Warren E. Burger: We will hear arguments first in United Steelworkers of America against Sadlowski. Mr. Gottesman, you may proceed whenever you are ready--
Michael H. Gottesman: Thank you, Mr. Chief Justice, and may it please the Court: At the 1978 convention of the Steelworkers Union... that is its highest governing body, including several thousand delegates selected by the members of each of its locals... the Constitution of the union was amended by adopting the rule that is at issue in this case. That rule forbids candidates and their supporters... candidates for office within the union, for high office within the union... from soliciting or accepting campaign support from persons who are not members of the union. The purpose of the rule was to assure that those who got elected to high office in the union would be beholden only to the members of the union, and not, by virtue of the financial benefits they had received from outsiders, be beholden to those outsiders. The analogue in the federal statutes and with respect to federal elections to the rule that the steelworkers adopted is that provision which makes it unlawful for any candidate for federal office to solicit, accept or receive any contribution from a foreign national. The court below has held that the steelworkers rule violates Section 101(a)(2) of the Landrum-Griffin Act, a part of Title I of that statute. We sought review, and this Court granted a writ of certiorari to review two questions: first, whether that construction of the Landrum-Griffin Act is correct; and second, if it is, whether the Landrum-Griffin Act as thus construed to deprive the union and its members of the right to insulate their elections from outsider involvement, abridges the First Amendment freedom of association of the union's members, by taking from them the power to determine the appropriate standard of participation by others in its elections. I will talk first about the statutory construction issue. Whenever, as here, the question is the legitimacy of a union's election rule, statutory analysis properly begins... though, of course, it doesn't end... with Title IV of the statute. That is the title, entitled elections, which lays down election rules with respect to union elections. In that title, Congress prescribed a number of rules to govern union elections, frequency of elections, notice of elections and the like. And one of the subjects that Congress specifically focused on in Title IV was the subject of campaign financing. In Title IV, Congress expressly provided that union monies and employer monies could not be donated to any candidate in a union election. And in Title IV, Congress expressly provided that every member of the union would have the right to provide campaign support to a candidate in a union election. Now, of course, there is a middle ground between that which Congress expressly forbad and that which Congress expressly protected. There are non-members of the union whose capacity to contribute is not addressed on the face of Title IV. But that does not mean that Title IV has no relevance to that question, because Congress in Title IV, having laid down and mandated for unions certain rules that they had to comply with in their elections, closed the circle; it didn't stop with it. It said, beyond the rules that we prescribe in this title, unions will be free to choose their own election rules. We have laid down certain minimum requirements, and beyond this we expressly provide that the choice as to any other election rules, not inconsistent with those that we, the Congress, have laid down, rests with the members of the union through their democratic processes. That decision is reflected in two difference places in Title IV. First, in Section 403 which provides that no labor organization shall be required by law to conduct election of officers in any different former manner than is required by its own constitution and bylaws, except as otherwise provided by this title. And it is provided again in Section 401(e) which is one of the provisions that lays down the rules unions must obey. And one of those rules is that the election shall be conducted in accordance with the constitution and bylaws of such organization, insofar as they are not inconsistent with the provisions of this title.
Speaker: What would be the situation, Mr. Gottesman, if, let us say, the wives of ten of the employees of the operation, either with or without signs, but including signs, vote for one of the candidates and they paraded up and down outside the plant or the operation, or merely stood there with their signs. Would that be a violation?
Michael H. Gottesman: No, it would not be a violation of the union's rule. It would not, Your Honor. The rule has an express exception for volunteered personal services, so that a non-member of the union is free to donate his or her personal time to supporting a candidate in a union election.
Speaker: Now, what if they held out... something like the Salvation Army... some plates and said please contribute, help elect... help keep the union clean or whatever it is they were trying to do.
Michael H. Gottesman: Well, we have the same distinction here, Your Honor, that you have in the federal sector between expenditures and contributions. If they took these contributions from others, who presumably are not members of the union, and didn't give them to a candidate, or didn't spend them in cooperation with a candidate, the steelworkers rule would not implicated because they--
Speaker: I am assuming good faith on the part of these people, that they want to get support, voting support, they want to get money to generate further support, and they want to get it from members of the union, members of the public, anywhere they can get it. Do the union rules inhibit them?
Michael H. Gottesman: --If they get the money from non-members and then give it to a candidate, or spend it with his cooperation, they would violate the rule. If they got money from non-members in order to finance activities of their own, independent of the candidate although expressing their support for him, that would not be a violation of the union's rule. In that sense, the distinction between expenditure and contribution in the union's rule is parallel to that in the federal statutes. And indeed, it is I think fairly obvious when you look at the union rule and the way it is structured that those who drafted it were not oblivious to the fact that some of these same questions had been considered and addressed in the federal statute, and many of the lines are the same, including the exception for volunteered personal time.
Speaker: Mr. Gottesman, has Section 27 of the union constitution been amended at all since this action was initiated?
Michael H. Gottesman: I was amended once and that amendment is referred to in the court of appeals' opinion. The amendment does not relate to the issues that are before the Court.
Speaker: And there have been no further amendments.
Michael H. Gottesman: That is correct. There has not been another union constitution since the rulings... union convention... since the rulings below. And the next one is scheduled for this September.
Speaker: And does this Court have to address the right to sue theory, in your view?
Michael H. Gottesman: Well, if the Court agrees with us that the union rule does not violate 101(a)(2), it has to address that only because respondents have offered it as an alternative basis for invalidating the entire rule. We did not seek review of the court of appeals' holding that the rule violates that, because implicit in that, in our view, would simply be an injunction saying don't apply your rule to litigation, which is no problem for the union because we didn't think it applied to litigation in the first place. But if the Court agrees with us that the rule does not violate 101(a)(2), that other provision comes into play only in the sense that respondents are here saying you should use that other provision to invalidate the whole rule. And therefore, in that sense, the Court would possibly reach that issue and have to decide it one way or the other.
Speaker: Mr. Gottesman, how common a situation is this? Are you aware of any campaigns involving unions other than the steelworkers which... where outside funds played a prominent part?
Michael H. Gottesman: The briefs for respondents recite... the record doesn't... that such outside funds were contributed substantially to the election in the mineworkers union several years ago, in which Tony Boyle was defeated. Beyond that, I personally am not, and the record does not show... it certainly had been the experience in the steelworkers in 1977. It was George Meany's statement at that time that it was unprecedented in the history of the AFL-CIO that any of its affiliates had suffered an experience of an organized, concerted outsider involvement such as had occurred in the 1977 steelworker election.
Speaker: Apart from this one, has there been any serious challenge to the incumbency in the steelworkers?
Michael H. Gottesman: There have been, yes, three prior ones.
Speaker: With any substantial vote?
Michael H. Gottesman: Yes. No one has ever gotten less than 40 % of the vote in any presidential election in the steelworkers. That is a strange statistics, but unquestionably a correct one. One challenger won and defeated the incumbent, so... and he got 51 % of the vote. The other three all got in a range of 40 % to 43 %. Sadlowski got 43 %, the prior ones had gotten 41 % and 40 %. The statement that appears in their briefs that he was the first serious challenger to an incumbent is, therefore, one that comes with some surprise.
Speaker: I would assume, Mr. Gottesman, that in evolving this rule, some consideration was given to what has been the usual pattern through the public area, the public sector, of requiring sworn statements identifying all the contributors. If every candidate within the union was required to file a sworn statement, with every contribution identifying the contributor and forbidding a the process that would preclude any anonymous contributions, would that not satisfy this problem?
