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MARIANI v. U.S.

October 27, 1999

RENATO P. MARIANI, PLAINTIFF,
v.
UNITED STATES OF AMERICA, DEFENDANT, FEDERAL ELECTION COMMISSION, INTERVENOR-DEFENDANT.



The opinion of the court was delivered by: Vanaskie, Chief Judge.

  MEMORANDUM

INTRODUCTION

This action under 2 U.S.C. § 437h challenges the constitutionality of provisions of the Federal Election Campaign Act ("FECA" or "Act"), 2 U.S.C. § 431, et seq., which ban corporate contributions to candidates for federal elective office, 2 U.S.C. § 441b (the "corporate contribution ban"), and prohibit making campaign contributions in the name of another person, 2 U.S.C. § 441f (the "conduit contribution ban"). Section 437h of Title 2 U.S.C. assigns to the en banc court of appeals the role of decision maker on constitutional challenges to FECA provisions, with the district court's task being relegated to determining, in the first instance, whether the constitutional challenge is frivolous. See California Med. Ass'n v. FEC, 453 U.S. 182, 193-94 n. 14, 101 S.Ct; 2712, 69 L.Ed.2d 567 (1981). If the issues presented are not frivolous, the district court is to make findings of fact and certify the issues to be resolved to the appellate court. See Buckley v. Valeo, 519 F.2d 817, 818 (D.C.Cir. 1975) (en banc) (per curiam) (remanding to district court for findings of fact before reaching merits).

Plaintiff Renato P. Mariani's constitutional challenges to the corporate and conduit contribution bans arise in the context of a criminal prosecution against him and others in connection with contributions made to several candidates for federal elective office, including the presidential candidacies of Bob Dole and Bill Clinton. Essentially, the indictment in question charges that between August of 1994 and December of 1996, Mariani, who was then president of Empire Sanitary Landfill, Inc. ("Empire") and Danella Environmental Technologies, Inc. ("Danella"), as well as other officers of Empire and Danella, used various employees and others associated with Empire and Danella as conduits for contributions to the campaigns of Dole, Clinton and others, with the ultimate source of the campaign contributions being Empire's corporate treasury.

Mariani contends that the ability of corporations to make contributions to political parties and political action committees ("soft money") in unlimited amounts undermines the justification for the corporate contribution ban — eliminating corruption and the appearance of corruption arising from financing campaigns from large aggregations of wealth embodied in corporate treasuries. As explained by Mariani:

  Because a statute that limits First Amendment interest
  (as FECA concededly does) can only survive the strict
  scrutiny imposed by law if it directly advances a
  compelling state interest in a narrow and precise way,
  . . . the easy availability of the elephantine soft money
  loophole leaves the statute one that simultaneously —
  and thus unconstitutionally — limits First Amendment
  interests and fails directly to advance its goals.

(Brief in Opposition to Defendants' Motion to Dismiss, Dkt. Entry 32 at 6 (emphasis in original).)

By Memorandum and Order filed on March 25, 1999, I determined that Mariani's challenge to the corporate contribution ban was not legally frivolous. In making this determination, I observed that "Mariani has presented facts on which to base a rational argument that the ostensible purposes of a ban on corporate contributions to candidates for federal elective office — eliminating the corruption and appearance of corruption resulting from corporate contributions to individual candidates, see, e.g., FEC v. National Right to Work Comm., 459 U.S. 197, 207-08, 103 S.Ct. 552, 74 L.Ed.2d 364 (1982) — is completely undermined by the allowance of `soft money' contributions by corporations." (Id. at 4.) Because the challenge to the corporate contribution ban was not frivolous, I declined to make a separate determination as to the challenge to the conduit contribution ban, finding that interests of judicial economy and expedition militated against such a separate determination. Id. at 9 n. 3.

Having decided that this action is not frivolous, I must now make findings of fact pertinent to the issues to be certified to the Third Circuit for en banc resolution. In connection with this endeavor, the parties were directed to submit proposed findings of fact following the completion of pertinent discovery.

As a result of the process established by Court Order, the parties have stipulated to 117 proposed findings of fact and agreed to the inclusion of 279 documents in the evidentiary record for this case. See Joint Stipulation of Facts filed on July 26, 1999, Dkt. Entry 53. The United States and intervenor-defendant Federal Election Commission ("FEC") (referred to jointly as the "Government"), submitted 36 separate proposed findings of fact, a number of which are admitted by Mariani. In addition to the 117 findings of fact to which he has stipulated, Mariani has also proposed 468 additional findings of fact. In addition to the 279 documents to which the parties had stipulated, Mariani has also filed "Supplemental Exhibits."

I have carefully reviewed the parties' submissions and find that many proposed findings, particularly those that are not disputed as to factual accuracy, may be adopted verbatim.*fn1 A number of proposed findings, particularly those that merely quote or restate another person's testimony or statement, however, are not appropriate as findings of fact.*fn2 As argued by the Government, a number of Mariani's proposed findings are also redundant and have not been adopted for that reason.*fn3

While both the United States and FEC have agreed to the accuracy of an overwhelming majority of the remainder of Mariani's proposed findings, they have contested the relevancy and materiality of all but six of Mariani's factual assertions. The United States and/or the FEC have also objected to particular findings on the grounds that the evidence proffered by Mariani in support of particular assertions is not admissible. Examples of purportedly inadmissible evidence include documents that had been filed by the FEC in other litigation; an FEC Notice of Proposed Rulemaking; the Minority Report of the Final Report of the Committee on Governmental Affairs: Inrestigation of Illegal or Improper Activities in Connection With 1996 Federal Election Campaigns, S.Rep. No. 105-167 (1998) [Joint Exhibit ("JEx.")] 21;*fn4 statistics from a study conducted by the Center for Responsive Politics; and testimony of several witnesses, including former United States Senator Alan K. Simpson.

Some objections have merit; for example, hearsay objections where Mariani is relying on out of court statements for the truth of the matter asserted.*fn5 Generally speaking, however, the Government's objections are meritless. Indeed, only a few of the particular objections warrant any substantial discussion. Before proceeding to making my findings of fact, I will briefly explain my rulings on evidentiary objections.

RULINGS ON EVIDENTIARY OBJECTIONS

A. Relevance and Materiality

The Government contends that in light of its concession "that soft money donations, and expenditures of soft money on issue advertisements and party-building activities, may influence federal elections to some degree, no evidentiary record, or at least not the incredible detail regarding those activities proposed by plaintiff (particularly the witness statements and expert testimony), is necessary to decide whether the existence of soft money donations and expenditures renders sections 441b and 441f unconstitutional." Joint Response to Plaintiff's Proposed Findings of Fact, Dkt. Entry 69, at 2-3. The Government thus contends that all but 6 of Mariani's 585 proposed findings are irrelevant and/or lack sufficient probative value. The Government makes this argument despite having stipulated to 117 of Mariani's 585 separate statements of fact and notwithstanding the fact that it does not contest the factual accuracy of the overwhelming majority of Mariani's assertions.

Mariani's non-frivolous constitutional challenge concerns the impact of corporate soft money contributions on federal elections and the public's perception of the influence of such contributions. Any evidence that has a tendency to prove that impact and/or the public's perception of the influence of such soft money contributions is plainly relevant. FRE 401; Failla v. City of Passaic, 146 F.3d 149, 159 (3d Cir. 1998).

The Government does not seriously contest the obvious fact that the evidentiary materials tendered in this case do indeed have a tendency to show the influence of soft money contributions and/or the public perception of those contributions. Instead, the Government essentially maintains that the corporate contribution ban is unassailable in light of existing case law precedents. As pointed out by Mariani, the Government is essentially rehashing arguments I considered in determining that Mariani's claims are non-frivolous. Now that this threshold question has been answered in favor of Mariani, the Government's efforts to avoid findings of fact pertinent to the existing political contribution scheme is unavailing. The general objections of irrelevance and immateriality are, therefore, overruled.*fn6

The Government has argued in the alternative that, rather than making any findings of fact, I should simply certify a documentary record to the Court of Appeals, thereby allowing it in the first instance to draw factual conclusions from the voluminous record. While this proposal has some attraction, it is inconsistent with what I understand to be the role of the district court in this legislative review mechanism. Because it is incumbent upon the district judge to make findings of fact, Bread Political Action Comm. v. FEC, 455 U.S. 577, 580, 102 S.Ct. 1235, 71 L.Ed.2d 432 (1982); Khachaturian v. FEC, 980 F.2d 330, 331 (5th Cir. 1992) (en banc) (per curiam); Buckley v. Valeo, 519 F.2d 821 (D.C.Cir. 1975) (en banc) (per curiam), the Government's request that I simply certify a documentary record must be rejected.

