com/opinion/145892/harbison-v-bell/ | stage[s]” of the proceedings for which federal counsel is available. Once it is acknowledged that Congress has drawn a line at some point, this is the “best reading” of the statutory language. Post, at 3 (THOMAS, J., concurring in judgment). JUSTICE THOMAS does not disagree. Instead, he con tends that it is not necessary to decide what the first part of the sentence means in deciding what the second part means. Post, at 4. We have said that “[w]e do not construe statutory phrases in isolation; we read statutes as a whole.” United (14). This certainly applies to reading sentences as a whole. Cite as: 556 U. S. (2009) 3 ROBERTS, C. J., concurring in judgment I entirely agree with JUSTICE THOMAS that “Congress’ intent is found in the words it has chosen to use,” and that “[o]ur task is to apply the text, not to improve upon it,” even if that produces “very bad policy.” Post, at 3 (internal quotation marks omitted). Here, we need only apply the text of to conclude that federal counsel is available for state clemency, but not for subsequent state court litigation. I therefore concur in the result. Cite as: 556 U. S. (2009) 1 THOMAS, J., concurring in judgment SUPREME COURT OF THE UNITED STATES No. 07–8521 EDWARD JEROME HARBISON, PETITIONER v. RICKY BELL, WARDEN ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT [April 1, 2009] JUSTICE THOMAS, concurring in the judgment. I agree that under 28 U.S. C. a certifi cate of appealability was not required to seek appellate review of the issue in this case. See ante, at 2–3; see also post, at 1 (SCALIA, J., concurring in part and dissenting in part). I further agree with the Court that 18 U.S. C. § and (e) entitle eligible state postconviction litigants to federally funded counsel in available state clemency proceedings. See ante, at 2, 5. As even JUSTICE SCALIA acknowledges in his dissenting opinion, the statute “contains no express language limiting its application to proceedings in a federal forum.” Post, at 8; see also ante, at 1 (ROBERTS, C. J., concurring in judgment) (“Nothing in the text of excludes proceedings for available state clemency”). By its express terms, the statute “entitle[s]” eligible litigants to appointed counsel who “shall represent the defendant in such proceedings for executive or other clemency as may be available to the defendant.” §, (e). Because the statute applies to individuals challenging either state or federal convic tions, see and because state clemency is the only clemency available to those challenging |
Justice Roberts | 2,009 | 0 | concurring | Harbison v. Bell | https://www.courtlistener.com/opinion/145892/harbison-v-bell/ | state clemency is the only clemency available to those challenging state convic tions, § and (e) necessarily entitle eligible state postconviction litigants to federally funded counsel in state clemency proceedings. 2 HARBISON v. BELL THOMAS, J., concurring in judgment I disagree, however, with the assumption that must be limited to “federal” proceedings in at least some respects. Ante, at 6; ante, at 1–2 (ROBERTS, C. J., concur ring in judgment); post, at 3–4. The majority and dissent read such a limitation into subsection (a)(1) of the statute. But that subsection, like subsection (a)(2), “contains no language limiting its application to federal capital defen dants. It provides counsel to indigent defendants in ‘every criminal action in which a defendant is charged with a crime which may be punishable by death.’ ” Post, at 3 (quoting (a)(1)). The majority, then, compounds its error by attempting to discern some distinction between subsections (a)(1) and (a)(2), to which it properly declines to add an extratextual “federal” limitation, see ante, at 5– 6. The dissent seizes on this inconsistency between the majority’s interpretation of subsections (a)(1) and (a)(2), but responds by incorrectly reading a parallel “federal” limitation into subsection (a)(2), see post, at 3–4. In the dissent’s view, “it is perfectly reasonable to assume” that subsection (a)(2) is limited to federal postconviction pro ceedings—including clemency proceedings—“even where the statute contains no such express limitation.” Post, at 3. THE CHIEF JUSTICE, in contrast, finds a “federal” limita tion in a clause of subsection (e) that is not before this Court in order to cabin the reach of today’s decision. He observes that the text of subsection (e) includes no “fed eral” limitation with respect to any of the proceedings listed in that subsection. But THE CHIEF JUSTICE finds a way to avoid this “problematic result” by adding a differ ent limitation to In his view, the “best” reading of the phrase “subsequent stage[s] of available judicial pro ceedings” is one that excludes “state judicial proceedings after federal habeas” proceedings because they are “new”—not “subsequent”—judicial proceedings. Ante, at 2. Without this limitation, THE CHIEF JUSTICE explains, “[he] Cite as: 556 U. S. (2009) 3 THOMAS, J., concurring in judgment might be forced to accept the Government’s invitation to insert the word ‘federal’ into —a limitation that would have to apply to clemency as well”—because he finds it “highly unlikely that Congress intended” for there to be no federal limitation at all in subsection (e). Ante, at 1–2. This Court is not tasked with interpreting in a way that it believes is consistent with the policy outcome intended |
Justice Roberts | 2,009 | 0 | concurring | Harbison v. Bell | https://www.courtlistener.com/opinion/145892/harbison-v-bell/ | that it believes is consistent with the policy outcome intended by Congress. Nor should this Court’s approach to statutory construction be influenced by the supposition that “it is highly unlikely that Congress intended” a given result. See ante, at 1 (ROBERTS, C. J., concurring in judg ment). Congress’ intent is found in the words it has cho sen to use. See West Virginia Univ. Hospitals, Inc. v. Casey, (“The best evidence of [Con gress’] purpose is the statutory text adopted by both Houses of Congress and submitted to the President”). This Court’s interpretive function requires it to identify and give effect to the best reading of the words in the provision at issue. Even if the proper interpretation of a statute upholds a “very bad policy,” it “is not within our province to second-guess” the “wisdom of Congress’ action” by picking and choosing our preferred interpretation from among a range of potentially plausible, but likely inaccu rate, interpretations of a statute. Eldred v. Ashcroft, 537 U.S. 186, 222 (2003); see also 194 (1978) (“Our individual appraisal of the wisdom or unwisdom of a particular course consciously selected by the Congress is to be put aside in the process of interpret ing a statute”). “Our task is to apply the text, not to im prove upon it.” Pavelic & 126 (19). This statute’s silence with respect to a “federal” limita tion in no way authorizes us to assume that such a limita tion must be read into subsections (a) and (e) in order to 4 HARBISON v. BELL THOMAS, J., concurring in judgment blunt the slippery-slope policy arguments of those opposed to a plain-meaning construction of the provisions under review, see ante, at 8–9. And Congress’ silence certainly does not empower us to go even farther and incorporate such an assumption into the text of these provisions. Post, at 7–8. Moreover, the Court should not decide a question irrelevant to this case in order to pre-empt the “problem atic” results that might arise from a plain-text reading of the statutory provision under review. See ante, at 2 (ROBERTS, C. J., concurring in judgment). Whether or not THE CHIEF JUSTICE’s construction of the “subsequent stage of available judicial proceedings” clause of subsec tion (e) is correct, it is irrelevant to the proper interpreta tion of the clemency clause of subsection (e). Even if the statute were to authorize federal postconviction counsel to appear in state proceedings other than state clemency proceedings, a question not resolved by today’s decision, that conclusion would not provide a legitimate basis for adopting the dissent’s atextual interpretation |
Justice Roberts | 2,009 | 0 | concurring | Harbison v. Bell | https://www.courtlistener.com/opinion/145892/harbison-v-bell/ | provide a legitimate basis for adopting the dissent’s atextual interpretation of the clem ency clause of subsection (e). The “best” interpretation of the clemency clause does not turn on the unresolved breadth of the “subsequent stage of available judicial proceedings” clause. Rather, the Court must adopt the interpretation of the statute that is most faithful to its text. Here, the absence of a “federal” limitation in the text of subsections (a) and (e) of most logically suggests that these provisions are not limited to federal clemency proceedings. “If Con gress enacted into law something different from what it intended, then it should amend the statute to conform it to its intent. It is beyond our province to rescue Congress from its drafting errors, and to provide for what we might think is the preferred result. ” (internal quotation marks and ellipses omitted). Accordingly, I concur in the judgment. Cite as: 556 U. S. (2009) 1 Opinion of SCALIA, J. SUPREME COURT OF THE UNITED STATES No. 07–8521 EDWARD JEROME HARBISON, PETITIONER v. RICKY BELL, WARDEN ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT [April 1, 2009] JUSTICE SCALIA, with whom JUSTICE ALITO joins, con curring in part and dissenting in part. I agree with the Court that Harbison was not required to obtain a certificate of appealability under 28 U.S. C. before appealing the District Court’s denial of his motion to expand counsel’s appointment. See ante, at 2–3. I do not agree, however, that 18 U.S. C. gives state prisoners federally funded counsel to pursue state clemency. While purporting to adopt a “straightfor ward reading of the statute,” ante at 5, the Court in fact selectively amends the statute—inserting words in some places, twisting their meaning elsewhere. Because the statute is most naturally and coherently read to provide federally funded counsel to capital defendants appearing in a federal forum, I would affirm the decision of the Sixth Circuit and hold that Harbison was not entitled to feder ally funded counsel to pursue state clemency. I Title 18 U.S. C. provides for the appoint ment of counsel as follows: “In any post conviction proceeding under section 2254 or 2255 of title 28, United States Code, seeking to va cate or set aside a death sentence, any defendant who is or becomes financially unable to obtain adequate 2 HARBISON v. BELL Opinion of SCALIA, J. representation or investigative, expert, or other rea sonably necessary services shall be entitled to the ap pointment of one or more attorneys and the furnishing of such other services in |
Justice Roberts | 2,009 | 0 | concurring | Harbison v. Bell | https://www.courtlistener.com/opinion/145892/harbison-v-bell/ | more attorneys and the furnishing of such other services in accordance with subsections (b) through (f). Section 3599(e) defines the scope of appointed counsel’s representation: “Unless replaced by similarly qualified counsel upon the attorney’s own motion or upon motion of the de fendant, each attorney so appointed shall represent the defendant throughout every subsequent stage of available judicial proceedings, including pretrial pro ceedings, trial, sentencing, motions for new trial, ap peals, applications for writ of certiorari to the Su preme Court of the United States, and all available post-conviction process, together with applications for stays of execution and other appropriate motions and procedures, and shall also represent the defendant in such competency proceedings and proceedings for ex ecutive or other clemency as may be available to the defendant.” As the Court notes, the first of these provisions entitled Harbison to counsel for proceedings. And the sec ond of them, without any express qualification, provides for counsel’s continued representation through “such proceedings for executive or other clemency as may be available to the defendant,” which in petitioner’s case would include state clemency proceedings. The Court thus concludes that the statute’s “plain language” provides Harbison federally funded counsel to represent him in state clemency proceedings. Ante, at 5. But the Court quickly abandons its allegedly “plain” reading of the statute when it confronts the subsection that precedes these two, which provides: Cite as: 556 U. S. (2009) 3 Opinion of SCALIA, J. “Notwithstanding any other provision of law to the contrary, in every criminal action in which a defen dant is charged with a crime which may be punishable by death, a defendant who is or becomes financially unable to obtain adequate representation or investiga tive, expert, or other reasonably necessary services at any time either– “(A) before judgment; or “(B) after the entry of a judgment imposing a sentence of death but before the execution of that judgment; “shall be entitled to the appointment of one or more attorneys and the furnishing of such other services in accordance with subsections (b) through (f).” (a)(1). The Court states that “(a)(1) describes federal capital defendants.” Ante, at 4. But according to the Court’s mode of analysis, that is not so. Subsection (a)(1), like subsection (e), contains no language limiting its applica tion to federal capital defendants. It provides counsel to indigent defendants in “every criminal action in which a defendant is charged with a crime which may be punish able by death.” (a)(1) (emphasis added). Why, then, is subsection (a)(1) limited to federal capital defendants? Because, as the Court notes, “the statute is |
