# Pipefitters v. United States
## Dissenting Opinion

    Powell
Supreme Court of the United States
407 U.S. 385
Pipefitters Local Union No. 562 et al. v. United States
Certiorari to the United States Court of Appeals for the Eighth Circuit
No. 70-74. Argued: January 11, 1972 --- Decided: June 22, 1972
Petitioner union and three of its officers were convicted of conspiracy to violate 18 U.S.C. § 610, which prohibited a labor organization from making a contribution to or an expenditure in connection with a federal election. Evidence indicated that the union from 1949 through 1962 maintained a political fund to which union members and others working under the union's jurisdiction were required to contribute and that that fund was then succeeded by the present fund, which was, in form, set up as a separate "voluntary" organization; union officials, nevertheless, retained unlimited control over the fund, and no significant change was made in the regular and systematic collection of contributions at a prescribed rate based on hours worked; union agents, moreover, continued to collect donations at jobsites on union time, and the proceeds were used for a variety of purposes, including political contributions in connection with federal elections; those contributions, on the other hand, were made from accounts strictly segregated from union dues and assessments, and, although some of the contributors believed otherwise, donations to the fund were not, in fact, necessary for employment or union membership. Under instructions to determine whether the fund was in reality a union fund or the contributors' fund, the jury found each defendant guilty. The Court of Appeals rejected petitioners' challenges, and held that the fund was a subterfuge through which the union made political contributions of union monies in violation of § 610. The Federal Election Campaign Act of 1971, which became effective after oral argument here, added a paragraph at the end of § 610 that expressly authorizes labor organizations to establish, administer, and solicit contributions for political funds, provided that the fund not make a contribution or expenditure in connection with a federal election by utilizing money or anything of value secured by physical force, job discrimination, financial reprisals, or the threat thereof, or by monies required as a condition of employment or union membership.
Held:
    1. Section 610, as confirmed by the Federal Election Campaign Act, does not apply to contributions or expenditures from voluntarily financed union political funds. A legitimate political fund must be separate from the sponsoring union only in the sense that there must be a strict segregation of its monies from union dues and assessments, and solicitation by union officials, although permissible, must be conducted under circumstances plainly indicating that donations are for a political purpose and that those solicited may decline to contribute without reprisal. Pp. 401-427.
    2. Section 610 may be interpreted to prohibit the use of general union monies for the establishment, administration, or solicitation of contributions for union political funds. By clearly permitting such use, the Federal Election Campaign Act may, therefore, have impliedly repealed § 610. Pp. 428-432.
    3. Even if there has been such an implied repeal, it, nevertheless, does not require abatement of the prosecution against petitioners because of the federal saving statute, 1 U.S.C. § 109. United States v. Reisinger, 128 U.S. 398, followed. Hamm v. Rock Hill, 379 U.S. 306, distinguished. Pp. 432-435.
    4. The instructions to the jury were clearly erroneous because they permitted the jury to convict without finding that donations to the fund had been actual or effective dues or assessments. The sufficiency of the indictment is left open for determination on remand. Pp. 435-442.
434 F. 2d 1127, vacated and remanded to the District Court with instructions to dismiss indictment against petitioners Callahan and Lawler, both now deceased, and reversed and remanded to the District Court as to remaining petitioners.
BRENNAN, J., delivered the opinion of the Court, in which DOUGLAS, STEWART, WHITE, MARSHALL, and REHNQUIST, JJ., joined. POWELL, J., filed a dissenting opinion, in which BURGER, C.J., joined, post, p. 442. BLACKMUN, J., took no part in the consideration or decision of the case.
Morris A. Shenker argued the cause for petitioners. With him on the briefs were James F. Nangle, Jr., John L. Boeger, Cordell Siegel, Murry L. Randall, and Richard L. Daly.
Deputy Solicitor General Wallace argued the cause for the United States. On the briefs were Solicitor General Griswold, Acting Assistant Attorney General Petersen, Allan A. Tuttle, and Beatrice Rosenberg.
Briefs of amici curiae urging reversal were filed by J. Albert Woll, Laurence Gold, and Thomas E. Harris for the American Federation of Labor and Congress of Industrial Organizations, and by Arthur J. Hilland and Plato Cacheris for Officers of the United Mine Workers of America.
John L. Kilcullen filed a brief for the National Right to Work Legal Defense Foundation as amicus curiae urging affirmance.