B. FEC Filings in Other Cases

Also without merit is the objection interposed by the United States to every fact proffered by Mariani that relies upon the FEC's submissions in other litigations. Mariani has tendered a number of proposed findings that are based upon filings made by the FEC in cases pending in other jurisdictions pertaining to the impact of soft money contributions. Notably, the FEC has not objected to such proposed findings of fact. The FEC contends in those other cases that its factual assertions are correct and that the underlying source materials are competent evidence. Furthermore, it is clear that FEC statements made in other litigations constitute "admissions of a party opponent" under FRE 801(d)(2). While the United States itself may not be "bound" by FEC's admissions, they are nonetheless admissible in this case. The United States was, of course, free to offer countervailing evidence, but it cannot compel exclusion of FEC's admissions.

Likewise, the United States' objections to statements made by FEC witnesses in other cases are generally meritless. As pointed out by Mariani, the declarations from which these statements were taken are among the documents to which the parties jointly stipulated, reserving the right to object only to relevance and materiality. As further pointed out by Mariani, these declarations were submitted by the FEC in other cases and were relied upon by the FEC in those cases in submitting "Statements of Material Fact Not in Genuine Dispute."*fn7 Under these circumstances, it is appropriate for Mariani to present these declarations as evidentiary support for proposed findings of fact.

C. The Competence of Various Witnesses

Objections interposed only on behalf of the United States to various proposed findings of fact on the grounds that the witness declarations underlying the factual assertions are not based upon personal knowledge or reflect incompetent opinions are generally without merit. Mariani has sufficiently demonstrated that witnesses such as Leon Billings, formerly Executive Director of the Democratic Senatorial Campaign Committee, Alan Hassenfeld, Chairman of the Board of Hasbro, Inc. who has conveyed personal and corporate monies to political party committees, and others possess the requisite personal knowledge for the factual assertions contained in their declarations.*fn8 Moreover, Mariani has shown that the opinions of these and other witnesses are both rationally based on their perceptions and helpful to a clear understanding of their testimony or to the determination of facts in issue so as to be admissible under FRE 701. The fact that the FEC has not joined in the United States' challenge to the adequacy of the foundation for the testimony provided by these witnesses buttresses the conclusion that their testimony is indeed competent.

  D. Admissibility of List of Top Soft Money
    Contributors

The Government's objection to the admissibility of the Center for Responsive Politics' ("CRP") "Top Fifty Soft Money Contributors" list is also without merit*fn9 The Government contends that the CRP figures should be excluded because they purportedly aggregate permissible "hard money" and "soft money" contributions. The declaration of the CRP Executive Director, submitted as Joint Exhibit 6, however, points out that CRP separated hard from soft money contributions in compiling its list. The fact that the CRP grouped contributions from corporate donors with contributions made by employees of those corporations is supported by a rational inference that the intent of the donations is to benefit the corporate entity itself. That it may not be possible to divine the motivation of an individual contributor who is affiliated with a large corporate donor may serve to undermine the point sought to be made by the evidence, but it does not compel its exclusion.

E. Admissibility of FEC Notice of Proposed Rulemaking

Another objection amenable to discussion in a generalized manner is the Government's contention that the FEC Notice of Proposed Rulemaking ("NOPR") cannot form the basis for factual findings in this case.*fn10 The Government points out that the NOPR "makes tentative conclusions and factual assumptions about the corrosive effects of soft money on the federal campaign finance system and the need for reform." (Joint Response to Plaintiff's Proposed Findings of Fact, Dkt. Entry 69, at 16; emphasis added.) That the statements in the NOPR are "tentative," however, does not detract from the fact that they nonetheless constitute admissions of a party opponent under FRE 801(d)(2). While the Government is entitled to present evidence that may persuade a factfinder that the "tentative" conclusions and assumptions are erroneous, it cannot avoid the admissibility of the NOPR in the first instance.

F. Admissibility of the Thompson Committee
    Minority Report

The final objection worthy of general discussion concerns the proposed findings that rely upon the Thompson Committee Minority Report. This objection, interposed on behalf of the United States only, pertains to Mariani's Proposed Findings 10, 11, 12-14, 34-36, 46, 94, 104, 106, 121, 126, 143, 172-181, 183-188, 191-99, 360, 361, 364, 438, 466, 467, 476-78, 521, 542, 581, and 583-85.

Mariani contends that this court should admit parts of the Thompson Committee Minority Report under the exception to the hearsay rule applicable to public records and reports set forth in Federal Rule of Evidence 803(8)(C). One scholar has noted that "[t]he Rule 803(8)(C) hearsay exception goes far beyond the common law exception for public records, is controversial and complex, [and] raises numerous difficult evidentiary issues. . . ."*fn11 The rule, in pertinent part, states:

  The following are not excluded by the hearsay rule,
  even though the declarant is available as a witness:
    (8) Public records and reports. Records, reports,
  statements, or data compilations, in any form, of
  public offices or agencies, setting forth . . .
  (C) in civil

  actions and proceedings . . . factual findings
  resulting from an investigation made pursuant to
  authority granted by law, unless the sources of
  information or other circumstances indicate lack of
  trustworthiness.

Mariani claims that the Thompson Committee Minority Report falls squarely within this hearsay exception, while the United States claims that the report is inadmissible because the "Minority Report's findings and conclusions were not adopted by the majority." (Dkt. Entry 70 at 7.) The United States ties this argument to the fact that the "report's findings must be `authorized by law.'" Id. The United States argues in the alternative that if the court admits the evidence, the court should give that evidence little weight. Id. (citing cases of statutory construction in which courts paid little heed to the minority view).

Mariani responds to these arguments on various levels. First he notes that many of the findings of the Minority and Majority Reports "overlap." (Reply Br. in Supp. of Pl.'s Proposed Findings of Fact and Proposed Certified Questions, Dkt. Entry 93 at 24.) Next, he notes that the FEC, an intervenor-defendant in this case, itself offered portions of the Minority Report in an ongoing case, Federal Election Comm'n. v. Colorado Republican Fed. Campaign Comm., Civil Action No. 89-N-1159 (D.Colo.). Id. Third, Mariani cites a long line of decisions purporting to support the admissibility of congressional reports. Finally, Mariani argues that he offers the evidence, not for its truth, but to show the "appearance of corruption." (Dkt. Entry 93 at 24.)

The seminal Supreme Court case of Beech Aircraft v. Rainey, 488 U.S. 153, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988), helped clarity the law relating to Rule 803(8)(C). The Court unanimously held that the rule has a broad application that includes both the "factual findings" and the "opinions" that accompany such findings. And it went on to emphasize the mechanisms trial courts possess to protect the integrity of evidence. The Court, in an extensive analysis of the ramifications of a liberal policy of admission under Rule 803(8)(C), discussed the Advisory Committee's comments on the rule.

  Nowhere in its comments is there the slightest
  indication that it even considered the solution
  of admitting only "factual" statements from such
  reports. Rather, the Committee referred throughout
  to "reports" without any such differentiation
  regarding the statements they contained. . . . Its
  solution as to their admissibility is clearly stated
  in the final paragraph of its report on this Rule.
  That solution consists of two principles: First,
  "the rule . . . assumes admissibility in the first
  instance. . . ." Second, it provides "ample provision
  for escape if sufficient negative factors are
  present."

Id. at 166-7, 109 S.Ct. 439 (internal notes omitted). The Court went on to discuss those important "escape" mechanisms, including "safeguards built into other portions of the Federal Rules, such as those dealing with relevance and prejudice." Id. at 167-8, 109 S.Ct. 439. The Court also laid great emphasis on the "trustworthiness" evaluation Rule 803 requires.*fn12 Finally, the Court noted that "the admission of a report containing `conclusions' is subject to the ultimate safeguard — the opponent's right to present evidence tending to contradict or diminish the weight of those conclusions." Id. at 168, 109 S.Ct. 439.

While the Beech decision is not precisely on point in this case because the report at issue was not congressional, its holding is central to resolving the government's objections. The Beech decision validates liberal admissibility and then recognizes the built-in protections against extraneous evidence. Much of the decision focuses on the trial court's superior vantage point and ability to regulate the evidence through its discretion. Id. at 162, 109 S.Ct. 439.

Lower courts have explicitly addressed the admission of congressional reports. In Hobson v. Wilson, 556 F. Supp. 1157 (D.D.C. 1982), aff'd in part, rev'd in part, 737 F.2d 1 (D.C.Cir. 1984), cert. denied, 470 U.S. 1084, 105 S.Ct. 1843, 85 L.Ed.2d 142 (1985), the court admitted into evidence portions of the Staff Report of Select Committee to Study Governmental Operations with respect to Intelligence Activities ("Church Report"), S.Rep. No. 94-755, Supp. Vol. 3. Hobson focused on the fact that "[t]he segments of the Church Committee Report submitted to the jury reflected adherence to appropriate standards of scholarly responsibility, investigative integrity, and trustworthiness." Id. at 1181.

