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DEMOCRATIC PARTY OF THE UNITED STATES v. NATIONAL

December 12, 1983

DEMOCRATIC PARTY OF THE UNITED STATES, and EDWARD MEZVINSKY, Plaintiffs
v.
NATIONAL CONSERVATIVE POLITICAL ACTION COMMITTEE, et al., Defendants, and FEDERAL ELECTION COMMISSION, Intervenor, FEDERAL ELECTION COMMISSION, Plaintiff v. NATIONAL CONSERVATIVE POLITICAL ACTION COMMITTEE, et al., Defendants



The opinion of the court was delivered by: BECKER

 Section 9012(f) of Title 26 of the United States Code makes it a crime for a "political committee" to expend more than $1,000 to further the election of nominated presidential or vice presidential candidates who are financing their campaigns with public funds. *fn1" These consolidated declaratory judgment actions require us to decide whether this provision violates the first amendment guarantees of free speech and association, as recognized and interpreted by the Supreme Court in Buckley v. Valeo, 424 U.S. 1, 46 L. Ed. 2d 659, 96 S. Ct. 612 (1976), and its progeny. Briefly put, Buckley held that, while contributions to political candidates were only "proxy speech" subject to moderate constitutional protection, expenditures made on behalf of such candidates were speech fully protected by the first amendment and might be silenced only if they posed a threat of corruption or its appearance.

 This is not the first time actions such as these have been brought. In Common Cause v. Schmitt, 512 F. Supp. 489 (D.D.C. 1980), the District Court for the District of Columbia held section 9012(f) to be unconstitutional on its face. That decision was affirmed by an equally divided Supreme Court without opinion. 455 U.S. 129, 102 S. Ct. 1266, 71 L. Ed. 2d 20 (1982). Because such affirmances have no precedential authority whatsoever, see Trans World Airlines v. Hardison, 432 U.S. 63, 73 n.8, 53 L. Ed. 2d 113, 97 S. Ct. 2264 (1977), the issue is fairly before us. Although we are not in precise accord with the entire reasoning of our District of Columbia colleagues, we echo their ultimate conclusion: section 9012(f) is unconstitutional.

 The procedural posture of these suits presents an inversion of the conventional declaratory judgment action in constitutional cases. Usually the plaintiff, needing to overcome the presumption that congressional enactments are constitutional, seeks a declaration of unconstitutionality. The plaintiffs in both of these actions, the Democratic National Committee and Edward Mezvinsky (plaintiffs in No. 83-2329) and the Federal Election Commission (plaintiff in No. 83-2823) seek a declaration that section 9012(f) is constitutional. This procedural anomaly, coupled with the apparent dormancy of section 9012(f) until the summer of 1984, when the major parties will select their presidential and vice presidential candidates, impels us to consider sua sponte whether the cases are now justiciable within Article III of the Constitution. The action brought by the Democrats and Mr. Mezvinsky, the Chairman of the Pennsylvania Democratic Committee and a voter, also presents another significant procedural problem -- whether the group of statutes of which section 9012(f) is a part permits private parties to enforce its prohibitions, or whether it reserves that right exclusively to the Federal Election Commission.

 Our methodology in this opinion is as follows. After briefly recounting in Part II the procedural developments in the cases, we address the issue of justiciability, including standing and ripeness, in Part III. We first conclude that 26 U.S.C. § 9011(b) permits private parties such as the Democratic National Committee to bring this declaratory judgment action before this three-judge district court. We so conclude, notwithstanding other statutes that might appear to restrict enforcement powers to the Federal Election Commission. Having found statutory standing, we then turn to the constitutionality of section 9011(b) as applied in this case. We conclude that, based on the unique circumstances of this case, section 9011(b)'s authorization of these actions does not violate the restriction of Article III on federal court jurisdiction to "cases and controversies." We further conclude in Part III that the suits brought by the Democrats and the FEC are ripe for adjudication.

