Warren E. Burger: We will hear arguments next in Brown against the Socialist Workers Campaign Committee. Mr. Brown, I think you may proceed whenever you are ready.
Gary Elson Brown: Mr. Chief Justice, and may it please the Court, this case involves the constitutionality of the provisions of Ohio's Campaign Expense Reporting Act, which requires campaign committees to file reports setting forth various information concerning their receipt and expenditure of campaign funds. This case was initiated in 1974 by various Socialist Workers Party candidates and their campaign committees along with several unnamed persons who claimed to have made contributions to or received expenditures from those campaign committees. A temporary restraining order was entered soon after this case was filed, and it enjoined the application of the disclosure provisions of the Ohio law to the Socialist Workers Party candidates and their committees throughout the pendency of this action. The case was tried in February of 1981, and on June 25, 1981, a three-judge panel held that the disclosure provisions of Ohio Revised Code Sections 3517.10 and 3517.11 are unconstitutional as applied to the Socialist Workers Party and the class represented by the individual appellees in that case. It is our position in this case that the district court erred in so holding because it misapplied the test established by this Court in Buckley versus Valeo, in 1976.
Byron R. White: Is this just a factual argument then?
Gary Elson Brown: Absolutely not, Your Honor. It is a matter of applying the law of the case in Buckley versus Valeo.
Byron R. White: To the facts.
Gary Elson Brown: We are going to have to apply the facts to the law.
Byron R. White: But you don't claim the court used the wrong standard, legal standard.
Gary Elson Brown: Absolutely not. We think the Buckley test is most acceptable. We think the district court in applying the facts in this case to the Buckley test misapplied the Buckley test.
Byron R. White: Is this a question then, a mixed question of fact and law?
Gary Elson Brown: It is one of those cases where it is a mixed question of fact and law because--
Byron R. White: Can we independently arrive at it, or do we have to find that the court was clearly erroneous?
Gary Elson Brown: --Not, I don't... you don't have to dispute any of the court's factual findings. What I am asking you to do is find that the court applied this Court's Buckley standard improperly. It is a mixed question of law and fact. Obviously, the Buckley test itself requires a mixed law and fact consideration, Your Honor. Specifically, and this is our primary point in this case, specifically, the evidence presented in the district court did not demonstrate a reasonable probability that the disclosure of the names of contributors to Socialist Worker Party candidates in Ohio and the disclosure of the names of persons receiving funds from SWP candidates' campaign committees would subject those contributors or recipients of expenditures to threats, harassment, or reprisals, which is what this Court said to look for in Buckley versus Valeo.
Byron R. White: The district court says, concludes, I infer from these historical facts which he has found, which you don't dispute, or nobody disputes about, I infer or predict that there would be reprisal or some injury in the future if there is disclosure. Now, you say that is not a factual finding. Is that it?
Gary Elson Brown: That is an application of this Court's standards to the facts in the case.
Byron R. White: Well, it is a finding. He says, I find that there would be injury.
Gary Elson Brown: That is correct, but that is the bottom line question.
Byron R. White: Well, is that--
Gary Elson Brown: Coming out of Buckley versus Valeo. It is the application of this Court's Buckley test--
Byron R. White: --Well, I know, but there are a lot of bottom line findings that are still facts. Did I understand you to say that there is no evidence to support any such finding as that?
Gary Elson Brown: --We are saying that the record considered as a whole does not support the finding made by the district court in this case. As we go through our discussion of the case, I will further explain why I think the totality if the evidence does not support that finding. In this case, despite joining unnamed John Doe plaintiffs who allegedly contributed to or received campaign funds from the Socialist Worker Party candidates, the appellees failed to produce any evidence, any evidence in the district court of any actual or threatened harassment of a single contributor or recipient of campaign expenditures in Ohio. Additionally, and this, Justice White, is the biggest problem we have with the evidence, additionally, the vast majority of the evidence introduced by the appellees in this case pertained to historical past activities of agencies of the federal government over which the State of Ohio has absolutely no control. Moreover, the activities of these federal agencies took place irrespective of and in the absence of Ohio's campaign expense reporting law. There is no cause and effect relationship between our Act and the conduct and the misconduct of the FBI. Of the 127 exhibits admitted into evidence at trial on this case, 121 of those exhibits pertained solely to FBI activities which were discontinued, which were discontinued in 1971. This case went to trial in 1981. Our position is that this FBI conduct and misconduct may not be irrelevant as a matter of law, but it is of no material of probative value certainly in 1981, especially in view of the--
Thurgood Marshall: Did you put on any evidence to say that it wouldn't happen again?
Gary Elson Brown: --Yes, we did, Your Honor. We cited--
Thurgood Marshall: What kind of evidence was that?
Gary Elson Brown: --We cited the Oregon case which contained references to affidavits--
Thurgood Marshall: I mean you know what the FBI is going to do next year?
Gary Elson Brown: --I have a good feeling of what the FBI is not going to do next year.
Thurgood Marshall: That wasn't my question. My question was, do you know what the FBI is going to do tomorrow?
Gary Elson Brown: No, Your Honor. I don't know that. I doubt if the FBI knows that.
Thurgood Marshall: I assume so.
Gary Elson Brown: Okay.
John Paul Stevens: General Brown, you mentioned the age of the evidence. The opinion indicates the temporary restraining order had been filed on something like February 7th, 1975. The case wasn't tried until... am I correct on that?
Gary Elson Brown: 1981. That's correct, Your Honor.
John Paul Stevens: What happened during those six years?
Gary Elson Brown: I wasn't trial counsel, so I can't say with certainty what happened, but I think originally the TRO was entered on the premise that the case would be rapidly tried, and for various reasons, just like any lawsuit, it did not get rapidly tried.
John Paul Stevens: Well, not just like any lawsuit, I hope. Six years with a TRO outstanding?
Gary Elson Brown: We have had several cases in our office that took that long, Your Honor. I guess that is why I said that.
John Paul Stevens: Did they even convert it to a preliminary injunction?