Other courts have excluded congressional reports. In Anderson v. City of New York, 657 F. Supp. 1571 (S.D.N.Y. 1987), the district judge found a congressional subcommittee report inadmissible because it lacked the "ordinary [indicia] of reliability." Id. at 1579. That court's decision, although a pre-Beech ruling, relied on the four main criteria the Advisory Committee laid out in the notes to the rule — the same trustworthiness criteria on which Beech placed so much emphasis. Anderson, 657 F. Supp. at 1578-9.

Professor Schwartz notes that "because it is assumed that public officials perform their duties properly, investigatory reports encompassed within Rule 803(8)(C) are presumed to be trustworthy. The burden is thus placed upon the party opposing the admissibility of the report to demonstrate its lack of reliability," (citing Miller v. Field, 35 F.3d 1088, 1090 (6th Cir. 1994); Montiel v. City of Los Angeles, 2 F.3d 335 (9th Cir. 1993).*fn13 This meshes well with the Beech Court's holding that the rule "presumes admissibility." Beech, 488 U.S. at 167, 109 S.Ct. 439.

In the matter sub judice, the United States hints at the report's untrustworthiness, but does not directly address it. Instead, it suggests that the report be excluded because, according to the United States, the Minority Report is not "authorized by law as required by Rule 803(8)(C)." (Dkt. Entry 70 at 7.) In making this argument, the United States does not assert that the Thompson Committee Report itself was not authorized by law. Moreover, the United States offers no concrete support that a minority report is not authorized by law. Instead, the United States cites many courts that have ignored minority views in statutory construction. (Dkt. Entry 70 at 7-8.) These cases are inapposite; Mariani does not offer the Minority Report for statutory construction, but rather to address the subject of the investigation, i.e., campaign finance.

Rule 803(8)(C) requires that the "factual findings" must result from "an investigation made pursuant to authority granted by law." The Rule does not, however, require that the "factual findings" represent a majority view.

The nature of Congress is such, of course, that opposing views tend to be separated for political reasons. The United States, however, has not established that the mere separation of the Minority Report from the Majority Report proves that the Minority Report is not "authorized by law." In fact, Senate rules explicitly allow minority reports:

  If at the time of approval of a measure or matter
  by any committee (except for the Committee on
  Appropriations), any member of the committee gives
  notice of intention to file supplemental, minority,
  or additional views, that member shall be entitled
  to not less than three calendar days in which to
  file such views, in writing, with the clerk of the
  committee. All such views so filed by one or more
  members of the committee shall be included within,
  and shall be a part of, the report filed by the
  committee with respect to that measure or matter.

Senate Rules, XXVI; Committee Procedures, 10(c), 105th Cong., Congressional Information Service, Inc. 1998 (emphasis added). Clearly, the Minority Report meets the threshold requirement of being authorized by law.

The "rule of completeness" embodied in FEE 106 buttresses the conclusion that the Minority Report is to be regarded as "authorized by law." FRE 106 requires that a court allow the parties to demonstrate the overall tenor of a document. "When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it." Id.

Acceptance of only the Majority Report would be directly contrary to the concerns that Rule 106 addresses.*fn14 In the context of congressional reports, one must expect at least some polarity between the majority and minority. Allowing in one side without the other might do violence to the completeness doctrine that Rule 106 supports.

The Joint Stipulation of Facts notes that the committee "held
32 days of hearings . . .  took 200 depositions . . . [and]
received more than 1,500,000 pages of documents." Id. at ¶
105. The investigation was timely, comprehensive, conducted by
those with special skill and experience, and employed procedural
safeguards. An extensive record exists. Thus, circumstantial
guarantees of trustworthiness and reliability abound.
Accordingly, the Minority Report will be admitted and its
contents considered to the extent they are probative of any fact
material to the issues presented by Mariani.

G. Remaining Objections

The remaining objections do not require extensive discussion. As to Mariani's objections to the Government's proposed findings of fact, I have sustained the objection to proposed finding 7 for lack of evidentiary support. I have also declined to adopt those proposed Government Findings of Fact that simply recite excerpts of testimony from former Senator Alan K. Simpson (Government Findings of Fact 27, 31-36.) I have also carefully considered objections to proposed Government findings that pertained to phraseology (e.g., Government Proposed Findings 21, 22 and 23) and have modified those proposed findings so they are consistent with the evidence and the law.

As to the remaining objections interposed by the FEC and/or the United States, I have carefully considered contentions that certain factual assertions were actually legal conclusions. I have also carefully considered how certain findings proposed by Mariani have been phrased. As noted above, I have generally not accepted proposed findings of fact that merely quote testimony or statements. I have also not accepted proposed findings that are vague or are otherwise inappropriate for a factual finding. (E.g., Mariani's Proposed Findings 97, 214, 222, 257, 315, 324, 343, 471, 472, 541, 545 and 546.) As noted above, I have also eliminated a number of proposed findings of fact that, although not necessarily disputed by FEC and/or the United States, are cumulative and redundant. Objections to findings of fact that cite newspaper and magazine articles (Mariani's proposed findings 518-24, 534-535, 541, 560 and 561), interposed only on behalf of the United States, have been overruled to the extent that the articles have not been offered for the truth of the matter asserted, but instead to demonstrate the appearance of corruption created by soft money contributions. As explained in Democratic Party v. National Conservative Political Action Committee, 578 F. Supp. 797, 829 (E.D.Pa. 1983), aff'd in part, rev'd in part, 470 U.S. 480, 105 S.Ct. 1459, 84 L.Ed.2d 455 (1985), "[t]he hearsay evidence rule does not bar . . . the admissibility of . . . authenticated news reports when used to show public perceptions of corruption, rather than corruption in fact." Objections that proposed findings mischaracterize evidence or are vaguely stated have also been taken into account in determining the facts to be found in this case.

H. Summary

In summary, I have carefully parsed the parties' submissions and have rejected proposed findings to which meritorious objections pertain. Having eliminated the objectionable proposed findings, there remain more than 400 of the 600 findings proffered by the parties. As noted above, the parties have stipulated to 117 facts, and the parties are in remarkable agreement as to the accuracy of an overwhelming majority of the additional statements of fact each side has proffered. Where there is no serious dispute as to the accuracy of a parties' proposed finding, I have relied upon the absence of dispute in making a particular finding. Where, however, there is a dispute, I have examined the underlying documents cited by the parties and have either adopted a proposed finding verbatim or modified it to reflect the contents of the underlying evidentiary submission.

After much deliberation as to the appropriate approach to be taken in this unusual posture of deciding only the facts, not the issues of law presented by the parties, I have opted to make detailed findings as opposed to conclusory, ultimate findings. While ultimate factual findings could be made (and are indeed set forth in the Conclusion section to this opinion), I determined that it was appropriate to defer to the approach advanced by the party challenging the validity of the corporate and conduit contributions bans, with the district judge's role being to resolve evidentiary objections and decide contested facts. The court of appeals will thus be presented with extensive findings that comprehensively describe the soft money system, setting forth in sometimes excruciating detail how corporations can give unlimited amounts of money that influence elections and grant the donors access to elected officials and those running for office.

Consistent with the foregoing, I now set forth as findings of fact the following:

Findings of Fact

I. BACKGROUND FACTS

A. The Litigation

1. In October 1997, defendant UNITED STATES OF AMERICA filed an indictment in this Court charging plaintiff, RENATO P. MARIANI, a citizen and resident of the State of Pennsylvania who is eligible to vote for the office of President of the United States, and other individuals with, inter alia, violations of the Federal Election Campaign Act, as amended ("FECA"). That action, United States v. Mariani, No. 3:CR-97-225, is presently pending before this Court. Joint Stipulation of Facts ("Joint Stip.") ¶ 1. A copy of the Indictment is Joint Exhibit ("JEx.") 264.*fn15

2. According to the Indictment, Mr. Mariani was the president, treasurer and 25% shareholder of Empire Sanitary Landfill, Inc. ("Empire") and Danella Environmental Technologies, Inc. ("Danella"). The Indictment charges that between August 1994 and December of 1996, Mr. Mariani and other officers and employees of Empire and Danella sought to make campaign contributions to a number of candidates for federal election. The campaigns to which they allegedly contributed were those of Presidential hopefuls Bob Dole, Bill Clinton and Arlen Specter, Senatorial candidates Rick Santorum, Chuck Haytalan, Richard Duhaime and Max Baucus, and candidates for the House of Representatives Frank Pallone, Jr., Jon Fox and Bill Paxon. Indictment at ¶ 23; Joint Stip. ¶ 2.