Michael H. Gottesman: The judgment of the union was that it would not, Your Honor, and the reasons are explained in our reply brief. The problem with simply having disclosure and no ban is that you can counter exactly what happened in the 1977 election. There was a candidate for office in the union who was, indeed, a very popular candidate. And who had taken a lot of outside money, and who wound up getting substantially less of a vote than people I think generally had thought he would get. And what happened was, the voters in that union had to make a choice: they had to become one-issue voters. They had a candidate that they would have preferred to leave the union, but the price for having him was going to be that they were going to have a candidate beholden to outsiders. Now, it seems to me... and certainly it seemed to the union... that it is entitled to make the judgment that it is not enough, either in the way of protection or in the way of satisfying the members' interests, for people to know that one factor about a candidate is that he is potentially beholden to outsiders. Because they can't adequately vindicate their concern about without automatically voting against him on that ground. And beyond that, once you have some candidates doing this, it is inevitable they are all going to do it, just to equalize things, and then you are going to have a situation where the voter has no choice at all to avoid candidates beholden to outsiders, because they will be competing to see who can get more. And the notion that incumbents are going to be less successful at getting outsider money is, I think, contrary to at least intuitive good sense. It was not the case in this election, but it could well be the case in other union elections. Now, the congressional scheme--
Speaker: Mr. Gottesman, does the prohibition in the Landrum-Griffin Act against contributions by employers or unions apply only to the union which is holding the election and only to an employer whose employees are represented by the union?
Michael H. Gottesman: --No, Your Honor, it applies to any union and any officer of another union. And the definition of employer, as construed by the Labor Department and enforced by the Sixth Circuit, is so broad that would encompass about 80 % of the people to whom the union's rule is addressed anyway. The Labor Department's interpretation is that because the word "employer" is not qualified by "interested" employer, as it is in a different provision of the statute, it was Congress' intent that anybody who is an employer within the meaning... in interstate commerce, within the meaning of the statute, even though he has no involvement with this union, this union does not represent his employees, he doesn't do business with this union in any commercial sense... anybody who meets the statutory definition of an employer cannot contribute. And that includes any managing person cannot make personal contributions. So that a partner in a law firm, a dentist who employs two assistants, the person who owns the neighborhood bar, all of those people under the Labor Department's regulation and the Sixth Circuit decision are, in any event, precluded from contributing.
Speaker: The term employer then is defined independently of the National Labor Relations Act, as to whether they would be subject to the National Labor Relations Act and their--
Michael H. Gottesman: Yes. The term employer, as I recall it, is defined in the statute as anyone who is an employer under any other federal labor relations statute. So that it picks up Railway Labor, National Labor Relations Act, and indeed, many people who aren't covered either because they are too small but are covered by the Fair Labor Standards Act. So it is anybody, in essence, who employs one or more employees can't make either an institutional or a personal contribution. And that much is imposed by law. And the Sixth Circuit, the decision that I referred to, is Marshall versus Local 20. It is 611 Fed 2d, 645. The Sixth Circuit explained, this is what Congress intended. It wanted these unions to be for their members and it wanted all of these people. That case involved a personal friend of the candidate who employed two people; he was a dentist. And the court said that his contribution was a violation of the statute. So that what the union is doing is filling a space that Congress in Title IV left open, but not such a broad space as perhaps is suggested by the briefs of the respondent. Now, in that Title IV scheme there is clear evidence as to why it is that Congress not only laid down certain rules but also laid down the additional provision that beyond these rules, the union shall be free to adopt their own and make their own choices with respect to election rules. And what the legislation shows is that Congress was struggling with two objectives. On the one hand, the McClellan hearings had shown without doubt that there were some undemocratic unions, and that there were, in fact, certain statutory necessities that were going to be required if those unions were going to be made democratic and put back in the hands of their union officers. And so, Congress said we are going to lay down and mandate by federal law those rules that we have determined are essential to the achievement of union democracy, and those we have done in Title IV. But the other congressional concern is that we do not intrude too far on union autonomy. This was, after all, the first time that Congress had ever legislated with respect to internal union affairs, and the legislative reports are replete with statements... we are dealing here with private associations. We, by enacting this statute, are tinkering with the mechanisms by which the leadership of private associations are selected, and in doing so, we want to act as limitedly as we can. We have defined certain evils; we will mandate the correction of those evils. Beyond that we will not go. And more, beyond that, we will make clear that the choice will be for the union members of what their rules will be beyond this. More than that, the whole point of this statute was to return the governance of unions to their members, so the legislative history is replete with statements... we shouldn't go too far in legislating rules of the unions, not only because we violate their autonomy, but because we are unfaithful to the very purpose of this statute. The purpose of this statute is we will create minimum standards that will be sufficient to give the union back to its members. And certainly the record in this case shows that the steelworkers union is in the hands of its members. Candidates for office are defeated all the time, incumbents are removed at a rate equal if not exceeding that in federal elections. And we will let the members make choices on all the matters except those that we have specifically dictated here. And thus, we have in Title IV the closing of the circle. Certain rules laid down and a specific mandate that beyond that, the choice is for the union members and it cannot be dictated by any provision outside of Title IV.
Speaker: --Do you think the free speech provision is constitutional, in the sense that... what if there were a union rule that would purport to limit free speech beyond that which is guaranteed with a statute? Do you think that--
Michael H. Gottesman: Oh, it would clearly--
Speaker: --Why would that be constitutional and this... I know your bottom line, at least one of your bottom lines is that if construed this way, this provision at issue here would be unconstitutional.
Michael H. Gottesman: --Right. Well, what we have got... I mean, the constitutional issue in any case is this is... private association, it has private decision-making mechanisms,--
Speaker: Well why couldn't the union then just limit free speech beyond that which the statute purports to guarantee?
Michael H. Gottesman: --At every stage the question is whether there is a sufficient government justification for the intrusion that it is making on the union autonomy. And I think there is a distinction in measuring that between a rule whose function it is, and which is directly aimed at providing the decisionmaking in the hands of the union's members; a rule that says there must be elections, a rule that says there will be notice of elections, a rule that says you will not prevent candidates from voicing their views or other members from voicing their views.
Speaker: Do you think the union has to hold elections rather than, say, appoint its officer by some other method?
Michael H. Gottesman: Well, certainly Landrum-Griffin says so, and certainly the First Amendment argument that that would be an intrusion on freedom of association I think would be a much harder one than the one we have got here, because there the governmental interest would be stated and there is a closer nexus between the governmental interest than there is here.
Speaker: Mr. Gottesman, you referred to a distinction between contributions and expenditures. Will you elaborate on that and suggest some examples of the distinction, the way it would operate?
Michael H. Gottesman: Yes. If a non-member of the union wanted to support a candidate in the steelworkers election, and wanted to take his money and go out and buy newspaper space, wanted to go out and spend money to do various kinds of things to advertise his views on that subject, there is nothing... the union is powerless to do anything about it, but beyond that, the rule does not purport to forbid, as it cannot, a non-member from expending money directly, just as under the federal law he cannot.
Speaker: In that type of advertising or mail campaign, is it your view that the identity of the candidate could be specifically mentioned, rather than--
Michael H. Gottesman: Absolutely. As long as the limitations in the union's rules are the same as those in the federal rule. As long as he is acting independently of the candidate.
Speaker: --That substantially weakens the basic purpose of the rule as you have annunciated it, doesn't it?
Michael H. Gottesman: Well, it weakens it in the same way and to the same extent that that same distinction was said to be weakened in Buckley by some who thought, in dissent, that the court's... that the line the court drew between contributions and expenditures--
Speaker: But there is no way the union could stop it.