Gary Elson Brown: It was never converted. The original TRO entered in this case in and of itself by the original trial court was rather strange in that the court entered a TRO during the pendency of the action which would not expire until the case was decided by a three-judge panel which hadn't even been empaneled yet.
William H. Rehnquist: Well, that is clearly a violation of civil rules, if you would want to challenge it. You can't enter a temporary restraining order and say it extends for months and months.
Gary Elson Brown: I certainly don't disagree with that, Justice Rehnquist. Like I said, I didn't file... for appeal. I wasn't trial counsel.
William H. Rehnquist: Was that done at the behest of opposing counsel?
Gary Elson Brown: Yes, they requested the temporary restraining order. I don't know whether they requested it for the entire pendency of the action or not, but even if they did, I think it would be a violation of civil rules. I agree with that.
Byron R. White: Was it ever challenged on that ground, that the temporary restraining order was improperly--
Gary Elson Brown: My predecessors in this case never challenged that, Your Honor.
John Paul Stevens: --They gave them total relief for six years.
Gary Elson Brown: They most certainly did. I do believe--
John Paul Stevens: I guess the state really couldn't have been terribly upset about it, if they let it sit for six years.
Gary Elson Brown: --Well, the state is now terribly upset about it.
John Paul Stevens: Now it is upset.
Gary Elson Brown: They didn't know at the time it was going to take six years. I imagine that it was tolerated through time on the premise that the case would be decided much more rapidly than it was.
John Paul Stevens: I suppose the character of that order might have some relationship to the fact there is no evidence of any threats or harassment since 1975, or the people would be in contempt.
Gary Elson Brown: It has some relationship to no threats or harassments... because we weren't listing their identities, but it certainly doesn't detract from my argument that the FBI evidence is very, very stale and of no future probative value, which is my major evidentiary argument, and which I think is the key to this case. Justice Marshall, you asked me about what the FBI was going to do tomorrow, and I can't stand here and tell you that, but the Senate empaneled a select committee to study intelligence operations--
Thurgood Marshall: Do you know what the Senate is going to do tomorrow?
Gary Elson Brown: --I don't know what the Senate is going to do tomorrow, but I do know that the Senate committee found--
Thurgood Marshall: They are gone right now, you know.
Gary Elson Brown: --I do know, Justice Marshall, that the Senate found that the FBI did terminate its conduct and its misconduct vis-a-vis the Socialist Workers Party and its candidates and its party members in 1971.
Thurgood Marshall: Did the Senate say, and the FBI will never do it again?
Gary Elson Brown: No. The FBI has--
Thurgood Marshall: Well, I don't understand what your answer is. I asked you, could you predict what the FBI was going to do in the future. That is my question.
Gary Elson Brown: --Justice Marshall, I--
Thurgood Marshall: The only truthful answer could possibly be, you don't know.
Gary Elson Brown: --That is correct.
Warren E. Burger: Is there any evidence in this record that suggests any resumption of that kind of activity over the last ten years?
Gary Elson Brown: No, there is no evidence in this record to suggest resumption of the Cointelpro Program, which was the FBI's disruption and harassment program, which was specifically addressed to the Socialist Workers Party, directed to the Socialist Workers Party, and in the Oregon case there were affidavits submitted by the FBI which said that they had discontinued that program. Since that time, Congress, recognizing that the FBI and other intelligence agencies have a tendency during times of stress in this country to get out of hand, has enacted legislation which will further preclude the probability, not the possibility, I understand that, but the probability of future programs like this being started in this country. So, my answer is, no, I can't predict what is possible, but I can predict, Justice Marhall, what is probable, and it is not probable--
Thurgood Marshall: You could have answered that 15 minutes ago.
Gary Elson Brown: --Okay. I'm sorry. In our case, if reference to the FBI and the multitude of its real or alleged improprieties were to be deleted from this case, it is our position that there would be nothing left of the evidence introduced by the appellees in the district court but a small collection of isolated and unrelated incidents of verbal and illegal physical abuse directed toward Socialist Worker Party members, candidates, and party headquarters around the country, along with a very limited number of employment terminations, which had more to do with inappropriate behavior on the job than with political beliefs or even political conduct.
Sandra Day O'Connor: Mr. Brown, the Ohio statute requires two things, as I understand it, one a disclosure of contributions, contributors, names of contributors--
Gary Elson Brown: In certain instances, not all of them.
Sandra Day O'Connor: --and secondly, disclosure of payment of expenditures to other people.
Gary Elson Brown: That is correct, Justice O'Connor.
Sandra Day O'Connor: Was there any evidence in the record about the effect of requiring disclosure of the payments of expenditures to others, as opposed to evidence of harassment of members of the party, which presumably might include contributors?
Gary Elson Brown: Justice O'Connor, there is not one thread of evidence in this record presented by the appellees which showed any harassment of any recipient of an expenditure. Did the state argue that there was a difference in the two categories, and say, well, maybe you have evidence going to contributors, but you have none insofar as the expenditure requirement is concerned? That argument was made. We sort of got caught off guard by the trial court's decision in this case. We thought it was going to go just to contributors. The trial court's decision, the injunction decision ultimately, the unconstitutionality as applied decision went to both contributors and expenditures, but as I read the Buckley test, the Buckley case, there isn't a word in that case about recipients of expenditures being exempted from the disclosure requirements of a state or the federal statute.
Sandra Day O'Connor: Do you think the state's interest is different as between disclosure of expenditures and disclosure of contributors?