 Having found both suits justiciable, we then analyze in Part IV the facial constitutionality of section 9012(f), proceeding along traditional overbreadth lines as set forth in Broadrick v. Oklahoma, 413 U.S. 601, 37 L. Ed. 2d 830, 93 S. Ct. 2908 (1973). From an examination of the Fund Act, of which section 9012(f) is a part, and of the Federal Election Campaign Act (FECA), a closely related statute, we first determine the type of conduct and speech that section 9012(f) is intended to prohibit. Basing our analysis on an exposition of Buckley v. Valeo and a discussion of how subsequent decisions by the Supreme Court may have modified the holdings of that case, we then determine what speech and conduct relating to presidential campaigns Congress may not legitimately prohibit. Because Buckley and its progeny allow restrictions on true campaign speech only to prevent corruption or its appearance, we focus on the extent to which conduct barred by section 9012(f) has led to corruption or the appearance thereof in recent political history.

 We find that the plaintiffs have produced virtually no evidence of actual corruption and little admissible evidence of the appearance of corruption. We also focus on the potential for the conduct barred by section 9012(f) to corrupt or create the appearance of corruption. We find that, while some extremely large and professionally managed expenditures made independently of the candidate's official campaign may create the appearance of corruption, most of the expenditures banned by section 9012(f) pose no such threat. We then look for a plausible narrowing construction of section 9012(f) that would limit its focus to only those potentially harmful expenditures. We find none. We thus hold that section 9012(f) violates the first amendment to the Constitution because it threatens to chill and to punish much speech that Supreme Court decisions have held to be protected.

 II. PROCEDURAL HISTORY

 The first action (No. 83-2329) was filed on May 1, 1983, by the Democratic Party of the United States and Edward Mezvinsky, *fn2" against the so-called "PAC defendants," the National Conservative Political Action Committee ("NCPAC"), and the Fund for a Conservative Majority ("FCM"). Defendant NCPAC is a nonprofit organization under the laws of the District of Columbia organized primarily to influence elections by making contributions or by making expenditures either in support of favored (generally conservative) candidates or against disfavored (generally liberal) ones. Defendant FCM is a Virginia corporation and engages in similar activities.

 The Democrats, noting that the defendant PACs have announced their intention to spend substantial funds on behalf of President Reagan in 1984, seek a declaration that section 9012(f) of Title 26 of the United States Code is constitutional, at least on its face. *fn3" Pursuant to 26 U.S.C. § 9011(b)(2), a three-judge court was constituted to hear the case. The PAC defendants moved to dismiss this suit under Fed. R. Civ. P. 12(b)(1) on the theory that the Democrats lacked statutory and constitutional standing to bring the action, and that this court accordingly lacked statutory and constitutional subject matter jurisdiction. They were joined in this motion -- at least with respect to statutory standing -- by the Federal Election Commission ("FEC"), which intervened as defendants in the case for that limited purpose. The PAC defendants also moved to transfer venue to the District Court for the District of Columbia under 28 U.S.C. § 1404(a) (1976).

 The second action (No. 83-2823) was filed on June 14, 1983, by the FEC against the same defendants seeking declaratory relief similar to that ultimately requested by the Democrats. The same three-judge court was constituted to hear the case. Upon motion by the Democrats and pursuant to Fed. R. Civ. P. 42, we consolidated the two cases for all purposes.

 On September 13, 1983, after briefing and supplemental briefing by the parties, we heard extensive oral argument on the pending motions to dismiss and the motion to transfer venue. For the reasons now set out in Part III of this opinion, we denied the motions.

 The case was called for final hearing on October 27, 1983. The parties called no witnesses at that time. Instead, they relied on 201 stipulations and three books of related exhibits they had previously agreed upon as the factual record. The parties had developed these stipulated facts during September and early October in the wake of several case management conferences held by Judge Giles, a member of this panel. We received this evidence, *fn4" and the briefs filed in the case by the parties and amici. *fn5" We also heard extensive oral argument. We now grant judgment for the defendants for the reasons set out in Part IV of this opinion.

 III. JUSTICIABILITY

 A. Statutory Subject Matter Jurisdiction

 1. The Contentions

 The PAC defendants and the FEC maintain, however, that 2 U.S.C. § 437c(b)(1) (1982), which is part of the FECA, implicitly repeals section 9011(b) and bars anyone but the FEC from enforcing section 9012(f). Section 437c(b)(1), last enacted as part of Title I of the 1979 amendments to FECA, provides:

 
The [FEC] shall administer, seek to obtain compliance with, and formulate policy with respect to, this Act and chapter 95 and chapter 96 of Title 26. The Commission shall have exclusive jurisdiction with respect to the civil enforcement of such provisions. *fn7"

 (Emphasis added). Both the PAC defendants and the FEC believe that this provision prevents private parties like the Democrats from bringing this action, which they style as being "one in the nature" of an action for enforcement.