Michael H. Gottesman: --That is right, there is no way the union could stop outside expenditures. The union only has jurisdiction over its members. All it can do is say to its members you will not take money from outsiders. It cannot stop an outsider who wants to spend money and not give it to a union member; it just has not control, no jurisdiction over it. Now turning to 101(a)(2), it has to be looked at in the context, it seems to us, of what Title IV has done. And the question has to be... because this really is the question... did Congress, when it wrote this other title of the same statute, intend to overturn the very decision that it made in Title IV, to leave all other choices to the union members. When you look at it, the first thing, the first right it confers is the right to meet and assemble freely with other members. Now, that is the only place in 101(a)(2) where the associational right is addressed, and it is expressly and in terms confined to meeting with other members. Needless to say, that is the not the provision the court below relied on. The court below relied on the provision to express any views, arguments or opinions. Senator McClellan and the others who proposed that explained the purpose of that provision. It was to remedy what they found to be the case... that within unions generally, people who spoke out in criticism of officers got... suffered reprisals. They might be beaten up, they might be disciplined, expelled, fined. He said we can't have... we need sanctuary for the union member. We can't have all these... we have all these wonderful structural titles in this bill like Title IV, but if members are afraid to get up and speak because they are going to be expelled if they do so, those titles aren't going to work, nor will any of other objectives work. So we need here something that tells the union member if you speak, if you become a candidate, if you do these things, you are not going to be punished for doing so. That was the objective of this provision. Now, there is, to be sure, an overlap between Title IV and Title I, but it is not a redundancy. If a member makes a campaign speech, to discipline him would violate both titles. But in the statutory scheme, what Title IV says is that violation, the remedy will be setting aside the election. What Title I says, and what was added by 101(a)(2) is that it is not going to be sufficient to protect the member's freedom to say that if he gets thrown out of the union, the election will be set aside. We have got to give him personal protection. And that is what 101(a)(2) does. He gets a personal remedy, and that was designed to give him the sanctuary that would allow him to be free to enforce his rights and to voice his views. Now, that is the only purpose stated, or the 101(a)(2). And the emphasis I think is on the word "any". This was a protection to members who express any views, even those that are disapproved by the leadership of the union. And it is not, I think, legitimate, given what Title IV expressly says about election rules, to say that what Congress was doing over here with those words was creating a new campaign finance provision. There is nothing in the language and nothing in the legislative history that suggests that that was Congress intention. The sole argument on the other side is an analogy to the Constitution. I do want to reserve some of my time. We have dealt extensively with that supposed analogy in our briefs and shown why we think it to be flawed. If... not the least of which is that it fails to note that the constitutional analogy that is being relied upon is one that was first articulated by this Court 17 years after this statute was enacted, and that it is not likely that Congress could have conceived, even if it was intending to legislate the First Amendment, that to do so would have carried with it those implications.
Warren E. Burger: Very well. Mr. Rauh?
Joseph L. Rauh, Jr.: Mr. Chief Justice, and may it please the Court: District Judge Hart found this absolute ban on contributions outrageous. That is not my word; that is the district court's word. And Circuit Judge McKinnon for a unanimous court said we cannot conceive of anything that would do more to inhibit union democracy than this rule. And the American Civil Liberties Union, a long-time supporter of unionism, has fold this Court in its amicus brief that elections will be a charade if this continues. All these of these conclusions are buttressed by a statute and a legislative history that fairly bristles with Congress' overriding purpose of union democracy. There has only been one president ever in the history of this union that beat an incumbent, and you know what he was? He was the Secretary Treasurer. It was a palace revolt and every other time there has been a re-election, and usually like the last time, you don't even get a contest. Now, we have heard a lot this morning about Title IV. We haven't heard anything about Title I. Title I and Title... Title I contains two provisions, both of which apply here. One is the right to sue provision, that is 101(a)(4); the other is the right to speak provision, that is 101(a)(2). The district court outlawed the rule under 101(a)(4) the right to sue; the court of appeals under 101(a)(2), the right to speak. It preferred to invalidate it on that ground. Now, Section 101(b) says you have to invalidate. The courts have to invalidate any provision of a constitution that violates part of the Bill of Rights. That is exactly what both courts, all four judges below, did. Now looking first at 101(a)(2), the right to express any views, arguments or opinions without limitation. Now, both Senator McClellan... they say something I have got a paucity of citations. That is almost... that is pretty funny if you think that we have the man who put in the Bill of Rights, Senator McClellan, and the man for whom the bill is named in the House of Representatives, Representative Landrum... it is called the Landrum-Griffin bill... both says, both analogize this 101(a)(2) to the Constitution. And of course, indeed, it is funny what they say. They admit in their brief that 101(a)(2) recites the core of value of the Constitution. Well, what is the core of the constitutional free speech? It is the right of effective speech, not the right just to talk, without the right to solicit funds. There can be no effective speech... I am not relying on anything I have ever said in my life; I rely on what this Court has said over and over and over again. Buckley, Bellotti, Berkeley... and what did Shaumberg, Justice White and Bates, Justice Blackmun... they recited recently that these rules, they are not just something that came down in Bellotti and Berkeley; these rules have been here. The solicitation of funds is part of the right to speak a speech. Without funds... that isn't new. That's old, and this idea that suddenly--
Speaker: Mr. Rauh, if it is old, what would you think was your strongest case before the Act was passed? It surprises me--
Joseph L. Rauh, Jr.: --Well, I go all the way back to Patterson, NAACP in 58, go back to Cantwell in 40 I think, Your Honor. But I will say that I take the review that either Justice White or Justice Blackmun made in their two recent cases, suit me fine.
Speaker: --Well, those were court opinions.
Joseph L. Rauh, Jr.: Yes, sir. But I am saying that you made the reviews for us. I just wanted to thank you for your courtesy of saving me a lot of time on research. [Laughter] Now look, this Court has said it so often that it is SOP, that the First Amendment has its fullest and most urgent applications in the context of political campaigns.
Speaker: Mr. Rauh, your argument is based on an assumption that the section incorporates the First Amendment.
Joseph L. Rauh, Jr.: Not... it incorporates the basic core value of the First Amendment.
Speaker: Let me just ask you why the Congress wouldn't have used the language of the First Amendment if that is what they intended. They used something different.
Joseph L. Rauh, Jr.: That is correct, but both McClellan and Landrum said it, Your Honor. And I guess I don't believe Congress always uses historical language. They brought in a different provision, I believe, when the Senator said it and the man who ran the bill in the House said it. I think that is the best evidence of the intent. The words are very clear, if Your Honor please. Opinion views the words are in some ways, can be as broad or broader than the First Amendment. And there is a case in the court of appeals where they said it is broader than the First Amendment. But there is certainly nothing that indicates it is not the First Amendment. But going back, if Your Honor please, to your decisions of this Court, on the fullest and most urgent application is at election time, and that goes double, double for unions. In many instances, maybe in most, the only time you ever get any discussion in a union of an issue is during an election campaign. And let me tell you, because this is personal, following your decision in Travolidge they had an election in the mineworkers, and with concerned outside money they debated violence and corruption and ended the dictatorial rule, and that would never have been ended without concerned citizens outside. Equally relevant is Hall against Cole. There you said that Title I was specifically designed to protect the union member's right to seek higher office. This interrelates, pulls it together. Union democracy and speech. And that was the purpose. And then you said, oh, counsel has to be available to make speech effective.
Speaker: Mr. Rauh, how do you get democracy if you get all of your money outside, ten times what everybody else has? Would that be democracy?
Joseph L. Rauh, Jr.: No, sir.
Speaker: So you are not for that, are you?
Joseph L. Rauh, Jr.: No, sir. And it would be a simple rule to have... all you would have to do, Your Honor, is say nobody give more than $50 or $100, and that includes the staff, and you would have--
Speaker: Doesn't that affect free speech?
Joseph L. Rauh, Jr.: --What?
Speaker: Doesn't that affect free speech?
Joseph L. Rauh, Jr.: I... would be a reasonable rule. What would be reasonable? You said $1000 was reasonable for a federal election. I am willing to go for anything that would be reasonable. I think a lower figure for a union election than you have, but you would have to decide what... they have the initial--
Speaker: You think the union couldn't decide it for itself?