Gary Elson Brown: No, I don't think the state's interest is really different. Ohio's statute is not exactly like the federal statute. Ohio has no limitations on the amount that can be contributed to any given candidate's campaign. Ohio did not originally have or does not have limitations on the amount of expenditures a candidate can make. Ohio's Act is the least restrictive means of regulating the electoral process in this manners, Justice O'Connor. We simply say, let the people know how candidates raise their money. Let the electorate know how they spend their money. And we feel that will deter actual corruption, will deter the appearance of corruption and impropriety, and will give the electorate an informed basis upon which to make rational judgments at the ballot box. That is the least restrictive means available to regulate this area of the electoral process. Another thing about the evidence presented in this case, it certainly doesn't establish that there is any causal relationship between the disclosure requirement from which the appellees seek exemption and the harassment they claim will occur if compliance is required. There is absolutely no evidence of this in the case. Obviously, Ohio's disclosure statute is supported by the same public policy arguments as which supported the Federal Campaign Election Act, which this Court addressed in Buckley versus Valeo. Those are very, very important public interests, and the Ohio statute is no different in that sense from the federal Act, and this Court was asked to grant blanket exemptions for minority parties from the disclosure provisions of the federal Act, and this Court did not see fit to do so.
William H. Rehnquist: Mr. Brown, do you think the language in Buckley is addressed to any sort of harassment or bothering that might result from the fact of disclosure of persons of the statute or is it addressed more particularly to harassment that would be perpetrated by the entity, governmental entity requiring disclosure?
Gary Elson Brown: Well, as I read the Buckley test, Your Honor, it creates a very... a reasonably loose standard. It doesn't only go to harassment which could be caused by the governments, the state government. It also goes to harassment which could be brought forth by private citizens, for example, if that is responsive to your question.
William H. Rehnquist: Yes. The Buckley statement as I read it is based on some of the earlier cases like NAACP versus Alabama, and NAACP versus Button.
Gary Elson Brown: That's correct, and the Burrells case in 1934. The major distinction, and I think this is very notable and should be brought out in this argument, is, NAACP versus Alabama was a case which enunciated a general First Amendment principle. However, the state interest underlying or involved in NAACP versus Alabama was in no measure comparable to the state interest involved in this case or in the Buckley case. It was a mere discovery dispute in NAACP versus Alabama, versus a piece of reform legislation directed at the electoral process in our case and in the Buckley case. There is a very important distinction there. One of the other things brought out in this Court's opinion in the Buckely case which we would like to address is the discussion of a minor party's impact on the election process in any given state. This Court said that a minor party's impact on elections... when it addressed that issue, it looked to whether or not minor parties were likely to win in any given election. We think that that focus is a little bit misdirected. It is more than just whether or not a minor party is likely to win an election. It is more... the true question concerns a minor party's potential impact on the outcome of any given election. If it has that impact, it is more than just a mere minor party that appears on the ballot, has no impact, and goes away. In Ohio, for example, in the 1974 gubernatorial election, one of the plaintiffs in this case, Nancy Brown Laser, ran for governor in Ohio as the Socialist Worker Party candidates. Nancy Brown Laser received 95,000 votes in Ohio's 1974 gubernatorial election. Jim Rhodes beat the other candidate, the other major party candidate, John Gilligan, by 13,500 votes in Ohio's 1974 gubernatorial election. Obviously, Nancy Laser had a very important impact on the outcome of our gubernatorial election. If a mere 12 percent of the people who voted for this minority party candidate, 12 percent of the minority party candidate's votes, if those would have been switched to John Gilligan, he would have been governor instead of Jim Rhodes, who won by 13,500 votes. A minor party can have more impact on elections than just winning the election. We think that is an important thing to take into consideration in this case. Another example of that is the Ford-Carter Presidential race in 1976. In Ohio, Carter beat Ford by 11,000 votes, and yet there were three minority groups which pulled more than the vote differential between the two major candidates. McCarthy got 58,000. The American Independent candidate got 16,000, and collectively, the other independent candidates got 26,000 votes. Minority parties have an impact.
Thurgood Marshall: Mr. Brown, can I back you up just a minute? What relationship in time was there with this 95,000 vote for this woman and the revival of this case?
Gary Elson Brown: And the revival of this case?
Thurgood Marshall: Yes, sir.
Gary Elson Brown: Well, it was a 1974 election, and this case was filed in 1974. At that time, there was a TRO entered which did not allow the people of the state of Ohio to know where Nancy Brown Laser's money was coming from. Now, as far as the revival of the case in 1981, it is six years later, I mean, if that is your question, Justice Marshall.
Thurgood Marshall: I mean, I gather from what you say that you don't see any connection to it. I am not blaming you for it one way or the other. I don't see how we can connect it if it is that far apart.
Gary Elson Brown: It is not a matter of connecting so much as a matter of arguing to this Court that a minority party is more than just a winner and a loser. It impacts on elections. I bring that example out to show you that it did it in Ohio.
John Paul Stevens: General Brown, may I follow up on a question Justice O'Connor asked you a bit ago about the difference between the disclosure requirement with respect to contributions on the one hand and expenditures on the other? In your reply brief, you say there is nothing to support the order insofar as it relates to expenditures, as I understand the second point of your reply brief.
Gary Elson Brown: That is basically correct.
John Paul Stevens: I didn't understand you to make that argument in your opening brief, and I am just wondering, was that squarely argued to the district court, that distinction between the two?
Gary Elson Brown: I don't know that it was squarely argued. I did not present the argument. In reviewing the case, it appears that the appellees requested that relief and the state of Ohio disputed it, so in that sense I think it was--
John Paul Stevens: But did they dispute it in the sense of saying, there isn't enough evidence to support any relief, and over and above that, there is absolutely no evidence on the expenditure part of it, which seems to me might well have been argued below. I am just... It seems to me there is some force to your argument, but I am just wondering if the district court had a fair opportunity to-- --Well, were there trial briefs?
Gary Elson Brown: --There were post-trial briefs filed in this case, and it was argued--
Byron R. White: You must have them. Was it argued in the briefs?
Gary Elson Brown: --Yes. It was argued generally. It wasn't argued as specifically as I argued it in this reply brief.
John Paul Stevens: In your reply brief it is set out very--
Gary Elson Brown: In the post-trial briefs filed after the trial, yes, that was generally argued, that the statute is neither unconstitutional--
Byron R. White: --Post-trial before decision.
Gary Elson Brown: --Correct. Yes.