3. The Indictment alleges that Mr. Mariani and the other Empire/Danella officers and employees solicited numerous Empire and Danella employees, business associates, friends and family members to make contributions of $1,000 per person (or in one case $5,000 in the name of a political action committee) to the campaigns of the chosen candidates. Indictment at ¶ 21 and Counts 14-134 (listing individual contributions). According to the Indictment, these contributions were reimbursed either directly or indirectly by Empire. Indictment at ¶ 21. It is also alleged that Mr. Mariani and other officers and employees at Empire and Danella made individual contributions to these federal candidates which were also reimbursed by Empire. Id.; Joint Stip. ¶ 3.

4. Paragraph 10 of the indictment in United States v. Mariani, 3:CR-97-225 (M.D.Pa.), alleges that in 1995, Empire retained a D.C. lobbying firm "to have an impact on legislation and policies which could affect the flow of interstate waste to the landfill. Specifically, Empire desired to have an impact on the reconfiguration of the Interstate Transportation of Municipal Waste bill which was pending in the 104th Congress." The Indictment alleges that in April 1995, Mr. Mariani and other officers and employees of Empire and Danella contacted employees, associates, friends and family members in an effort to raise funds for the New Jersey Steering Committee, a state fundraising arm of the Dole campaign. Indictment at ¶¶ 25-26. Contributors allegedly were asked to write personal checks in amounts of $1,000 (or, in the case of couples, $2,000) and were reimbursed with Empire corporate funds. Id. at ¶¶ 26, 28-31. It is also alleged that on April 29, 1995, Mr. Mariani and another defendant in the criminal case, Michael Serafini, attended a Steering Committee luncheon at which they handed over an envelope containing the contributions to Dole campaign officials. Id. at ¶ 27. When the Dole campaign reported the contributions to the Federal Election Commission ("FEC"), its filing allegedly attributed these $80,000 worth of contributions to the individual contributors, rather than Empire. Id. at ¶ 32; Joint Stip. ¶ 4. The Dole contributions came approximately 10 days prior to a crucial vote in the Senate on the Interstate Transportation of Municipal Waste bill. Dole was the Senate majority leader at the time.

5. As a result of this alleged conduct, the Indictment charges Mr. Mariani (and others) with criminal violations of FECA. Specifically, Mr. Mariani is charged with violations of 2 U.S.C. § 441b and 441f. Id.; Joint Stip. ¶ 5.

6. Empire had made substantial soft money contributions at about the same time it engaged in the hard money scheme alleged in the indictment. For example, Empire made a $50,000 contribution to the Democratic National Committee between November 28, 1995 and April 26, 1996; a $20,000 contribution to the Senate President's Committee on October 19, 1995; and, a $15,000 contribution to the Republican National Committee on February 1, 1995. These soft money contributions do not form part of the indictment.

7. Section 441b of FECA prohibits any corporation from making any contribution in connection with any campaign for federal office and provides that it is unlawful for any officer of a corporation to consent to any prohibited corporate contribution. Section 441f of FECA, the conduit contribution ban or "anti-conduit" provision, prohibits one from making a contribution "in the name of another person" or "knowingly permit[ting] his name to be used to effect such a contribution." 2 U.S.C. § 441b and 441f.

8. The purpose of the corporate contribution and conduit contribution bans is to avoid corruption and the appearance of corruption. Simpson Dep. at 66, [J.Ex. 38].

9. Mr. Mariani moved to dismiss all of the FECA charges in the Indictment, and simultaneously instituted this action against the United States seeking declaratory relief pursuant to 2 U.S.C. § 437h. The FEC was thereafter granted leave to intervene in this action as a defendant. Joint Stip. ¶ 6.

B. The Witnesses in this Case

10. The parties have stipulated that the testimony of the following listed witnesses should be included in the evidentiary record in this action.*fn16

(a) Professor Paul S. Herrnson. Professor Herrnson is a Professor of Government and Politics at the University of Maryland and a nationally recognized expert on campaign finance legislation. Professor Herrnson was retained by the FEC as an expert witness in this action and in Republican National Committee v. Federal Election Commission (No. 98-CV-1207 (WBB)) (D.D.C.) (hereinafter "RNC v. FEC"), an action presently pending before the federal district court in the District of Columbia. Professor Herrnson's Professional Statement in RNC v. FEC, which was incorporated in his report in this action, is JEx. 17; his supplemental report in this action is JEx. 18. Drafts of both reports were submitted to FEC counsel for their review and comments before they were finalized. Deposition of Paul S. Herrnson, Mariani v. United States ("Herrnson Dep.") at 28, 32-33. Professor Herrnson's curriculum vitae is annexed to JEx. 17.

(b) Alan K. Simpson. Mr. Simpson, who served as a United States Senator from Wyoming from 1978-1996, was retained by plaintiff as an expert witness in this action. His affidavit is JEx. 1; his deposition transcript (with exhibits) is JEx. 38.

(c) Daniel H. Murray. Mr. Murray is a government relations specialist who has engaged in lobbying activities for corporate clients for more than 16 years. His affidavit, which was prepared at the request of plaintiffs counsel in this action, and which was also proffered by the FEC to the district court in support of its summary judgment motion in RNC v. FEC, is JEx. 2; his deposition transcript (with exhibits) is JEx. 37.

(d) Dale Bumpers. Dale Bumpers served as a United States Senator from the State of Arkansas from 1975 through 1998. Before being elected to the Senate, Mr. Bumpers also served as the Governor of Arkansas from 1971-1975. At the request of the FEC, Mr. Bumpers prepared a declaration, dated December 22, 1998, that was proffered by the FEC in support of its motion for summary judgment in RNC v. FEC. That declaration is JEx. 3.

(e) Paul Simon. Mr. Simon served in Congress for approximately 22 years, first as a Representative and then later as a Senator from Illinois. At the request of the FEC, Mr. Simon prepared a declaration, dated May 3, 1997, that was proffered by the FEC in support of its motions for summary judgment in both FEC v. Colorado Republican Federal Campaign Committee (Civil Action No. 89-N-1159) (D.Colo.) (hereinafter "FEC v. CRFCC") and RNC v. FEC. That declaration is JEx 9.

(f) Timothy E. Wirth. Mr. Wirth served in Congress for approximately 18 years, first as a Representative and then later as a Senator from Colorado. At the request of the FEC, Mr. Wirth prepared a declaration, dated May 5, 1997, that was proffered by the FEC in support of its motions for summary judgment in both FEC v. CRFCC and RNC v. FEC. That declaration is JEx 10.

(g) Christopher Shays. Since August of 1987, Congressman Shays has served as a Member of the United States House of Representative, representing the Fourth District of the State of Connecticut. At the request of the FEC, Congressman Shays prepared a declaration, dated December 7, 1998, that was proffered by the FEC in support of its motion for summary judgment in RNC v. FEC. That declaration is JEx. 5.

(h) Martin Meehan. Congressman Meehan has served as a Member of the United States House of Representatives, representing the Fifth District of the State of Massachusetts, since January 1993. At the request of the FEC, Congressman Meehan prepared a declaration, dated November 6, 1998, that was proffered by the FEC in support of it, s motions for summary judgment in both FEC v. CRFCC and RNC v. FEC. That declaration is JEx. 4.

(i) R. William Johnstone. Mr. Johnstone served as Legislative Assistant and then Administrative Assistant to Congressman, and then Senator, Wyche Fowler from 1977 through January 1993. Mr. Johnstone also served as campaign manager for Mr. Fowler during his 1986 and 1992 Senate campaigns. At the request of the FEC, Mr. Johnstone prepared a declaration, dated April 7, 1997, that was proffered by the FEC in support of its motions for summary judgment in both FEC v. CRFCC and RNC v. FEC. His declaration is JEx. 15.

(j) Leon G. Billings. Mr. Billings was the Executive Director of the Democratic Senatorial Campaign Committee ("DSCC") from 1982-1983. At the request of the FEC, Mr. Billings prepared a declaration, dated April 15, 1997, that was proffered by the FEC in support of its motions for summary judgment in both FEC v. CRFCC and RNC v. FEC. That declaration is JEx 11.

(k) Robert Hickmott. Mr. Hickmott has served as an Associate Finance Director of the Democratic National Committee (1980), the Executive Director of the Democratic Business Council (1981), the National Finance Director for Timothy Wirth's Senatorial campaign (1985-1986) and the Deputy Executive Director of the Democratic Senatorial Campaign Committee ("DSCC") (1991-1992). At the request of the FEC, Mr. Hickmott prepared a declaration, dated April 8, 1997, that was proffered by the FEC in support of its motions for summary judgment in both FEC v. CRFCC and RNC v. FEC. That declaration is JEx 12.

