Election Law: Limitations on Independent Pacs Held Unconstitutional
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Marquette Law Review Volume 69 Article 7 Issue 1 Fall 1985 Election Law: Limitations on Independent PACs Held Unconstitutional. Federal Election Commission v. National Conservative Political Action Committee, 105 S. Ct. 1459 (1985) Anne M. Morgan Follow this and additional works at: http://scholarship.law.marquette.edu/mulr Part of the Law Commons Repository Citation Anne M. Morgan, Election Law: Limitations on Independent PACs Held Unconstitutional. Federal Election Commission v. National Conservative Political Action Committee, 105 S. Ct. 1459 (1985), 69 Marq. L. Rev. 143 (1985). Available at: http://scholarship.law.marquette.edu/mulr/vol69/iss1/7 This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contact [email protected]. NOTE ELECTION LAW: Limitations on Independent PACs Held Unconstitutional. Federal Election Commission v. National Conservative Political Action Committee, 105 S. Ct. 1459 (1985). 1 of the Presidential Election Campaign Section 9012(f) 3 Fund Act (Fund Act)2 prohibits unauthorized committees from making expenditures exceeding $1,000 to further the election of a publicly funded presidential candidate in the gen- 4 Election Commission v. National eral election. In Federal 5 Conservative Political Action Committee (FEC v. NCPA C), the United States Supreme Court found 6 that the expenditures 1. 26 U.S.C. § 9012(f) (1982). This section provides in part: [I]t shall be unlawful for any political committee which is not an authorized committee with respect to the eligible candidates of a political party for Presi- dent and Vice President in a presidential election knowingly and willfully to incur expenditures to further the election of such candidates, which would con- stitute qualified campaign expenses if incurred by an authorized committee of such candidates, in an aggregate amount exceeding $1,000 ... It further provides for criminal penalties in the form of fines and imprisonment for violators of this section. A political committee shall be fined up to $5,000 for violation and any officer or member of a committee who knowingly and willfully consents to such a violation, and any other individual who knowingly or willfully violates this section shall be fined up to $5,000 or imprisoned not more than one year or both. Id. 2. Presidential Election Campaign Fund Act, 26 U.S.C. §§ 9001-9013 (1982). This statute offers the Presidential candidates of major political parties the option of receiv- ing public financing for their general election campaigns. If a Presidential candidate elects public financing, § 9012(0 makes it a criminal offense for independent "political committees," such as the National Conservative Political Action Committee, to expend more than $1,000 to further that candidate's election. FEC v. NCPAC, 105 S. Ct. 1459, 1461 (1985). 3. FEDERAL ELECTION COMMISSION RECORD (GPO), at 6 (May 1985). Unau- thorized committees are defined as those which are independent from a candidate's cho- sen committee. Id. 4. Id. 5. 105 S. Ct. 1459 (1985). Two separate actions were consolidated in this case. See infra text accompanying notes 15-23. 6. This decision consisted of two parts. The first issue concerned whether the Dem- ocrats had "standing" to bring suit against NCPAC and FCM. The Supreme Court held that they lacked standing. For further information as to the Court's opinion on this issue, see FEC v. NCPAC, 105 S.Ct. at 1462-65. The second issue involved the constitutionality of § 9012(0, which is the focus of this article. Id. at 1465-71. MARQUETTE LAW REVIEW [Vol. 69:143 at issue constituted speech; therefore, they were protected under the first amendment.7 The Court, in a seven to two de- cision,8 declared section 9012(f) unconstitutional because the prohibited conduct was entitled to first amendment protec- tion 9 and no compelling state interest justified the prohibi- tion.'0 The provision was also found to be overbroad." This note begins with a synopsis of the facts in FEC v. NCPAC. Next, the development of campaign finance regula- tions is discussed, followed by an analysis of the Court's deci- sion in FEC v. NCPAC. Finally, this note considers the impact of this decision within the electoral process and sug- gests that the Court adopt a more consistent approach in this area of election law. I. STATEMENT OF THE CASE Section 9012(f), the provision limiting political expendi- tures at issue in FEC v. NCPAC, was previously challenged and found invalid in Common Cause v. Schmitt. 2 The Supreme Court affirmed the judgment of the district court in Schmitt by a four to four vote. 13 Schmitt, therefore, had no precedential value. 