William H. Rehnquist: Well, at the trial stage, where the burden is on the plaintiffs to prove each and every element of their complaint, and they are seeking to strike down two different statutory sections, I suppose the burden is on the trial court if he is going to find for the plaintiffs to consider whether each one of those sections is unconstitutional.
Gary Elson Brown: That is the trial court's burden.
William H. Rehnquist: The law is presumed constitutional until someone presents a sufficient case to convince the court that it isn't.
Gary Elson Brown: In this case, the trial court went through the evidence vis-a-vis contributors, and at the end of the trial court decision, it said, based upon the totality of the evidence adduced at trial, we conclude that the statute is unconstitutional as applied to the SWP Party, both vis-a-vis contributions and expenditures. There was no independent analysis in the trial court's decision on expenditures, Justice Rehnquist. The quote I just referred to appears on Page... Appendix Page A-29 of our jurisdictional statement, which is part of the trial court's decision.
John Paul Stevens: But I think there is a stronger statement on A-27, at the bottom of the page. The finding itself relates only to contributions. I mean, I would have thought you would have cited that.
Gary Elson Brown: I may have missed that, Your Honor.
John Paul Stevens: It says that it establishes in Ohio public disclosure that a person is a member of or has made a contribution which create a reasonable probability of harassment. But there is nothing about expenditures.
Gary Elson Brown: That's right. I referred to the court's conclusion where it found the statute unconstitutional as applied.
Harry A. Blackmun: The judgment itself you are referring to. Mr. Brown, there was no determination as to facial validity, was there?
Gary Elson Brown: No determination as to facial validity?
Harry A. Blackmun: Yes.
Gary Elson Brown: There was in the sense that the appellees in this case in their complaint asked that the statute be declared unconstitutional on its face, and the trial court refused to do that. I think in that sense there was a finding of facial unconstitutionality, because the plaintiffs had asked for it, and it was denied.
Harry A. Blackmun: Specifically?
Gary Elson Brown: It is not referenced, but it is a matter of fact it was denied, and the appellees had asked for it in their complaint, Justice Blackmun. One of the other points we want to make in our oral argument is, we want to clear up a misconception contained numerous times in the appellees' brief regarding the issue of anonymity. Anonymity in Ohio for political contributions is not illegal. It is not a dirty word. As a matter of fact, it is recognized in our Campaign Reporting Act. For example, Revised Code Section 3517.13(f) allows up to $100 in cash contributions to be given to any particular candidate. There is no prohibition on giving these anonymously. Revised Code Section 3517.10(b)(4)(E) provides for the giving of 25 contributions at any specific social or fundraising event, and again, contrary to the allegations contained in the appellees' brief, the law does not require someone to attend that social function or that fundraising event merely because they donated the $25. So, again, there is another example of anonymous contributions. And thirdly, and perhaps more importantly, Revised Code Section 3517.10(c) specifically recognizes anonymous contributions in Ohio politics and details how they are to be reported by political candidates. Your Honor, I see a light is on. I think I would like to reserve the remaining five minutes, Your Honors, for rebuttal. Thank you.
Warren E. Burger: Very well. Mr. Buckley.
Thomas D. Buckley, Jr.: Mr. Chief Justice, and may it please the Court, this case is about the right to exercise First Amendment freedom of association by contributing to the Socialist Workers Party election campaigns in Ohio without having the fact of that financial association or tie with the Socialist Worker Party candidates disclosed to the public. The three-judge court applied the law for the cases like this that this Court announced in 1976 in Buckley against Valeo, and found that under the First Amendment, the Socialist Workers Party campaigns in Ohio were exempt from the Ohio disclosure law. The three-judge court found on the totality of the circumstances that there was a reasonable probability that compelled disclosure of the contributors' names would lead to threats, reprisals, or harassment from either government officials or private parties.
Warren E. Burger: What evidence is there in the record to support that?
Thomas D. Buckley, Jr.: The facts in this case, Your Honor... we take exception to the Attorney General's statement of the facts in the case. The Attorney General, in dealing with the facts in the case... Let me begin with the most recent evidence and work back. In the one-year period before trial, the record shows that 22 members of the Socialist Workers Party were fired because they belonged to the Socialist Workers Party. In the state of Ohio, four people lost their jobs because they were members of the Socialist Workers Party. In Ohio, there were about 60 Socialist Workers Party members. If you translate that 7 percent into major party proportions, it means thousands of Democrats, thousands of Republicans would lose their jobs annually in Ohio on account of their political associations. We showed that there were bullets fired at a Socialist Workers Party headquarters while people were exiting from a speech that was given at that place.
William H. Rehnquist: Was this in Ohio?
Thomas D. Buckley, Jr.: The bullets, Your Honor, were in Pittsburgh, not in Ohio.
William H. Rehnquist: Well, do you think that evidence in other states is uniformly transferrable to Ohio?
Thomas D. Buckley, Jr.: Your Honor, the evidence from other states... there is no reason to suppose that attitudes in Ohio, we think, are any less hostile towards Socialist Workers Party adherents than they are anywhere else. We had in Ohio, within the year, a threat from the Nazis that if a somewhat similar event would take place in Ohio, the Nazis would be there and they would kill people. Now, the police were called in, and there was no violence, but that event in Ohio took place under police protection.
Warren E. Burger: Where do we find that in the record? Don't disturb your argument. Let us know later. Let me know later.
Thomas D. Buckley, Jr.: All right.
Harry A. Blackmun: How far is Pittsburgh from the Ohio line?
Thomas D. Buckley, Jr.: Pittsburgh is about 50 or 60 miles from the Ohio line, Justice Blackmun. It is closer to Cleveland than it is Columbus, where this case was tried. There were other incidents in the last year as well. At the place where the shots were fired, people scrawled KKK on the outside of the Socialist Workers Party offices. Campaign literature was first turned into the shape of a cross and set on fire and a candidate's automobile was also set on fire. Now, with respect to this most recent evidence, the state says that all it amounts to is isolated, unrelated incidents, as if these things were bolts out of the blue and took place in a vacuum. It is as if they were a bunch of coincidences. To view them that way is to ignore or deny that hostility to communist ideology in this country is pervasive, and to suggest that these things are unusual or unrelated denies the reality of the attitudes that are common in this country.
