Earl Warren: Number 44, United States of America, Appellant, versus International Union United Automobile, Aircraft and Agricultural Implement Workers of America. Mr. Rauh.
Joseph L. Rauh, Jr.: May it please the Court. The indictment in this case can be stated in a single sentence, just one sentence that the United Automobile workers used union dues to pay for television broadcasts which urged and endorsed the election of certain Senators and Congressmen in which it included expressions of political advocacy intended to influence the public. That is the entire indictment. The Union asked for no bill of particulars because it read the indictment to charge no more than the use of union dues to pay for television broadcasts and to make the Union's position on federal candidates known to its members and the general public. In other words, if Your Honors please, we read the indictment as charging a C.I.O. case type statement of union position over a different media of communication and we deemed the case as we thought the Government did a proper vehicle for settling the question whether a commercial telecast would be treated differently from a statement in a house organ the contents of the communication being similar. We move to dismiss on the ground that the indictment so interpreted did not charge in expenditure within the meaning of Section 610 and if it did was unconstitutional. I believe the Solicitor General inadvertently left out the fact that we had moved on statutory construction as well as on constitutional grounds. I only refer to it because it does differentiate our action in this respect to that of the defendant in the C.I.O. case some years past.
Felix Frankfurter: Take a minute Mr. Rauh and state what you concede to be the difference in view of the Solicitor General as to the charge of the United States.
Joseph L. Rauh, Jr.: Yes, sir. We say that the charge and we believe the judge said that the charge is a C.I.O. type statement going out over a commercial television station. The Government --
Felix Frankfurter: Suppose you leave out what the C.I.O. case this time and just --
Joseph L. Rauh, Jr.: No, I meant by -- sir, I meant that it was the type of editorial that the content of the communication was similar to that in C.I.O. and that we are charged with taking that type of communication and putting it over a commercial television station. That's what we conceive the indictment to be. The Solicitor General I believe conceives the indictment to be that allows him to prove in addition to what we say it is in the indictment two other things. First, a different in content which would include I suppose such things is simply saying both corrects or simply parading the candidate's words. He could prove they say a difference in content and a difference in the intent. In other words, they claimed the right to prove that we intended to make a contribution. Now, what we say and what I believe they said in the court below and we have filed it, sir with the Clerk our briefs below too, so that they are available to the Court and the references are in our briefs. We contend that below the Government said to Judge Picard, “Distinguish the C.I.O. case on the ground that there's a difference between a commercial television broadcast and a house organ.” They never suggested these differences of content of the statement that was to go out nor did they suggest any difference of intent over the -- to make a contribution and indeed I would point out that the indictment contains no reference to such an intent and the representative of the Government in the court below made clear that they were not charging a contribution. That appears, if Your Honors please, on page 24 of the record about 15 to 20 lines up of the --
Felix Frankfurter: Why is it -- why -- I'm puzzled by the pertinency as to which both of you discloses the indictment. I suppose you can agree on this, in neither case, if the C.I.O., the other one was -- in neither case, the C.I.O. case in the overview with this expressed view of the Union about existentialism or the situation in the contrary. In each case they said, “It is to our interest to promote the election of Smith” --
Joseph L. Rauh, Jr.: Right.
Felix Frankfurter: -- right?
Joseph L. Rauh, Jr.: Right.
Felix Frankfurter: But now, why all this fuss?
Joseph L. Rauh, Jr.: Well, I could only say that this fuss is apparently that we feel and sir if I may, I make this point clear that I am not now arguing the significance of the difference. I was trying to explain the difference and then I got ahead of myself yesterday in arguing the significance of the difference.
Felix Frankfurter: I -- I think that's precisely my point.
Joseph L. Rauh, Jr.: I would like --
Felix Frankfurter: (Voice Overlap) from the content of the indictment which to me in both cases did a vote of the Union to say it is to their interest that Smith should be elected.
Joseph L. Rauh, Jr.: Precisely.
Felix Frankfurter: Do you accept that?
Joseph L. Rauh, Jr.: I -- without reservation.
Felix Frankfurter: Well, I can go on and talk about the significance in the means by which that was enforced.
Joseph L. Rauh, Jr.: Just to bring -- I want to do that. Just to bring the point to conclusion if I may. The -- we say and I don't want to interpret the Solicitor General anymore than -- than that as to reopen it. We say that the indictment charges, the same type or both for Mr. Smith that it -- what occurred in this -- in the C.I.O. case and the charges we did it over a commercial television station. Now, that is the case as we see it. We say that that's what the indictment charges. That's what the District Court said it held and that is exactly what is before Your Honors here.
Hugo L. Black: What is the relevance of the emphasis on the fact that this came out of union dues, Mr. Rauh?
Joseph L. Rauh, Jr.: Well, it -- sir, if it came out of voluntary funds, then everyone agrees that it is not a violation. There's nothing in the statute that says that. Just -- for example, take COPE, that's a committee on political action -- on political education of the AFL or C.I.O. They get voluntary funds paid separately from union dues from a number of members. Everybody agrees that an expenditure by COPE or a contribution by COPE is legal. Now, the reason everybody agrees that is -- I think the Government is under some misunderstanding about the statute on this point but we agree as to the result. They think the statute doesn't apply because COPE is not a labor organization. My judgment, COPE is clearly a labor organization under the statute but it doesn't apply, if Your Honor please, because Senator Taft made clear on the floor of the Senate that voluntary funds not part of dues could be used for any purpose and whether you -- whether you use the Government's interpretation or ours, the fact is that there's never been an indictment for voluntary moneys and --
Felix Frankfurter: You don't have to -- you don't need Senator Taft's statement to reach that conclusion. If you just read the statute, any labor organization to make a contribution. If you're just a (Inaudible) of other people's money then you're not taking the contribution.
Joseph L. Rauh, Jr.: That would be another interpretation to reach the same answer.
