U.S. SUPREME COURT REPORTS 74L Ed 2d (Brown v Socialist Workers '74 Campaign Committee)

    U.S. SUPREME COURT REPORTS 74LEA?d'

ld6e us 871
TED W. BROWN et al., Appellants

v
socIALIsr woRKERs '24 CAMPAIGN COMMITTEE (oHIo) et al.

459 US 87,74 L Ed 2d 250, 103 S Ct 416

[No. 81-726]

Argued October 4, LggZ. Decided December g, 1gg2

Decision: ohio statute requiring every candidate for political office todisclose each cont':ibutor and recipient or ca-frig-frr'.rd., trela invaliaunder First Amendmel-t as applied to minor p"titi*r p"rty that rristori-cally had been object of harassment.

SUMMARY

. A small political p_arty instituted a class action challenging the constitu-tionality of the disclosure provisions of an ot io siaiuie- requiring every
can-didate for political office to file a statement identifyinj each contributorand-each recipient of a disbursement of -campaign r"ras'a"a ."q"i.i"l trr"disclosure of the objelt or_purpose of each ais'u"fte*e"i. The united statesDistrict court for-the Nb"tte"" -Disirict 

of otrio u.,t".La a temporaryrestraining order barring the enforcement of the disclosure requirements
psaingt the class pgldilg- a determination of the merits. The "*" **transferred to the United States District Crcurt for tfru So"tt ern Oisirict ofohio, which entered.an identicar temporary restraining order. a ttrree-:uiseDistrict Court held that the disclosure requirem""ut ir"ie ,rnconstitutional
as applied to the minor political party. ,

on appeal, the u.nited states s^upreme court affirmed. In an opinion by
!I-e,nsnt,.r,, J., joined by puncrn,_q". J.,an4 Bnr*Ni", W*", and pownu,
J.J.,. a1d joined in part (parts I,'[I, and tVl Uv e;;;;;, J., it was heldthat the disclosure requirements of the state tampaign expense reportinglaw could not be constitutionary- applied t" ";i;;;-po-tiii.rr party thathistorically had been the object 6r ni.'"r"r."ent by co*,"irr*errt officials andprivate parties.

BLn'cxMUx, J., concurred in part and concurred in the judgment, express-

Briefs of Counsel, p 1102, infra.
?,60



74L&c U

trE (OHIO)et al.

t6

8, 1982

: political office to
funds, held invalid
party that histori-

lnging the constitu-
rte requiring every
ng each contributor
s and requiring the
The United States

bered a temporary
csure requirements
rits. The case was
iouthern District of
rrder. A three-judge
re unconstitutional

I. In an opinion by
i/nrrr. and Pownu.,
uN, J.. it was held
expense reporting

nlitical party that
nment oficials and

judgment, express-

BROWN v SOCIALIST WORKERS'74 CAMP. COMM.
459 US 87,74L8,d2d250,103 S Ct 416

ino the view that the court should not have reached the issue whether a
ifndard of proof different from that applied to disclosure of campaign

intriUutions should be applied to disclosure of campaign disbursements.

O'CoNNon,,J., joined by RrnNqursr and SrrvrNs, JJ., concurred in part
and dissented in part, expressing the view that the Etatute was invalid as to
th" di""loture of contributors but that the statute was valid as to the
disclos,r"e of the recipients of expenditures.

HEADNOTES

Ctassified to U.S. Supreme Court Digest, Lawyers'Edition

Constitutional Law $ 940.5 - First disbursement, cannot be constitutionally
Amendment - minor political applied to a minor political party that
party-_ -. disclosure of political h-istorically has been the object of ha-
contributions and expenditures rassment by Government officials and

- stat€ statute
la, 1b. The disclosure requirements of private parties; the First Amendment

a 6tate campaign *p";*-;;;ffi L;, prohibits a state from compelling disclo-

ifri"f, .ornplh-"reryc"rrdiaate fo."potiti- sures by a minor party that wili subject

;i-;ffi; tb tle a itut"rn"nt identifying those persons identified to the reason-

each contributor and each recipient'of a able probability of threats, harassment,

disbursement of campaign funds and to or reprisals, since such disclosures would
disclose the object or purpose of each infringe the First Amendment rights of

TOTAL CLIENT.SERVICE LIBRARY.S REFERENCES

16A Am Jur 2d, Constitutional Law $S 545, 546; 25 Am Jur
2d, Elections $ 117

USCS, Constitution, 1st Amendment
US L Ed Digest, Constitutional Law $$ 940.5, 959

L Ed Index to Annos, Associators and Clubs; Campaign Ex-
penses; Elections; Freedom of Speech, Press, Religion, and
Assembly

ALR Quick Index, Campaign Expenses; Elections; Freedom of
Association; Freedom of Speech and Press; Political Parties

Federal Quick Index, Campaign Expenses; Elections; tr''reedom
of Association; Freedom of Speech and Press; Political
Activities and Matters

ANNOTATION REFERENCES

Supreme Court's views regarding the First Amendment right of association as
applied to the advancement of political beliefs. 67 L Ed 2d 859.

The Supreme Court and the right of free speech and press. 93 L Ed 1f51, 2 L Ed
2d 1706, 11 L Ed 2d 1116, 16 L Ed 2d 1053, 21 L Ed 2d 976.

State regulation of the giving or making of political contributions or expendi-
tures by private individuals. 94 ALR3d 944.

26r



U.S. SUPREME COURT REPORTS 74LEd2d

t
E

.a-

t

the party and iL. members and support-
ers. (O'Connor, Rehnquist, and Stevens.
JJ., dissented in part from this holding.r

Constitutional Law $ 959 First
Amendment - disclosure of polit-
ical association

2. The Constitution protects against
the compelled disclosure of political asso-
ciations and beiiefs since such disclo-
sures can seriouslv infringe on privac-v of
association and belief guaranteed by the
First Amendment; the right to privacy
in one's political associations and beliefs
will yield only to a subordinating inrer-
est of the state that is compelling, and
then only if there is a substantiai rela-
tion between the information sought and
an overriding and compelling state inter-
est.

Appeal and Enor $ I08S - review -questions considered-power of
Supreme C,ourt

3a, 3b. The question whether the tesi
for safeguarding the First Amendment
interests of minor political parties re_
garding compelled disclosure of cam-
paign contributors also applies to the
compelied disclosure of recipients of'
campaign disbursements is properly be-
fore the Supreme Court u.here the- Dis.
trict Court necessarill-held that the test
appiies to both contributions and expen-
ditures and that the evidence was suffi_
cient to show a rea-sonable probabilitl.
that disclosure would subject both con-
tributors and recipients to pubiic hostil_
ity and harassment and where the cor_
rectness of the District Court's holdings
are fairl-y included in the question pre-
sented in the jurisdictional statement.

Constitutional Law g 940.b - First
Amendment - minor political
partl'disclosure of political con_
tributions and expenditures

4. The government inrerests in compel-
ling disclosure o{ informarion concerning
campaign contributions and expendi-
tures are weaker in the case of minor
political parties. u'hile the threai t()
First Amendmeni values is greater. both
of these considerations applr not onlv t.o

252

the disclosure of the names of campaign
contributors but also to the disclorr.e of
names of recipients of campaign dis_
bursements. (O'Connor, Rehnquiit, and
Stevens, JJ., dissented from this hold_
ing. )

Constitutional Lau, $ 940.5 - First
Amendment - minor political
party - disclosure of political
expenditures

5a, 5b. Minor polirical parties are enti-
tied to an exemption from requirements
that recipients of campaign expenditures
be disclosed vyhere the-y ca, sho*, a ,"a-
sonable probability of harassment, since
the governmenr interest is substantiallv
reduced in the case of minor parties; a
Iegitimate government interesi in pre-
venting corruption by requiring the dis-
closure of recipients of campaign dis-
bursements has less force in the context
of minor poiitical parties since minor
parties are not as likely as major parties
to make significant expenditures in fund-
ing dirty tricks or other improper cam-
paign activities and since the expendi-
ture bl minor parties of even a substan.
tial portion of their limited funds on
illegal activities would be unlikelv to
have a substantial impact; the mere pos-
sibiiitl' that minor parties rx'ill resori to
corruption or unfair tactics cannot jus-
tifl' the substantial infringement on
First Amendment interests that would
result from compelling the disclosure of
recipienrs of expenditures. (O'Connor,
Rehnquist, and Stevens, JJ., dissented
from this holding.)