Joseph L. Rauh, Jr.: --Yes, it would decide it, and you would have a right of review. But let me tell you, that is not their point. They, in the yellow brief at page 12, they let the cat out of the bag. They are not going after big contributions; they are going after lots of little contributions. Their complaint, under item 2 on page 12, is that we, in the Sadlowski group, solicited progressive lists, and they say very... we don't... they were not saying they refused the individual non-member contribution--
Speaker: Mr. Rauh, excuse me, I don't see a page 12. Are we really talking about the reply brief of petitioners?
Joseph L. Rauh, Jr.: --Yes, Justice O'Connor.
Speaker: It goes to page 10.
Joseph L. Rauh, Jr.: There is a 10 and then there is a 12. I am sorry. We can hand up another copy--
Speaker: Well, there are two yellow briefs. It is a little confusing... each of them is labeled reply brief.
Joseph L. Rauh, Jr.: --Are you looking at the one on cert, Justice O'Connor? Because there is also one on the merits, and that would explain it. At page 12, what they say is, it is not huge individual ones. What they are complaining about is small, and Justice Marshall, at the bottom of that page, what they are complaining about is small and moderate-size contributions from like-minded, non-members. They are not complaining about big ones. Coming back to Hall and Cole--
Speaker: I am trying to find that language on 12 that you spoke of.
Joseph L. Rauh, Jr.: --At the bottom, sir.
Speaker: I have got the right brief now.
Joseph L. Rauh, Jr.: Look at the bottom. Do you see item 2, Your Honor?
Speaker: Yes.
Joseph L. Rauh, Jr.: Under that you will see, the experience... not one of huge individual non-member contributions, but of nationwide solicitations of lists of progressives. And then at the bottom, the aggregates of small and moderate-sized contributions. They have let the cat out of the bag. Here is a progressive who took lists of progressives and asked them to help him let them get money so they can get the progressive message to the membership and let the membership decide. It couldn't be clearer what they want. They don't want him to have enough money to put his message across. Nobody who gives a few dollars on these lists are going to think anybody is beholden to them. This was an effort to get the money to put the message across, which Your Honors have been the most forceful on saying one has a right to do.
Speaker: What about disclosure?
Joseph L. Rauh, Jr.: Well, that is fine. You could do disclosure, you can do a reasonable top. The reason they don't want a reasonable top is that they are not complaining about big contributions.
Speaker: Well, what if the union rule had provided that no candidate shall take more than 50 % of his money from outsiders, if it put no ceiling?
Joseph L. Rauh, Jr.: I find that a difficult question, Your Honor. But... I don't know. If you didn't put another thing on the staff, it won't work, because that can just stop what they get from the staff. What you would have to do is combine that 50 % with some staff. You can't... I could buy this. Put 50 % on what you can get from the outsiders and 50 % on what you get from the staff and maybe you have got a rule that will recreate some union democracy.
Speaker: Your answer to my question, then, is the union couldn't do that?
Joseph L. Rauh, Jr.: If they didn't do something about the staff, because they would then have a way of offsetting and making it difficult. I would doubt it would reasonable. I have never thought about that before, but I would think that you would have to put something together to make it really work.
Speaker: What about limitations on not all outside sources, but selected sources like corporations.
Joseph L. Rauh, Jr.: Well, that is already barred, Your Honor, under the employer provision, so that is barred.
Speaker: But partnerships, or?
Joseph L. Rauh, Jr.: Well, yes, a partnership would be an employer.
Speaker: Or political organizations that have been formed for... to influence the election? Suppose there is a committee to influence the steelworkers' next election, and they independently raise their money and then give large sums to the candidate?
Joseph L. Rauh, Jr.: Well, that would be the same thing as if Mr. Sadlowski sent out the letter. If somebody sent cut the letter for him, that would be all. But they are saying--
Speaker: So you could say they couldn't do that, either.
Joseph L. Rauh, Jr.: --No, I say they couldn't bar you from going to vast numbers of people to get small contributions. There is not going to be any beholden or any corruption in anything like that, Your Honor. They use lists of people and ask for money. So Mr. Sadlowski who is a progressive, they used a progressive list, could get his message to the membership so the membership could decide. The membership doesn't have to vote that way.
Speaker: Does the present law bar,... without this provision, does the law bar raising any money from corporations?
Joseph L. Rauh, Jr.: Yes, because the corporation would be an employer, Your Honor.
Speaker: You mean any employer in whatever industry?
Joseph L. Rauh, Jr.: In whatever industry, but I think it has to mean a real employer. I don't go nearly as far as they do that if you... a dentist has an assistant, that that makes him an employer for this purpose, but that is not before the Court, Your Honor. Now, what they say--
Speaker: Can I ask one other question while you are paused, Mr. Rauh. Do you agree with your opponent that if a non-member, say a relative or a friend, decided he wanted to support your client's candidacy, he could spend all the money he wanted to and there is nothing they could do about it?
Joseph L. Rauh, Jr.: --No, sir. And I was surprised to hear what was said here. On page 74 of the record, in the regulation appears the following: Should a non-member attempt to support a candidate without the candidate's solicitation or cooperation, it is the candidate's obligation to immediately contact the non-member, reject that support and request that it be discontinued and take whatever action is necessary to avoid such support having an effect upon the election. As noted above, failure to do so, will be evidence that the support was accepted. They have done everything in their power to prevent the expenditures that they informed the Court they could permit. The steelworkers answer... what they are really saying is you, challenger of the income, but you go get it from the rank and file. That is what they are saying. That comes with poor grace.
Speaker: And the staff? And the staff of the union?
Joseph L. Rauh, Jr.: Well, but for the... as an incumbent you are ahead of the challenger, Your Honor.
Speaker: They are free to get it from the staff.
Joseph L. Rauh, Jr.: Yes, and we got 3 %. They got all of theirs. We are free. Can sleep under the bridge, if I may put it that way, Your Honor. [Laughter] I would say it comes with poor grace for them to tell us to go the rank and file, and this is admitted. They got 90 % of their funds from the staff. And I call your attention to the Joint Appendix references, 173 where we have an affidavit saying this, and 347 and 48 where they do not challenge it in their response. Now, if we can't... if they can't get money from the rank and file and get 90 % from their staff, how in heaven's name are we to do what they can't do? Now, as I said, the steelworkers reply brief at page 12 does let the cat out of the bag for what they... they once used to say they were out to stop corruption, big contributions. Now they say flatly no, we are out to stop your solicitation of like-minded concerned citizens. I don't see how that could ever be squared with Title I, Section 101(a)(2). This is a perfect example of where moderate and small contributions from like-minded citizens... it is a perfect example of what we did when we upset the Boyle thing after the Travolidge decision gave us a chance. It is a perfect example of democracy in trying to get funds to get your message across. They can still say... this is not a question like 441(e) that was referred to. That was a wholly different thing. That is the provision of law that prevents a non-resident alien from giving to a federal campaign. But that works in our favor. Resident aliens who can't vote can give. The only reason a non-resident alien is in there is for security reasons, people that are abroad and also they haven't... a non-resident alien doesn't have the rights that a resident alien does. But a resident alien can give, even though he can't vote.
Speaker: But wouldn't a resident alien be like a member of the staff? That is, interested in union affairs, but I understand staff members can't vote unless they are members of the union.
Joseph L. Rauh, Jr.: Yes, if they... they all are.
Speaker: Are they all members of the union?
Joseph L. Rauh, Jr.: Yes. And so is counsel members of the union. That is how this comes up, you know.
Speaker: Well, how can you qualify as a steelworker?