Justice Roberts | 2,009 | 0 | concurring | Harbison v. Bell | https://www.courtlistener.com/opinion/145892/harbison-v-bell/ | capital defendants? Because, as the Court notes, “the statute is primarily concerned with federal criminal actions and (a)(1) includes no language suggesting that it applies more broadly.” Ante, at 6 (footnote omitted). Quite right. Section 3599 was enacted as part of a bill that created a new federal capital offense, see ib n. 3, and it is perfectly reasonable to assume that a federal statute, providing federally funded counsel, applies in federal proceedings only, even where the statute contains no such express limitation. Cf. Barron ex rel. Tiernan v. Mayor of Baltimore, But there 4 HARBISON v. BELL Opinion of SCALIA, J. is no basis for adopting that reading with respect to only half the statute. If subsection (a)(1) is limited to federal proceedings, then subsection (e), which likewise contains no express federal limitation, is similarly limited. We cannot give the same silence (omission of the limiting word “federal”) in adjacent and simultaneously enacted subsections of the same law () divergent meanings. The Court advances two arguments for reading subsec tion (e) more broadly. First, it claims that unlike subsec tion (a)(1), “subsection (a)(2) refers to state litigants.” Ante, at 6. It most certainly does not. It refers to proceed ings under and under federal statutes providing federal causes of action in federal court. Read together, subsections (a)(1) and (a)(2) provide feder ally funded counsel for persons convicted of capital crimes who are appearing in federal court. Subsection (a)(2) neither undermines the Court’s earlier statement that “the statute’s primary focus is federal” proceedings, nor gives the Court license to insert words selectively into the statutory text. The Court next reasons that the phrase “executive or other clemency” suggests that subsection (e) includes state clemency proceedings. Since (the argument goes) federal clemency is exclusively executive, the word “other” must refer to state clemency, or else it would be superfluous. But the drafting history, which the Court thinks relevant, ante, at 10–11, defeats the inference the Court wishes to draw. The current text of subsection (e) first appeared in a version of the bill that included what is now subsection (a)(1) (which the Court concedes deals only with federal proceedings), but not subsection (a)(2) (which the Court would deem applicable to state proceedings). 134 Cong. Rec. 22995 (18). In other words, at the time of its intro duction, subsection (e) applied only to federal defendants, and the phrase “or other clemency” was unquestionably superfluous. Cite as: 556 U. S. (2009) 5 Opinion of SCALIA, J. In any event, the Court’s reading places a great deal of weight on avoiding superfluity in a |
Justice Roberts | 2,009 | 0 | concurring | Harbison v. Bell | https://www.courtlistener.com/opinion/145892/harbison-v-bell/ | a great deal of weight on avoiding superfluity in a statute that is already teeming with superfluity. Item: Subsection (a)(2) need lessly refers to proceedings even though subsections (a)(1) and (e) taken together would provide federal capital defendants with counsel in proceedings. Item: Subsection (a)(2) provides counsel “in accordance with subsections (b) through (f)” even though subsections (b) and (c) have no conceivable relevance to subsection (a)(2).* Item: Subsection (e) provides counsel “throughout every subsequent stage of available judicial proceedings,” includ ing “all available post-conviction process” (emphasis added). The first use of the term “available” is already of dubious value (is counsel expected to represent a defen dant in unavailable proceedings?) but its needless repeti tion is inexplicable. In a statute that is such a paragon of shoddy draftsmanship, relying upon the superfluity of “or other” to extend the statute’s application from federal to state proceedings is quite absurd—and doubly absurd when that extension is illogically limited to the subsection in which “or other” appears. II The Court’s reading of subsection (e) faces a second substantial difficulty. Subsection (e) provides that coun sel, once appointed, “shall represent the defendant throughout every sub sequent stage of available judicial proceedings, includ ing pretrial proceedings, trial, sentencing, motions for —————— * Subsection (b) details the requisite qualifications for a lawyer ap pointed “before judgment”; but appointments under subsection (a)(2) are made only after judgment. Subsection (c) requires that a lawyer appointed after judgment have been “admitted to practice in the court of appeals for not less than five years” (emphasis added); but the postconviction proceedings dealt with by subsection (a)(2) take place in federal district court. 