Hugo L. Black: Is there any other Act that attempts to regulate the way union shall spend their dues? I don't quite understand the emphasis of the sound as a whole that -- the theory is that the Unions are trying to -- members are trying to be protective on how their dues will be paid (Inaudible).
Joseph L. Rauh, Jr.: The Government is contending, sir that that is the justification for the statute that it's a protection of the minority members of the Union.
Hugo L. Black: Is there any statute which cover -- which has attempted to regulate the way the Union shall spend its --
Joseph L. Rauh, Jr.: No. And as I would --
Hugo L. Black: (Voice Overlap) --
Joseph L. Rauh, Jr.: -- say that when we come to -- as of -- when I come to this point, I would like to point out that this statute is not directed at the minority but of taking unions out of politics. Now, sir, gentlemen, on the question of the statutory construction of the indictment as we interpret it, we firmly believe that this Court should affirm the decision below because this case is governed by the C.I.O. decision. There, Mr. Murray then president of the C.I.O. in an editorial which accused Mr. Garmatz's opponent to the Union's support of being a notorious anti-labor (Inaudible) and the like, this Court despite that clear political advocacy held that statement outside the statute because of the gravest constitutional doubts that would be raised if in fact that were included. And the following year, the Second Circuit Court of Appeals in Painters Local on a case which the judge -- court below and we submit is on all fours with this case held that the expenditures were not within the statute. There, a local union advertising a newspaper and over a radio as follows. We want Senator Taft defeated for president. We want all the Republican congressmen defeated in the coming congressional elections. It was a clear electioneering. It was paid broadcast and paid newspaper advertising and it is in all fours with this case. The learned Solicitor General suggested yesterday that the Second Circuit treated the case as being controlled by the facts. I must most respectfully disagree the Court or Augustus Hand, Clark and Frank said, “It is impossible on principle to differentiate between the C.I.O. decision and the facts before us. Indeed, the Court went on to make perfectly clear they were making a decision on principle. As we point out in our brief at page 36, the Court said that any distinction between the C.I.O. case and an independent newspaper or radio station and I quote from Judge Hand's opinion, “It seems without logical justification nor such a differentiation suggested by the apparent purposes or by the terms of the statute or by the legislative history.” Now, the Government accepted this for six years. For six years after the C.I.O. and Painters Local case, there were no indictments for following the Painters Local case. And if I may call Your Honors' attention to the fact that last May, the Assistant Attorney General and whose jurisdiction of this case falls and months before this indictment was brought told a committee investigating this problem, they, the Supreme Court expressed so many doubts about it referring to the statute, all of them did, that it made it about impossible certainly impractical to prosecute under the statute. In other words, for six years it was government policy to interpret the Painters Local case exactly as we interpret it today. For six years, it was government policy to treat the C.I.O. case as applicable to statements over in the newspapers, purchase statements and the purchase statements in radios. And it is only today, sometime later that the Government has changed its interpretation of the C.I.O. case and of the Painters Local case. I would suggest if Your Honors please that on page 6 of the Government's reply brief, there is a suggestion that they did not prosecute during this period because there was a wide area where unions may and do operate without contravening the statute. This statement appears at the end -- towards the end of Footnote 3 of the Government's reply brief. This in answer to our contention that for six years we have been allowed this latitude of the Painters Local and the Government says, “Oh no, we were only allowing you a wide area where unions may and do operate without contravening the statute.” What they are saying there is that they were allowing us to spend voluntary money.That is not the situation. For six years, unions continued to rely upon Painters Local and only now for reasons not disclosed was there a change in governmental policy to take Painters Local out of the situation and say that the C.I.O. case has a different meaning than the three distinguished judges in Painters Local held (Voice Overlap) --
Speaker: Did the situation of the C.I.O. case and in the Painters case are both outside the statute, do you state a hypothetical kind of a situation that you think would be within the statute?
Joseph L. Rauh, Jr.: Yes, sir. As the Court in the C.I.O. case said, the statute was -- the word “expenditures” was intended to eradicate the -- the doubt that had been raised as to the reach of the word “contribution” not to extend greatly the coverage of the Section. And I would say that an expenditure for example take a union man, a union employee and put him in the headquarters of the -- of the candidate. Give him -- give the -- give the candidate some facilities that you have available. Give him off a space, things that don't seem to be exactly a contribution as Senator Taft said, “I think the contribution means more than some people think, but we're putting -- we're -- we're putting expenditure in not greatly.” As this Court said not greatly to extend contribution but to give, make it clear that you can't have these indirect contributions and I say that if you -- if the Union wants to put its people to work for the candidate, that's an indirect contribution or an expenditure, facilities would be. Now, I would go farther and say that there are borderline cases where speech might be. This is not before the Court and this maybe what I've been trying to say so unsuccessfully. There were borderline cases of speech which are not involved in this indictment which this Court may have to decide someday, where one could argue that it's an indirect contribution and therefore an expenditure was in the meaning here and still, speech for example. I would say if we did nothing but put on vote for X, that might be treated as an indirect contribution. I would say if we paid for the candidate's broadcast that would be an indirect contribution. Now, whether we're part from doing that under the Constitution remains to be seen. I only say that case is not here. What is here is the expression of views of the type of the C.I.O. case expression of views and that this clearly is outside the statute and that there are plenty of things left to give meaning to the word expenditures even things which are within the realm of speech where this Court may someday be faced with the problem but where it is not faced today.
Felix Frankfurter: Mr. Rauh, suppose the -- assume that the United Mine Workers had done in the last campaign firstly, what they've refuted to have done in the 1936 campaign. Could that be within or without the statute?
Joseph L. Rauh, Jr.: Well, that's a clear violation of law, sir. That was a contribution. We do not here contend that --
Felix Frankfurter: Why was it -- why was – why is it a clear violation? Why did you let the action speak louder than words? The action speaks of words by the manifestation of their views?
Joseph L. Rauh, Jr.: To make it --
Felix Frankfurter: Why is it a violation of the statute?