 The PAC defendants' and FEC's other argument against statutory subject matter jurisdiction over the Democrats' suit is, in essence, that allowing this private action would subvert the regime of "Judicial Supervision" established by Congress in 2 U.S.C. § 437g (1982) for enforcing FECA and the Fund Act and would substitute a regime of "Maximum Enforcement." *fn8" The defendants note that section 437g establishes an elaborate, administrative remedy available to private parties who believe that violations of the Fund Act or the FECA are occurring. Section 437g allows private parties to complain to the FEC, which, after exhausting administrative processes, can sue the alleged violators. If the FEC fails to avail itself of these remedies, 437g(a)(8) allows aggrieved parties to sue the FEC in the District of Columbia in order to compel the FEC to pursue a "civil action to remedy the violation involved . . . ." If the FEC fails to bring such an action, then and only then may the private party sue directly to enforce the FECA or Fund Act. If private parties could sue violators of the Fund Act without exhausting these other remedies, the defendants' argument continues, requiring private parties first to complain to the FEC would be pointless. *fn9"

 2. Discussion

 Interpreted literally, section 9011(b) seems to authorize any voter in the United States to obtain a construction of the Fund Act and to implement its terms. Yet, there is a sharp tension between section 9011(b)'s apparent call for universal standing to enforce the Fund Act and section 437c(b)(1)'s apparent restriction of standing to the FEC alone. Two principles guide us, however, to the conclusion that section 9011(b) authorizes this suit by the present private plaintiffs. First, "the starting point in every case involving construction of a statute is the language itself." International Brotherhood of Teamsters v. Daniel, 439 U.S. 551, 558, 58 L. Ed. 2d 808, 99 S. Ct. 790 (1979). Here the language of the statute itself seems plainly to authorize these plaintiffs to seek a construction of section 9012(f). Second, if there is a conflict between the directives of two statutes, it is the general duty of the court to attempt reconciliation. Implied repeal is the interpretation of last resort. See Morton v. Mancari, 417 U.S. 535, 549, 41 L. Ed. 2d 290, 94 S. Ct. 2474 (1974). Here reconciliation is possible.

 (a) The Evolution of 9011(b) and 437c(b)(1)

 The intertwined evolution of the Fund Act and FECA shows that the Democrats' understanding of section 437c(b)(1)'s limited purpose is plausible. Congress established in the 1971 Fund Act a right of national political committees and individuals eligible to vote for president to sue for injunctive, declaratory or other relief (as appropriate) to "implement or construe" any of its provisions, including section 9012(f). See 26 U.S.C. § 9011(b)(1). This right was created to assure public and private fidelity to the substantive norms created by the Act.

 Later in 1971, Congress also enacted FECA, in a form substantially different from today's statute. Federal Election Campaign Act, Pub. L. No. 92-225, 86 Stat. 3 (1972). Under the 1971 FECA, the Comptroller General carried out administrative and investigatory duties, id. § 308(c)(1), (d)(1), but only the Attorney General of the United States could institute a civil action for violations of the statute's provisions. Id. § 308(d)(1).

 In the 1974 amendments to FECA, Congress created the FEC to replace the Comptroller General. Federal Election Campaign Act Amendments of 1974, Pub. L. No. 93-443, § 208, 88 Stat. 1263 (1974). It invested the FEC with administrative and investigatory duties, and with some civil enforcement powers. To make clear its intent to divest the Comptroller General and the Attorney General of most of the powers they had held under the 1971 Act, Congress stated that the "Commission has primary jurisdiction with respect to the civil enforcement" of the Act. Id. § 310(b). The 1974 amendments to FECA left significant enforcement power in the hands of the Attorney General, however. Under the newly added sections 314(a)(6) and 314(a)(7), for example, if the FEC believed a violation of the FECA or of certain criminal provisions situated in Title 18 of the United States Code to be occurring, it was obliged to request the Attorney General to bring appropriate civil-injunctive or criminal actions.