6 HARBISON v. BELL Opinion of SCALIA, J. new trial, appeals, applications for writ of certiorari to the Supreme Court of the United States, and all available post-conviction process, together with appli cations for stays of execution and other appropriate motions and procedures.” In other words, once counsel is appointed under (a)(2), petitioner is entitled to federal counsel “throughout every subsequent stage of available judicial proceedings.” The Government argues that, if subsection (e) is not limited to federal proceedings, then a petitioner who obtains federally funded counsel will retain that counsel, at fed eral expense, in all “subsequent” state-court proceedings, including the retrial that follows the grant of federal habeas relief. The Court disagrees, on the ground that a new trial represents the “commencement of new judicial proceedings.” Ante, at 9. I need not enter that controversy. What is clear, at least, is that (if subsection (e) includes state proceedings) federally funded counsel would have to represent |
Justice Roberts | 2,009 | 0 | concurring | Harbison v. Bell | https://www.courtlistener.com/opinion/145892/harbison-v-bell/ | includes state proceedings) federally funded counsel would have to represent petition ers in subsequent state habeas proceedings. The Court tries to split the baby here, conceding that “a district court may determine on a case-by-case basis that it is appropri ate for federal counsel to exhaust [in state court] a claim in the course of her federal habeas representation.” Ante, at 9–10, n. 7. The Court tries to derive this discretionary authority from subsection (e)’s provision for representation by federal counsel in “other appropriate motions and procedures.” (emphasis added). But that provi sion is in addition to, rather than in limitation of, subsec tion (e)’s unqualified statement that counsel “shall repre sent the defendant throughout every subsequent stage of available judicial proceedings, including all available post-conviction process.” The provision then continues: “together with applications for stays of execution and other appropriate motions and procedures.” (Emphasis added.) Cite as: 556 U. S. (2009) 7 Opinion of SCALIA, J. There is no way in which this can be read to limit the requirement that counsel represent the defendant in “every subsequent stage of available judicial proceedings,” which would include habeas proceedings in state court. The Court seeks to avoid this conclusion by saying that “[s]tate habeas is not a stage ‘subsequent’ to federal ha beas,” because “[p]etitioners must exhaust their claims in state court before seeking federal habeas relief.” Ante, at 9. This is a breathtaking denial of reality, confusing what should be with what is. It is rather like saying that mur der does not exist because the law forbids it. To be sure, petitioners are supposed to complete state postconviction proceedings before pursuing relief in federal court. But they often do not do so, and when they do not our opinions permit them to seek stays or dismissals of their petitions in order that they may thereafter (subsequently) return to state court to exhaust their claims. See Rhines v. Weber, ; Pliler v. Ford, U.S. 225, 228 Additionally, inmates may—as petitioner did in this case—file successive state habeas petitions after proceedings are complete. See Har bison v. State, No. E2004–00885–CCA–R28–PD, 2005 WL 1521910, *1 These subsequent state proceedings are not rare but common place, and it is inconceivable (if state proceedings are covered) that subsection (e) does not refer to them. In deed, one would think that subsection (e) refers especially to them. And what kind of an incoherent statute would it be that allows counsel for de-facto-subsequent federal habeas claims that should have been brought earlier (see ) but does not allow counsel for subsequent state habeas claims that |
Justice Roberts | 2,009 | 0 | concurring | Harbison v. Bell | https://www.courtlistener.com/opinion/145892/harbison-v-bell/ | does not allow counsel for subsequent state habeas claims that have the same defect? If includes state proceedings (as the Court holds), and if “subsequent” is given its proper scope (rather than the tortured one adopted by the Court)—then ’s limitation of federally provided counsel to 8 HARBISON v. BELL Opinion of SCALIA, J. only federal habeas proceedings would amount to a dead letter. A capital convict could file for federal habeas with out first exhausting state postconviction remedies, obtain a stay or dismissal of that federal petition, and return to state court along with his federally funded lawyer. In deed, under our decision in McFarland v. Scott, 512 U.S. 849 (1994), he need not even file an unexhausted federal habeas petition; he can file