Constituf,ional Lau' g g40.5; Evidence
S 96I - First Amendment - dis-
closure of political contributions
and expenditures - test for ex-
empting minor political part1.

6. The test for safeguarciing the First
Amendment interests of minor politicai
partres and their rrrerrbe.s ani support-
ers appltes not oni. 1o r-h! corrrr,eljeC
dist'losure oi cz.rnpai;:; c{,niributurs nut
also to the con:peiiec criajosL:i-e oi'rectp .

ents of campaigr, dtsbursentenLs: the tesl
lbr delerr::lning u.her: rhe Firsr Ainend.
ment requires exemptin[: ri]nor parties



74 LDd 2d

.he names of campaign
Iso to the disclosure of
nts of campaig:n dis-
rnnor, Rehnquist, and
ented from this hold-

aw $940.6 - Firet
minor political

closure of political

Iitical parties are enti-
on from requirements
ampaign expenditures
they can show a rea-
of harassment, since

Lerest is substantiallv
e of minor parties: a
rent interest in pre-
by requiring the dis-
rts of campaign dis-
r force in the context
parties since minor
kely as major parties
expenditures in fund-
other improper cam-
I since the expendi-
es of even a substan-
ir limited funds on
luld be unlikely to
mpact; the mere pos-
rarties will resort to
r tactics cannot jus-
il infringement on
nterests that would
.ng the disclosure of
rditures. (O'Connor,
vens, JJ., dissented

' $ 940.5; Evidence
imendment - dis.
:ical contributione
'e6 - t€st for ex-
political partS'
rguarding the First
r of minor political
mbers and support-
to the compelled

ln contributors but
disclosure of recipi-
ursements: the test
r the First Amend-
ting minor parries

BROWN v SOCIALIST WORKERS ,24 CAMP. COMM.
459 US 87,74LF!2d2fi.103 s ct 416

from compelled disclosures is that the names are disclosed; evidence of private
evidence offered need- show only a rea- and governm""i-r,o.tiuty to*ria-" ,ni-
eonable probability that rhe compelled nor frlitical p"ity 

"ia its members es-
disclosure of a party's contributors' tablishes 

" ,;;;;;"b1" p.ou"uiiii; th"t
names will subject them to threats, ha- disclosing tt e names of contributors anJ
rassment, or reprisals .from either gov- recipients will subject them to th;";,
ernment officials or private parties; mi- harassment, .Jl"pri""ls where it isnor parties must be allowed sufficient shown that there haie been threatenine
oexibilitv in the proof of injury. phone calls, t.te mait, i;; ;ffi;;";?
constitutionar r.aw g e40.8; Evidence ffilil ffi::U:'ff.:"ilX,,:1":1Xt

$ 96r - First Amendment - mi- party candidate, the firing of shots at anor political party - discrosure party office, -;.i;; government surveil-ofpolitical expenditures iance of";;"r,r,;"i a Federal Bureau7a-7c. A minor poriticar party does nor of Investigad;;-i;;;l".inreligence pro_have to prove that ch,l and harassment gram dirJctd .g.i"rt the party; evi-are directly attributable to a statute's lence of ;;;;ri';;J past harassment
disclosure requirements in estabrishing a suggests that hostility to*,ard the partyreasonable probability that recipienLrof ir*Ingr"in"J ."J^"iir."rt- to continue.campaign expenditures will be subjected (.O'Coinor, n"fr"qUrt, and Stevens, JJ.,tD threats and harassment if their dissented ir;;i;;;this holding.)' 

--'

SYLLABUS BY REPORTER OF DECISIONS

Held: The disclosure provisions of the crosure of campaigrr contributors butohio campaign Expense Reporting Law also to th; ;;;;[.,"d;disclosure of recipi-requiring every candidate for poritical entsof."-purCJiJr]rsements.
office to report the names and addresses (b) Here, ine"bisi.i.t cou.t, in uphold_of campaign contributors and recipients ing appellee.' .h"li;;;" to the constitu-of campaign disbursements, cannot be tio'naliiy 

"f 
-th; 

ohi; disclosure provi-constitu-tionally applied to appellee So .;o.rr, i"op".l, 
-""i.irO"d 

that the evi_cialist workers parrv (swpj, a minor dence of p;i;;i"-;;;'dore.nment host,-political party that historicall-v r,"" b."" ity to*a.d the swp and its membersthe object of harassment by Government eitabrishes . ."*onubr" probability thatt4"i"1". and.private parties. disclosing the names of contributors and(a) The First Amendment prohibits a recipienti *ill-.ru:".i them to threars,state from .compelling discroiures b1: a harassment, and reprisals.minor political party that will subject Afrrmed.
those persons identified to the reason- Ma_rshall, J., derivered the opinion ofable probability of thre_ats, harassment, the court, i" ;hi;h ilurger, c.J., andor reprisals. Bucklev v^V^al9o, 424 US 1, C.".r.ru.r, White. and powell. JJ., joined,?4' 46 L Ed 2d 6s9, 96 s ct'6ir: M;.;: and in parts r, III, and IV of r*.hichover, minor parties must be alrowed suf- Br"ckmun, J., j;i"J] ir""k-rrr,, J., firedficient flexibility in the-proof-of injurj' in opinion concurring in part and con-Ibid rhese principles. 16. ..r"gu"iJr.rg Iu..i.,g in the judgment. o,connor, J.,the First Amendment interests 6i -inoi n1.a ; "pi"i"""""i"r..ing in part andparties and their members and support- Jisserting'i; ;;---i; which Rehnquisters apply nor only ro the compell# dis- and Ste..&s, "rj" lli*a

APPEARANCES OF COUNSEL
Gary Elson Brown argued the cause for appellants.
Thomas D. Bucklev, Jr. argued the cause-fbr appellees,Briefs of Counsel, p if OZ, irrfi^.

253



U.S. SUPREME COURT REPORTS

OPTNION OT'THE COURT

74LEdtut

[{59 US 8t]
Justice Marehall delivered the

opinion of the Court.

[1a] This case presents the ques-
tion whethei certain disclosure re-
quirements of the Ohio Campaign
Expense Reporting Law, Ohio Rev
Code Ann $ 3517.01 et seq. (1922 and
Supp 1981), can be constitutionally
applied to the Socialist Workers
Party, a minor political party which
historically has been the object of
harassment by government ofrcials
and private parties. The Ohio stat-
ute requires every political party to
report the names and addresses of
campaign contributors and recipi-
ents of campaign disbursements. In
Buckley v Valeo, 424 US 1, 46 L Ed
2d 659, 96 S Ct 612 (1976), this Court
held that the First Amendment pro.
hibits the government from compel-
ling disclosures by a minor political
party that can show a "reasonable
probability" that the compelled dis-
closures will subject those identified
to "threats, harassment, or repri-
sals." Id., at74,46 L Frt 2d 6Eg, 96 S
G,612. Employing this test, a three.
judge District Court for the South-
ern District of Ohio held that the
Ohio statute is unconstitutional as
applied tn the Socialist Workers
Party. We aftrm.