Joseph L. Rauh, Jr.: Well, you will have to ask--
Speaker: You don't have to work as a steelworker--
Joseph L. Rauh, Jr.: --I know they are members of the union. You will have to ask the other side how they work that our, sir. I just don't see a clear care of your statute... here you have got the language, right to express any views, arguments or opinions. The legislative history of the parallelism to the Constitution from the two men who would be the most important, and the pre-eminent purpose of Congress is for union democracy. You know, sometimes I think why did they need to do this? They have got so many advantages on the incumbent anyway, it is hard to see why they had to go ahead and put this final nail in a challenger's coffin. But the purpose of this statute... this Court has over and over again, in dealing with Landrum-Griffin said, a lot of it was written on the floor. The Bill of Rights was written on the floor. Has said well, we will look at the objectives of this statute. Well, the objective of union democracy is perfectly clear, and of course, doing this does avoid any reference to any constitutional problem. The steelworkers rule, based on all of this, and I quote from the man who has done the most writing and work, the professor who has done the most on the whole subject of union democracy, Professor Clyde Somers. His affidavit is in the record. He says, this rule virtually guarantees that incumbents will be insulated from electoral challenge. With every principle of statutory construction the other way, to knock it out, to leave it there is so clearly contrary to Congress' intent.
Speaker: --Of course, you assume that the election of the union is controlled by money.
Joseph L. Rauh, Jr.: A certain minimum amount is necessary to get your message across, Your Honor, because you have got 1,300,000 voters, you have got a staff on one side and you have just got to have something. I don't say... no, I do not assume it is controlled by money, Your Honor. I am saying a minimum amount of money is necessary.
Speaker: All I am trying to do is try to warn you that you sound like it--
Joseph L. Rauh, Jr.: Well, thank you.
Speaker: --And I know you didn't mean it. A senator, for example, who has a constituency that large, anything in this record that would indicate what the parallel problems would be?
Joseph L. Rauh, Jr.: Well, it would be so... many times more, but there is nothing in the record. We did not feel that was necessary. I don't know of anything in the record on what an ordinary senator--
Speaker: A million, three, did you say?
Joseph L. Rauh, Jr.: --A million, three members. I don't know how much that would mean in money, but nothing was spent by us... and we got as much as we could out of the staff. We got as much as we could out of the staff, that was nothing. We got as much as we could out of the rank and file; that was substantial, but we did get a lot from lists of concerned citizens, and that was the only place we could go. It seems to me that it is clear--
Speaker: Mr. Rauh, you go so far as to suggest that there is no legitimate basis for a rule of this kind?
Joseph L. Rauh, Jr.: --Oh, there is not in this.
Speaker: I mean, is there no union interest in not having the union leadership beholden to someone who collects large sums of money, contributed by many small contributors... but a fund raiser?
Joseph L. Rauh, Jr.: Yes, I don't see any possibility. All that it does is to get like-minded citizens to contribute to this man so he can put his message, like minded message, over and win or lose fairly--
Speaker: Well, what would the difference--
Joseph L. Rauh, Jr.: --Furthermore--
Speaker: --Let me just... what is the difference between one fund raiser who might have great influence, and one very wealthy supporter of the union?
Joseph L. Rauh, Jr.: --Well because, Mr. Sadlowski could have written this letter to the... they talk about letters that were written by... Sadlowski, they were letters that Sadlowski could have written to those lists--
Speaker: Well, I am not really directing my question at the facts of this particular election, but just as a general proposition, can you conceive of any situation in which there would be a legitimate justification for a rule of this kind?
Joseph L. Rauh, Jr.: --I think if it wasn't so overbroad, I think you could say... certainly you can say you can't give more than $1000, and I think you can go below that.
Speaker: Would you say you can't have one solicitor collect more than $1000?
Joseph L. Rauh, Jr.: If that were real... if that were a real danger, yes. If that were a real danger and a real way to settle the over-breadth, yes. But I don't think there is a real danger because the money is really being asked for in Sadlowski's name. But if you want to say you couldn't ask for more, so Sadlowski would have to ask for it all himself, that wouldn't trouble me. But if you could say there can't be a middleman in the fund-raising, probably that is not so terrible. But that is not their reason. They say flatly on page 12 of their yellow reply brief that they don't want small contributions--
Speaker: No, but they finished the paragraph on page 13 with the thought that I was just expressing.
Joseph L. Rauh, Jr.: --Well, your thoughts, yes. That would be all right. This is just so broad as to-- Well, 101(a)(2) settles it, and it settle it for the court below. But you could make an alternative decision under 101(a)(4). Remember that this was aimed at Sadlowski and his lawyers. They say... I could hardly believe my ears here that there was some suggestion that they hadn't intended litigation, to block litigation. They said, oh, you can have personal service, but you can't use your secretary, you can't use your office, you can't use your supplies. How could any lawyer represent anybody pro bono who is an insurgent and they need lawyers... God knows they have admitted you have got to have a lawyer in this fight. How could anybody represent them, using your personal services, and not be able to use your secretary, your office and your staff? And they bar using them, in flat terms they barred using your secretary, your staff and your office. Of course this was aimed at stopping litigation. Indeed, at the same time that they did this, they started a lawsuit to stop litigation. They sued the Association for Union Democracy to stop litigation. The case came to this Court two years ago, McBridge against Rockefeller. This case was here, and this Court denied cert. But the case was here, you saw it. They tried to prevent any litigation because the people, you couldn't... funds have to be raised for the expenses. Lawyers may feel deeply enough for union democracy that they will work for nothing, but there are expenses. And those were paid by these organizations and they brought a lawsuit to prevent that. There is no question what the purpose of this was; it was to stop that kind of--
Speaker: But do you think that purpose survived the opinion that former Secretary Wirtz wrote that is at 454 of the Joint Appendix?
Joseph L. Rauh, Jr.: --I sure do.
Speaker: You do?
Joseph L. Rauh, Jr.: Because he even went further. If you look at that, Your Honor, they say well, if the suit wasn't bona fide, why, that is then not permitted. Of course, the Wirtz opinion clearly conflicts with the clear language of the rule, with its purpose and everything.
Speaker: Well, that is like our saying one of our decisions construing a statute conflicts with the plain language of the statute.
Joseph L. Rauh, Jr.: No, you are not hand-picked and paid by one of the litigants, Your Honor. You are an independent body. When you make an opinion that is determinative, but when you are a hand-picked committee paid by one of the parties, you are a lot different. Indeed, you said this, or the Court said this in the steel case, where you wouldn't even let the Railroad Adjustment Board, which is only a third union people, make decisions because of the fact that they were a third union controlled, and this was a union grievance by blacks against the union. Now, there is only one... as I said, 101(a)(2) applies, 101(a)(4) applies. The question is what would you do under 101(a)(4). Why is it you can't rewrite the rule? Judge Hart was right. The court of appeals preferred to put it on another ground, but Judge Hart was right when he said that the unlawful effects of this rule have a chilling effect. He doesn't want to rewrite it, it can't be rewritten, and I suggest it can't be rewritten, if Your Honor please. It can't be rewritten because you have got all sorts of things that have to be dealt with. If the statute... if you rewrite, do you say oh, it has got to be a bona fide suit, as they complained, or, it can't be intended to extract political gain, as Judge McKinnon laughed at in his opinion. Or, what do you say about this? They argue that you can't use the money to get the word out about the lawsuit. Well, suppose there is a lawsuit, and suppose that lawsuit is won and suppose they had done some things that were bad. You mean, that can't be told to the public? You can't rewrite this rule for them. Of course, it really doesn't matter. If I am right on 101(a)(2), I just think it would be better for union democracy, which I am here pleading for, be better for union democracy if you knocked it out on both, because then people will realize that there is something serious. In conclusion, Your Honors, unions are not private associations, as were made here. Congress has given tremendous assistance to the building of American unions since the Wagner Act 47 years ago, and it has fortified unions with exclusive authority to represent and require dues from even those who do not want that representation. In 59, Congress realized they had to do something to protect the rights of the public and to make those rights count. So what did they do? They set up a statute where union democracy would flourish. All four judges below have held that both the purpose in two express provisions of this bill repel the steelworkers attack on union democracy. I believe in exclusivity of union representatives. I believe in the union shop. I have worked for them. But those things bring something else. They bring a responsibility with them, and this provision, this stopping of the slightest help for those who would challenge an incumbent, those are not carrying out the responsibility and the favors and the held that the Congress of this country gave unions.