Warren E. Burger: Would it be appropriate to draw any inferences or base findings on the proposition that within, I guess, about five years or six three Presidents have been either shot or shot at? Two of them shot at, or attempted assaults on them with firearms, and one actually struck. I am just wondering. Can we draw any inferences from that?
Thomas D. Buckley, Jr.: Well--
Warren E. Burger: Or is there a general inference that there are a certain percentage of abnormal people in a large country like this who will do abnormal things?
Thomas D. Buckley, Jr.: --Well, some of the Presidents have lost their jobs, too, Mr. Chief Justice.
Warren E. Burger: I am putting my question to you about three attempts on Presidents' lives in just recent years.
Thomas D. Buckley, Jr.: Well, the causes for events like that... when the shots were fired at the Socialist Workers Party meeting place, there wasn't any... no one prominent in that sense was present. The fire was directed at people whose names were not necessarily known to anybody. The shots were fired on account of what those people stood for.
Warren E. Burger: Why do you suppose the efforts were made on three occasions... if you go back 20 years, it would be five or six occasions... on Presidents and Presidential candidates? Can you really draw an inference from that except that there is a certain percentage of abnormal people at large?
Thomas D. Buckley, Jr.: Well Your Honor, I think you can draw the inference that with respect, say, to the abnormal people, they are going to be directing their fire at people such as the Socialist Workers Party in inordinate numbers, since they are--
Warren E. Burger: Or candidates for President.
Thomas D. Buckley, Jr.: --They may be directing their fire at candidates for President, or Presidents.
Warren E. Burger: Or to leaders of other kinds, leaders of groups which some abnormal people find objectionable.
Thomas D. Buckley, Jr.: Well, Your Honor, these people aren't leaders. They would like to be leaders, but they receive very few votes, and nevertheless attract plenty of... more than their share, if we were to look at it that way, of violence.
William H. Rehnquist: Your point would be, I suppose, that they attract more violence than similarly situated Republicans and Democrats.
Thomas D. Buckley, Jr.: Yes, Your Honor. That would be our point.
Warren E. Burger: Well, that is hardly borne out by the records, is it?
Thomas D. Buckley, Jr.: Yes, Your Honor. That is borne out by the record.
Warren E. Burger: The three attempts on Republican Presidents and successful activities towards the Democratic candidates and one President. Frankly, you lose me on your point.
Thomas D. Buckley, Jr.: The targets here were not as prominent as the victims of those Republican and Democratic attacks, those major party victims. They were nobodies compared to people who were attacked, and when we... the violence in this case, I have only described the violence in a one-year period, only the violence in a one-year period. There is more violence than that. That was just the one-year period. The Socialist Workers Party offices were attacked in 1978 in Chicago, and they have been attacked in California, San Diego and Los Angeles as well. The state says that the evidence from before--
William H. Rehnquist: Mr. Buckley, the offices, I take it, would be attacked quite apart from any disclosure requirement. I mean, there is a certain... a party chooses to make itself public in a certain sense, open streetfront offices, campaign headquarters, and it doesn't require any statutory disclosure for people to know if you are conducting any sort of a campaign to know where your campaign headquarters are.
Thomas D. Buckley, Jr.: None at all, Your Honor. There is no connection between the disclosure statute and knowing where the Socialist Workers Party office is located. When it comes to evidence of harassment or threats or reprisals on account of disclosure, we have very little evidence of that. The reason... We have some evidence from 1973, after 1971, when harassment was supposed to have stopped. In 1973, the FBI looked up and found out that some individual had contributed $10 to a Socialist Workers Party campaign, had displayed a poster in favor of the Socialist Workers Party and had recommended that people vote either for the Socialist Workers Party or for somebody else. The FBI confronted that person, told that person that they knew what he was up to, and they were going to keep an eye on him in the future. The reason there is so little evidence, direct evidence, is that there hasn't been any disclosure to speak of. There has been no disclosure in this case, and the Socialist Workers Party has prevailed in six courts or administrative tribunals around the country when they have made the same sort of case that we are making right here.
William H. Rehnquist: Of course, in a sense, it was something that you brought about yourself. I mean, if you had wanted evidence and thought it would be forthcoming by application of the disclosure statute, you could have refrained from asking for the temporary restraining order over a period of six years.
Thomas D. Buckley, Jr.: --Well, Your Honor, in Buckley against Valeo, we think that that opinion invited exactly this sort of a lawsuit to be brought when there was evidence based upon past or present harassment of members, and it doesn't require that there be a direct cause and effect relationship.
William H. Rehnquist: Why do you say it doesn't require it to be a direct cause and effect relationship? Is there anything in Buckley against Valeo that says that?
Thomas D. Buckley, Jr.: Well, it talks about flexibility in proof, evidence of--
William H. Rehnquist: That still doesn't go to what it is you are trying to prove.
Thomas D. Buckley, Jr.: --It would require people to be harassed, to expose themselves in this First Amendment area to dangerous consequences on account of--
William H. Rehnquist: How would you produce evidence of harassment other than showing that somewhere there has been the fact of harassment?
Thomas D. Buckley, Jr.: --Well, we do have some evidence of harassment, that 1973 incident, and there is another one in the record as well in which the Government Accounting Office gave people some trouble when they... That is in Exhibit 129, both those episodes, Your Honor.
Byron R. White: Do you think that we could... well, what do you think our standard of review is in this case?
Thomas D. Buckley, Jr.: The clearly erroneous standard applies here, Your Honor. This is a factual determination.
Byron R. White: What is the factual determination, that there will... it is a prediction?
Thomas D. Buckley, Jr.: That there is a reasonable probability that if names are disclosed, it will subject the people to threats, harassment, or reprisals. It is a probability. Whether or not there is a real risk involved in that... in making disclosure.
Byron R. White: That certainly isn't a historical fact finding. I mean, that is about the future. It is a prediction.