a stand-alone “motion request ing the appointment of habeas counsel,” and obtain federally funded counsel that he can then take back for the subsequent state proceedings. The question per sists: Why would provide counsel in only fed eral habeas proceedings, when makes it so easy to obtain federally funded counsel for state habeas pro ceedings as well? * * * Concededly, contains no express language limit ing its application to proceedings in a federal forum. And yet Harbison, the Government, and the Court all read part of that section to refer to federal proceedings only. The Court’s refusal to extend that limitation to the entirety of is untenable. It lacks a textual basis and has the additional misfortune of producing absurd results, which the majority attempts to avoid by doing further violence to the statutory text. I would read the statute as providing federal counsel to capital convicts appearing in a federal forum, and I accordingly would affirm the judgment of the Sixth Circuit |
Justice Stewart | 1,979 | 18 | majority | Great Atlantic & Pacific Tea Co. v. FTC | https://www.courtlistener.com/opinion/110019/great-atlantic-pacific-tea-co-v-ftc/ | The question presented in this case is whether the petitioner, the Great Atlantic & Pacific Tea (A&P), violated 2 (f) of the Clayton Act, as amended by the Robinson-Patman Act, 15 U.S. C. 13 (f),[1] by knowingly inducing or receiving illegal price discriminations from the Borden (Borden). *72 The alleged violation was reflected in a 195 agreement between A&P and Borden under which Borden undertook to supply "private label" milk to more than 200 A&P stores in a Chicago area that included portions of Illinois and Indiana. This agreement resulted from an effort by A&P to achieve cost savings by switching from the sale of "brand label" milk (milk sold under the brand name of the supplying dairy) to the sale of "private label" milk (milk sold under the A&P label). To implement this plan, A&P asked Borden, its longtime supplier, to submit an offer to supply under private label certain of A&P's milk and other dairy product requirements. After prolonged negotiations, Borden offered to grant A&P a discount for switching to private-label milk provided A&P would accept limited delivery service. Borden claimed that this offer would save A&P $410,000 a year compared to what it had been paying for its dairy products. A&P, however, was not satisfied with this offer and solicited offers from other *73 dairies. A competitor of Borden, Bowman Dairy, then submitted an offer which was lower than Borden's.[2] At this point, A&P's Chicago buyer contacted Borden's chain store sales manager and stated: "I have a bid in my pocket. You [Borden] people are so far out of line it is not even funny. You are not even in the ball park." When the Borden representative asked for more details, he was told nothing except that a $50,000 improvement in Borden's bid "would not be a drop in the bucket." Borden was thus faced with the problem of deciding whether to rebid. A&P at the time was one of Borden's largest customers in the Chicago area. Moreover, Borden had just invested more than $5 million in a new dairy facility in Illinois. The loss of the A&P account would result in underutilization of this new plant. Under these circumstances, Borden decided to submit a new bid which doubled the estimated annual savings to A&P, from $410,000 to $820,000. In presenting its offer, Borden emphasized to A&P that it needed to keep A&P's business and was making the new offer in order to meet Bowman's bid. A&P then accepted Borden's bid after concluding that it was substantially better than Bowman's. I Based on these facts, the Federal |
Justice Stewart | 1,979 | 18 | majority | Great Atlantic & Pacific Tea Co. v. FTC | https://www.courtlistener.com/opinion/110019/great-atlantic-pacific-tea-co-v-ftc/ | better than Bowman's. I Based on these facts, the Federal Trade Commission filed a three-count complaint against A&P. Count I charged that A&P had violated 5 of the Federal Trade Commission Act by misleading Borden in the course of negotiations for the private-label contract, in that A&P had failed to inform Borden that its second offer was better than the Bowman bid.