 In the 1976 amendments to FECA, Congress finally centralized that all governmental civil enforcement of the Act in the FEC. According to the legislative history of the new amendments, under the 1971 Act and 1974 amendments:

 
enforcement responsibility was fragmented, and the line between improper conduct remediable in civil proceedings and conduct punishable as a crime blurred . . . . [Therefore] the Committee concluded that it was appropriate to simplify and rationalize the present enforcement system.

 H.R. Rep. No. 917, 94th Cong., 2d Sess. 3. Congress accomplished its goal by repealing the criminal provisions formerly situated in Title 18 of the United States Code, see Federal Election Campaign Acts of 1976, Pub. L. No. 94-283, § 201(a), 90 Stat. 496 (1976), by essentially reenacting those provisions as part of FECA itself, see id. § 112, and by authorizing the FEC itself to bring civil actions to stop violations of FECA, see id. § 109. In keeping with this desire to consolidate governmental enforcement responsibilities, Congress used the word "exclusive" in what would be codified as 2 U.S.C. § 437c(b)(1). See id. § 101 (amending what was then section 309(b) of FECA, which established the powers of the FEC). *fn10" In view of this history, it would appear that section 437c(b)(1) was enacted by Congress to make clear that only the FEC, and no other governmental authority, would have jurisdiction to enforce the two Acts.

 (b) The Legitimacy of Maximum Enforcement: Conclusion

 Congress' establishment of Maximum Enforcement regimes elsewhere in the law damages the FEC's implicit argument that Congress could not conceivably have wanted Maximum Enforcement here. It is simply not correct to maintain that, because it makes a private right of initiation less important, Maximum Enforcement makes no sense. In adopting the Fund Act, Congress could reasonably have concluded, as it did in enacting a provision the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. § 1270 (Supp V. 1981), a provision of the Energy Policy and Conservation Act, 42 U.S.C. § 6305 (1976 & Supp V. 1981), and of the Clean Air Act, id. § 7604, that a right of private initiation is a useful supplement to a private right of action in assuring fidelity to a regulatory norm.

 Moreover, we note that Congress explicitly ceded the opportunity -- which it took advantage of with respect to the FECA -- to create a regime of Judicial Supervision rather than one of Maximum Enforcement. In 2 U.S.C. § 437d(e) (1982), a section of FECA distinct from § 437c(b)(1), which we herein construe, Congress stated that suits brought by the FEC would be the only method for enforcement of FECA aside from the limited private right of initiation contained in section 437g. Apparently, and contrary to its behavior regarding numerous other provisions of FECA, Congress chose not to extend this provision of FECA to cover the Fund Act as well. *fn11"

 B. Constitutional Subject Matter Jurisdiction: Standing and Ripeness

 It is a commonplace of modern federal practice that before adjudicating the merits of a dispute, a court must find that the proposed relief actually benefits the litigant complaining in some "concrete" way. See Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 42-43, 48 L. Ed. 2d 450, 96 S. Ct. 1917 (1976); Linda R.S. v. Richard D., 410 U.S. 614, 618, 35 L. Ed. 2d 536, 93 S. Ct. 1146 (1973). Concomitantly, the court must also find that the conduct of the defendant injures or threatens injury to the plaintiff. This injury need not be to a recognized legal interest, see Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 25 L. Ed. 2d 184, 90 S. Ct. 827 (1970), but it must be more than harm to a state of affairs that the complaining party pleads merely to be desirable, see Sierra Club v. Morton, 405 U.S. 727, 31 L. Ed. 2d 636, 92 S. Ct. 1361 (1972).

 In cases where the harm is only threatened, plaintiffs must pass another barrier before courts may constitutionally address their case on the merits and award them relief. Courts must find that the case is "ripe," that is, that the need for a current adjudication outweighs the dangers of adjudication based on an incomplete factual record or on circumstances that may never eventuate.

 These requirements of Article III rest in imperfect harmony with the availability of declaratory relief, which appears only to allow a court to advise the parties to the litigation of its point of view on a particular matter. Ever since Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41, 81 L. Ed. 617, 57 S. Ct. 461 (1937), however, it has been settled that declaratory relief is not unconstitutional per se. Courts nonetheless have an obligation in each case legitimately seeking declaratory relief under a statute or other provision to ensure that the requirements of Article III are met.