Warren E. Burger: Mr. Gottesman, you have about four minutes remaining.
Michael H. Gottesman: Thank you, Your Honor. There is a certain iron in this case. We are told that what the union did here is a terrible blow to democracy. But what the union did here is an expression of democracy. There is no debate about the fairness of the union's convention. Delegates elected by the members from all over the country came, and overwhelmingly, by a ten to one margin, said we want this rule. Now, that is democracy. The question is whether Congress intended to stifle that democratic choice, and whether it constitutionally can do so. Mr. Rauh has recited in the last half hour facts about union elections that so diverge from the facts in this record and the facts about--
Speaker: Well, Mr. Gottesman, on that point, we asked you about independent expenditures, and you gave me quite a different impression than I get from reading Joint Appendix, 74.
Michael H. Gottesman: --Yes, I am sorry, Your Honor, I should have made that clearer, and I had forgotten that provision. The union cannot stop outside expenditure. The union does want the candidate to make such efforts as he can take to discourage them, and I apologize to Your Honor, because I--
Speaker: It is rather strongly worded, his duty to stop that sort of thing.
Michael H. Gottesman: --Yes, but of course he can't... those who do want to do it can do it. The union can't stop them. And I apologize for having forgotten that. It is important I think to remember the posture of the case, and the posture of this case is that summary judgment was granted to the respondents. So that while Mr. Rauh recites as fact that people can't get money from the members of the union, and the staff always supports the incumbents, the evidence in this record is quite the contrary. Indeed, there is virtually nothing supporting what he is saying, but more importantly, there is a great deal supporting the other side.
Speaker: Well, if you are talking about summary judgment, is there really any evidence in the record... I mean, in the sense that you would have after a case was tried.
Michael H. Gottesman: Well, there are... it is not the same. There are substantial affidavits that there are numerous people who have unseated incumbents in steelworker elections relying solely or almost solely on member contributions.
Speaker: Then are you saying if you win, it should go back for a trial to the district court?
Michael H. Gottesman: No. If we are right that 101(a)(2) doesn't create this right, we also moved to dismiss the complaint. And of course, the complaint didn't allege 101(a)(2), but I think we are entitled to have it treated as amended, since that is what the court of appeals relied on. Our position was they don't state a claim under the law. That is our first proposition. And if we are right about that, dismissal is the proper disposition. But if we are wrong about that and we are down to fighting about whether the facts are what Mr. Rauh says they are, there is not a fact he recited that can be accepted in the present posture of this case. Most of what he said has no record support; all of what he said is flatly contradicted by affidavits that show, as I say, that outsiders have defeated incumbents relying on contributions within the union; that show that Sadlowsky did not make a serious effort to raise money from the union because he did not have to, he had all the money he wanted from outsiders; that show that the staff frequently supports the opponents, sometimes unanimously supports the opponents of incumbents; that shows that the Staff are really just rank and filers, almost all of the staff are people who worked in the plant, worked their way up to local union positions, went on the staff. They are members just like everybody else. And they have the same rights to participate and they have contractual protection against any harm being done to them because they support whoever they choose or choose not to support. This record shows that 64 % of the staff did not support either candidate, at least financially in the 1977 election. It also shows that the union has 1,300,000 members, all of whom are eligible contributors: that other candidates have had no trouble with in-plant solicitation. The people who run for top office in the union... and the record shows this... aren't some person who doesn't know anybody. They are people who achieved some status, as this Court said in Buckley, they are incumbents of other offices. In that capacity, whether local union, whether staff, in those capacities they have gotten to know throughout this union, they have the mechanism by which they can get fund raising within the union going. The record also contains evidence of elections under this rule that successfully raised substantial money to oppose an incumbent.
Warren E. Burger: Your time has expired, Mr. Gottesman. Thank you, gentlemen, the case is submitted.


Warren E. Burger: Mr. Justice Brennan is unavoidably detained for a short period, but he will continue to participate in this case on the basis of the records, the recording of the oral argument and so forth. You may continue counsel.
Albert Harriman: Mr. Chief Justice and May it please the Court. At this time I would like to complete the argument on the equal protection phase of this case and get on to the second question which involves the allegations of a burden on interstate commerce. In addition to the exceptions discussed yesterday, the appellants' complaint of two others, one is that grants a longer load privileges to the hauling of pulpwood, pulpwood is produced on Wisconsin farms and this exception benefits farmers. They also complained of a twin trailer allowance in 55-foot lengths for hauling of milk from the point of production to the point of first processing. This also benefits farmers. None of these exceptions which are just mentioned or those we discussed yesterday, favors intrastate commerce at the expense of interstate commerce. None of these isolates local industry from foreign competition. These are reasonable classifications. They are designed to promote a proper police power public purpose.
William H. Rehnquist: Could an Illinois milk producer get an exemption under the milk exemption to bring milk into Wisconsin?
Albert Harriman: No, I do not think so.
William H. Rehnquist: The regulation on its face does not seem to prohibit, doe it?
Albert Harriman: Well, I do not know quite how to answer that. I think it is designed to let the Wisconsin farmers ship their milk to the point of first processing. I was not aware that it would be available for an other State farmer.
William H. Rehnquist: Is there anything in the record about how the Highway Commission whereby grants or permits has construed it?
Albert Harriman: I would think not because it is very new. It happened really after this case was heard. It is very new.
William H. Rehnquist: Oh! This exemption was created after the case was heard?
Albert Harriman: That is my recollection, yes.
Speaker: Mr. Harriman, yesterday, during the argument, Mr. Lederer told us that, as I understand him at least that no twin trailer combination of any length could be operated in your state without a permit and yet I notice in the District Court's opinion, it is stated that Section 348.08 concerns vehicle trains and provides that except by permit, no vehicle shall draw more than one other vehicle where the overall length of the combination exceeds 55 feet which would imply to me at least that a double trailer of 55 feet or less could be operated?
Albert Harriman: No, I do not think so because the 55-foot limitation in the statute applies only to two vehicle unit, a tractor and the trailer. It is limited to two vehicles.
Speaker: A semi so called.
Albert Harriman: Yes, semi, as the illustration on it.
Speaker: So that no double trailer of any length can be operated as a general rule without a permit.
Albert Harriman: That is my understanding.
Speaker: Is that a safety purpose or a shorter than 55-foot --
Albert Harriman: I think it has been considered to be a safety purpose. The --
Speaker: And that I just do not understand that --
Albert Harriman: Well, I suppose its history, the older case can say the whole thing. The Sproles case arose out of Texas. The Court said that a State may prohibit trains if it chooses to. It assumed that there in length and in configuration of trains, and of course I am talking about railroad trains, that there was an element of the danger.
Speaker: So if what you say is correct and certainly your brother on the other side agrees with you, the District Court really wrote its opinion under a misapprehension, did it not, when it said that a twin trailer of 55 feet or less could be operated without permit?
Albert Harriman: I did not realize that it is said that and --
Speaker: I have just read what it says.
Albert Harriman: I am sorry.
Speaker: And provides that except by permit no vehicle shall draw more than one other vehicle where the overall length of the combination exceeds 55 feet. In fact, your law provides that twin trailers of any length are prohibited.
Albert Harriman: Yes, that is true.
Speaker: So, that the District Court misapprehended the law, the State Law.
Albert Harriman: Apparently this provision regarding these new trucks, I believe was not called to the attention of District Court. I believe this is something that occurred after the decision.
Warren E. Burger: Let's assume that is true that the District Court was under a misapprehension, what do you think what impact does that have on this case?