[3]*74 Count II, involving the same conduct, charged that A&P had violated 2 (f) of the Clayton Act, as amended by the Robinson-Patman Act, by knowingly inducing or receiving price discriminations from Borden. Count III charged that Borden and A&P had violated 5 of the Federal Trade Commission Act by combining to stabilize and maintain the retail and wholesale prices of milk and other dairy products. An Administrative Law Judge found, after extended discovery and a hearing that laster over 110 days, that A&P had acted unfairly and deceptively in accepting the second offer from Borden and had therefore violated 5 of the Federal Trade Commission Act as charged in Count I. The Administrative Law Judge similarly found that this same conduct had violated 2 (f). Finally, he dismissed Count III on the ground that the Commission had not satisfied its burden of proof. On review, the Commission reversed the Administrative Law Judge's finding as to Count I. Pointing out that the question at issue was what amount of disclosure is required of the buyer during contract negotiations, the Commission held that the imposition of a duty of affirmative disclosure would be "contrary to normal business practice and, we think, contrary to the public interest." Despite this ruling, however, the Commission held as to Count II that the identical conduct on the part of A&P had violated 2 (f), finding that Borden had discriminated in price between A&P and its competitors, that the discrimination had been injurious to competition, and that A&P had known or should have known that it was the beneficiary of unlawful price discrimination.[4] The Commission rejected A&P's defenses that the Borden bid had been made to meet competition and was cost justified.[5] *75 A&P filed a petition for review of the Commission's order in the Court of Appeals for the Second Circuit. The court held that substantial evidence supported the findings of the Commission and that as a matter of law A&P could not successfully assert a meeting-competition defense because it, unlike Borden, had known that Borden's offer was better than Bowman's.[] Finally, the court held that the Commission had correctly determined that A&P had no cost-justification defense. Because the judgment of the Court of |
Justice Stewart | 1,979 | 18 | majority | Great Atlantic & Pacific Tea Co. v. FTC | https://www.courtlistener.com/opinion/110019/great-atlantic-pacific-tea-co-v-ftc/ | no cost-justification defense. Because the judgment of the Court of Appeals raises important issues of federal law, we granted certiorari. II The Robinson-Patman Act was passed in response to the problem perceived in the increased market power and coercive practices of chainstores and other big buyers that threatened *7 the existence of small independent retailers. Notwithstanding this concern with buyers, however, the emphasis of the Act is in 2 (a), which prohibits price discriminations by sellers. Indeed, the original Patman bill as reported by Committees of both Houses prohibited only seller activity, with no mention of buyer liability.[7] Section 2 (f), making buyers liable for inducing or receiving price discriminations by sellers, was the product of a belated floor amendment near the conclusion of the Senate debates.[8] As finally enacted, 2 (f) provides: "That it shall be unlawful for any person engaged in commerce, in the course of such commerce, knowingly to induce or receive a discrimination in price which is prohibited by this section." (Emphasis added.) Liability under 2 (f) thus is limited to situations where the price discrimination is one "which is prohibited by this section." While the phrase "this section" refers to the entire 2 of the Act, only subsections (a) and (b) dealing with seller liability involve discriminations in price. Under the plain meaning of 2 (f), therefore, a buyer cannot be liable if a prima facie case could not be established against a seller or if the seller has an affirmative defense. In either situation, there is no price discrimination "prohibited by this section."[9]*77 The legislative history of 2 (f) fully confirms the conclusion that buyer liability under 2 (f) is dependent on seller liability under 2 (a).[10] The derivative nature of liability under 2 (f) was recognized by this Court in Automatic Canteen of In that case, the Court stated that even if the Commission has established a prima facie case of price discrimination, a buyer does not violate 2 (f) if the lower prices received are either within one of the seller's defenses or not known by the buyer not to be within one of those defenses. The Court stated: "Thus, at the least, we can be confident in reading the words in 2 (f), `a discrimination in price which is prohibited by this section,' as a reference to the substantive prohibitions against discrimination by sellers defined elsewhere in the Act. It is therefore apparent that the discriminatory price that buyers are forbidden by 2 (f) to induce cannot include price differentials that are not forbidden to sellers in other sections of the |
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