 1. Standing

 (a) The Contentions

 The PAC defendants argue that the Democrats lack Article III standing to bring a declaratory judgment action. *fn13" They contend that none of the conduct in which they have engaged or may engage harms the Democrats. Their supplemental brief, filed in response to questions propounded by the court, is clear and concise:

 
[The Democrats] complain that defendants are trying to persuade voters to vote for Ronald Reagan and against the nominee of the Democratic Party. That is true. It is also politics. But it is not the sort of direct and palpable injury to plaintiffs which confers Article III standing.

 They then argue that, even if the conduct of the PAC defendants cognizably injures plaintiffs, a finding that section 9012(f) constitutionally allows the judiciary to stop such conduct does the private plaintiffs no good. As private parties, plaintiffs lack power to bring a criminal prosecution under 9012(f); only the attorney general can do that. And, whatever may be their power to "implement or construe" the Fund Act through actions brought under section 9011(b), private parties, the PAC defendants say, have no power under that statute or any other to enforce by means of civil injunction the criminal prohibitions of section 9012(f); that remedy is left to the FEC alone. 2 U.S.C. § 437d(a)(6). Finally, it is submitted that even if the FEC's civil enforcement process might ordinarily be benefitted (through stare decisis or issue preclusion) by a judgment for the private plaintiffs in their action, the FEC's seeking of almost identical relief in a consolidated action renders this factor irrelevant.

 The Democrats have several responses to this forceful attack upon our constitutional jurisdiction. To show injury in fact, they cite the recent Supreme Court cases of Havens Realty Corp. v. Coleman, 455 U.S. 363, 372, 71 L. Ed. 2d 214, 102 S. Ct. 1114 (1982), and Gladstone, Realtors v. Bellwood, 441 U.S. 91, 100, 60 L. Ed. 2d 66, 99 S. Ct. 1601 (1979), for the proposition that, while courts normally have power to determine whether a claimed hurt creates the "injury in fact" needed to confer standing on the complaining party and jurisdiction upon the court, Congress has considerable power to override these determinations. The Fund Act's plain language, the argument continues, coupled with a reading of its legislative history, reveals that Congress considered any uncertainty surrounding interpretation of the Fund Act itself injurious to entities such as national political parties, which must understand the system of finance in which they seek electoral support. The Democrats seemingly recognize that this putative justification for standing may override the case or controversy requirement of Article III and authorize purely advisory opinions. They therefore also argue that, because the PAC defendants are threatening to violate section 9012(f) on a massive scale and thereby subvert the system of public finance created by the Fund Act, a failure to adjudicate this case will leave them unable to know how to go about best raising funds for the presidential election in 1984. The Democrats add that, at all events, the likely attacks of the PAC defendants upon the Democrats' nominee threaten judicially cognizable injury.

 With respect to the redressability of any injury suffered, the Democrats argue that a ruling by the court that section 9012(f) is not unconstitutional on its face would facilitate future enforcement of the Fund Act, particularly in view of the short interval between political conventions and elections. Congress authorized enforcement, in section 9011(b), they say, by giving private parties the right to "implement" the provisions of the Fund Act by means of injunctive relief.

 (b) Discussion

 Counsel has not brought to our attention any other case that has dealt with the issue of Article III standing in actions brought to uphold the constitutionality of suspect statutes. The only other suit of which we are aware in which a party even sought such relief is this suit's elder sibling, Common Cause v. Schmitt, 512 F. Supp. 489 (D.D.C. 1980), aff'd by an equally divided court, 455 U.S. 129, 102 S. Ct. 1266, 71 L. Ed. 2d 20 (1982). There, the district court never reached the constitutional standing issue, because it found equitable relief to be inappropriate with respect to one count of the complaint by the private plaintiff and (we think erroneously) found no statutory standing with respect to a second count of the complaint involving an attempt by the private plaintiff to enforce the Fund Act.