(l) Robert Rozen. Mr. Rozen worked for Senator Wendell Ford (1980-1985) and Senator George Mitchell (1985-1995), handling a variety of financial legislative issues for both. Both Senator Ford and Senator Mitchell chaired the Democratic Senatorial Campaign Committee ("DSCC") while Mr. Rozen worked for them. At the request of the FEC, Mr. Rozen prepared a declaration, dated April 17, 1997, that was proffered by the FEC in support of its motions for summary judgment in both FEC v. CRFCC and RNC v. FEC. That declaration is JEx 13.

(m) Professor Clyde Wilcox. Mr. Wilcox is a Professor of Government at Georgetown University specializing in public opinion research. At the request of the FEC, Mr. Wilcox prepared a statement offering his expert views about public perceptions concerning the campaign finance system that was proffered by the FEC in support of its motions for summary judgment in both FEC v. CRFCC and RNC v. FEC. His statement is JEx. 20.

(n) Frank J. Sorauf and Jonathan S. Krasno. Mr. Sorauf and Mr. Krasno are political science professors at the University of Minnesota and Princeton University, respectively. At the request of the FEC, they prepared a report entitled "Political Party Committees and Coordinated Spending", that was proffered by the FEC in support of its motions for summary judgment in both FEC v. CRFCC and RNC v. FEC. That report is JEx 19.

(o) Charles E.M. Kolb. Since September of 1997, Mr. Kolb has served as the President of the Committee for Economic Development ("CED"), an independent, nonpartisan research and policy organization comprised of more than 250 prominent business leaders and educators. Between November 1997 and early 1999, the CED conducted a comprehensive study of the 1996 election specifically focusing on the campaign finance system. At the request of the FEC, Mr. Kolb prepared a declaration (attaching the CED's final report and policy statement), dated April 29, 1999, that was proffered by the FEC in support of its motion for summary judgment in RNC v. FEC. That declaration is JEx. 16.

(p) Alan H. Hassenfeld. Since 1989, Mr. Hassenfeld has served as Chairman of the Board and Chief Executive Officer of Hasbro, Inc., a global manufacturing company based in Rhode Island with annual revenues in excess of $3 billion. At the request of the FEC, Mr. Hassenfeld prepared a declaration, dated April 19, 1999, that was proffered by the FEC in support of its motion for summary judgment in RNC v. FEC. That declaration is JEx. 14.

(q) Larry Makinson. Mr. Makinson has been a staff member since 1988 of the Center for Responsive Politics, a non-partisan non-profit research organization that monitors and analyzes campaign contributions in federal elections. He currently serves as its executive director. Mr. Makinson submitted a declaration in this action in response to a subpoena issued by plaintiffs counsel. That declaration is JEx. 6.

(r) Pat Huyck. Mr. Huyck has been an employee of the Republican National Committee for 16 years and currently serves as its Director of Accounting. Mr. Huyck submitted a declaration in this action in response to a subpoena issued by plaintiffs counsel. That declaration is JEx. 7.

(s) Joseph E. Sandler. Mr. Sandler was the General Counsel of the Democratic National Committee from 1995-1996. Mr. Sandler submitted a declaration in this action in response to a subpoena issued by plaintiffs counsel. That declaration is JEx. 8.

C. The Documentary Evidence in this Case

11. On March 11, 1997, the United States Senate voted unanimously to authorize the Governmental Affairs Committee to conduct an investigation of alleged illegal or improper activities in connection with 1996 federal election campaigns. Joint Stip. ¶ 104.

12. Over the course of nine and a half months, the Committee issued 427 subpoenas and held 32 days of hearings at which some 70 witnesses testified. Committee staff took 200 depositions, conducted more than 200 witness interviews, and received more than 1,500,000 pages of documents in response to the Committee's subpoenas. Finally, the Committee memorialized its findings in a report, including both Majority and Minority views. See Investigation of Illegal or Improper Activities in Connection with 1996 Federal Election Campaigns, S.Rep. No. 105-167 (1998) (hereinafter "Report"). Joint Stip. ¶ 105.*fn17

13. Currently, the Federal Election Commission is in the midst of a rulemaking proceeding concerning the use of soft money by political parties. Notice of Proposed Rulemaking, 63 Fed.Reg. 37721, 37722 (1998).

14. On July 13, 1998, the FEC issued its Notice of Proposed Rulemaking: "Prohibited and Excessive Contributions; Soft Money; Proposed Rule," 63 Fed.Reg. 37721 (1998) (to be codified at 11 C.F.R. Pts. 102, 103 & 106) ("FEC Notice of Proposed Rulemaking").*fn18

15. In support of its motion for summary judgment in FEC v. CRFCC, the FEC submitted "Federal Election Commission" s Statement of Material Facts Not in Genuine Dispute" to the district court ("FEC Statement of Facts I"). Joint Stip. ¶ 114. It is PSEx. 1.*fn19

16. In support of its motion for summary judgment in RNC v. FEC, the FEC submitted "Defendant Federal Election Commission's Statement of Material Facts" to the district court ("FEC Statement of Facts II"). Joint Stip. ¶ 116. It is PSEx. 2.

17. In support of its motion for summary judgment in RNC v. FEC, the FEC submitted "Federal Election Commission's Memorandum In Support of its Motion for Summary Judgment" to the district court ("FEC RNC Mem."). Joint Stip ¶ 117. It is PSEx. 3.

II. THE FEDERAL ELECTION CAMPAIGN
    ACT

A. Historical Background

18. FECA, enacted by Congress in 1971, was a comprehensive attempt to regulate the financial aspects of federal political campaigns. See Federal Election Campaign Act of 1971, Pub.L. No. 92-225, 86 Stat. 3. FECA has since been amended a number of times.

19. In response to perceived abuses in the 1972 presidential election, in 1974 Congress enacted the Federal Election Campaign Act Amendments of 1974, Pub.L. No. 93-443, 88 Stat. 1263. The Amendments placed further restrictions on campaign contributions and expenditures and, among other things, adopted a system for public financing of presidential election campaigns.

20. Under FECA, it is illegal for individuals to make contributions of more than $1,000 to a candidate for federal office per election, $20,000 per year to a national party's political committees, $5,000 per year to any other political committee, and $25,000 per year in total contributions to all federal candidates, party committees, or political committees. 2 U.S.C. § 441a(1), (3).

21. Under FECA, it is illegal for political action committees ("PACs") to make contributions of more than $5,000 to a federal candidate per election, $15,000 per year to a national party's political committees and $5,000 per year to any other political committee. 2 U.S.C. § 441a(2).

22. Under FECA, it is illegal for corporations and labor unions to make any contributions in connection with a candidate's election for federal office from their own treasury funds. 2 U.S.C. § 441b(a).

24. The prohibitions in section 441b apply equally to both corporations and labor organizations, although its coverage of unions was added long after the original 1907 statute, which applied only to corporations.

25. 2 U.S.C. § 441b has always been applied only to federal elections.

26. The anti-conduit provision in 2 U.S.C. § 441f applies to all contributions, not just those from corporations.

27. One purpose of 2 U.S.C. § 441f is to prevent the circumvention of the ban on corporate and union contributions. Section 441f similarly helps to prevent circumvention of the limits on contributions by individuals and groups in 2 U.S.C. § 441a and the prohibition on contributions by foreign nationals in 2 U.S.C. § 441e. Section 441f also ensures that proper disclosure of the actual sources of campaign contributions occurs in federal elections. These provisions of the law, as well as section 441b, are intended to promote a fair, open, and legitimate campaign finance system and to prevent corruption or the appearance of corruption in federal elections. Herrnson Report at 3 [JEx. 18].

28. FECA also contains extensive disclosure and reporting requirements for candidates and political committees, as well as for other entities that make independent expenditures.

29. In 1976, the United States Supreme Court issued its decision in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). In upholding FECA's individual contribution limits while striking down the statute's corresponding expenditure limits, the Court drew a distinction between contributions to candidates and independent political spending.

30. As a result of numerous judicial decisions and FEC advisory opinions following the Supreme Court's decision in Buckley, by 1980 a distinction had developed between what is often referred to as "hard" and "soft" money in the campaign finance context.

B. The Distinction Between "Hard" and "Soft" Money

31. Entities that are prohibited from making contributions to a federal (i.e., "hard money") account and individuals wishing to make donations in excess of the contribution limits set forth in FECA have generally been permitted to direct those donations to a nonfederal (i.e., "soft money") account, even though donations to nonfederal accounts are often used for activities that have an impact on federal elections. FEC Notice of Proposed Rulemaking at 37727 [JEx. 39].