I
The Socialist Workers party

6WP) is a small political party with
approximately 60 members in the
State of Ohio. The Party states in its
constitution that its aim is ,,the abo
lition of capitalism and the estab-
lishment of a workers' government
to achieve socialism." As the District
Court found, the SWP does not advo
cate the use of violence. It seeks
instead to achieve social change
through the political process, and its
members regularly run for public
office. The SWP's candidates have
had little success at the polls. In
1980, for example, the Ohio SWp's
candidate for the United States Sen-
ate received fewer than 27,000 votes,
less than LgVo of the total

[45e US Ee]

Campaign contributions and "rt!f:ditures in Ohio have averaged about
$15,000 annually since 1974.

In 1974 appellees instituted a class
action' in the District Court for the
Northern District of Ohio challeng-
ing the constitutionality of the dii-
closure provisions of the Ohio Cam-
paign Expense Reporting Law. The
Ohio statute requires every candi-
date for political office to file a state
ment identifying each contributor
and each recipient of a disbursement
of campaign funds. g 3512.10., The

. l-. The plaintiff clem as eventually certifed
includes all SWP candidates for poliiical office
in Ohio, their campaign commitiees and trea-
surers, and people who contribute to or re
ceive disbureements from SIVp campaigr
committees. The defendants are the Ohi6 Sec_
retary of State and other state and local
ofrcials who administer the disclosure l8w.

2. Secuon 3517.10 provides in relevant part:
"(Al. Every campaign committee, potiiicat

commitr€e. and polirical party which made or
received a contribution or made an expendi_
ture in connection with the nominatiion or
election of any candidarc at any election held

2tt4

in this state shall file, on a form prescribed
under this eection, a full, true, and itcmlzed
Btstement, made under penalty of election
falsiEcation, eetting forth in detail the contri-
butions and expenditures .

-(Bi Each statement required by division (A)
of this section shall conrain ihe follo*.ing
information:

"(4) A etatement of contributions made or
received, which ehali include:

"(a) The month, day, and year of the contri-
bution:



BTS 74LEA2I

nall political party withy 60 members in the
. The Party states in its
;hat its aim is ,,the abo
italism and the estab-
t workers' government
rialism." As the District
the SWP does not advo.
of violence. It seeks

rchieve social change
olitical process, and its
ularly run for public
iVP's candidates have
:cess at the polls. In
nple, the Ohio SWp's
lhe United States Sen-
werthan Z7,AOO votes,
of the total

169 US Egl

-_ vote.
lributions and expen-
I have averaged about
ty smce 1924.

lees instituted a class
)istrict Court for the
ict of Ohio challenp_
rtionality of the ;i:-
ns of the Ohio Cam-
Reporting Law. The
rquires every candi-
I office to file a state.
rg each contributor
nt of a disbursement
nds. $ 3512.10., The

'object or PurPose"s
[45e US 00]

of each dis-
bur:ement must also be disclosed.
The lists of names and addresses of
oontributors and recipients are open
to public inspection for at least six
years. Violations of the disclosure
requirem,ents are punishable by fines
of up to $1,000 for each day of viola-
tion. $ 3517.99.

On November 6,1974, the District
Court for the Northern District of
Ohio entered a temporary restrain_
ing order barring the enforcement of
the disclosure requirements against
the class pending a determinatlon of
the merits.. The case was then trans_
ferred to the District Court'for the
Southern District of Ohio, which en-

tered an identical temporary re.
straining order in February igZS.,
Accordingly, since 1924

[45e US el]

have not disclosed trre n"m#:illi::
tributors and recipients but have
otherwise complied with the statute.A three-judge District Court ;;
9-o-nv-ened pursuant to 2g USC g 22g1
[28 USCS $ 2281]. Foilowing ;;t *
sive discovery, the trial was"held in
Feb-ruary 1981. After reviewing the
"substantial evidence of both go-""i"-
mental and private hostility ioward
and harassment of SWp meinbeisand supporters," the three_judge
court concluded that under AucUey
u 

^Yaleo, 
424_US 1. 46 L Ed 2d 6ig,96 S ct 672 (1976), the ohio

BROWN v SOCIALIST WORKERS ,24 CAMP. COMM.
459 US 87 , 7 4 L Ft 2d 250, 103 S Ct 416

rle, on a form prescribed
r -full, true, and itemized
rder penalty of election
orth in detai.l the contri_
ure6.

reguired b.v division lA)I contain the follou.ing

f contribuiions made or
rnclude;
'. and year of the contri-

"(b) The full name and address of each
person, in-cluding any chairman o. treasu.Li
tlrereof if other than an individual, from
whom c.ontributions are received. The .eo"i.._
ment of filing the full address aoes 

"ot a"ofuto an)' statement filed by a state o. to"j
oommitlee of a political party, to 

" n"."""
committee of such committee, 

-or 
to a 

"o__it_tee_ recognized by a state or local commlltee
as-its fund-raising auxiliary

"(o. A^ description of the contribution re.
ceived, if other than money;

"td) The value in dollars and cents of the
contribution:

- 
"ter All contributions and expenditures

ahall be itemized separarely ."g.;ei;;i;;;
amount except a receipt of i contribution
trom a person in the sum of twenty_five dol.lars or less at one social o, f"na_".iJing 

""it-i-ty. An account of the rotal 
"o"tiiButio".from each such eocial or fund_raisin;;;;il:

shall b€ lisred separarety, td"il;;-";th'il'.
expenses incurred and paid in connectionwith,such. activity. No continuing 

"di;ii;;wnlch makes a contribution from funds whichare derived solell- from regular a"*-p"iJ'Ui
me5nbery of the association shall be requirj
to. hst the name or addres-" oi 

".,, -"L-Uu.lwho paid such dues.

."li, a staLemenr of expend:rures whichahall include:

- "(a) The month. da1.. anC rea;- of expendi-ture:
"(bt The full name and address of eachperson to whom the expendrture *.-. -"a".

including any chairman or treasurer thereofif a commitrce, association, 
". ;;;; ;-;;-

sons;
"tct 15" object or purpose for *.hich theexpendlture was made:
"(d) The amount of each expendit.ure.

"....: 4ll such sratements shail be open topublic inspection in the offic" whe." ,f,'*'.ifiled, and shall be carefuily p.;;;;-i";';
period ofat least six years.'.

_If the candidate is running for a shtewide
offce,-the statement shall fe fil; ;;;;';;;
Ohio Secretan- of State: otherwise, ,f,"-rt [_ment shall b€ 61ed with the 

"pp.op-ri"Lcounty board of elections. g SSfZ.fftar. 
-'-----

3. g 3S1Z.l0GX5Xc).

.1. Tt" order restrained various state off-

i.il,ffJ :l"'{Xf, .i:,W.:;:1lx'i'}:
Ohio Campaign .Expense n"fi"..irl-'f.""' r#
Lne. penalt\. provision of that lau.. the effect of*'hich wjll be to postpon" ,f," U"eir;ii"'JiaI) possrble period of r.iolation of thar lar^f biptarntrus, . until such time as the case lldecided by the three judge p"r,"f.'r.t-it' i.-
nereb)- convened." tCitations omitted. I

5. Apparentl.v none of the parties throush_out th€ &year period questioneci *h"il;;;;
extended duration of the temporar-l. restrain_
ing- order conformed to tt" iequii"-""r.'.f
Rule 650) of the Federat Bules 

"iCi"iii;t*dure,

255



U.S. SUPREME COURT REPOBTS 74LEd2d

disclosure requirements are uncon'
stitutional as applied to appellees.o
We noted probable jurisdiction. 451
vs L122,71 L Ed 2d 108, 102 S Ct
968 (1981).