 Whether private plaintiffs have standing in this declaratory judgment action turns largely on whether private plaintiffs may ultimately enforce the provisions of the Fund Act, including section 9012(f), by means of civil injunction actions brought during the final presidential campaign. If so, a judgment here that section 9012(f)'s substantive prohibitions are not unconstitutional on their face clears the way for rapid adjudication of disputes arising under section 9012(f), and thus benefits the plaintiffs. Through principles of issue and claim preclusion, the requested declaratory judgment would eliminate the complex defense of facial unconstitutionality that might otherwise bog down subsequent enforcement litigation and prevent both private plaintiffs and the FEC from enjoining spending that violates section 9012(f) before its attendant damage is irreversibly wreaked during the brief period between party conventions and the election. *fn14" We conclude that, by significantly heightening the practical effectiveness of statutory remedies, the declaratory judgment sought here is capable of surmounting the redressability requirement of Article III. *fn15"

 Although the issue is far from clear, we believe that section 9011(b)'s language, which allows private plaintiffs to bring injunctive actions "to implement" any provisions of the Fund Act, authorizes private plaintiffs to seek civil injunctions during the final presidential campaign to stop spending that violates section 9012(f). While we recognize that the word "to implement" is not identical to the word "enforce," and that Congress used the latter term when granting the FEC the right to bring injunctive actions to stop violations of the Fund Act, see 2 U.S.C. § 437d(a)(6), the verb "to implement" surely compasses enforcement actions. Webster's defines the verb "to implement" as being "to carry out . . . to give practical effect to and to ensure of actual fulfillment by concrete merits." Webster's Third New International Dictionary 1134 (1961). An action for injunctive relief to ensure compliance with section 9012(f)'s ban on expenditures by political committees in support of eligible presidential candidates would certainly give practical effect to and ensure actual fulfillment of section 9012(f) by concrete measures. We can find no warrant to strip "implement," as used in section 9011(b), of its ordinary meaning. We thus conclude that a declaratory judgment is capable of benefitting the private plaintiffs here in a judicially cognizable fashion.

 We now turn to the question whether there is a judicially cognizable injury to the plaintiff stemming from the PAC defendants' threatened conduct. We hold that there is a threatened injury. To begin with, we take judicial notice that the political power of the Democratic Party depends significantly on whether its nominee comes to occupy the White House. Thus, speech that reduces the likelihood of its nominee's victory injures the Democratic Party in more than an ideological way. The speech of PACs may be politics and it may be protected by the Constitution, but, like any other speech, it can also hurt.

 In addition, the uncertainty surrounding the constitutionality of section 9012(f) may injure the Democrats (though not plaintiff Mezvinsky) by compelling them to expend fund-raising and administrative resources in anticipation of the result of enforcement litigation brought against the PAC defendants during the final presidential campaign. If section 9012(f) is struck down in that enforcement litigation, PACs will be able to spend as they please. Under such circumstances, the Democrats might choose to forgo public financing of their own campaign and would have been best advised to focus on private fund raising before the conventions for use thereafter. If section 9012(f) is upheld in enforcement litigation, however, PAC spending will be all but banned. The Democrats might have done better, then, to focus their fund raising efforts on the pre-convention period, when the Fund Act is not in force. Thus, either the Democrats must expend administrative and fund raising resources in anticipation of either eventuality or take a tremendous gamble in anticipation of what they regard as the most likely result. A declaratory judgment now spares them this dilemma. *fn16" Thus, we believe that section 9011(b) is constitutional insofar as it gives statutory standing to the private plaintiffs in this action. *fn17"

 2. Ripeness

 (a) The Contentions

 The PAC defendants' contention that the suit by the Democrats is not ripe rests on what they regard to be the significant possibility that the illegal spending feared by the Democrats may never come about. *fn19" Although the defendants have announced their intention to raise funds for President Reagan, they point out that by choice or chance Ronald Reagan, the candidate they now support, might not be the nominee of the Republican Party. They also point out that the opinions of their own organizations might change with respect to President Reagan. *fn20"

 The Democrats respond that, because the passage of time will not produce facts capable of enhancing this court's evaluation of section 9012(f)'s constitutionality, because PAC spending either for Reagan or against its nominee will injure its candidate seriously before a lawsuit could proceed to injunctive relief, and because any waste of judicial resources caused by adjudication of a dispute that may never eventuate is outweighed by the harm resulting from the failure to adjudicate that dispute now, this case is ripe. *fn21"