32. Many political party committees (such as the Republican or Democratic National Committees) solicit two kinds of contributions: those that can permissibly be used under the Federal Election Campaign Act "for the purpose of influencing" federal elections, 2 U.S.C. § 431 (8)(A)(i), and those that may not be used for that purpose. Contributions that are permissible under the Act are, often referred to as "hard money" contributions. Contributions that are not permissible — e.g., contributions in excess of the section 441a dollar limits, all contributions from corporate and labor organization general treasuries, and contributions from federal contractors — are commonly known as "soft money." Although this soft money cannot be contributed to federal candidates or otherwise used to influence federal elections, political party committees may deposit such funds in a separate account to be used for state and local campaign activity to the extent allowed by state law, and for limited, party-building activities specifically designated in the statute. See Colorado Republican, 518 U.S. at 616, 116 S.Ct. 2309; 2 U.S.C. § 431 (8)(B); 11 C.F.R. § 102.5.

33. All contributions to federal candidates' campaigns are by definition hard money contributions. See 2 U.S.C. § 431 (8)(A); California Medical Ass'n. v. FEC, 453 U.S. 182, 101 S.Ct. 2712, 69 L.Ed.2d 567 (1981); FEC v. Ted Haley Congressional Comm., 852 F.2d 1111 (9th Cit. 1988).

34. Corporations cannot give money to federal candidates.

35. Corporate donations to political party committees have never been prohibited by FECA.

36. There are important legal distinctions among 1) expenditures made from the treasuries of corporations, labor unions, or other groups that are intended to influence the outcome of a federal election without expressly advocating a federal candidate's election or defeat, 2) corporation and union treasury funds that are contributed to political parties that later use these monies to influence the outcome of a federal election without expressly advocating a federal candidate's election or defeat, 3) hard money contributions from individuals, political parties, or PACs to federal candidates, 4) monies from the treasuries of corporations, labor unions, or other groups if contributed directly to a federal candidate, and 5) monies from the treasuries of corporations, labor unions, or other groups that are given to an individual who serves as a conduit for contributing the money to a federal candidate. Herrnson Report at 3-4 [Jex 18].

37. An important legal distinction among the preceding activities is based on the amount of control that the candidate has over them. Party funds that originate as contributions from corporation or union treasuries are at no time directly under the candidate's control. Nonetheless, candidates often are involved in the collection of party soft money, and many candidates expect that some of the party monies they help collect will be used to help their election efforts. Id. at 4.

38. Money that a federal candidate has complete control over, including hard money raised from individuals, parties, PACs, or the candidate himself or herself, is money that a candidate can spend any way that he or she wishes (within the confines of the law). Money that both a candidate and a party have some control over, such as coordinated expenditures (referenced as § 441a(d) under FECA), is often subject to some negotiation. The fact that party committees usually influence how these funds are spent occasionally leads to friction between a candidate's campaign and the party organization making the expenditure. Id. at 4.

39. Candidates have less control over party soft money expenditures than funds contributed to them directly. Party soft money that is raised with the assistance of a federal candidate may be spent, in conjunction with hard money, in accordance with allocation formulas promulgated by the FEC, for party-building activities, agenda-setting efforts, issue advocacy ads, voter mobilization drives, and a variety of other activities designed to help the election of candidates apart from the candidate who helped raise the money. Moreover, some party agenda-setting efforts, issue ads, and other activities may actually be contrary to a candidate's wishes. For example, the issue ads that the Democratic Senatorial Campaign Committee spent to help reelect Wisconsin Democrat Russell Feingold to the Senate were made over the candidate's objections. Feingold stated that outside spending was against his principles. It also was not consistent with his image and campaign message. Id. at 4-5; 11 C.F.R. Part 106.

40. Hard money can be spent to explicitly advocate the election of a federal candidate; "expenditures," as defined in FECA, from corporation or union treasuries cannot presently be used directly for that purpose. Herrnson Report at 5 [JEx. 18].

41. Under the current rules, parties can only use soft money to finance issue advocacy advertisements and other campaign activities carried out in a specific state using a ratio of hard to soft money that reflects the number of federal, state, and local offices that are on the ballot in a particular state. Id.

42. Although there are important legal distinctions between "hard" and "soft" money contributions, soft money plays an important role in contested races for federal elective offices. Soft money is, in essence, the "black market" economy of campaign finance. Ceilings on individual contributions to federal candidates and the party's federal campaign accounts have encouraged wealthy individuals to look for alternative ways to spend money in elections. Prohibitions against corporations, trade associations and unions contributing or spending funds from their treasuries have had similar effects. Dep. of Prof. Paul S. Herrnson in Mariani v. United States ("Herrnson Dep.") at 51-52 [JEx. 36]. Soft money has proved to be the means by which wealthy individuals and corporations evade FECA restrictions in order to influence elections and secure access to elected officials and candidates for federal elective office.

III. RAISING SOFT MONEY

A. Soft Money Is Easier To Raise Than Hard Money

43. Soft money is much easier to raise than hard money because it can be donated in large sums. Because parties can raise more soft money, they spend more soft money. Herrnson Dep. at 81 [JEx. 36].

44. One reason soft money is easier to raise is that entities such as corporations, which are barred from contributing directly to campaigns, are permitted to donate soft money. Id.

45. Although corporations are flatly barred from making any contributions to campaigns in hard money, they may at the same time make gifts in literally unlimited amounts to political parties via soft money. Herrnson Dep. at 91-92 [JEx. 36].

46. Some soft money contributions are collected from corporations, unions and wealthy individuals in excess of $1 million. Id. at 40.

47. Although FECA bans businesses and unions from making contributions directly to candidates, and limits individuals to contributions of $1,000 and PACs to contributions of $5,000 per candidate during each phase of the election, the law has not prevented wealthy individuals, corporations, and other collective entities from playing important roles in campaign finance. Id. at 48-49.

48. A 1992 DNC fundraising guide entitled "Democratic National Committee DNC Victory Fund `92" stated as follows:

"HOW TO WRITE THE CHECK(S)

  (A) Federal Contributions from individuals of up to
  $20,000 should be made by personal check payable to:
          DNC VICTORY `92/FEDERAL
                  ACCOUNT
  (B) Non-Federal Contributions from individuals can
  be made payable to:
          DNC VICTORY `92/NON-FEDERAL
                   ACCOUNT"

Democratic National Committee Fund-Raising Guide, 1992, Fig. 5.1 in Herbert E. Alexander & Anthony Corrado, Financing the 1992 Election 112 (1995); Joint Stip. ¶ 81.

49. The same document stated:

"HOW TO WRITE CORPORATE/UNION CHECK(S)

    Checks from corporate treasury funds or labor
  union treasury funds may be written in an
  unlimited amount to:
           DNC VICTORY `92/NON-FEDERAL
                   ACCOUNT"

Id. at 113 (emphasis in original); Joint Stip. ¶ 82.

50. Soft money contributions have provided corporations, labor unions, and wealthy individuals with a way around FECA's restrictions on the amounts that may be contributed by individuals and the ban on corporate contributions to candidates for federal elective office. Minority Report at 7516 [JEx. 21].

B. The Growth of Soft Money

51. It is estimated that in the 1980 election cycle, the national party committees raised and spent approximately $19 million in soft money funds. Anthony Corrado, Giving, Spending and "Soft Money", 6 J.L. & Pol'y 45, 50-51 (1997) [JEx. 33].*fn20

52. In the 1987-1988 election cycle, it is estimated that approximately $45 million was raised and spent in soft money funds. Id. at 51.

53. The RNC estimates that it raised and spent approximately $22 million in nonfederal funds during the 1987-1988 election cycle. Huyck Decl. at ¶ 7 [JEx. 7].

54. In the 1991-1992 election cycle, the total amount of soft money raised by the national party committees, as set forth in their reports to the FEC, was approximately $86 million ($49.8 million by the Republican national party committees and $36.3 million by the Democratic national party committees). Federal Election Commission, National Party Nonfederal Activity (visited April 13, 1999) <http://www.fec.gov/finance/soft-sum.htm> [JEx. 40]; Joint Stip. ¶ 9.

55. In the 1993-1994 election cycle, the total amount of soft money raised by the national party committees, as set forth in their reports to the FEC, was approximately $101.7 million ($52.5 million by the Republican national party committees and over $49.1 million by the Democratic national party committees). Id.; Joint Stip. ¶ 10.

56. During the 1995-1996 election cycle, the Republican national party committees reported receipts of approximately $138.2 million and expenditures of approximately $149.7 million in soft money, increases of 178 percent and 224 percent respectively, when compared to the similar period in 1991-1992. Federal Election Commission, FEC Reports Major Increase in Party Activity for 1995-96 (FEC press release), March 19, 1997, at 1 [JEx. 47]; Joint Stip. ¶ 11.