14 In May 1983, the Democratic Party, the Democratic Na- tional Committee (DNC), and Edward Mezvinsky 15 filed suit against the National Conservative Political Action Committee 7. Id. at 1467. 8. Justice Rehnquist delivered the Court's two part opinion. Justices Burger, Blackmun, Powell, and O'Connor joined in Part I. Justices Burger, Brennan, Black- mun, Powell, Stevens, and O'Connor joined in Part II. Id. at 1459. 9. Id. at 1467-68. 10. Id. at 1469-71. 11. Id. at 1469-70. 12. 512 F. Supp. 489 (D.D.C. 1980), ajffd per curiam, 455 U.S. 129 (1982) (4-4 decision). 13. Justice O'Connor took no part in the consideration or decision. Common Cause v. Schmitt, 455 U.S. at 129. 14. Peck, Statutory Limits on Campaign Financing: A Boon or A Boondoggle? 7 PREVIEW OF UNITED STATES SUPREME COURT CASES 153, 154 (1984). 15. FEC v. NCPAC, 105 S. Ct. at 1462. Edward Mezvinsky served as Chairman of the Pennsylvania Democratic State Committee at the time of this litigation. He sued in his individual capacity as a citizen eligible to vote for President of the United States. Id. Mezvinsky did not pursue an appeal to the Supreme Court, though his name was inad- vertently included in the notice of appeal filed by the Democratic Party and the DNC. Id. at 1462 n.I. 1985] ELECTION LAW (NCPAC) 16 and the Fund for a Conservative Majority (FCM),17 which had announced their intention to spend large sums to help bring about the reelection of President Ronald Reagan in 1984.18 They sought a declaration that section 9012(f) was constitutional. 19 The FEC along with the political action committees (PACs),z° intervened for the sole purpose of moving, to dismiss the complaint for lack of standing.2 The FEC brought a separate action against the same de- fendants seeking identical declaratory relief in June 1983. 2 The two cases were consolidated by a three-judge district court.23 The district court held that the Democratic Party and the DNC had standing to sue and that section 9012(f) abridges the first amendment freedoms of speech and associa- tion and is substantially overbroad. 24 The FEC appealed that part of the judgment which held that the Democratic Party and the DNC had standing.2 The Democratic Party and the DNC challenged that part of the holding concerning section 9012(f).26 The United States 16. Id. at 1465. NCPAC is a nonprofit, nonmembership corporation formed in August 1975 and registered with the FEC as a political committee. It is governed by a three-member board of directors which is elected annually by the existing board. Its contributors have no direct role in the decisions concerning campaign strategies or which candidates the NCPAC will support. It raises money through direct mail solici- tations. Id. 17. Id. FCM is registered with the FEC as a multicandidate political committee. Its organization is similar to the NCPAC. See supra note 16. 18. 105 S.Ct. at 1462. 19. Id. In the 1980 election, the Presidential Election Campaign Fund made $29.4 million available in public funds to each of the two major party candidates. In addition, independent political committees spent $13.7 million on behalf of the two candidates. $13 million of these independent expenditures were used to support the election of Ron- ald Reagan. Peck, supra note 14, at 153. 20. LEAGUE OF WOMEN VOTERS EDUCATION FUND, LEAGUE OF WOMEN VOT- ERS OF THE UNITED STATES, PUB. No. 297, FACTS ON PACS: POLITICAL ACTION COMMITrEES AT AMERICAN CAMPAIGN FINANCE 3 (1984) [hereinafter cited as FACTS ON PACS]. The term "political action committee" refers to nonparty, noncandidate political committees which are referred to as "nonconnected committees" in the Federal Election Campaign Act (FECA) of 1971. The FECA also speaks of "separate, segre- gated funds" which also refers to the PACs. Id. 21. FEC v. NCPAC, 105 S. Ct. at 1462. 22. Id. 23. Id. at 1461. The companion law suits were brought before a three-judge Dis- trict Court in the Eastern District of Pennsylvania. 24. Id. at 1462. 25. Id. at 1461. 26. Id. MARQUETTE LAW REVIEW [Vol. 69:143 Supreme Court noted probable jurisdiction pursuant to the statutory appeal provision of section 901 1(b)(2). 27 The Court reversed the judgment of the district court on the issue of standing but affirmed its judgment as to section 9012(0, thus holding that section unconstitutional.28 I. BACKGROUND A. Development of Campaign Regulations The Progressives ushered in the first major campaign fi- nance regulations in the United States.29 During the 1970's, increased media costs, 30 the Watergate scandal, 31 and a grow- 32 ing desire to provide equal access to the electoral process provided further impetus for reform.33 By the middle of the decade, three major pieces of campaign finance legislation had been passed.34 The Federal Election Campaign Act of 1971 (FECA) was the first major piece of federal campaign legislation since the 27.