Joseph L. Rauh, Jr.: The statute, sir --
Felix Frankfurter: Doesn't -- the statute doesn't say anything about speech or how they can contribute?
Joseph L. Rauh, Jr.: But it -- see, the question of speech is relevant to giving the statute a narrow construction so that questions of constitutionality as to speech will be avoided. Now, one might argue --
Felix Frankfurter: -- $300,000 to $600,000 just on (Inaudible)
Joseph L. Rauh, Jr.: One --
Felix Frankfurter: This kind of speech.
Joseph L. Rauh, Jr.: One might argue and someday I may be here arguing that a contribution is protected because of the very reason you gave. I only am suggesting in answer to Justice Harlan's question that there are other expenditures which will still be under the Act even if you take the expenditures for which I am arguing out from under the Act. Whether a contribution would not be allowed -- whether prohibiting a constitution may not someday be held to be a violation of the Constitution, I do not know. This Court does not have to go nearly that far here.
William J. Brennan, Jr.: Mr. Rauh, suppose the Union took billboards all over town? Take the expense of the rental or whatever it is that you have to pay them, these billboard space, will that be within or without the statute?
Joseph L. Rauh, Jr.: That's a very close -- that's the borderline case, sir that I say is not here. In my judgment, free speech protects it.
William J. Brennan, Jr.: Well, suppose -- suppose what the --
Joseph L. Rauh, Jr.: But I say that -- that of my view -- what I really was trying to -- why I spend so much time on the position was that I was trying to -- to really show that this case is much narrower.
William J. Brennan, Jr.: Well, suppose all that the billboard set on it was, it is to the interest of the automobile workers that you elect candidate X. That's all that the billboard says.
Joseph L. Rauh, Jr.: I hope someday to be here defending the right to do that.
William J. Brennan, Jr.: Well, apart from that speech argument, will that fall within or without the statute?
Joseph L. Rauh, Jr.: Well, sir, it is an -- sir, the only way you can limit the statute is based upon the speech argument. This -- the word is expenditures. The word is broad therefore it becomes a matter of limiting it to avoid the constitutional issue. I would say that we would contend that that Act is protected by the First Amendment and you -- the Court will be faced either with so ruling or limiting the statute to avoid deciding that.
William J. Brennan, Jr.: Yes, but you're not -- as I understand it, you're not relying on the free speech argument to support the expenditure to say “just that much” in the way of a paid commercial television broadcast.
Joseph L. Rauh, Jr.: We are sir, relying on the free speech argument but we say that it is much clear when you are stating your own position that when you are making what come so close to a -- a contribution as just to put up a poster with the picture of the candidate --
William J. Brennan, Jr.: I'm not suggesting the picture, just the poster that says, “Nothing more than you say is all that you've said or you're charged with having said and paying for a commercial telecast.” That is, it's to the interest to the UAW that you elect candidate X.
Joseph L. Rauh, Jr.: When that case comes, Your Honor, we will say that it is not an expenditure because the statute should be limited to avoid the constitutional doubts that would be involved if it wasn't and that if it isn't so limited, it will -- it's unconstitutional. I only say that case is not presently before you.
William J. Brennan, Jr.: Well, but all you've said -- all that you've said to me now is that there is no difference between the paid telecast and the paid billboard.
Joseph L. Rauh, Jr.: No. I say there is a difference and the difference is that in the paid telecast, we gave a reason in defense of our position. We were advocating a position. This other -- if you want to treat it as advocacy of a position, it's the same. Some other parts including the Government say, "That's really an indirect contribution. It's the same as if you're given the billboard space to the man himself." Now, I would say that it is not the same, but I would say it is different, from a 15-minute or half hour telecast in which you make a speech for a candidate simply to say the conclusion vote for X. We would argue that the latter was protected, but we do not have to maintain that position in order to maintain our position here.
William J. Brennan, Jr.: Well, now, what you said to me is that the more words you say, the more surely it's not an expenditure.
Joseph L. Rauh, Jr.: I think that's right, sir. If I -- it may sound somewhat strange, but the fact is --
William J. Brennan, Jr.: It doesn't --
Joseph L. Rauh, Jr.: That the more you say, the more you are injecting your own position into the matter and the less you are simply trying to -- to give a conclusion the -- the less it seems to be an indirect contribution.
Felix Frankfurter: Mr. Rauh, one aspect and I don't -- and I'm taking your time on consideration that bring me short of a constitutional question, do not (Inaudible), I am. I'd like to put this to you because it bothers me though I suspect there's nothing to it because no -- it doesn't bother anybody else in the printed opinion. The statute says “in connection with” and on the proposition to which you're addressing yourself, giving a construction to which put you this side of the constitutional problem. I do not find it difficult as a matter of inquiry, as a matter of judicial interest. The reading connection with as especially relating to and therefore differentiate between an intervention for an added time pay and having a continuous organ which addresses the position of labor and in connection with that when election times comes around, speaking to that subject as during the rest of the years they talk about other subjects. In other words, I do not know why in connect with that have been sliding in the discussion of the meaning of the -- of the statute.
Joseph L. Rauh, Jr.: We have now -- we have not felt that it broadened the statute and the Government as --
Felix Frankfurter: I think it's narrower, not broadened.
Joseph L. Rauh, Jr.: Well, maybe I have --
Felix Frankfurter: Or, is that the way you look at it?
Joseph L. Rauh, Jr.: I --
Felix Frankfurter: All right.
Joseph L. Rauh, Jr.: All right, sir, I -- I can agree with -- with that. I say for four reasons this is governed by C.I.O. The literal language is equally applicable. It's a -- there is no difference. Money was paid out.
Speaker: Before -- before you go on that, would you take this to consideration as to whether -- whether or not there is a difference between including something yourself or getting other people to do that for you?