II
t2l The Constitution Protects

against the compelled discloeure of
political associations and beliefs.
Such dieclosures "can seriously in-
fringe on privacy of association and
belief guaranteed by the First
Amendment." Buckley v Valeo, su-
pra, at U, 46 L Ed 2d 659, 96 S Ct
612, citing Gibson v Florida Iegisla-
tive Comm., 372 US 539, 9 L Ed 2d
929, 83 S Ct 889 (1963); NAACP v
Button, 371 US 415, I L &l 2d 405,
83 S Ct 328 (f9ffi); Shelton v Tucker,
364 US 479,5 L Ed 2d 231, 81 S Ct
247 (I9ffi); Bates v Little Rock, 361
us 516, 4 L Ed 2d 4W,80 s Ct 412
(1960); NAACP v Alabama, 357 US
449, 2 L Ed 2d 1488, 78 S Ct 1163
(1958). "Inviolability of privacy in
group association may in many cir-
cumstanoes be indispensable to pres-
ervation of freedom of association,
particularly where a group espouses
dissident beliefs." NAACP v AIa-
bama, supra, at 462, 2 L M 2d
1488, 78 S Ct 1163. The right to
privacy in one's political associ-
ations and beliefs will yield

[45e US 92]

the Stat€ [that is] compelling,"'
NAACP v Alabama, supra, at 463,2
L Ed 2d 1488, 78 S Ct 1163 (quoting
Sweezy v New Hampshire, 354 US
234,265,1 L Ed 2d 1311, 77 S Ct
1203 (1957) (opinion concurring in
result), and then only if there is a
"substantial relation between the in-
formation sought and [an] overriding
and compelling state interest." Gib-
son v Florida Legislative Comm., su-
pra, at 546, I L Ed 2d 929, 83 S Ct
889.

In Buckley v Valeo this Court up
held against a First Amendment
challenge the reporting and discle
sure requirements imposed on politi-
cal parties by the Federal Election
Campnjgn Act of L971. 2 USC $ 431
et seq. [2 USCS $$ 431 eL seq.). 424
US, at W74,46 L Ed 2d 659, 96 S
Ct 612. The Court found three gov-
ernment interests sufEcient in gen-
eral to justify requiring disclosure of
information concerning campaign
contributions and expenditures:7 en-
hancement of voters' knowledge
about a candidate's possible alle-
giances and interests, deterrence of
corruption, and the enforcement of
contribution limitations.s The Court
stressed, however, that in certain
circumstances the balance of inter-
ests requires exempting minor politi-
cal parties from compelled disclo-
sures. The government's interests in

only to a "'subordinating interest of compelling disclosures are "dimin-

6. Because it invalidated the Ohio Btatute as
applied to the Ohio SWP, the District Court
did not decide appellees'claim that the stat-
ute was faciall;- invalid. The Ohio statute
requires disclosure of contributions and ex-
penditures no matter how small the amount.
Ohio RBv Code Ann $ 3517.10GX4xe\ (Supp
1981t. Appellees contended that the absence
of a monetary threshold rendered the statute
facially invalid since the compeiied drsclosure
of nominal contributions and expenditures
iacks a subetantiai nexus with an1' ciairr,ei
government interest. See Bucklel' v \raieo.
424 US, at 8?,44, 46 L Ed 2d 659, 96 S Ct
6t2.

The District Court's opinion is unreported.

?.56

7. Title 2!USC $$ 432, 4U, and 438 (1976

ed, supp v) [2 uscs $$ 432. 434 and 438]
require each political committee to keep de-
tailed records of both contributions and ex-
penditures, including the names of campaign
contributors and recipients of campaign dis-
bureements, and to fiIe reports with the Fed-
eral Election Commission which are made
available to the public.

8. The government interest in enforcing
Iimitations is completely inapplicable in thi6
case, since the Ohio law impoees no limita'
tion6 on the amount of campaiSn contribu'
tions.



74LE/l2d

isl compelling,"'
ra, supra, at 463,2
S Ct 1163 (quoting
.ampshire, 354 US
2d 1311, 77 S Ct

,ion concurring in
only if there is a

ron between the in-
and [an] overriding
ate interest." Gib-
islative Comm., gu-

N, 2d 929,83 S Ct

aleo this Court up
First Amendment
rcrting and disclo
r imposed on politi-
e Federal Election
197t.2 USC $431
i$ 431 et seq.). 424
L Ed 2d 659, 96 S
t found three gov-
i sufficient in gen-
.riring disclosure of
:erning campaign
expenditures:? en-

roters' knowledge
te's possible alle-
ests, deterrence of
he enforcement of
ations.6 The Court
', that in certain
' balance of inter-
rpting minor politi-
compelled disclo

ment's interests in
sures are "dimin-

32, 434, and 438 (1976
i $$ 432, 434 and 4381
commiltee to keep de-
contributions and ex-

;he names of campaign
rients of campaign dis-
r reports with the Fed-
sion which are made

interect in enforcing
:ly inapplicable in this
,aw imposes no limita-
of campaign contribu-

BROWN v SOCIALIST WORKERS '74 CAMP. COMM.
459 us 87,74L Ed 2d 250, 103 s ct 416

frI,1; ;t,',l; iT.";JXffil dft'E;
irsS. n{iror party candidates "usu-

lI" r"p."."nt definite and publicized

Iewpoints" well known to the Pub-

lic, and the improbability of -their
winni.,g reduces the dangers of cor-

ruption and vote'buying. Ibid. At the
same time, the potential for impair-
ing First Amendment interests is

substantiallY greater:

[45e us e3]

"We are not unmindful that the
damage done bY disclosure to the
associational interests of the mi-
nor parties and their members
and to suPPorters of indePendents
could be significant. These move-
ments are less likelY to have a

sound financial base and thus are
more vulnerable to falloffs in con'
tributions. In some instances fears
of reprisal may deter contributions
to the point where the movement
cannot survive. The public interest
also suffers if that result comes to
pass, for there is a consequent
reduction in the free circulation of
ideas both within and without the
political arena." Id., at 7L, 47 L Ed
2d 405, 96 S Ct 1155 tfootnotes
omittedt.

We concluded that in some circum-
stances the diminished government
interests furthered by compelling
disclosures by minor parties does not
justify the greater threat to First
Amendment values.

Buckley v Valeo set forth the fol-
lowing test for determining when
the First Amendment requires ex-

empting minor parties from com'
pelled disclosures:

"The evidence offered need show
only a reasonable probability that
the compelled disclosure of a Par-
ty's contributors' names will sub-
ject them to threats, harassment,
or reprisals from either Govern-
ment officials or private Parties."
Id., at 74, 47 L Ed 2d 405, 96 S Ct
I 155.

The Court acknowledged that "un-
duly strict requirements of Proof
could impose a heavy burden" on
minor parties. Ibid. Accordingly, the
Court emphasized that "[m]inor par-
ties must be allowed sufficient flexi'
bility in the proof of injury." Ibid.

"The proof may include, for exam'
ple, specific evidence of past or
present harassment of members
due to their associational ties, or
of harassment directed against the
organization itself. A Pattern of
threats or specific manifestations
of public hostility may be suffi-
cient. Ne*' parties that have no
history upon which to draw maY
be

[45e us 94]

able to offer evidence of rePri-
sals and threats directed against
individuals or organizations hold-
ing similar views." Ibid.