Thomas D. Buckley, Jr.: It is based upon historical facts.
Byron R. White: Well, it may be. It is an inference about what will happen in the future from historical facts.
Thomas D. Buckley, Jr.: It is not just a foreboding. On account of historical facts, one can draw the conclusion that there is a reasonable probability, which is a factual determination. And that is what the three judges from Ohio found on the basis of--
Byron R. White: So you think we can't disagree with the inferences the three-judge court drew unless we find the inference is clearly erroneous.
Thomas D. Buckley, Jr.: --Your Honor, what we--
Byron R. White: We can't make an... you submit that we can't make an independent judgment--
Thomas D. Buckley, Jr.: --Well, Your Honor--
Byron R. White: --based on the historical facts as to what the future might hold.
Thomas D. Buckley, Jr.: --Rule 52 says that the findings in matters like this of the trial court should not be set aside unless they are clearly erroneous. Now, the record, we think, is so powerful and overwhelming that even if the court were to conduct the trial de novo, in effect, on the record evidence, this Court would verify the decision that the trial court made, but Rule 52, the Pullman Standard case last year, we think, is appropriate and applies here.
Sandra Day O'Connor: Mr. Buckley, was there any evidence in the record as to the effect on disclosure of expenditures?
Thomas D. Buckley, Jr.: There is no evidence in the record on expenditures either, Your Honor, because with no disclosure--
Sandra Day O'Connor: Well, there is some limited evidence, is your argument, as to the effect on contributors, but is there any at all on the expenditures?
Thomas D. Buckley, Jr.: --There is none at all on expenditures as such, but in that connection, we think that the considerations when it comes to disclosure of who gets the money, where the disbursements go, are very similar to the considerations that go into the contributors' names.
Sandra Day O'Connor: Well, don't you think they are really quite different? For instance, there might be a disclosure of expenditure of where you get printing done? Don't you think it is much less likely that there would be harassment of a commercial printer who was paid to do a job than there would be of a contributor to a cause?
Thomas D. Buckley, Jr.: I don't think so, Your Honor, and the case of Peter Zenger comes to mind in that connection. Peter Zenger was a printer, not a politician, and Peter Zenger was put on trial on account of what appeared in that journal in New York. So that is a good example of where campaign money goes.
William H. Rehnquist: Wouldn't even you concede that the case of Peter Zenger is somewhat remote in time and place, though?
Thomas D. Buckley, Jr.: It is remote in time and place, but I think it is appropriate nevertheless, Your Honor.
John Paul Stevens: He wasn't doing commercial printing, either. He was printing things he wanted to say, was he not? I mean, I assume your client is going to go out and hire some printer or some billboard or some office or something like that. I am not sure they are all in the same class as Peter Zenger.
Thomas D. Buckley, Jr.: Well, a good deal of what appeared in Peter Zenger's journal was published anonymously. It appeared as advertisements that everybody could translate into the politics of the time, and the people who published anonymously weren't put on trial.
Sandra Day O'Connor: Mr. Buckley, would you concede that the state might have conceivably even a greater interest in requiring disclosure of expenditures than contributions in an effort to discourage the payment of bribes or buying votes, or something of that kind?
Thomas D. Buckley, Jr.: I wouldn't see that that is any greater interest, Your Honor. It is an interest that one can discern, but I don't think it is any greater than the interests that support contribution disclosures. The historical evidence, so-called. The state says that the evidence that the FBI stopped harassment of the Socialist Workers Party in 1971, the record... I have already referred to one incident in the record from 1973, when the FBI harassed somebody. In 1976... they also say in their reply brief that the black bag jobs by the FBI stopped in 1966. There is evidence in our record of a burglary committed by an FBI informant on a Socialist Workers Party office in 1976. The FBI file in Cleveland comes right down to 1978, with hostility toward the Socialist Workers Party, evidence from the 1978 document.
William H. Rehnquist: Did the district court in its opinion rely on, for instance, the 1978 document?
Thomas D. Buckley, Jr.: Well, it relied on the totality of the circumstances, Your Honor.
William H. Rehnquist: Well, it mentions several pieces of evidence specifically, as I recall. Did it mention that?
Thomas D. Buckley, Jr.: It does not mention that, Your Honor. It says, however, that... in the jurisdictional statement at the top of Page 814, it says that, "The political views of the SWP are unpopular with many Americans, and plaintiffs have offered substantial evidence of both governmental and private hostility toward and harassment of SWP members and supporters. " And then at the end it says it relies on the totality of the circumstances. The first sentence that I read is the preface for the rest of the few pages of findings of fact, where there are specific references.
Thurgood Marshall: But it is true that in an equity case decided as of the time the judgment is entered and as of this moment, is it not true that there is not one iota of evidence that the FBI or any other government agency is doing anything against them?
Thomas D. Buckley, Jr.: Well, Your Honor, that's--
Thurgood Marshall: Is it or is it not true? If it is true, give it, and let me hear it.
Thomas D. Buckley, Jr.: --It's... Let me answer you this way, Your Honor.
Thurgood Marshall: No, no, you will answer my question yes or no.
Thomas D. Buckley, Jr.: There is an inference that federal hostility toward the Socialist Workers Party continues. The FBI announced in 1976 that its internal security investigation of the Socialist Workers Party was at an end, the internal security aspects of it. The record is filled with references to other U.S. federal agencies who have had a long-standing interest in the Socialist Workers Party. The military intelligence agencies. The Defense Supply Construction Center, part of the military intelligence. The Immigration and Naturalization Service. The Secret Service. There is no evidence in the record that they ever stopped. There is no evidence that they continue, either, but one would have thought since the FBI made an announcement that it was closing down its investigation in 1976 that there would be a similar announcement with respect to other agencies.
Warren E. Burger: Even if they haven't been engaging in any such activity?