Joseph L. Rauh, Jr.: I felt there might be a difference, if Your Honor please, and it was for that reason that I was suggesting we had a more protected area of activity that there is a difference between a contribution in which you are handing over money and then he can then use it in anyway he wants. And then there is the corrupting influence that's involved in giving money to someone. And yourself going out and saying what you believe and without any corrupting influence, can they -- may very well not like what you're saying --
Speaker: (Inaudible)
Joseph L. Rauh, Jr.: -- very often in a community. The Union will be saying something for the candidate that the candidate himself might not have chosen to make it and you have seen it in many areas in the last years where unions have been campaigning on certain issues that the candidate himself was so friendly.
Speaker: But in the C.I.O. case, the Union acted for itself with its own agency.
Joseph L. Rauh, Jr.: Yes, sir.
Speaker: In this case, they hired somebody else to come inside.
Joseph L. Rauh, Jr.: Oh, no. There is no such charge. We are on a television broadcast but it is that the Union was on the television broadcast that it's only that there was an intermediate agent here who -- an agent -- we always have an agent to hire you a hall or to hire you a television program, he gets a --
Speaker: It's all right with paying the root cause of wavering (Inaudible), to defray the expenses of preparation and telecast, political broadcast.
Joseph L. Rauh, Jr.: That's correct. They -- we gave them the money and they gave it to the television station and we spoke over the television station. There is no suggestion that -- that these people spoke over the television station. I'm sure that there's never been the slightest suggestion of that. I can assure you that they did not, sir.
Speaker: Of course the way the case comes to us, we really don't know what was said, do we?
Joseph L. Rauh, Jr.: No, sir. What --
Speaker: Well then, what is fundamental is really basic to your position, isn't it that that we have to read the indictment as you say the District Court construed it? If that position of yours is rejected, then certainly the holding is broad enough to encompass a lot of these borderline questions which even you would recognize as being possibly --
Joseph L. Rauh, Jr.: As being borderline (Voice Overlap) --
Speaker: Borderline questions and we really would be justified would we in -- in saying that the indictment is not charged of crime under the statute?
Joseph L. Rauh, Jr.: I believe that if you -- if that came, then you would be reversing an interpretation. It would have to send it back or send it to the Court of Appeals. I quite agree that -- that you'll have -- you'll -- that we -- we would be -- we are now predicating the request for an affirmance on the --
Speaker: On the --
Joseph L. Rauh, Jr.: -- on the interpretation. What you would do afterwards if these were incorrect. I'd like to come to -- may I just -- I'd like to just state the four -- I'd -- the four reasons why this case is identical with C.I.O. The literal language is identical. The legislative history is identical indeed. If there's one thing that the legislative history makes clear, it is that you cannot distinguish between a house organ and commercial broadcast. The great constitutional doubts that would be raised are equally applicable and there is a fourth reason which is the most important of all. If this Court makes the distinction between our talking to ourselves and our talking to the public, this Court will be setting up labor as an enclave in American life where it has never been. Congress didn't suggest that we be allowed to communicate freely with our own members and try to build them into a labor unit, into some sort of a pressure operation on political life. It would be this Court's distinction, never suggested by Congress that would occasion that. In other words, every reason of policy which has been that labor becomes a part of the community, every effort by the UAW which has been in the forefront of this to make a proposition of community first labor into a second goes by the boards. You would be encouraging contrary that it seems to me, every policy of American life. You would be encouraging us just to work inside of labor and just to build it as a political movement. What we are asking for here is simply to have the right to say the same things outside of the labor movement that we have been given the right by the C.I.O. case to stay inside.
Felix Frankfurter: Mr. Rauh, you made a distinction between the divisions of the statute, limiting the conduct of the corporation within the organization.
Joseph L. Rauh, Jr.: We believe that under many circumstances, the corporation would be the same. We -- there are legal differences. There are illegal differences. There are factual differences but we --
Felix Frankfurter: Are these --
Joseph L. Rauh, Jr.: We see no reason why a corporation should not state its views to the public on political issues.
Felix Frankfurter: Because the question was of the freedom of speech consideration (Inaudible)
Joseph L. Rauh, Jr.: Yes, sir. There are -- one might draw a distinction. We are not urging such a distinction.
Hugo L. Black: Suppose the corporation should buy all the stock and the newspaper, would -- how would the newspaper get away from this Act?
Joseph L. Rauh, Jr.: Sir, under -- under the Government's interpretation, they could not. Under ours, our -- our interpretation makes everybody equal. The newspaper is stating its views. The corporation is stating its views and the Union is stating its views. Now, what does the Government say about the difference between this and C.I.O.? The Government refers to literal language, but it's the same as it refers to legislative history, but it's the same -- but it's even clear that they intend no such extension. It says that we are emasculating the statute but it's my answer to Mr. Justice Harlan, there is plenty left. And finally, and this is really at the crux of the case. The Government says at page 17 of their brief, at the bottom of page 17 that what we are doing differs but little from a direct contribution. The distinction lies only in the fact that in one instance the candidate would apply contributed bonds to purchased television time and then the other, the Union would buy it for him. No. We are not making a contribution. We are stating our position that it may or may not benefit the candidate. It may or may not be what he once said. It has none of the corrupting influence of a contribution and finally, I'd like to return to Mr. Justice Frankfurter's question of yesterday. I agree on reflection that there are two motives that we share in stating our position. There are -- it's the motive of wanting to win the election and there is the motive of wanting to state your position, but I say it is relevant that there is the motive of -- of stating your position, which maybe protected by the Constitution more likely than the motive of handing over money. Therefore, having the two motives is not a negative practice such as was suggested yesterday but a positive factor. And in conclusion on this point only, I would like to make this statement. Before leaving the question of statutory construction, I should like to advert to the contention of the Solicitor General and particularly to his answers to Mr. Justice Reed and Mr. Justice Harlan that the appropriate action of this Court would be the hold of the indictment charged in offense within the meaning of the word expenditure and then return the case to the District Court for a trial to decide whether such a limitation was constitutional. But that's the opposite of years of history of this Court. It would mean separating the question of statutory construction from the question of constitutionality. Those must be decided together. Suppose the Government had come here in C.I.O. and said, “Treat this as expenditure and let it go back to the District Court to decide whether it's constitutional.” Then, the very reason that this Court gave for its interpretation would not have been considered. You cannot, if Your Honors please, separate the constitutional question from the question of statutory interpretation because in this field more than any other one, the question of statutory interpretation depends in large measure through the doctrine of constitutional doubts upon the question of interpretation and that they are interrelated. Now, therefore, if this indictment is precise enough, it's clear enough so that you can make a decision on statutory interpretation. The Court will be faced with the constitutional decisions. Now, we say it is clear enough if interpreted to charge no more than a C.I.O. type advocacy over a commercial television station, and if it charges that and no more then this Court by avoiding the great constitutional doubts involved, if we as a union are prevented access to the media of communication should interpret the word expenditures as excluding that indictment as interpreted by the District Court and affirming, but the one point it seems to me is clearly erroneous. In the distinguished argument that was made yesterday was the suggestion that you decide the interpretative issue and let the constitutional one go back for trial because you would then be deciding one-half of a coin that cannot be split apart. And now, turning if Your Honors please to the -- in the remaining time, to the question of constitutional --
Felix Frankfurter: Before you do that, Mr. Rauh, a little while ago, a few minutes ago, you said, you indicated without explaining at least to my ears, that on the second circumstance, the case would have to be returned to the District Court. You said, “Or to the Court of Appeals,” now, what -- under what circumstances we have to certify this case to the Court?