[3a] Appellants concede that the
Buckley test for exempting minor
parties governs the disclosure of the
names of contributors, but they con'
tend that the test has no application
to the compelled disclosure of names
of recipienr-s of campaign disburse-
ments.e Appellants assert. that the

9. [3b] We believe that the question
u'hether the Buckiel test applies to the com-
pelled disclosure o1 recipients of expenditures
is properly before us. Throughout this litiga-
tic,n Ohit, ha-s maintained that i1 can constitu-
tionallr, require the SWP to disclose the
names of both campaign contributors and
recipients of campargn expenditures. ln inval-

idating both aspects of the Ohio statute a-s

applied to the S\"'P the District Court neces-

saril-v held (l I thal the Buckley standard.
which permits flexinie proof of the reasonable
probabilitl ol rhrr.,L.. harassment. or repri-
sals. appiies to botn contributions and expen-
ditures. and t2l thar the evidence was suffi-
cient to shorx' a rea-sonable probabilit;- that

257



U.S. SUPREME COURT REPORTS 74LEd2d

State has a substantial interest in
preventing the misuse of campaign
funds.to They also argue thai tf,e
disclosure of the nameJof

[45e US 95]

of campaign funds will n";fli,iTf
nificant impact on First Amendmerit
rights, because, unlike a contribu-
tion, the mere receipt of money for
commercial services does not affir_
matively express political support.

lal We. reject appellants' unduly
narrow view of the minor-party ei-
emption recognized in Bucklev. Ar>
pellants'attempt to limit the exemp
tion to laws requiring disclosure of
contributors is inconsistent with the
rationale for the exemption stated in
Buckley. The Court concluded that
ttre government interests supporting
disclosure are weaker in the i""e oi
minor parties, while the threat to
First Amendment values is greater.
Both of these considerationi apply
not only to the disclosure of Cam-
paign contributors but also to the
disclosure of recipients of campaign
disbursements.

[5aJ Although appellants contend

that 'fQuiring disclosure of recipi-
ents of disbursements is neces"u.y'to
prevent corruption, this Court recos-
nized in Buckley that this co.r""i-
edly legitimate government interest
has less force in the context of mi-
nor parties. The federal law consid_
ered in Buckley, like the Ohio law at
issue here, required campaign com_
mittees to identify both- cimpaign
contributors and iecipients oi'..ii-pgign disbursements. 2 USC
l_$^13?Cl and (d) and 484(a) and (b) t2USpq $! a32(c) and (d) and a3a(a)
and (b)]. We stated that ,,bv exposins
large contributions and expenditureZ
to the light of publicity,,,-disclosure
requirements "ten[d] to ,prevent the
corrupt use of money to affect
elections."' Id., at 67,-46 L Ed 2d
659,.96 S Cr 612 (emphasis added),
glgt$g Burroughs v United States,
290 US 534,548,78 L Ed 484, 54 SCt 287 (1934). We concluded. how-
ever, that because minor party can-
d.idates are unlikely to win eleitions,
the government's general interest in
"deterring the 'buying' of elections"
is "reduced" in the case of minor
parties. 424 US, at 70, 46 L Ed 2d
659, 96 S Ct 612.')

disclosure would subject both contributors
and recipients to public hostility and harass-
ment. In their jurisdictional statement, appel-
lants appealed from the entire jud5rrneni en_
tered below and presented the folloning ques_
tion for review:

"Whether, under the standards set forth bv
this Court in BuckJe5. v Valeo. 424 tJS f : aOi
Ed 2d 6s9, 96 S Ct brt ,tgz6,. tf," piori"ionl
of Sections 3Sl?.10 and 3512.11 oi'tfre dfrio
Revised Code. u'hich require that th; ;;;_paign committee of a canciidate fo. p"Uii.
office 6le a reporr disclosing the full iameiard addresses of persons making 

"ontii-[u-tlonE to or receiving expenditures from such
commlttee. are consistent n.ith the righr of
priy5]. of assocratron guaranreed b.v the First
ano rourteenth Amendments <.rf the Constitu,
tion of rhe Unirc{ Sures 

",i.,e,. 
oppIJ to-ile

committ€es of candidarcs of a minorin partv
which can establlsh onll iso.lared inr;n;;';i
harassment direcred toward the ,A;i;;;
258

or its members within Ohio during recent
.vears." Juris Statement i.

We rhink that the correctness of both hold_
ings of the District Court is ,.fairl_v includJ'
in the question presented in the jurisdictional
stat€ment. ThLs Qsu6,s Rule lS.ltat. See pro
cunier v Navarette, 494 US S55, Sbg, n 6, SSL Ed 2d 24. 98 S Ct 8S5 (1978r f,lolur porne.
to decide isaot limited by the precise t".-. of
the question presented").

I0. This is one of three government inter_
ests identi-fied in Bucklel' Appellants do not
contend that the other two interests, enhanc-
ing voters' abilit5. to evaluate candidates and
enforcing contribution limitations, supporl
the disclosure of the names of recipient. of
campaign disbursemen*.

. ll. [5b] The partial dissent suggesls thar
the government int.erest in the disclosure oj
recipients of expenditures is not significantll.
dirninished in the case of minor poiitical par.
ties. since parties *ith little theilfrood of



74 LM 2d

osure of recipi-
s is necessary to
ihis Court recog-
rat this conced-
rrnment interest
e context of mi-
leral law coneid-
rthe Ohio law at

campaign com-
both campaign

cipients of cam-
ents. 2 USC
434(a) and O) [2
I (d) and 434(a)
hat "by exposing
md expenditures
icity," disclosure
] to 'prevent the
roney to affect
67, 46 L Ed 2d
lmphasis added),
v United States,
ILEd484,54S
concluded, how-
ninor party can-
to win elections,

rneral interest in
ing' of elections"
e case of minor
70, 46 L Ed 2d

Ohio during recent

,ectness of both hold-
t is "fairly included"
I in the jurisdictional
Rule 15.1ta). See Pro
US 555, 559. n 6, 55
(1978) ("[O]ur power

v the precise terms of

ee government inter-
'y Appellants do not
wo interests, enhanc-
.luate candidates and
limitotions, Bupport

rmes of recipients of

dissent Buggests that
in the discloeure of

r is not aigniicantlY
,f minor political par-
r little likelihood of

BROWN v SOCIALIST WORKERS'74 CAMP' COMM'
459 us 87.74LEd2dzfi' 103 s ct 416

[46e us 96]

Moreover, appellants seriously un'

aerstot" the threat to First Amend'

ii""t "igttt 
that would result from

iluirinE minor parties to disclose

it e tecipi"nts of campaign disburse'

ments' 
t'169 us 9zl

ExPenditures bY a Political
perriy often consist of reimburse-

ments, advances, or wages Paid to
party members, camPaign workers,
and 

-supporters, 
whose activities lie

at the very core of the First Amend-
ment.r2 Disbursements maY also go

to persons who choose to exPress
their support for an unpopular cause

by ptorridi.rg services rendered
sca.ce by public hostility and suspi-
cion.ts Should their involvement be

1
r

tt
aI
E
s
f
3I
I
Ti?

clectoral Eu@ess might neverthelees finance

Iio-p". campaign activities merely to gain

6q;ition. Post, at 109-110. 74 L EA %l' at

l6a-t't" partial dissent relies on Justice

Wttit 't BeParate opinion in Buckley, in which

he pointed out that "unlimited money tempts

*o-ole to spend it on whatever money can

f,,nj to it fl.rence an election." 424 US' at 265'

le-L na 2d 659, 96 S Ct 612 (emphasis in

original).

An examination of the cont€xt in which

.lustice- Whit€ made this observation indicates

iilUf, why the state interest here is insub-

i;ti;il Justice White was addressing the

constitutionality of ceilings- on cam.Pargn l:x-
oenditures applicable to all candldat€s rrts

;;i ;* that such ceilings "could plav a

LiUsta"tiat role in preventing unethica) prac'

ti"o.; fUia. ln the case of minor parties'

ho*".r"., their limited financiai resources

;;; ;'a built-in expenditure ceiling which

-i"i-i*t the likelihood that they wjll ex-

oenJ substantial amounts of money to finance

i-oi"o"t campaign activities See id'' at 7l'
46i Ed 2d 650, m s o 612. For example' far
f-- fr""it g 'iunlimited money," th9 

-OI!9
SwF fr"" hid an average of roughly $15'000

available each year to spend on its e-lection

efforts. Most of lhe Iimited resources of minor
*.tG Utt typically be needed to pay for the

6.din..-u fixed- costs of conducting campaigns'
a.at 

""- 
filing fees, travel expenses, -and..the

"ip"""o 
incrlrred in publishing and distribut'

i.i "t-p"ign 
literature and maintaining of-

6ces. Thus Justice White's obsen'ation that
'i6t ancing illegal actirities is lo*' on the cam-

*i* o.r-""irition's priority list," id ' at 265'

is "f. Pa-za 659, 96 S Ct 612' is particularlv

;p*t," in the case of minor parties We

cannot agree, therefore, that minor parties

"." "" 
fiX'"ly as major parties to make .signi-6-

cant expeniitu.es in funding dirty tricks or

other improper campaign activities' See polt'
at 110, il L pa 2d, at 2ffi Moreover' the

expenditure b1' minor Parties of even a sub

stantiat portion of their limited funds on

illegal activities would be unlikely to have a

gubetantial impact.