 (b) Discussion

 There is no tidy formula for determining when the main battles of a dispute lie so far in the future that its present adjudication in court constitutes a violation of Article III's requirement that federal courts adjudicate only cases and controversies. The Supreme Court has counseled that "the basic inquiry is whether the 'conflicting contentions of the parties . . . present a real, substantial controversy between parties having adverse legal interests, a dispute definite and concrete, not hypothetical or abstract,'" Babbitt v. United Farm Workers National Union, 442 U.S. 289, 298, 60 L. Ed. 2d 895, 99 S. Ct. 2301 (1979) (quoting Railway Mail Association v. Corsi, 326 U.S. 88, 93, 89 L. Ed. 2072, 65 S. Ct. 1483 (1945). The very vagueness of its proffered standard demonstrates, however, the verity of its prior confession that "the difference between an abstract question and a 'case or controversy' is one of degree, of course, and is not discernible by any precise test." Id. at 297.

 Nonetheless, it is clear from Supreme Court case law that a court must consider several factors in determining whether the Article III minima are satisfied. First, the court must consider the extent to which present adjudication will necessarily deprive the court of facts that are of critical relevance to thoughtful disposition of the legal issues in the case and that only the future might reveal. See Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 81-82, 57 L. Ed. 2d 595, 98 S. Ct. 2620 (1978); Regional Rail Reorganization Act Cases, 419 U.S. 102, 143-48, 42 L. Ed. 2d 320, 95 S. Ct. 335 (1974). Second, the court should consider the extent to which its failure to adjudicate will, as a practical matter, deprive the litigants of an effective and peaceful resolution of the battle that looms ahead. Duke Power, 438 U.S. at 81-82. Finally, although we are hardly certain that this is an Article III requirement rather than simply a rule of prudence, a court should consider the extent to which it might waste its valuable dispute-resolving and peacekeeping resources by adjudicating disputes that never erupt rather than devoting its energies to the hot spots of the legal landscape.

 After consideration of these factors, we are of the belief that this suit is ripe. As will be shown in our resolution of the merits, a determination of the constitutionality of section 9012(f) turns on virtually no adjudicative facts. And the relevant legislative facts, e.g., conclusions about the perceptions of corruption resulting from PAC expenditures and the relationship of section 9012(f) to effective speech by individuals and associations, are as available now as they will be a year hence during the heart of the final presidential campaign.

 Indeed, what will not be available a year from now is the time to think carefully about the constitutional issues involved. With fidelity to our mandate under section 26 U.S.C. 9011(b)(2), we have attempted to "cause the case to be in every way expedited," yet the need to resolve preliminary matters such as those addressed in part III of the opinion, the necessity for some discovery, the development of a factual record, and the effort involved in resolving the difficult constitutional and jurisprudential issues inevitably implicated in actions of this sort, has consumed over six months from the filing of the first complaint. We believe we would have been hard pressed to resolve thoughtfully a case of this complexity and import and to give effective relief -- including the critical preliminary injunction -- if this suit were brought during the heat of a campaign. And if hearings on the case were delayed until after the 1984 political conventions, it is unlikely that the Supreme Court would be able to definitively resolve the issue in time to affect the 1984 presidential campaign. But see New York Times Co. v. United States (The Pentagon Papers Case), 403 U.S. 713, 29 L. Ed. 2d 822, 91 S. Ct. 2140 (1971) (Supreme Court deciding prior restraint case with extreme speed). Adjudication of this case now is critical to a definitive resolution of the important issues presented and, had we found section 9012(f) constitutional, would have been critical to an effective remedy being provided the plaintiffs. Cf. Roe v. Wade, 410 U.S. 113, 125, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973) (modifying usual mootness analysis for cases "capable of repetition, yet evading review").

 Finally, while we confess our discomfort about basing judicial decisions on our own subjective assessment of the future course of American politics, we cannot blind ourselves to reality. As of this date, it is certainly more than speculation that Ronald Reagan will be the presidential nominee of the Republican Party and that, as he did last time and as every other major party candidate has done since the enactment of the Fund Act, will accept public funds for his campaign. *fn22" It is also more than speculation that the PAC defendants will support President Reagan by making expenditures in violation of section 9012(f). They have said repeatedly that they intend to do so. Moreover, even if President Reagan is not the nominee, the PAC defendants may well spend heavily on behalf of the Republican nominee or against the Democratic nominee. Thus, while it is always possible that the defendants here will not violate section 9012(f), that possibility is also, in our view, sufficiently unlikely to render imprudent our decision to devote judicial resources to resolution of this ...


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