Joseph L. Rauh, Jr.: If Your Honors believe that the Government was seeking to bury the interpretation of the indictment and that they had a right to bury it at this time, I would say under no circumstances should it go to the Court of Appeals as we have briefed, because they didn't raise this -- these interpretative questions before the District Court. But if Your Honor should overrule me in two respects, should first -- well, if Your Honors should -- should hold, they did raise these interpretative points on the indictment below and should hold that they are trying to bury the indictment. Then, I would say that it should go to the Court of Appeals.
Felix Frankfurter: And on the question -- whether or not there was bearings in their argument would very extend a rather -- dwell upon a restriction, technical (Inaudible) --
Joseph L. Rauh, Jr.: I was not --
Felix Frankfurter: -- as a new way of -- in using it.
Joseph L. Rauh, Jr.: I was not so using it, I should not have. We come then to the basic question of constitutionality.
Earl Warren: Mr. Rauh, before you get to constitutionality, I would -- would mind elaborating just a little on -- on what you said to the effect that this was not a statute to protect the minority in the -- in the Unions.
Joseph L. Rauh, Jr.: Sir, that is my --
Earl Warren: You do -- you stated it -- you didn't elaborate, would you mind doing it?
Joseph L. Rauh, Jr.: Well, sir, I will do that right this moment as part of the constitutional argument.
Earl Warren: Oh, well, if you're going to do it, then we -- all right, (Voice Overlap) --
Joseph L. Rauh, Jr.: I can do it right now. I can say to -- just to vary the order I was going to follow that I -- that the fine presentation of the Solicitor General yesterday can still be boiled down to that of a murder defendant who said, “We didn't do it but we were justified in it.” I will leave aside “we didn't do it” for a moment and come to “we were justified” because there, were justified as based on this minority argument. If Your Honor pleases, this statute has nothing whatever to do with minorities. This statute applies if every member of the Union supports the expenditure. This statute applies if every member of the Union supports the same candidate. This statute applies whether there's a union shop or not. This statute applies even if you have a contracting out arrangement. Now, by that, I mean necessarily. Our union expands its funds in this area for political broadcast out of a thing called The Citizenship Fund. We allow any member who wants to -- to say he does not want this money spent for political activity and it will go to some citizenship funds such as the American Heritage Society. In other words, while the Government defends this statute on the ground that it was intended to protect minorities, it is not a protection of minorities because you could have done that much simpler. Why didn't they say, “Let some -- let the minorities if they want to have the right contract out of the fund” or why didn't they say “it's all right if there isn't any minority.” Senator Taft made clear what they were doing. Senator Taft said, “The purpose of this Bill is to take labor out of politics.” And the Solicitor General yesterday with commendable candor said, “The purpose of the Bill was to minimize the influenceable of labor at the time of an election.” That was the purpose. There was no purpose of protecting the minority because the statute isn't aimed at the minority problem,” and in the area of free speech where this Court has so many times made clear that the -- that the limitation on speech must be as narrow as the evil presented. If they were going to deal with the minority problem, it was absolutely essential that they limit the matter to the minority problem as that to say, “Unions, you're out of political action.” And as we say in our brief and we have made a great deal of -- of this point, this statute was not aimed at minorities because they were unanimous. We can't act. If we have a contracting out scheme, we can't act. If every member of our union wants to go further to this, we cannot act. So, that's what I meant, sir, when I said that this does not deal with the minority problem. Now, what we have here is a denial of access to the public of the collective use of union members, denial of access to press, television, radio, magazines, public rallies, letter writing campaigns. What this statute does is to put in the hands of the opponents of labor the right to decide whether the voice of labor maybe heard. If we want to put our position out, the decision then whether it shall be heard if the statute is valid becomes a decision of Hearst, Howard and (Inaudible). They control whether we get heard, but if can buy the time then we decide whether we could be heard. This statute as I say denies union's access to the media of communication except at the will of the opponents of labor, and it's a denial of free speech at the very heart of the democratic process. The great decisions of this Court in Stromberg and in Near, the great dissent in Whitney are based on the proposition that free government by free men depends upon all discussion of the great issues of political life. If there is to be peaceful change in America, it must come from the -- these orderly processes of democracy in which the great segments of the population can be heard. Now, this Court's protections of the First Amendment have gone far beyond what we are asking, not only has a presumption of constitutionality been reversed, but lesser restriction such as taxes, licenses, regulations on extremer sects have been knocked out by this Court without reference to the degree of -- of influence of the ideas involved. What we have here is not a partial restraint on noxious doctrines but a complete prohibition on politically significant speech. Can it be that speech, free speech is intended to protect extremer sects but not those groups where there will be actual influence on the processes of democracy? Is speech importantly only to the point of actual influence on the workings of American life? Well, I think the answer speaks for itself and if the Court please, political activity has been an integral part of trade union activity in America for the 100 years of our political activities.