Furthermore, the mere possibility that mi
nor parties will resort to corrupt or unfair
tactics cannot justify the substantial infringe
ment on First Amendment interests that
would result from compelling the disclosure of
recipients of expenditures. ln Buckley, we

acknowledged the possibility that- supporters
of a majoi party candidate might channel

money into minoi parties to divert votes from

other major party contenders, 424 US' at 70'

46 L Ed 2d 659, 96 S Ct 612, and that, as

noted by the partial dissent, post, at-110, and
n 5,74 L Ed 2d, at 266, occasionally minor
parties may affect the outcomes of elections'
We thus recogrrized that the distorting influ-
ence of Iarge contributors on elections may
not be entirily absent in the context of minor
parties. Nevertheless, because we concluded
ihut th" government interest in disclosing
contributors is substantially reduced in the
case of minor parties' we held that minor
parties are entitled to an exemption from
iequiremenl" that contributors be disclosed

where they can show a reasonable probability
of harassment. 424 US, at 70, 46 L Ed 2d 659'

96 S Ct 612. Because we similarly conclude
that the government interest in requiring the

disclosurJ of recipients of expenditures is sub-

stantially reduced in the case of minor par-

ties, we hold that the minor-party exemption
recognized in Buckley applies to compelled
discl,osure of expenditures a.-s well.

12, For texample' the expenditure 6tate'
ments filed by the SWP contain a substantlal
percentage oi entries designarcd as per diem'
iravel expenses, room rental, and so on The
Ohio staiute makes it particularly easy to
identify these individuals since it requires
disciosure of the purpme of the disbursemenls
a--. weII as the idintitv of the recipients Ohio
Rev Code Ann $ 3517.1OBX5Xct (Supp 1981)'

13, "'[F]inancial transactions can reveal

much about a person's activities. associations'
and beiiefs.'" Bucklel v Valeo, 424 US' at 66'

46 L Ed 2d 659. 96 S Ct 612, quoting Califor-

nia Bankers Assn. v Shultz,416 US 21' 78-79'

39 L &t 2d 812.94 s ct 1494 \L974) (Powell,

259



U.S. SUPREME COURT REPORTS 74LEd2d
publicized, these persons would be as
vulnerable to threats, harassment,
and reprisals as are contributors
whose connection with the party is
solely financial.t. Even indivlduals

[45e US 98]
who receive disbuisements for
"merely" commercial transactions
may be deterred by the public en-
mity attending publicity, and those
seeking to harass may disrupt com-
mercial activities on the basis of
expenditure information.16 Because
an individual who enters into a
transaction with a minor party
purely for commercial reasons lacks
any ideological commitment to the
party, such an individual mav well
be deterred from providing services
by even a small risk of harassment.r6
Compelled disclosure of the names of
such recipients of expenditures could
therefore cripple a minor party's
alility to operate effectively ."a
thereby reduce "the free circulation
of ideas both within and without the
political arena." Buckley, 424lJS, at

7L. 46 L Ed 2d 659, 96 S Ct 612
(footnotes omitted). See Sweezy v
New Hampshire, 954 US, at iSC_
257, 7 L Ed 2d L31L,77 S Ct 1203(plurality opinion) ("Any interfer-
ence with the freedom of a party is
simultaneously an interference with
the freedom of its adherents',).

[6] We hold, therefore, that the
test announced in Buckley for safe-
guarding the First Amendment in_
terests of minor parties and their
members and supporters applies not
only to the compelled disclosure of
campaign contributors but also tothe compelled disclosure of recipi-
ents of campaign disbursements.

III
[7a] The District Court properly

applied the Buckley test to fhe facts
of this case. The District Court found
"substantial evidence

[45s US 99]

mentar and privat" .::Ifl:l i:f;f;
J-., concurring). The District Court found thar
the Federal Bureau of lnvestigation tFBfL ai
least until 1926 routinely investlgated the
financial transactions of ine SWp"ana f...i
track of the payees of SWp checks.

14. The fact that some or even man-v recipi-
ents of campaigrr expenditures may- not L
exposed_to the risk of public hostilitl: does not
detract from the serious threat to the exercise
of First Amendment rights of those rnho aie
so exposd. We cannot agree with the partial
dissent's assertion that disclosu.". of aii_
bursements paid to campaiglr *orkers and
support€rs will not increase the probabilitv
that the). will be subjected to harassm"nt.na
hostility. Post, at 11f-112, ?4 L Ed Za, at iel.Apart from the fact that individuals mar.
work for a candidate in a variet.r. of r*.av."
without publicizing their involvement. the
application of a disclosure requirement re-
sults in a dramatic increase in public expo-
sure. Under Ohio law a per6on's affiliation
with the party will be recorded in a document

?.ffi

that must be kept open ro inspection by any
one who u.ishes to examine it for a p".ioa oiat least six .years. Ohio Rev Code Ann
S35l7.fqc) (Supp 1981r. The preservation of
unorthodox political affiiationi in public re_
cords substantiall.r, increases the potential for
harassment above and beyond the risk that
an individual faces simply as a result of hav-rng worked for an unpopular pany at one
tlme.

15. See, e.g., Sociaiist Workers partv v At_
l{lney Ge}eral, 458 F Supp 895, 904 rSOXf'
1978r (FBf inrerference ".ltt SWp trauel ai_
rangements and speaker hall rentalt. vacatedon other grounds, 596 F2d Sg (CA2), ceri
!e$ed,444 US 90s,62 L Ed 2d r4r. 100 S-a;
21? t.1979).

16. Moreover, it would be hard to think of
man_v instances in r.r,hich the state interest inpreventing 

.vote-bu1.ing anC in,nroper cam.paign activities *'ould be furthered br thr
disclosure of pavment. for routine .n-rn"..iri
seruces.



74 LEd 2d

i59, 96 S Ct 612
). See Sweezy v
354 US, at 250-
1L,77 S Ct 1203
("Any interfer-

lom of a party is
interference with
rdherents").

erefore, that the
Buckley for safe-
; Amendment in-
rarties and their
orters applies not
lled disclosure of
tors but also to
:losure of recipi-
rsbursements.

I

t Court properly
y test to the facts
strict Court found
ce
s egl

of both govern-
l hostility toward

r to inspection by any
nine it for a period of
)hio Rev Code Ann
). The preservation of
iliations in pubiic re
rases the potential for
beyond the risk that
cly as a result of hav-
popular party at one

Workers Party v At-
Supp 895, 904 (SDNY
with Sl*P travel ar-

r hall rentalt, vacated
F2d 58 (CA2). cert

LEd 2d 141. 100 S Cr

d be hard to think of
h the state interest in
and improper cam-

be furthered bl the
or routine commercial

BROWN v SOCIALIST WORKERS'74 CAMP' COMM'
459 US 87 . 7 4 L Ed %l 250, 103 s ct 416

and harassment-- of SWP members

;J BupPoryT'" APPellees intro-

;r*d pi-oof of sPecific incidents of

l;vate- and government hostility to
;rrd the SWP and its memhr€

-itfri" the four years Preceding the-

;rt"]. These incidents, many of
*fri.f, occurrd in Ohio and neigh'

Uoarrg States, included threatening

"f,ot 
J calls and hate mail, the burn'

ing of SWP literature, the destruc'

tiJn of SWP members' ProPerty, PG

lice harassment of a party candidate,

*a tn" frring of shots at an SWP

o6"". Th".e was also eYidence that
io tt " l2-month period before trial
22 SWP memhrs, including 4 in
Ohio, were fired because of their
Dartv membership. Although appel-
-Iants 

contend that two of the Ohio

firings were not PoliticallY moti-
vated, the evidence amPlY suPPorts

the District Court's conclusion that
"orivate hostility and harassment
to*ard SWP members make it diffi-
cult for them to maintain emPloY-

Bgnt."