Albert Harriman: I do not see any impact on the case. I do not understand that, that was the motivation behind their decision. We point out that the police power may be exercised to promote agriculture and industry, that it is not an improper thing to do. Upon what is argued that if you make a special exception for others, you must do it for all or at least you may do it for us, the plaintiffs in this case. This is similar argument that if you regulate one abuse, you must regulate other similar abuses. This Court has rejected that analysis in Sproles v. Binford. They said the legislature does not have to regulate all or none and is not bound to cover the whole field. Then in Railway Express v. New York in more recent case, equal protection does not require that all evils of the same type be eradicated or none at all. With the Court's approval I would like to proceed to the burden on the interstate commerce aspect of this case. We hope to have a little time to discuss that we --
Thurgood Marshall: We must get our facts straight on the burden when these trucks come through with the two trailers, they have to unhook when they hit the Wisconsin line?
Albert Harriman: Yes.
Thurgood Marshall: And then when they leave they hook up again?
Albert Harriman: Yes.
Thurgood Marshall: And that does not interfere with interstate commerce?
Albert Harriman: No, we do not contend that it does not. It obviously is a burden, but we think that it is a permissible one, but it obviously is a burden, no question of it. This Court has announced two different tests in deciding interstate commerce questions. The first one is the rational basis test, announced in South Carolina v. Barnwell and which this Court applies to highway safety cases. It is also announced another test we call the balancing test, it appears to have appeared first in the Long Train case in Arizona, Southern Pacific v. Arizona and more recently stated in Pike v. Bruce Church. The rational basis test has been applied in safety cases and the balancing test in other cases. The question before this Court is whether the balancing test should be extended and applied to highway safety cases. The older cases clearly pointed out that size and weight are elements of safety and may be taken into account by legislatures in regulating highways. The leading case in 1938, South Carolina v. Barnwell said that regulation of the use of State highways is peculiarly of local concern and the Court has never reiterated from this statement. It also said such regulations are inseparable from a substantial effect in the interstate commerce, and there they announced the test, this rational basis test whether the legislature in adopting the regulations has acted within its province and whether the means shows are reasonably adopted to the insight. They went onto point out that the State may impose nondiscriminatory restrictions as safety measures and said the Court does not sit as a legislature and that the reasonableness and wisdom are not for the Court. The court does not substitute its judgment even where interstate commerce is involved and it said the Court looks to see whether the legislative choice is without rational basis, that is statement of the rational basis test.
Speaker: Mr. Harriman, I am frank to say that I understood by this long list of exemptions that Wisconsin has do not always exempt conducts and like create just as much safety hazard on Wisconsin roads as the nonexempt?
Albert Harriman: I think comparing anyone truck in anyone spot, at anyone time, I think the answer would have to be yes. The hauling from plant to plant that we have like in American Motors, is a limited trip, we discussed it yesterday, it is 45 miles. These milk hauls, I do not know just what these milk hauls or where they go, but they go from the farm to the plant where the milk is hauled, delivered for processing. Pulpwood is hauled usually from a farm or field or would somewhere to one of our paper mills and of course these car carriers run over the State, and obviously their length is as dangerous or non dangerous, depending on which side of this case you take, as perhaps any other vehicle, but I think it is a justified police power exception because automobiles are very long and you can only get a few on a trailer. The extra 10 feet makes it possible for them to haul an extra two vehicles and of course the State v. Barnwell takes a position that it is better to have only that many long trucks running then to have a much larger number of long trucks running.
Warren E. Burger: Do you suggest that the State can be more tolerant on the safety factors with respect to local industries than interstate haulers?
Albert Harriman: Yes, if it is based upon a proper police power purpose, but I do not think that many of these are more tolerant on the locals than they are on interstate haulers. The hauling of these automobiles is one and they like shipping from Milwaukee to Kenosha on this plant to plant, that is something by its very nature an intrastate commerce. That kind of a thing could not be applied to interstate commerce by its very nature.
William H. Rehnquist: Do any of the exemptions apply so as to favor intrastate common carriers over interstate common carriers?
Albert Harriman: Well, without to and I have realize you are asking me for examples, without thinking of a specific example, I would have to say no. I do not think they apply in such a way as to discriminate against out of State carriage.
Speaker: You mean in the case that none of the exemptions are the goods hauled by haul for hire?
Albert Harriman: Oh! I am sorry, haul for hire. I do not understand that our law discriminates between a for hire hauler and what we call a private carrier.
Speaker: Oh! I know, but there is any of the milk carried for hire or any of the logs carried for hire?
Albert Harriman: Oh! I am sure that milk is carried for hire.
William H. Rehnquist: An interstate carrier could carry that as well as an intrastate carrier, could it not?
Albert Harriman: Yes, and some of those shipments would be interstate because they would go from the farm across the State line. The --
Thurgood Marshall: Is there anything in the record to show that any local options were denied or is it not a fact that all he had to do is to go and say, I am a local resident of Wisconsin and I would like an exception?
Albert Harriman: Well, I do not think he can do that. It would have to fit it into --
Thurgood Marshall: Does there anything in the record say you cannot?
Albert Harriman: Well, I think that the record shows that the we have a series of statutory, exemptions.
Thurgood Marshall: And you have a whole series of exceptions.
Albert Harriman: And you have to fit into those -
Thurgood Marshall: You have whole series of exceptions.
Albert Harriman: Yes and you would have to fit into those and if you did not--
Thurgood Marshall: And if trucks that are large as the ones that are being excluded?
Albert Harriman: Yes, yes the policy of the State is to have no trucks over 55 feet, but there are, there are these exceptions --
Thurgood Marshall: Unless they are local.
Albert Harriman: No, in do not think unless their the local. The hauling of automobiles is the best example that they do not have to be local and --
Thurgood Marshall: Although you do have a local one right there, American Motors?
Albert Harriman: Well that one yeah, that by it is very nature local, yes as two plants were located in the State.
Thurgood Marshall: What evidence if I may give the first one, did you put it in about safety? State put -
Albert Harriman: The evidence that the State have, well we had two witnesses, that is there are two witnesses. A man by name of Robertson testified as to a study he had made for, I believe it is the Insurance Institute of Highway Safety, comparing collisions between vehicles and comparing particularly larger vehicles colliding with small vehicles, and counting the severity of the damage in the number of deaths and in which vehicle the deaths occurred and things of that kind. That was the evidence we have put in. The other evidence was the testimony of our Highway Commission Chairman which I alluded to yesterday. We testified to the reasons behind Wisconsin attitude that he knew because he had been in the Legislature and he talked to --
Thurgood Marshall: And his testimony was the citizens of Wisconsin did not like these big trucks?
Albert Harriman: That pretty well summarizes this.
Thurgood Marshall: Well, did any of letters say, we do not like out of State big truck?
Albert Harriman: I do not know if that happened. It is the bigness that scares.
Thurgood Marshall: That is what what they were (Inaudible).
Albert Harriman: Yeah, sure.
Thurgood Marshall: And that is the only evidence the state put up?
Albert Harriman: Well, yes that is true.
Thurgood Marshall: To allow you to say that the State was interested in safety?
Albert Harriman: Yes, but --
Thurgood Marshall: You are putting no evidence to contradict all these government --
Albert Harriman: That is true.
Thurgood Marshall: You are putting no evidence to contradict that?
Albert Harriman: That is true. The evidence if we had it, would have been in the mind of the legislators as to why they acted this way and the best we could do was to offer Mr. Huber's testimony who had been there.
Speaker: Could I ask --
Albert Harriman: Yes.
Speaker: You may have covered this and I missed it. Did you say you agreed or you did not agree with the standard expressed by the Court in the Pike case?
Albert Harriman: Well, I agree with it, but I do not believe that it is applicable to highway safety cases.
Speaker: Do you think that just in safety cases it is a much looser step, the rational --
Albert Harriman: Well, in safety it is looser Pike said so. Pike makes the point of saying, but this is not like safety cases and referred to the Long Train case. Now, in the Long Train case, they were announcing, this Court was announcing that those restrictions were too much on the burden on commerce.
