when large expenditures are made by political committees that are affiliated with business or labor groups there is some potential of the appearance of corruption. The benefits possibly resulting from such expenditures create a sufficient motive for actions capable of being interpreted as corrupt, and, despite the scrutiny to which the president is subject, a limited opportunity exists to take such actions.
The question before us now is whether such conduct, fairly seen as creating the appearance of corruption, constitutes so significant a part of that prohibited by section 9012(f) that the defects of that statute in barring non-threatening (and constitutionally protected) speech may be repaired on a case-by-case basis as the statute is applied or whether the judiciary must remedy the risk to the Republic by recalling the statute altogether.
Were we to focus only on that conduct that has occurred while section 9012(f) has been in force, plaintiffs would have a better (though still very weak) case that the statute is not unconstitutionally overbroad. Uncontroverted and admissible evidence shows that 70 percent of the independent expenditures made in the 1980 campaign were by political committees whose aggregate expenditures exceeded $1,000,000.
These large expenditures, we have acknowledged, have the greatest potential to benefit the candidate and, under some circumstances, to lay the foundation for at least the appearance of corruption. But whether spending creates an appearance of corruption depends not only on the amount spent but also on the identity of the spender. Even large expenditures made by political committees not attached to any business or union create little appearance of corruption since there is little the president can do to benefit such committees financially. And in 1980, admissible and uncontroverted evidence shows that an overwhelming proportion of the independent expenditures made in the presidential and vice presidential campaigns came from organizations like the PAC defendants here, organizations not formally affiliated with any business or labor group and thus scarcely capable of being financially benefitted by presidential favors. Thus, taking this last factor into account, even looking just at the conduct that has occurred, we would grant judgment for the defendants.
We believe, however, that considering only conduct that has actually occurred and determining what proportion of that conduct Congress could legitimately prohibit misses the entire point of overbreadth analysis. The first amendment overbreadth doctrine "is predicated on the sensitive nature of protected expression: 'persons whose expression is constitutionally protected may well refrain from exercising their rights for fear of criminal sanctions by a statute susceptible of application to protected expression.' Village of Schaumberg v. Citizens for a Better Environment, 444 U.S. 620, 634, 63 L. Ed. 2d 73, 100 S. Ct. 826 . . .; Gooding v. Wilson, 405 U.S. 518, 521, 31 L. Ed. 2d 408, 92 S. Ct. 1103 . . . (1972)." New York v. Ferber, 458 U.S. 747, 102 S. Ct. 3348, 3361, 73 L. Ed. 2d 1113 (1982). Consequently, in judging whether a statute abridging first amendment freedoms is unconstitutionally overbroad, the court must not make its decision on the basis of what conduct has occurred since the statute's enactment, rather it must consider what conduct would have occurred if the statute did not exist. Having undertaken this admittedly difficult process, the court should then consider what proportion of that conduct the Congress could legitimately prohibit.
If Congress could not constitutionally prohibit a substantial proportion of that conduct, the statute must fall.
Under the method of analysis we believe appropriate in first amendment overbreadth cases, section 9012(f) must fall. Almost all of the conduct it prohibits is protected by the first amendment. The statute bars several friends from associating, drafting an advertisement supporting the election of a major presidential candidate for reasons of their own, and then soliciting funds from other persons to help pay for the ad. There is little potential for corruption stemming from such conduct, yet the statute prohibits it. Similarly, the statute bars larger organizations from expressing their own reasons for endorsing or denouncing a presidential candidate -- reasons that the major parties may think it more politic not to bring up. So long as the expenditures are not mammoth in relation to the money already available to the candidate -- the parties agree that in 1984 some $40 million will be given to the publicly funded candidates -- and so long as the organization is detached from any organization with an independent economic existence, there is little danger of corruption. Yet the statute bars this conduct as well.
Nor can it be argued that without section 9012(f) we would see more of the type of expenditures to be feared most -- those by political committees attached to businesses and unions. 2 U.S.C. § 441b(b)(4), the constitutionality of which has already been upheld in the NRWC case, already thwarts any such threat to our polity. That provision bars corporate political committees from soliciting contributions from persons other than its stockholders, executive and administrative personnel. It also bars union political committees from collecting sums other than from current union members. But few of these individuals are likely to contribute vast sums to corporate or union political committees. Even a stockholder or union member who believed that an independent expenditure by his corporation (or union) might benefit him financially would likely not contribute much since the political committee could make almost the same expenditure without his marginal aid. Putting aside this free rider problem, the small stockholder's interest in the financial well being of the corporation (and the union member's interest in the financial well being of the union) is generally so small that even a small contribution -- say on the order of $50 -- would not likely produce a presidential favor so large that it would benefit him financially. As for executive and other officers (or large stockholders), their number is generally so small that the $5,000 limit on individual contributions prevents them from providing a source of large sums of money to the political committees of their corporations or unions. In sum, section 9012(f) deters protected speech without potential to corrupt and is largely unnecessary to prevent protected speech conceivably capable of creating the appearance of corruption.
The defendants in these actions have identified the critical vice of section 9012(f): were it not repugnant to the Constitution, it would give the institutionalized political parties an almost impervious monopoly over the agenda and terms of debate in presidential electoral campaigns. Were we to give our blessing to the law examined in these actions. we would be permitting only those few with control over our major political parties, our institutionalized press,
or with vast individual resources, to capture the economies of scale inherent in our national society and thus to be heard above the din of everyday existence. Where the threat of corruption is so minimal, we cannot so abnegate our responsibilities.
Having concluded that section 9012(f) of title 26 of the United States Code abridges speech and association protected by the first amendment, and that section 9012(f) is substantially overbroad, and having failed to find a permissible narrowing construction to cure the overbreadth, we can reach but one conclusion. Plaintiffs in these two actions are not entitled to a declaration that section 9012(f) is not unconstitutional on its face. Our judgment must be for the defendants.
An appropriate order follows.
BECKER, Circuit Judge.
AND NOW, this 12th day of December, in consideration of the foregoing opinion, it is ORDERED that judgment be, and it hereby is, entered for the defendants.