The District Court also found a
past history of Government harass-
ment of the SWP' FBI surveillance
of the SWP wa-" "massive" and con-
tinued until at least 1976. The FBI
also conducted a counterinteliigence
program against the SWP and the
Young Socialist Alliance (YSA), the
SWP's youth organization. One of
the aims of the "SWP DisruPtion

Program" was the dissemination of
information designed to impair the
ability of the SWP and YSA to func-
tion. This program included "disclos-
ing to the press the criminal records
of SWP candidates, and sending
anonymous letters to SWP members,
supporters, spouses, and emPloY-
ers."t7 Until at least 1976, the FBI
employed various covert techniques
to

[450 Us 100]

obtain information about the
SWP, including information concern-
ing the sources of its funds and the
nature of its expenditures. The Dis'
trict Court specifically found that
the FBI had conducted surveillance
of the Ohio SWP and had interfered
with its activities within the State.rs
Government surveillance wa-s not
limited to the FBI. The United
States Civil Service Commission also
gathered information on the SWP,
the YSA, and their suPPorters, and
the FBI routinely distributed its re-
ports to Army, NavY and Air Force
Intelligence, the United States Se-

cret Service, and the Immigration
and Naturalization Service.

ITbl The District Court ProPerlY
concluded that the evidence of pri-
vate and Government hostilitY to-
ward the SWP and its members es-

tablishes a reasonable probability
that disclosing the names of contrib-
utors agd reciPients will subject
them to threats. harassment, and

17. The District Court was quoting from
Part I of the Final Report of Special Master
Judge Breitel in Socialist Workers Party v
Atrorney General of the United States, 73 Civ
3160 (TPG) (SDNY, Feb. 4. 198O), detailing
the United States Government's admissions
concerning the existence and nature of the
Crovernment sun eillance of the SWP.

f& The District Court aleo found the follow'
tn8
-The Government possesses about 8,000,0O0
dauments relating to the SWP, YSA . . . and

their members. Since 1960 the FBI has
had about 300 informants who were members
of the SWP and/or YSA and 1,000 ncn'mem'
ber informants. Both the Cleveland and Cin-
cinnati FBI field offices had one or more SWP
or YSA member informants. Approximatell'
2l of the SWP member informants held Iocal
branch offices. Three informants even ran for
elective o6ce as SWP candidates The 18

informants whooe files were disclosed to
Judge Breitel received total pa1'ment.s o-f

S358,648.38 for their services and expenses."
(Footnotcs omitted.)

zlil



U.S. SUPREME @URT REPORTS 74 LEd 2d

repriaals.re There were numeroue in-
etances of recent harassment of the
SWP both in Ohio and

[450 US rou

states.r There was also .or.il"?lti:
evidence of pa3t Government harass-
ment. Appellants challenge the rele
vance of this evidence of Govern-
ment harassment in light of recent
efforts to curb official misconduct.
Notwithstanding these efforts, the
evidence suggests that hostility to-
ward the SWP is ingrained and
likely to continue. All this evidence
was properly relied on by the Dis-
trict Court. Buckley, 424 US, at 74,
46 L Fd 2d 659,96 S Ct 612.

.ry
[1b] The First Amendment prohib.

its a State from compelling disclo
sures by a minor party that will
subject those persons identified to
the reasonable probability of threats,
harassment, or reprisali. Such dis-
closures would infringe the

[459 US 102]

First
Amendment rights of the party and
its members and supporters. In light
of the substantial evidence of past
and present hostility from private
persons and Government officials
against the SWP, Ohio's campaign
disclosure requirements cannot be
constitutionally applied to the Ohio
swP.

_.The judgment of the three-judge
District Court for the Southern Dis-
trict of Ohio is affirmed.

It is so ordered.

19. After reviewing the evidence and the
applicable law, the District Court concluded:
"[fJhe totality of the circumstances estab-
lishes that, in Ohio, public disclosure that a
person is a member of or has made a contr!
bution to the SWP would create a reasonable
probability that he or she would be subjected
to threats, haraesment or rneprisals.,' T}re Dis-
trici Court then enjoined the compelled disclo
sures of either contributors' or recipients'
names. Although the District Court did not
expreasly refer in the quoted passage to dis-
cloeure of the names of recipients of campaign
.tiobursements, it is evident from the opini6n
that the District Court was addressing both
contributors and recipients

- 
ZO. [7c] Some of the recent episodes of

!!_Ift", harnmment, and reprisals against the
SWP and its members occurred o'utside of
Ohio. AntiSWP occurrences in places such as
Chicago (Sl{P ofrce vandalized) and pitts-
burgh (shot fired at SWP building) are cer-
tainly relevant to the determinatlon of the
public's attitude toward the S\{p in Ohio. In
Buckley we etated that "[n]ew parties that
have no \bm.y upon which to draw rnay . . .

offer evidence of reprisals and threaL di-
rected againsi individuals or organizations
holding simitar views." 424 US, at 74, 46 L Ed
2d 659. 96 S Cr 612 Surely the Ohio SWp

262

may ofer evidence of the experiences of other
chapters espousing the samC political philoso
phy. See 198O Illinois Socialist Workers Cam-
paign v State of Illinois Board of Elections,
531 F Supp 915, 921 (ND nl 1981).

Appellants point to the lack of direct evi-
dence Iinking the Ohio statute's disclosure
requirements to the harassment of campaign
contributors or recipients of disbursements. In
Buckley, however, we rejected such ,,unduly
strict requirements of proof' in favor of .,flexi-
bllrJr in the proof of injury." 424 lJS, at 74,
46 L &l 2d 659,96 S Ct 612. We thus rejecred
requiring a minor party to "come forward
with witnesses who are too fearful to contrib.
ute but not too fearful to testify about their
fear" or prove that "chill and harassment
[are] directly attributable to the specific dis-
cloeure from thich the exemption is sought.,,
Ibid. We thinf that these considerations are
squal-ly applicable ro the proof required to
establish a reoqonable probability that recipi-
ents will be subjected to threats and harass-
ment if their names are disclosed. While the
partial dissent appears to agree, post. ar 112-
113, n 7, 74 L U 2A. at 269-270, its .,sepa_

ratel)' focused inquiry," post. at 112, and n Z,
74 L M ?d, at 269 in reality reguires evidence
of chill and harassment directly attributable
to the expendituredisclosure requirement.