Speaker: Oh! Yes if they have put them aside, they may have put them aside as not judging them, but using instead a different standard?
Albert Harriman: Yes, yes. In the Long Train case they did some balancing and there they specifically said, we point out --
Speaker: Well, Pike is not a non balancing standard?
Albert Harriman: I am sorry Pike was not a non balancing. That is right Pike was a balancing standard, so was the Long Train case and in the Long Train case, this Court specifically said that this is very different from the highway safety situation, so each of these balancing cases has in effect distinguished the highway safety matters. In Railway Express Agency case this Court said that as to the burden on interstate commerce great leeway is allowed to local authorities, we are talking about highways now, even though the regulation materially interferes with interstate commerce. I have mentioned the Long Train case, and how they distinguish to Barnwell.
William H. Rehnquist: The Court has certainly made some distinction, has it not, between trains where the train operates over tracks owned by the Railroad Company and highways where the trucks operate over highways owned by the State in effect?
Albert Harriman: I do not recall that distinction being made in the cases. The point was that the highway safety is more pertinent to State regulation than train safety. That is the way I read the Long Train case.
William H. Rehnquist: Well, you think that then is the distinction between Arizona v. Southern Pacific in Barnwell?
Albert Harriman: Yes. The Bibb case was one involving an Illinois regulation regarding mudflaps and it was very restrictive because only Illinois required it and Arkansas prohibited it and other States would accept either one. The Court there said that if there were only the cost of this thing we would not strike down the law. We would apply Sproles, Barnwell and Maurer. They also said the same thing if we had to resolve the safety issues, but they said here the burden is too great because of this problem of interlining. Interlining is the problem, is the function of transferring trailers between carriers. They said here the burden is too great because of interlining. There is the Full Crew law case that we have cited where the Court said they would not attempt to balance, and then the Pike case where they did develop this balancing test and said that it will be upheld, the statute would be upheld unless the burden is clearly excessive in relation to the local benefits, but they said we are not here dealing with the State legislation in the field of safety where the propriety of local regulation has long been recognized and that is when they cited the Long Train case.
Speaker: Did not cite Barnwell, did they?
Albert Harriman: I believe not. For that proposition they cited just the Long Train case. I believe they did not cite Barnwell and the problem of interlining which was so pertinent in the Bibb case, we say is not much of a problem here in these twin trailers. We say that the Wisconsin Law does not prevent interlining. Trailers can be hauled singly. This makes it more expensive, but it does not make the problem of have to change fender guards.
Speaker: As a matter of physical, mechanical fact can each one of these double trailers be hitched down to a semi and --
Albert Harriman: Hitched singly, yes.
Speaker: There is no difference in the coupling (Voice Overlap)
Albert Harriman: They are interchangeable, they are the same unit, yeah. We say that Bibb stands as an authority.
Thurgood Marshall: So you have to put a -- When you do put it on, you have put a flywheel on the back or the --
Albert Harriman: All you have to do just take off the rear dolly and that the rear trailer will fit on the, it is called the fifth wheel, it is flat diskettes on the back of a semi of the truck or tractor.
Thurgood Marshall: In the back of a tractor?
Albert Harriman: Yeah, they fit. Bibb's --
Thurgood Marshall: (Voice Overlap) onto back of the first trailer, you have to put another dolly on it, do you not?
Albert Harriman: No, but to hook up two trailers yes.
Thurgood Marshall: Yes.
Albert Harriman: Yes, there is a dolly.
Warren E. Burger: Do you have anything further Mr. Lederer?
John H. Lederer: May it please the Court. In answer to your question Mr. Justice Stewart on interchanging these vehicles, it is true that each of the vans of a twin trailer can be hauled separately by a twin trailer tractor, but a twin trailer tractor is a different piece of equipment than a semi trailer tractor. A twin trailer cannot be interchanged with a semi trailer tractor and similarly a semi trailer van cannot be placed on a twin trailer tractor. Thus Wisconsin by forcing use of semi trailers in the State of Wisconsin and through the State of Wisconsin interferes with interchanging of equipment, because the Wisconsin equipment is not compatible with the equipment used in the other states. The equipment which is the industry standard for general commodity carriers. I think it is pertinent in this case that the State Highway Commission where the authors of the administrative regulation which bans the twin trailers of any length or prevents permits for being issued for them, the Chairman of the Commission was asked whether he had any opinion as to the safety of these vehicles. He stated that he was not prepared to comment on that and would choose not to comment on it. No Wisconsin highway official has testified that twin trailers are unsafe. Indeed the only Wisconsin highway official who had an opinion as to their safety, Mr. James Carn (ph) who was the Motor Vehicle Commissioner of the State, testified that he had reviewed the record, not the record in this case, but he had reviewed various reports and surveys in preparing to testify before a public hearing and he had concluded that twin trailers were safe. No one in this entire record has stated that twin trailers are unsafe, no one. The consistent opinion of the experts, the consistent opinion of State officials who had experience with these vehicles is that they are safe. I think this factor removes this case from other cases. The Court is not called upon the second guess the State legislature. Here the State legislature or the Highway Commission more properly has made a decision apparently on no data, but it is done as it permitted in anachronism to exist in the State. They are unable to justify the burden that they have imposed on interstate commerce by anything other than the supposition that it might serve safety and that supposition has been destroyed by the evidence in this case. Only if there is an irrebuttable presumption, a presumption where it does not matter what the facts are, an irrebuttable presumption that vehicle size is tied to safety to I think that the State of Wisconsin should prevail in this case because that is the sole thing that they have going for them. The presumption and the assumption which seems a reasonable one the surface that larger vehicles are less safe vehicles, that is not the case here. I thank the Court.
William H. Rehnquist: Mr. Lederer on discriminatory aspect of your claim, do you think that your client as a carrier can raise a claim of discrimination as between Wisconsin manufacturers and out of State manufacturers, if the treatment between interstate carriers and intrastate carriers is even handed?
John H. Lederer: I believe they can in regard to the inter plant permits because those permits apply not just to the manufacturer but to the manufacturer or its carrier, but there is no difference in the application that I know of to the carriers themselves. In other words, if we were to assume that American Motors or perhaps as Cardwell Boat Company which runs boats from one side of Wisconsin to the other, desired to hire an out of State manufacturer or out of State carrier to carry its boats, presumably it could, but that would seem unlikely given the situation.
William H. Rehnquist: But you do not contend there is discrimination as to in manufacturers' right to hire an interstate carrier as opposed to an intrastate carrier for that purpose, do you?
John H. Lederer: No, I do not think there is discrimination there. I think the discrimination that exist here is the fact that Wisconsin has exempted so many of its own industries, those that are of importance to the State from the regulation while continuing to apply the regulation to industries not important to the State.
William H. Rehnquist: Can you as a carrier object to discrimination against an industry if there is no discrimination between the carriers?
John H. Lederer: Yes, I think we can.
William H. Rehnquist: What is your authority for that?
John H. Lederer: I do not --
Speaker: Has not the rule then does discrimination against interstate carriers. Is not that the distinction between intrastate commerce and interstate commerce?
John H. Lederer: Yes, I think the --
Speaker: If an interstate carrier, if a carrier that engages in interstate commerce hires out to do some intrastate commerce, it is still engaging in intrastate commerce at that time, does it? I mean if you hired out to carry to do the inter plant carrying you would still be an intrastate commerce I suppose for that purpose?
John H. Lederer: That would be correct and that would as I suppose provide a basis for discrimination between interstate carriers and intrastate carriers in the sense that many of the exemptions that Wisconsin gives, it gives only to operations within the state. Certainly that is true in regard to the inter plant permits. I thank the Court.
Warren E. Burger: Thank you gentleman. The case is submitted.