Thomas D. Buckley, Jr.: Well, the record shows that they were investigating, they had an interest and were investigating the Socialist Workers Party, and the evidence comes all the way down to the fall... to a few months before trial, actually. The U.S. Navy caused three of the firings to take place in New York. So that was federal hostility within a few months of the trial, in New York. There is plenty of evidence in the record as well with respect to private hostility toward the Socialist Workers Party. Some of the firings were obviously the result of private hostility. There is also evidence that people would contact... voluntarily contact the FBI and volunteer their services as informants. There is evidence that the FBI was able to recruit a network of contacts at 21 colleges and universities in the vicinity of Cleveland to keep an eye on the Socialist Workers Party to see what they were doing and were not doing.
William H. Rehnquist: Mr. Buckley, supposing that in a Presidential year, there is a very hotly fought battle between the Republican candidate and the Democratic candidate for President, and let's say in a particular Congressional district in Ohio the thing is even more hot, and it is just a very bitter, hostile rivalry, with a lot of rock-throwing, things you don't ordinarily see in strictly major party campaigns, but this is a little bit different. Do you suppose that either the Republican candidate or the Democratic candidate or the Republican Party or the Democratic could come in and make a showing under those circumstances that they ought not to be required to disclose?
Thomas D. Buckley, Jr.: Well, Your Honor, it might theoretically be possible. It is hard to imagine the circumstances in which that would take place. In Buckley, the Court said that minor parties could get an exemption. Now, there are places and circumstances, I suppose, in which a Democrat hasn't won or a Republican hasn't won in 100 years, and perhaps one could generate out of that sort of background a minor party characterization.
Harry A. Blackmun: Well, what about Pollard against Roberts?
Thomas D. Buckley, Jr.: Justice Blackmun, there is no question but that the--
Harry A. Blackmun: That was a Republican candidate.
Thomas D. Buckley, Jr.: --That was a Republican. The Republicans were the people whose campaign contributions would have been revealed in Pollard against Roberts were it not for the decision in Pollard against Roberts.
Harry A. Blackmun: I just don't want you to give up so easily.
Thomas D. Buckley, Jr.: Let me explain why this case took so long to get here. It was filed in 1974. The parties gave the temporary restraining order class-wide effect throughout. It was by agreement of the parties. The thing on file was a temporary restraining order. The parties gave it a class-wide effect. But the reason why it was delayed was because Buckley against Valeo was in the... was working its way up toward the Supreme Court, and there was then a lengthy battle with the FBI over discovery of the FBI records from Cleveland. After those records were finally revealed in a highly excised form, we stopped fighting the FBI and took what they gave us in that excised form and moved forward fairly promptly toward trial.
Warren E. Burger: We will resume there at 1:00 o'clock, counsel. You may continue, Mr. Buckley.
Thomas D. Buckley, Jr.: Thank you, Mr. Chief Justice. The record in this case shows the people who are connected with the Socialist Workers Party have been subjected to threats, harassment, and reprisals in the past and right down to the time of trial from government sources and from private sources. This is exactly the sort of evidence that the Court in Buckley against Valeo said would be necessary for a minor party to qualify for an exemption from a campaign disclosure law. This is also exactly the sort of evidence about the dangers of being associated with the Socialist Workers Party which establishes that it is dangerous to have your name identified as a person to whom an expenditure has been made. People who receive expenditures, not only printers, but landlords, other such people, are just as apt... the inference seems just so perfectly natural. They are just as apt to be harassed on that account as are people who make contributions.
William H. Rehnquist: That doesn't necessarily follow, does it, counsel? Wouldn't some people feel differently about someone who took a printing job from the Socialist Workers Party as simply a commercial deal, or a landlord who rented premises to them, that he was in the business of renting to anyone who came along, as opposed to someone who voluntarily contributed? He wasn't in the business of contributing. He chose the Socialist Workers Party.
Thomas D. Buckley, Jr.: But, Your Honor, the people who become landlords for the Socialist Workers Party deliberately choose to deal with them, and they might very well not want it to be known that that is where they were making their money. The same for the printers.
William H. Rehnquist: Well, I suppose any landlord deliberately chooses, but do you think it is exactly the same sort of choice as making a voluntary contribution to a political party?
Thomas D. Buckley, Jr.: I suggest that it would be harmful to many people if it were known that they were making their money by dealing with the Marxist ideologists.
John Paul Stevens: Supposing the Hilton Hotel rented a room for a meeting. Do you think they would get bombed for that?
Thomas D. Buckley, Jr.: We have no evidence, Your Honor, that the Hilton--
John Paul Stevens: That is exactly the point. There is no evidence one way or the other.
Thomas D. Buckley, Jr.: --We do have evidence, not about the Hilton, Your Honor, but that the FBI did harass SWP landlords in the past, not because they were discovered to be landlords on account of the disclosure laws, but because the found it out some other way, and they discovered that neighbors and friends were--
Byron R. White: Well, your argument about contributors, though, is that the Socialist Workers Party will be damaged because contributors will be put off. You won't get your contributions. Isn't that right? This is the party's interest.
Thomas D. Buckley, Jr.: --It is a party's interest, Your Honor, but there are other kinds of--
Byron R. White: Well, I know, but whose interests are you representing here, the Socialist Workers Party?
Thomas D. Buckley, Jr.: --The Socialist Workers Party, their contributors, and people who have received--
Byron R. White: All right, their contributors, but the only reason you can represent the contributors is because it might cool them off to have their names disclosed. Do you think there is the same argument with respect to expenditures, that the party won't be able to find people to take the money?
Thomas D. Buckley, Jr.: --Yes, Your Honor. When it comes to--
Byron R. White: You mean, you can't find a landlord, or you can't find... of course, everybody is going to know who your landlord is.
Thomas D. Buckley, Jr.: --There are other kinds... even with respect to--
Byron R. White: You can't rent a hotel room? You can't find any secretaries to work for you?
Thomas D. Buckley, Jr.: --It would deter such people, Your Honor, but there are other kinds of recipients as well. I've got Exhibit F from the record here.
Byron R. White: Printers? You can't find a printer to print for you? Because they may be harassed?