Speaker: Do you say that the statute is also unconstitutional as applied to a business corporation?
Joseph L. Rauh, Jr.: There are differences, sir, between a union and a business corporation. A union is a group of men with a common interest. A business corporation gets its -- has its control in the man who owns the most stock. It gets its money from a public, which is completely disparate in views. Therefore, one can make a distinction between a corporation and a union and the decision of the corporation will have to come here someday if that case is raised. I personally raised none and our union takes the position publicly that we feel that democracy is best protected by corporations having the same right to state their position on candidates that we have. I can only say, sir, that there are differences between corporations and unions which might at some future time create a difference in results, I urge none.
Felix Frankfurter: May I ask you the economic -- I suppose you don't because you have a hard time differentiating between the right of a corporation to urge the economic interest which binds those disparate members together.
Joseph L. Rauh, Jr.: We urge no differentiation. For 100 years, if Your Honors please, we have been engaged in political activity. Our own union constitution from the first day urges that one cannot draw a line between bargaining and politics. Bargaining is supplemented by legislation and legislation is supplemented by bargaining.
Felix Frankfurter: Can you put a limit as to the amount of expenditures?
Joseph L. Rauh, Jr.: I would say reasonable limitations. It would depend whether that was a reasonable limitation on -- on free speech. No effort was made to do any of these things.
Felix Frankfurter: I think -- but I understand the opinion that the Government calls at issue. The Government say they can't get more than X thousand or X --
Joseph L. Rauh, Jr.: They might try that on the individuals. I -- I --
Felix Frankfurter: Not on -- not on unions.
Joseph L. Rauh, Jr.: Well, it might. I will say, if you had a general regulatory statute limiting expenditures, I see no reason why we shouldn't be part of it.
Felix Frankfurter: And that's the (Inaudible) the corporation or their organization that you -- to say whether it can be an individual, is that it?
Joseph L. Rauh, Jr.: I would think that if you had a -- yes. Basically, I -- I would say that you -- there are rights to speak here that -- that ought to be protected. Now, I haven't thought about the sheer matter of -- of money limitation because it sounds --
Felix Frankfurter: (Inaudible)
Joseph L. Rauh, Jr.: Well, it sounds -- I only would suggest, sir, that it -- it sounds rather artificial because --
Felix Frankfurter: To say you can't spend more than (Inaudible) if you're a -- if you collected funds for other purposes and then go into politics. You have to limit the contribution, don't you?
Joseph L. Rauh, Jr.: On the extent, well, we would be. You have now a bar at the same bar we are under, but there are no -- not -- there are no -- no numerical limitation, sir. The limitations are on the candidate's expenditures and it is his -- it's absolutely historically a matter of record that they are not complied with. It's in the daily press that the expenditures limit --
Felix Frankfurter: That's a different problem.
Joseph L. Rauh, Jr.: But there are no limitations of this type other than on candidates as to my knowledge ever been attempted.
Speaker: But the limitation on personal computation.
Joseph L. Rauh, Jr.: Yes, sir, of $5000 which is awarded by giving to different --
Speaker: Each committee?
Joseph L. Rauh, Jr.: Each committee, yes sir. Now, you cannot split legislation from bargaining. At the bargaining table, we get Blue Cross and Blue Shield. And at the Congress, we asked for National Health Insurance to supplement it. In Congress, we get unemployment compensation and at the bargaining table, we supplement it with supplementary unemployment payment. This is as one what you have here the bargaining and the legislative process. Now, this would mean it seems to me that there's a great burden on the Government to sustain a denial of speech so clearly at the heart of the democratic process and particularly a denial of speech at this moment in -- in our history. When through reckless men, there's been a weakening of political processes at home and when through other men -- other nations have threatened democracy abroad to limit the generative force of ideas that comes from labor by taking it out at this crucial period, it seems to us gives a great burden for the Government to meet. And now, if I may return to the question that the Chief Justice addressed to me, it -- what is the justification that the Government puts up for this? First they say, “We didn't do anything to you.” For 13 pages of their brief from pages 37 to 50, the Government argues that we're still in business just the way we are before because of the use of voluntary funds. But if Your Honors please, the Government's own brief at page 50 answers this very question. If you'll look at page 50 down after citing for this purpose, we use -- they're citing one of our organs, not the UAW's but a labor organ. We use radio broadcast, our weekly newspapers as well as special releases of various sorts to finance these activities. Each International was asked to contribute 10 cents per member for the whole period during December 1, 1949 and February 1, 1950. In other words, what the Government is claiming was voluntary funds. It's perfectly clearly was dues money. COPE, PAC, LLPE are no substitute for dues money. No moneys have ever been raised for this kind of making access to the public mind for making political actions of this kind. This has never been a part of their work and of course we in the UAW have no such activity. Our activity in this field is carried out and can only be carried out with the dues money that we have available to us. Now, the Government says they didn't do it and I have answered that.
William J. Brennan, Jr.: Suppose that stand, the only way you can (Inaudible)
Joseph L. Rauh, Jr.: The only funds available to the Union are those that come from dues for the purpose of buying radio time, television time, and newspaper advertising. The small amount, sir that has been able to be collected as voluntary dollars has all gone as contributions to the very small contributions to the candidates. We have never had the type of funds on voluntary dollars.
William J. Brennan, Jr.: You can't get as much the voluntary as you can with dues.