57. During the 1995-1996 election cycle, the Democratic national party committees reported approximately $123.9 million in receipts and approximately $121.8 million in expenditures of soft money, increases of 242 percent and 271 percent respectively, from the similar period in 1991-1992. Id.; Joint Stip. ¶ 12. ¶

58. The growth in soft money since 1980 has been fueled by the solicitation of large contributions of $100,000 or more from corporations, as well as from wealthy individuals and labor unions, and the corresponding ability of the party committees to spend such funds. Herrnson Dep. at 94-95 [JEx. 36].

59. In addition to the increase in the total dollar amount of soft money contributions over the last decade, there was also an increase in the number of contributions made to the party committees' nonfederal accounts that would have been prohibited under FECA if they had been made to a federal account. FEC Notice of Proposed Rulemaking at 37727 [JEx. 39].

60. During the 1992 presidential election cycle, the national party committees' nonfederal accounts received at least 381 individual contributions of more than $20,000. During the 1992 presidential election cycle, the national party committees' nonfederal accounts received about 11,000 soft money contributions from sources that are prohibited from making contributions under federal law into federal accounts. Joint Stip. ¶¶ 14-15.

61. In the 1995-1996 election cycle, the national party committees' non-federal accounts received close to 1,000 individual contributions in excess of $20,000, and approximately 27,000 contributions from sources that are prohibited from contributing to federal accounts. Joint Stip. ¶ 16.

C. Sources of Soft Money

62. According to reports filed with the FEC, during the 1994 and 1998 election cycles, corporations donated over 50% of all itemized soft money contributions. Committee for Economic Development, Investing in the People's Business: A Business Proposal for Campaign Finance Reform at 26 (1999) ("[f]igures based on unadjusted FEC data"). Declaration of Charles E.M. Kolb in RNC v. FEC, Attachment at 26 [JEx. 16].

63. Corporate donations were especially important to the growth of soft money in 1996. For example, a 1997 analysis conducted by the Los Angeles Times of the political donations made by the 544 largest public and private companies revealed that soft money donations by these corporations had more than tripled between 1992 and 1996, growing from $16 million to $51 million. Herrnson Dep. at 98 [JEx. 36].

64. Common Cause compiled the following list of soft money donors of $250,000 or more to Republican party committees from January 1, 1995, through June 30, 1996, including how much they contributed, and sent the list to various newspapers. (The dollar figures encompass donations from subsidiaries and company executives).

  Philip Morris Co. Inc.-1,632,283
  RJR Nabisco Inc.-970,450
  Amer. Financial Group-794,000
  Atlantic Richfield Co.-615,175
  US Tobacco Co.-448,768
  Joseph E. Seagram & Sons Inc.-435,000
  Eli Lilly & Co. 425,000
  AT & T-417,590
  Brown & Williamson Tobacco Corp.-400,000
  Burlington Northern Santa Fe Corp.-367,000
  Bristol-Meyers Squibb Co.-355,000
  Cintas Corp.-355,000
  News Corp.-351,500
  Amway Corp.-350,000
  Reliance Group Holdings Inc.-340,000
  Tele-Communications Inc.-340,000
  Chevron Corp.-336,650
  AG Spanos Construction-335,000
  Anschutz Corp.-335,000
  Archer Daniels Midland Co.-335,000
  Enron Corp.-320,000
  Limited Inc.-320,000
  Nynex Corp.-313,505
  Forstman Little & Co.-309,000
  Pfizer Inc.-306,000
  Tobacco Institute-303,250
  Coca-Cola Co.-292,580
  PaineWebber Group Inc.-290,000
  Time Warner Inc.-290,000
  Travelers Group-284,025
  Anheuser-Busch Co. Inc.-281,250
  WMX Technologies Inc.-278,600
  MCI Telecommunications Corp.-270,000
  Blue Cross & Blue Shield Assn.-255,078
  AFLAC Inc-251,752
  Druckenmiller, Stanley F.-250,000
  Kellet, Stiles A-250,000
  Pilgrim's Pride Corp.-250,000
  FEC Statement of Material Facts II at ¶ 217 [PSEx. 2]; Common Cause List of Soft Money Donors [JEx. 26].

65. The Center for Responsive Politics compiled a list of the "Top 50 Soft Money Contributors" in the 1995-1996 election cycle. Declaration of Larry Makinson in Mariani v. United States ("Makinson Decl.") [JEx. 6] The list, which was recently updated to include all amendments to FEC filings, and which aggregates corporate contributions with contributions from individuals associated with a particular corporation, is as follows:

CONTRIBUTOR                             SOFT TOTAL
  Philip Morris                           $3,018,036
  Joseph E. Seagram & Sons                $2,035,583
  RJR Nabisco                             $1,442,931
  Walt Disney Co.                         $1,347,000
  Atlantic Richfield                      $1,250,843
  Communications Workers of America       $1,150,300
  American Redn of St/Cnty/Munic
    Employees                             $1,134,962
  AT & T                                  $999,524
  Federal Express Corp.                   $1,157,044
  MCI Telecommunications                  $1,005,418
  News Corp.                              $869,700
  Assn. of Trial Lawyers of America       $803,400
  Lazard Freres & Co.                     $758,956
  Anheuser-Busch                          $766,057
  MacAndrews & Forbes                     $779,649
  Eli Lilly & Co.                         $746,835
  United Food & Commercial Workers
    Union                                 $727,550
  Time Warner                             $736,250
  Chevron Corp                            $702,306
  Archer-Daniels Midland Co.              $700,000
  Enron Corp.                             $686,900
  UST Inc/US Tobacco                      $725,250
  NYNEX Corp.                             $652,802
  Textron Inc.                            $654,227
  American Financial Group                $645,000
  Brown & Williamson Tobacco              $642,500
  Laborers Union                          $634,588
  Loral Corp.                             $632,000
  Integrated Health Services Inc.         $609,000
  American Defense Institute              $600,000
  Goldman, Sachs & Co.                    $600,230
  Entergy Corp.                           $592,371
  Northwest Airlines                      $609,445
  Blue Cross/Blue Shield                  $577,688
  WMX Technologies                        $576,500
  PaineWebber                             $560,750
  Travelers Group                         $562,344
  FreddieMac                              $558,250
  Bristol-Myers Squibb                    $552,400
  BankAmerica Corp.                       $552,379
  Tobacco Institute                       $537,357
  DreamWorks SKG                          $702,400
  Milberg, Weiss et al.                   $530,000
  Coca-Cola Co.                           $519,640
  Pfizer Inc.                             $514,971
  Glaxo Wellcome Inc.                     $510,322
  General Motors                          $504,150
  Stride-Rite Foundation                  $500,000
  Hayes, Mariam Cannon                    $500,000
  Public Securities Asan.                 $507,313

Makinson Decl. at ¶ 13 & Attachment [JEx. 6].

  E. Soft Money Donations: Industries with Pressing Legislative
     Concerns

An Overview

66. As a general rule, in the 1995-1996 election cycle, the largest soft money gifts came from corporations or interest groups that faced pressing issues in Washington. Herrnson Dep at 98, J.Ex. 36. For example:

    • Tobacco companies contributed huge
  sums of soft money to both of the major
  parties. Philip Morris and its executives
  gave a total of more than $3 million
  in soft money, including about $2.5 million
  to the Republicans, and close to
  $500,000 to the Democrats. RJR Nabisco
  contributed over $1.4 million, including
  almost $1.2 million to Republican
  committees and $255,000 to the Democrats.
  US Tobacco donated $675,000, of
  which $556,000 went to the Republicans.
  Brown and Williamson Tobacco gave
  about $642,000, almost all of which,
  $635,000, went to the Republicans. And
  the Tobacco Institute gave $531,000,
  with $425,000 going to the Republicans
  and $106,000 to the Democrats.
    • AT & T gave almost $1 million in
  soft money, with $552,000 going to the
  Republicans and $447,000 to the Democrats.
  AT & T's ma] or competitor, MCI
  Telecommunications, contributed $966,000,
  $607,000 of which went to the Democrats.
  NYNEX Corporation, a regional
  telecommunications company, donated
  $651,000, with $411,000 given to the Republicans
  and $240,000 to the Democrats.
    • The Association of Trial Lawyers of
  America gave over $800,000, with
  approximately $606,000 donated to the
  Democrats and $197,000 to the Republicans.

Center for Responsive Politics, "Top 50 Soft Money Contributors," The Big Picture: Who Won the Last Election (visited October 8, 1998) <http://www.crp.org/pubs/ bigpicture/top/bp.top50soft.html> (hereinafter "Top 50 Contributors List"); Herrnson Dep. Ex. 10 [JEx. 36]. See Herrnson Dep. at 98-101, 105-106 [JEx. 36].

