| Buckley v. Valeo
(No. 75-436)
No. 75-36, 171 U.S.App.D.C. 172, 519 F.2d 821, affirmed in part and reversed in part; No. 75-437, 401 F.Supp. 1235, affirmed. |
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| Syllabus
| Opinion
[ ] | CDInPart
[ Burger ] | CDInPart
[ White ] | CDInPart
[ Marshall ] | CDInPart
[ Blackmun ] | CDInPart
[ Rehnquist ] |
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Buckley v. Valeo
APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
MR. JUSTICE REHNQUIST, concurring in part and dissenting in part.
I concur in Parts I, II, and IV of the Court's opinion. I concur in so much of Part III of the Court's opinion as holds that the public funding of the cost of a Presidential election campaign is a permissible exercise of congressional authority under the power to tax and spend granted by Art. I, but dissent from Part III-B-1 of the Court's opinion, which holds that certain aspects of the statutory treatment of minor parties and independent candidates are constitutionally valid. I state as briefly as possible my reasons for so doing.
The limits imposed by the First and Fourteenth Amendments on governmental action may vary in their stringency depending on the capacity in which the government is acting. The government as proprietor, Adderley v. Florida, 385 U.S. 39 (1966), is, I believe, [p291] permitted to affect putatively protected interests in a manner in which it might not do if simply proscribing conduct across the board. Similarly, the government as employer, Pickering v. Board of Education, 391 U.S. 563 (1968), and CSC v. Letter Carriers, 413 U.S. 548 (1973), may prescribe conditions of employment which might be constitutionally unacceptable if enacted into standards of conduct made applicable to the entire citizenry.
For the reasons stated in the dissenting opinion of Mr. Justice Jackson in Beauharnais v. Illinois, 343 U.S. 250, 288-295 (1952), and by Mr. Justice Harlan in his dissenting opinion in Roth v. United States, 354 U.S. 476, 500-503 (1957), I am of the opinion that not all of the strictures which the First Amendment imposes upon Congress are carried over against the States by the Fourteenth Amendment, but, rather, that it is only the "general principle" of free speech, Gitlow v. New York, 268 U.S. 652, 672 (1925) (Holmes J., dissenting), that the latter incorporates. See Palko v. Connecticut, 302 U.S. 319, 324-325 (1937).
Given this view, cases which deal with state restrictions on First Amendment freedoms are not fungible with those which deal with restrictions imposed by the Federal Government, and cases which deal with the government as employer or proprietor are not fungible with those which deal with the government as a lawmaker enacting criminal statutes applying to the population generally. The statute before us was enacted by Congress not with the aim of managing the Government's property, nor of regulating the conditions of Government employment, but, rather, with a view to the regulation of the citizenry as a whole. The case for me, then, presents the First Amendment interests of the appellants at their strongest, and the legislative authority of Congress in the position where it is most vulnerable to First Amendment attacks. [p292]
While this approach undoubtedly differs from some of the underlying assumptions in the opinion of the Court, opinions are written not to explore abstract propositions of law, but to decide concrete cases. I therefore join in all of the Court's opinion except Part III-B-1, which sustains, against appellants' First and Fifth Amendment challenges, the disparities found in the congressional plan for financing general Presidential elections between the two major parties, on the one hand, and minor parties and candidacies, on the other.
While I am not sure that I agree with the Court's comment, ante at 95, that "public financing is generally less restrictive of access to the electoral process than the ballot access regulations dealt with in prior cases," in any case, that is not, under my view, an adequate answer to appellants' claim. The electoral laws relating to ballot access which were examined in Lubin v. Panish, 415 U.S. 709, 716 (1974); American Party of Texas v. White, 415 U.S. 767, 780 (1974); and Storer v. Brown, 415 U.S. 724, 729-730 (1974), all arose out of state efforts to regulate minor party candidacies and the actual physical size of the ballot. If the States are to afford a republican form of government, they must, by definition, provide for general elections and for some standards as to the contents of the official ballots which will be used at those elections. The decision of the state legislature to enact legislation embodying such regulations is, therefore, not in any sense an optional one; there must be some standards, however few, which prescribe the contents of the official ballot if the popular will is to be translated into a choice among candidates. Dealing thus by necessity with these issues, the States have strong interests in "limiting places on the ballot to those candidates who demonstrate substantial popular support," ante at 96. They have a like interest in discouraging [p293] "splintered parties and unrestrained factionalism" which might proliferate the number of candidates on a state ballot so as to make it virtually unintelligible to the average voter. Storer v. Brown, supra at 736.
Congress, on the other hand, while undoubtedly possessing the legislative authority to undertake the task if it wished, is not obliged to address the question of public financing of Presidential elections at all. When it chooses to legislate in this area, so much of its action as may arguably impair First Amendment rights lacks the same sort of mandate of necessity as does a State's regulation of ballot access.
Congress, of course, does have an interest in not "funding hopeless candidacies with large sums of public money," ante at 96, and may for that purpose legitimately require
"some preliminary showing of a significant modicum of support," Jenness v. Fortson, [403 U.S. 431, 442 (1971),] as an eligibility requirement for public funds.
Ante at 96. But Congress, in this legislation, has done a good deal more than that. It has enshrined the Republican and Democratic Parties in a permanently preferred position, and has established requirements for funding minor party and independent candidates to which the two major parties are not subject. Congress would undoubtedly be justified in treating the Presidential candidates of the two major parties differently from minor party or independent Presidential candidates, in view of the long demonstrated public support of the former. But because of the First Amendment overtones of the appellants' Fifth Amendment equal protection claim, something more than a merely rational basis for the difference in treatment must be shown, as the Court apparently recognizes. I find it impossible to subscribe to the Court's reasoning that, because no third party has posed a credible threat to the two major parties in Presidential [p294] elections since 1860, Congress may by law attempt to assure that this pattern will endure forever.
I would hold that, as to general election financing, Congress has not merely treated the two major parties differently from minor parties and independents, but has discriminated in favor of the former in such a way as to run afoul of the Fifth and First Amendments to the United States Constitution.