Joseph L. Rauh, Jr.: Well sir, a union man thinks he's paid when he's paid his dues. He thinks he's paid for bargaining, for legislation and for political activity. He doesn't feel he should pay a second time for political activity that's why it's so hard to raise voluntary contributions. Our constitution and the constitution of all union sets this up as a purpose, political action. When he pays his dues, he has paid for his political action. He may give another dollar to some candidate for -- for an office, but he doesn't feel he's going to give another some more money. We have collected a little but never anything to do this job of making the public know our view.
Felix Frankfurter: Was it only the other day that union went into politics? For years, we had a great leader, a great of them, who brought the very bad (Inaudible)
Joseph L. Rauh, Jr.: There was such a leader, sir.
Felix Frankfurter: If you say 100 years of history, there should be a history the other way?
Joseph L. Rauh, Jr.: There has been history the other way but political life has for a long -- has -- there is history back 100 years. There was a period as you suggest when this was the view of some leading labor for it. So, what does the Government suggest that this justified was trying to minimize the influence? These are the Solicitor General's commendable frankness. It was trying to minimize the influence of unions of election. Maybe that would be proper but there was no evidence. Minority protection, I have indicated the statute did not deal with minority protection. So, if Your Honors please, what we have is the great burden upon the United States Government to justify such an infriction -- infraction on free speech with no, no reasons giving to support that burden. Now, if Your Honors would recall a little history of this statute in conclusion, there was not a witness before this Congress on the question of political expenditures. Congress was passing a law regulating labor and what it did was to throw in this restriction on political expenditures. In the law regulating labor, without ever having hearings on that question and without ever having thorough consideration of it, it was as one commentator cited in -- in the Government's brief so aptly said it was thrown in when labor was down in a losing struggle. And it was thrown-in in violation of our rights of free speech and it was thrown in I might say and has the opposition of every unreversed judicial decision in this area. Every unreversed judicial decision in the area of this statute has favored the free speech consideration. The C.I.O. District Court, this Court here, five justices referred to the gravest doubt of constitutionality and foreheld it was unconstitutional. The Painters Local case, the General Labor's case, the Massachusetts Supreme Court has a decision exactly on point and finally the District Court here. Every judicial action today has indicated either the unconstitutionality of the statute or the gravest doubts about it. And so, in conclusion --
Hugo L. Black: May I ask you? Are you stating, exempts this from the (Inaudible)
Joseph L. Rauh, Jr.: No, sir. They are not exempted. They have --
Hugo L. Black: corporate newspapers are exempted?
Joseph L. Rauh, Jr.: No, sir, but what has happened is that the Government has interpreted Senator Taft's words as reasons for not prosecuting. I think they are --
Hugo L. Black: The corporate newspaper would have make a contribution of money.
Joseph L. Rauh, Jr.: Oh, they would be given -- but the -- their expense --
Hugo L. Black: (Inaudible)
Joseph L. Rauh, Jr.: Yes, sir. But --
Hugo L. Black: (Inaudible)
Joseph L. Rauh, Jr.: Their expenditure --
Hugo L. Black: (Inaudible) why if they would be guilty to making it (Inaudible) Why are they not guilty of making the other (Inaudible) precisely what you've done here, would that be a contribution or expenditure?
Joseph L. Rauh, Jr.: It would in my judgment be an expenditure. It would be one that Senator Taft indicates was not to be barred by the statute. The Government has acted on Senator Taft's interpretation and has never prosecuted a newspaper even for saying things much rougher and more political advocacy than we have done here.
Hugo L. Black: Suppose the newspaper has published exactly what you did at the expense of $10,000.
Joseph L. Rauh, Jr.: The Government would not prosecute, sir and --
Hugo L. Black: Even though it's a corporation?
Joseph L. Rauh, Jr.: Yes, sir. The Government has made that clear and I think that's clear in the -- and -- and they based their decision on Senator Taft's view.
Hugo L. Black: So that you have a (Inaudible) corporate expenditure or contribution which they are permitted to make or not permitted to be made by (Inaudible)
Joseph L. Rauh, Jr.: We believe, sir --
Hugo L. Black: On the same purpose.
Joseph L. Rauh, Jr.: Yes, sir, and that the Act is highly discriminatory. Labor unions are the only associations of individuals as to whom the statute believe. We have an entire point of this arbitrary discrimination. In our brief, which raises a newspaper point that you are making but we assume from the Government's conduct in the -- that they are excluding under Senator Taft's rulings or Senator Taft's statement, the newspapers from the purview of the statue and that this only accentuates the arbitrary character of taking labor out from all else and saying, “Your voice shall not be heard.”
Felix Frankfurter: It doesn't matter who owns what corporate body or what associated body owns such business, there's no distinction as to that, is it?
Joseph L. Rauh, Jr.: No, sir. The news --
Felix Frankfurter: And there's no question that -- that Roy Howard is in a different position from Labor or from the C.I.O. (Inaudible) A newspaper that is out but not in (Inaudible) differentiated.
Joseph L. Rauh, Jr.: That -- precisely and that is based on an -- on a statement by Senator Taft but as I would --
Felix Frankfurter: Basically, I didn't think any from your statement.
Joseph L. Rauh, Jr.: Well, it -- I think that -- that's maybe great. I would only say that the question put to me by Mr. Justice Black, accentuates the arbitrary character of a statute that is limited in its activity and is limited in this prohibition to only one association of individuals and whose views are prevented from expression at the time they are needed most.
Speaker: (Inaudible)
Joseph L. Rauh, Jr.: All newspapers seemed to be in that character with --
Speaker: Regular course in their business and not for the purpose of (Inaudible)
Joseph L. Rauh, Jr.: With this exception, if Your Honor please -- I'm sorry, my time has expired.
Earl Warren: Go right ahead, answer the question.
Joseph L. Rauh, Jr.: Thank you, sir. With this exception, the Solicitor General said yesterday that a labor paper could only go to Labor. And there's no -- that is in the statement made yesterday as to the holding of the C.I.O. cases.