The Tobacco Industry

67. National party committee reports filed with the FEC indicate that during the 1995-1996 election cycle the total amount of soft money donated by five tobacco companies (Brown & Williamson, Lorillard Tobacco, Philip Morris, RJR Nabisco, and U.S. Tobacco Co.) to the national party committees was approximately $5,304,508. Joint Stip. ¶ 17.

68. National party committee reports filed with the FEC indicate that during the 1995-1996 election cycle Philip Morris gave a total of $3 million in soft money to the national party committees, including $2.5 million to the Republican national party committees, and one half million to the Democratic national party committees. Top 50 Contributors List.

69. National party committee reports filed with the FEC indicate that during the 1995-1996 election cycle RJR Nabisco donated $1.4 million in soft money to the national party committees, including $1.2 million to Republican national party committees and $255,000 to Democratic national party committees. Id.

70. National party committee reports filed with the FEC indicate that during the 1995-1996 election cycle U.S. Tobacco donated $675,000 in soft money to national party committees, of which $556,000 went to the Republican national party committees. Id.

71. National party committee reports filed with the FEC indicate that during the 1995-1996 election cycle Brown & Williamson Tobacco donated $643,000 in soft money to national party committees, of which $635,000 went to Republican national party committees. Id.

72. National party committee reports filed with the FEC indicate that during the 1995-1996 election cycle the Tobacco Institute, a trade organization of the tobacco industry, gave $531,000 in soft money to the national party committees, with $425,000 going to the Republican national party committees and $106,000 to the Democratic national party committees. Id.

The Telecommunications Industry

73. National party committee reports filed with the FEC indicate that during the 1996 election cycle AT & T donated approximately $1 million in soft money to the national party committees, with $552,000 going to Republican national party committees and $447,000 to Democratic national party committees. Top 50 Contributors List.

74. National party committee reports filed with the FEC indicate that during the 1996 election cycle MCI Telecommunications donated $966,000 in soft money to the national party committees, $607,000 of which went to Democratic national party committees. Id.

75. National party committee reports filed with the FEC indicate that during the 1996 election cycle NYNEX Corporation, a regional telecommunications company, donated $651,000 in soft money to national party committees, with $411,000 going to Republican national party committees and $240,000 to Democratic national party committees. Id.

76. Telecommunications legislation governing the entry of the seven local "Baby Bell" telephone companies into the long-distance telephone service market was drafted and signed into law during the 1996 election cycle. Common Cause, Local & Long Distance Telephone Companies Give Record Soft Money During Final Months of Telecommunications Overhaul (February 9, 1996) <http://www.commoncause.org/publications/296com.htm> [JEx. 25].

77. Certain telephone companies donated large sums of soft money during the drafting of the proposed telecommunications legislation. On October 17, 1995, the week after House-Senate telecommunications bill conferees were named and a week before their negotiations began, MCI donated $100,000 in soft money to the DNC. On December 20, 1995, the conferees' reached agreement on the bill. On December 21, AT & T gave $190,000 to the DNC. The same day, the agreement was put on hold because House Republican conferees objected to certain provisions and to Clinton Administration statements claiming victory. On December 28, AT & T donated $200,000 to the RNC. On December 29, MCI gave $100,000 to the DNC and $20,000 to the NRCC. The final version of the bill was subsequently passed by the House and Senate, and President Clinton signed it into law on February 8, 1996. Id.

The Association of Trial Lawyers

78. National party committee reports filed with the FEC indicate that during the 1996 election cycle the Association of Trial Lawyers of America donated $803,000 in soft money to the national party committees, with approximately $606,000 donated to Democratic national party committees and $197,000 to Republican national party committees. Top 50 Contributors List.

79. A series of legal reform initiatives, including tort reform legislation, were introduced in Congress during the 1996 election cycle. See Herrnson Dep. at 101 [JEx. 36].

The Health Care Industry

80. National party committee reports filed with the FEC indicate that during the 1996 election cycle Blue Cross/Blue Shield donated almost $578,000 in soft money to the national party committees, giving $438,000 to Republican national party committees and about $140,000 to Democratic national party committees. Top 50 Contributors List.

81. National party committee reports filed with the FEC indicate that during the 1996 election cycle Integrated Health Services, Inc. contributed $609,000 in soft money to the national party committees, $574,000 of which went to Democratic national party committees. Id.

82. National party committee reports filed with the FEC indicate that during the 1996 election cycle Eli Lilly & Co. donated $747,000 in soft money to the national party committees, with $507,000 given to Republican national party committees and $240,000 to Democratic national party committees. Id.

83. National party committee reports filed with the FEC indicate that during the 1996 election cycle, Bristol-Myers-Squibb gave approximately $552,000 in soft money to the national party committees, with $438,000 going to Republican national party committees and $115,000 to Democratic national party committees. Id.

84. Members of Congress proposed numerous health care reform initiatives, including potential changes in Medicare and managed care regulations, during the 1996 election cycle. See Herrnson Dep. at 105-106 [JEx. 36].

  F. Corporate Donors Give Soft Money to Both Democrats
     and Republicans

85. The business community quite often makes soft money donations to both the Democratic and Republican parties because they feel they are buying access. FEC Statement of Material Facts II at ¶ 339 [PSEx. 2]; Declaration of Hon. Dale Bumpers, RNC v. FEC ("Bumpers Decl.") at ¶ 15 [JEx. 3].

86. Some donors give to whichever party is in power. FEC Statement of Material Facts II at ¶ 340 [PSEx. 2]; Declaration of Hon. Martin Meehan, RNC v. FEC ("Meehan Decl.") at ¶ 9 [JEx. 4].

87. Contributions by individuals, organizations and companies to both Republican and Democratic political parties is pervasive and gives the impression that the purpose of the contributors' goal is "making political investments and protecting their flanks." FEC Statement of Material Facts II at ¶ 343 [PSEx. 2] (quoting Richmond Times Dispatch, Editorial, "Cash Cows," August 6, 1997 [JEx. 195]).

88. A study conducted by the Center for Responsive Politics found that donors representing five traditionally Republican industries shifted their patterns of soft money giving in the period after the 1992 Democratic convention: three shifted from an average of 3 to 1 or 4 to 1 in favor of the Republicans to an advantage in favor of the Democrats, while in the cases of the other two the gap between Republicans and Democrats narrowed significantly. Herbert E. Alexander & Anthony Corrado, Financing the 1992 Election 156 (1995); Joint Stip. ¶ 18.

89. Some corporations observing shifts in power have made adjustments in their soft money giving. In the 1992 election, for instance, the Democrats received sizable contributions from individuals or corporations that had donated funds to the RNC earlier in the election cycle. In most instances, these gifts were offered late in the race, as the likelihood of a Democratic victory increased. Herrnson Dep. at 107 [JEx. 36].

90. During December 1995, Eli Lilly contributed $20,000 to the DCCC, $25,000 to the NRSC, $20,000 to the DSCC, and $20,000 to the NRCC, because these congressional committees "represent the major party Congressional campaign committees and will provide a premier opportunity for us [Eli Lilly] to interact with senior Congressional and Administration officials. These organizations are important and our participation in them will have an immediate value." FEC Statement of Material Facts II at ¶ 344 [PSEx. 2]; Eli Lilly Proposed Corporate Political Contributions, November 15, 1995 [JEx. 155].

91. When the Republican Party took control of the U.S. House and Senate in 1994, the tobacco industry dramatically increased its soft money donations to the Republican Party, including the Republican National Committee. The industry also gave to the Democratic Party, but in significantly smaller amounts. This was part of a tobacco industry strategy to avoid what it regarded as undue regulation at a time when there was much discussion of such regulation, in view of the settlements of pending tobacco-related disputes then being negotiated with state attorneys general around the country. FEC Statement of Material Facts II at ¶ 522 [PSEx. 2]; Meehan Decl at ¶ 11.

92. Although in the 1994 cycle MCI reportedly gave comparable amounts of soft money to Republicans (over $168,000) and Democrats (over $188,000), during the 1996 cycle the company's giving did tilt heavily away from the Republicans (over $358,000) and toward the Democrats (over $607,000). However, in the 1998 cycle, the company's soft money giving swung back again, with over $719,000 reportedly going to Republicans and over $422,000 to Democrats. FEC Brief, RNC v. FEC, at 28 n.21 [PSEx. 3].

93. Microsoft Corporation, which played little role in political giving for years-reportedly giving only $10,000 in soft money in the 1994 election cycle — radically changed its approach and became a major donor to both parties when ...


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