Thomas D. Buckley, Jr.: You would reduce the number of printers, Your Honor. I think that seems quite... it is quite likely that the number of printers that would be available... This shows other kinds of recipients of funds, not in the order of magnitude of landlords and printers. It shows people getting $20, $7, $23, amounts like that to pay for Xerox, postage, such things as that. These are the people who do the legwork for the campaign, little people.
William H. Rehnquist: Who do you pay to get the postage? The United States Post Office, aren't you?
Thomas D. Buckley, Jr.: Well, you pay somebody to go and buy that, Your Honor, and that is what... you have to say, to whom paid, and the purpose of the expenditure. Now, there are other people--
William H. Rehnquist: Do you buy stamps through a middleman?
Thomas D. Buckley, Jr.: --That's correct, Your Honor, because the... it says here... There are other people who are named here. Central National Bank is listed as a recipient for service charges. Other sorts of recipients would be people whose carfare was reimbursed. Expenses in connection with the campaign such as that. In Buckley, this Court suggested that one could qualify for an exemption from disclosure if the party came forward with proof similar to the proof in NAACP against Alabama. Our case is very similar to NAACP against Alabama. There was violence against people in NAACP against Alabama, and it was violence principally, not exclusively, against leaders in the NAACP. Reverend Shuttlesworth is mentioned twice. Martin Luther King is mentioned. Another person who is not famous but who had made speeches is mentioned by name as having been assaulted.
Thurgood Marshall: I had a suit for $6 million. They didn't mention me either. 0 [Generallaughter.]
Thomas D. Buckley, Jr.: There was evidence of government hostility in the state of Alabama. There is evidence of government hostility in this case, and there was some evidence--
William H. Rehnquist: Any evidence of hostility from the state of Ohio?
Thomas D. Buckley, Jr.: --Very little, Your Honor, but there is some. The lieutenant governor made a request to the FBI in one situation about a member of the Young Socialist Alliance, and it shows at another point that the FBI was working with the Cleveland Police Department, but there isn't that much. And in NAACP, there is some evidence, but not as much evidence as there is in this case, of economic reprisal. When it comes to people being fired we have in this case a substantial amount of evidence coming right down to the time of trial, and the cases are quite comparable. In my remaining minutes, I would like to deal with one other argument that is in the appellant's brief, the nominating petition argument, so-called. To get on the ballot in Ohio, Socialist Workers Party candidates have to collect signatures on nominating petition--
Warren E. Burger: Your time has expired, Mr. Buckley. You have covered that in your brief, I am sure.
Thomas D. Buckley, Jr.: --Thank you.
Warren E. Burger: Do you have anything further, Mr. Brown?
Gary Elson Brown: Chief Justice, and if it please the Court, we just have a couple of brief points we would like to make on rebuttal in regard to two specific cases which have been previously decided in this country. One of them is the Paul Young case involving the Socialist Workers Party. In that case, the Soclialist Workers Party lost. The district court required the Socialist Workers Party to disclose the identity of its contributors and the recipients of its expenditures, yet in this case, the SWP has presented no evidence of any harassment in Oregon, despite the fact that they present extensive other evidence of nationwide problems in the evidence in their case. Again, I think they could have presented direct evidence on the question regarding potential harassment of contributors or expenditure recipients out of the Oregon situation if there had been any harassment, threats, or reprisals. The other case we would like to refer to briefly is the FEC versus Hall Tiner case, which Mr. Buckley just brought to the Court's attention in his letter this week. That case involves the Communist Party rather than the Socialist Workers Party, but that case is a very telling case, because the evidence there showed, and incidentally, the Court created an exemption for the Communist Party in the FEC case, and the evidence in that case showed that there are numerous federal statutes currently subjecting members of the Communist Party to both civil disabilities and criminal liability. Secondly, membership can cause a naturalized citizen to have his citizenship revoked. The evidence also showed that in many states it is currently illegal to be a member of the communist party. Fourth, contributors to the Communist Party are proscribed by many state statutes throughout the country, and most importantly, there was evidence in the form of an affidavit by the Assistant Director of the FBI that even though the Cointelpro, the harassment program of the FBI, even though the Cointelpro Program was terminated in 1971, the Communist Party of the United States is currently under active surveillance. That is very distinguishable from this case, where the government has testified that there is no longer any Cointelpro Programs vis-a-vis the Socialist Workers Party. They are not under active surveillance in this country.
Harry A. Blackmun: Mr. Brown, time-wise, where does the line of demarcation come? Suppose the FBI had announced last week that it was terminating? Is the case any different?
Gary Elson Brown: Justice Blackmun, there is no way for me to stand here and say there is a definite way to draw that time line. A three-judge panel or trial court or this Court has to bring its experience to bear on that question, but last week is a far cry, ten or eleven years ago, and the issue coming out of the Buckley versus Valeo test is the future reasonable probability that disclosure is going to result in threats, reprisals, or harassment. If it just ceased last week, I think that would be a different case than we have here, where it ceased eleven years ago.
Harry A. Blackmun: Well, suppose it is three years ago.
Gary Elson Brown: Well, like I say, there is no way to definitely draw the line, but the further you go back into the past, the less likely it has any current probative value.
Harry A. Blackmun: So your position is that it has to be unreasonable here.
Gary Elson Brown: I don't understand about have to be unreasonable, Your Honor.
Harry A. Blackmun: The conclusions of the three-judge court have to be unreasonable on the evidence that was submitted. If it is eleven years ago, it is unreasonable.
Gary Elson Brown: That's correct. There is no doubt about that.
Harry A. Blackmun: If it was three years ago--
Gary Elson Brown: If it was three years ago, I would stand here and say it was probably still unreasonable. Last week, I would be much less prone to say that. Your Honor, in closing, I think clearly in consideration of this matter, the district court incorrectly applied the standards set forth by this Court in Buckley versus Valeo by failing to require the Socialist Workers Party to properly establish that a reasonable probability in the future of threats, reprisals, or harassment to contributors or recipients of expenditures would result from their compliance with the disclosure requirements of our statute. Thank you, Your Honor.
Warren E. Burger: Thank you, gentlemen. The case is submitted.