Speaker: But it's not clear in the C.I.O. case.
Joseph L. Rauh, Jr.: I -- that was reserved. But on the Government's interpretation, a labor paper must be limited to labor members. Certainly, a newspaper goes to the broadest possible field. So, we are being limited even more than the newspapers and the discrimination here seems to be a newspaper can get to the public, labor may not.
Earl Warren: Mr. Solicitor General, in assuming you do make mistakes in between newspapers and unions as regarded, what is it based?
J. Lee Rankin: I'd like to clarify in regard to the last remarks if I may to the governmental position of -- in regard to newspapers, we first the take position that if the article is in the regular course of the business as stated by Senator Taft like editorials or any other regular part of the publication, the newspaper, it is not within the limitations of the statute. But if the newspaper would take $10,000 of its money and put it in an advertisement saying vote for X, we believe he is good for business or good for newspapers or good for this particular newspaper. It would certainly be in violation of the statute as we view it.
Hugo L. Black: Suppose it says exactly (Inaudible)
J. Lee Rankin: If it is --
Hugo L. Black: That cannot be a contribution or expenditure covered by the Act, is it?
J. Lee Rankin: If it was a regular part of the publication of the news.
Hugo L. Black: A regular part of the publication saying precisely what you said in the other matter.
J. Lee Rankin: And if the --
Hugo L. Black: The cost of $10,000.
J. Lee Rankin: Yes.
Hugo L. Black: And it was an endorsement to the (Inaudible), urgency for the vote.
J. Lee Rankin: No, because it cost the newspaper to publish an advertisement and they can't prove against such an indictment that it didn't cost them some money. They don't ordinarily just to give a space away. Now, if they run it in the regular news columns in some ways so they are discussing a candidate and it might reflect upon one or favorable to another so that it's merely the conduct of the newspaper, that's something else. Senator Taft discussed it with regard to editorialized and said, “That was exempt if it was in the regular conduct of the newspaper.” We further take the position with -- with regard to a labor publication that it can have any subscribers from any portion of the public that it wants to as long as those are independent subscriptions and it can publish the same kind of information that was involved in the C.I.O. case and this Court held that as we interpret that decision. But when you -- the Court reserved the question if you're going to have free to always or if you're going to try bring in the other people who are not a part of your regular business activity. I'd just like to say one thing more that in view of the argument here, and the Government agrees that if this interpretation contented for by the appellee is to be applied in this case, it seems to us that your -- this Court would be saying that it held that way. That Congress has no power to protect the individual who after all has the vote against an electioneering process which in affect takes away his freedom of choice at the ballot box, and that was recognized by the lower court in the Brewers case because if you control so much powerful influence, and all the money that this -- apparent that can be thrown in by these great entities of labor organizations on the one end, and corporate structures on the other to try to control the discussion, the electioneering and the vote for Mr. X. The individual will only have very small parts of money to use to try to support his candidate and get the support of the other individual so that he will vote for him. He is left so that he hardly counts in the struggle.
Earl Warren: Mr. Solicitor General, would you mind telling if there's anything in the Act or the legislative history that shows that this was in this language, is in there for the purpose of protecting minorities' view.
J. Lee Rankin: Yes. The history was very clearly shown to have been intended to try to protect the minorities, and it went back and referred to the fact that it was unfair to have corporations be permitted to make contributions and that's the reason that corporate -- the corporate limitation was put-in in the earlier days before the labor organizations are brought in to this form of statute, because it was considered to be unfair that the management could take corporate funds and use them for political purposes against the wishes or without the expressive proof of the --
Speaker: (Inaudible)
J. Lee Rankin: Of the minority stockholders.
Speaker: Suppose they would have some remedy against that corporate limitation.
J. Lee Rankin: Yes, but Congress felt that it should act and protect the -- both the electoral process and also the corporate stockholders themselves from that type of activity. And it was referred in the debates to the fact that the same thing should be done in regard to the Unions. Now, there isn't any question but what in most cases, there isn't any unanimity of support for particular candidates. There might be unanimity of support for issues. And I'm not saying that labor people wouldn't support particular issues that the labor unions were advocating because often times they're in complete agreement on that. And yet, they differ during materially and violently about the particular candidates in every election if you examine it, it shows on its face that there are all kinds of difference between the positions taken by labor and labor leaders about a particular candidate and how the people voted for it. And you can go into labor communities that are almost 90% or 100%. You will find the same thing. Now, the DeMille case is a perfect example where Mr. DeMille was under the decision, the Supreme Court of California has held that he couldn't belong to the Union and that he would put out the Union because he wouldn't make a contribution and assessment that they've made for political activity and he raised that very issue and the Court held that it was the -- union had a legal right to put him out, and that happened prior to the history in this case as I recall.
Earl Warren: Mr. Solicitor General, what -- what is your answer to the statement of Mr. Rauh to the effect of your interpretation of -- of this indictment or statute leads to a conclusion that it would make any difference whether -- whether the members -- membership of the Union was unanimous or -- or not if every member of the Union wanted to do it, he would still prohibit them from doing it.
J. Lee Rankin: Well, the statute does not have that -- that kind of provision.Congress didn't see fit to attack it in that manner. Now, the English statutes did provide that any member of the Union that did not approve the political activity could have his funds withdrawn and handled it in that way. But Congress examined it from the standpoint of probably recognizing that the Unions have a great deal of power under the Wagner Act to exercise in the manner, state pressure in getting a union shop and other requirements to work. And therefore, and also the fact that generally there was not unanimity and the election showed it. And therefore, it tried to handle it in this manner by keeping them out of this particular type of activity and compare it exactly with the regulation of corporations in the same field, but they have all of the activity where it can be voluntary, but they can't compel it. That's the real issue. If they can get the subscriptions of the voluntary contributions from their people which they concede is difficult to do, they can use that all they want to and they have no trouble at all with the Government under this statute or any other.