74LEd 2d

:ompelling disclo-
party that will

ons identified to
nbility of threats,
prisals. Such dis-
inge the
I r02l

First
of the partY and

.rpporters. In light
evidence of Past

lity from Private
,ernment officials
Ohio's camPaign

ments cannot be
rplied to the Ohio

rf the three'judge
the Southern Dis-
rmed.

he experiences of other
: same political Philoso
Socialist Workers Cam-
ois Board of Elections'
ID Ill 1981).

the lack of direct evi'
do statute's disclosure
rarassrn€nt of camPaign
nts of disbursements. In

rejected such "undulv
oroof in favor of "flexi-
inju.y." 424 US, at ?4,

)t 612. We thus rejected
artv to "come forward
'e to fearful to contrib-
rl to testify about their
"chill and harassment
able to the sPecific dis-

re exemPtion is eought "
ihese considerations are

the proof required to
r probabilitY that reciPi-
I to threats and harass-
are disclosed. While the
s to agree, Post, at 112-
l, al 269-270 it^s "sePa'

;," post.at 112. arrd n 7'

realitl' requires evidence
ent dlrectl]' attributablt
;closure requrrement

I ioin Parts I, III, and fV of the

c;fi;'r;i"ion and agxee with much

^f what is said rn Part II' But I
;r;il;gt"e, with the Court or with

ffi;';;tr"i dissent, that we should

Ii"f,Jr," issue whether a standard

lri-ri-i am"rent from that aPPlied

i.'ait.r*"re of campaign -contribu'
IiorJtr,o"td be applied to disclosure
-r"'""tt"p"ig" diibursements' See

;'t;;il:" s,74LEd 2d' at251-
isi]'*",, at Ll?'113, t 7' 71.! N
-il|,' 

"i- 
iSS-270.r Appellants did not

fibU;; tr," oiit'ict court that
lffitu"t standards might aPPIY- Nor

was the issue raised in aPPettants

irI"ii"iio"al statement or in their
ir;;a;" the merits in this Court'

&nsequentlY, I would merelY as'

iie'to, PurPoses of our Present
i-*iti""-ti appellants apparently

i"r"-""""-ed throughoqt this litiga-
iion and as the District Court clearly

"*"-J-that 
the flexible P:oof ryl-"

;*il;kl"y v Valeo, 424 Uq-l' 46 L
rfo-za 65-9, 96 s ct 612 (1976)' aP-

ofl* "q""tly 
to forced disclosure of

Io"ttiU"tions and to forced disclo
t"i" of expenditures' I would leave

foi 
-a"ott ei daY, when the issue is

.q"*"tY Presented, considered bY

G"-.o"*i below, and adequatelY

briefed here, the significant question

that now divides the Court'

This Court's Rule 15'1(a) states:

"Only the questions set forth in the

;urisdiction.l strt"-et't or fairly in'
cluded therein

"Whether, under the standards
set forth bY this Court in BuckleY

, valeo, 4i4 uS 1 t46 L Fd 2d 659'

96 S Ct 612l (19?6), the Provisions-
of Sections 3517.10 and 3517'11 ot

ihe Ohio Revised Code, which re-

ouire that the camPaign commit-
te- of a candidate for public ofhc-e

file a rePort disclosing 
- 
the tull

names and addtesses of Persons
r".t l"g contributions to or receiv-

ing eiPenditures .from such com-

mitte", """ consistent with the

ti*frt 
'of 

PrivacY of association

s;aratteed- bY the First and Four-
["""tt Amendments of the Consti-

iutio" of the Unit'ed States when

"rofi"a 
to the committees of candi-

a-"["t of a minoritY PartY which

*" establish onlY isolated - in-

stances of harassment directed to'
ward the organization or its mem-

bers within- Ohio during recent
years." Juris Statement i'

The ouestion assumes the applicabil-
itv "ig;.Lfey 

to the entire case' and

"Ju 
trri. bourt to decide onlY

*t 
"tt "t the evidence Presented to

u"J fr.rt found by the District Court
;;;" sufficient to suPPo4 !!tt
"o".t't 

conclusion that the Buckley
test was satisfied.

Abse'nt extraordinarY circum-
tt *"., this Court does not decide

i""""" beyond those it has agreed to

;;;;. I(4"yo. v Educational Equgl-

iw L"*"""415 US 605, 623' 39 L Eq

ii oioi ga s ct 1323 $e7$: united
SL;t v Bass, 404 US 336, 339' n 4'

5o i, oa 2d 488, 92 s ct 515 (1971);

CL*t"f Talking Pictures C-o' v

Justice
part and
ment.

BROWN v SOCIALIST WORKERS'?4-CAMP' COMM'
459 US 87,74LEd 2d 250' 103 S Ct'116

SEPARATE OPINIONS

Blackrnun, concurring in tional statement presented a single
-.on"o"titg in the judg- question:

the

1459 us l03l
will be considered bY

Appellants' jurisdic'

l. Although the partial dissenr agrees-that
Orit G"; is-not properly presented.and there
fore that the question ehould not be declded'

Dost. at 112-113, n7.74L Ed 2d' at 269-270 '

io l*trt- tta reasoning endorse a different

stst dard of Proof. See n 2' infra'

263



U.S. SUPREME COURT REPORTS 74LEd2d

Western Electric Co., 304 US 175,
17&179, 82 L Ed L2t3, 58 S Ct 849
(1938). According to the Court, how-
ever, the issue whether the flexible
standard of proof established in
Buckley applies to recipients of ex-
penditures Is "'fairly included' in
the question presented." Ante, at 94,
n 9,74 L Ed 2d, at 258. But appel-
lants' failure to present the issue
was not a mere oversight in phras-
ing that question. That appellants
did not invoke this Court's jurisdic-
tion to review specifically the proper
standard for disclosure of campaign
expenditures is also apparent from
appellants' arguments in their juris-
dictional statement and their brief
on the merits. In their jurisdictional

[t159 US 104]
statement, under the heading "The
Question is Substantial," appellants
stated:

"The standards governing the
resolution of actions involving
challenges to reporting require-
ments by minority parties were
eet forth by this Court in the case
of Buckley v Valeo, 424 US 1 [46 L
Ed 2d 659, 96 S Ct 6121 (1976). In
Buckley the Court held that in
order to receive relief from report-
ing requirements such as those at
issue in this action a minority
party must establish '. a rea-
sonable probability that the com-
pelled disclosure of a party's con-
tributors' names will subject them
to threats, harassment or reprisals
from either Government officials
or private parties.' 424 US, at 74
[46 L Ed 2d 659, 96 S Ct 612]."
Juris Statement 10.

Appellants went on to state that the
flexible standard of proof of injury
established in Buckley applied to
"disclosure requirements." Juris
Statement L2-13. Similar assertions
are found in appellants'brief on the
2U

merits. See Brief for Appellants 12
("Summary of'Argument"); id., at 18
("While refusing to grant minority
parties a blanket exemption from
financial disclosure requirements,
the Court in Buckley established a
standard under which they may ob-
tainrelief .. ").

Thus, appellants' exclusive theme
in the initial presentation of their
case here was that the District Court
erred in finding that the Buckley
standard was satisfied. They did not
suggest that the standard was inap
plicable, or applied differently, to
campaign expenditure requirements.
It was not until their reply brief,
submitted eight years after this suit
was instituted and at a time when
appellees had no opportunity to re-
spond in writing, that appellants
sought to inject this new issue into
the case. See Irvine v California, 347
us 128, 129, 98 L Ed 561, ?4 S Ct
381 (1954) (plurality opinion of Jack-
son, J.). In my view, it simply cannot
be said that it was "fairly included"
in the jurisdictional statement.

Moreover, "[w]here issues are nei-
ther raised before nor considered lby
the court belowl, this Court will not
ordinarily

[459 US 105]
consider them." Adickes v

S.H. Kress & Co., 398 US 144, L47, n
2, 26 L Ed 2d 742,90 S Ct 1598
(1970); Lewn v United States, 355
US 339, 362-363, n 76, 2 L Ed 2d
327, 78 S Ct 311 (1958). The District
Court did not address the question
whether some standard other than
that developed in Buckley should
appll' to disclosure of campaign ex-
penditures The reason for this
that appeliants conceded in the
trict Court. as they concede here,
that the "flexibility in the proof of in-
jury" applicable to disclosure of con-

was
Dis-



BROWN v SOCIALIST WORKERS'?-4-CAMP' COMM'
459 us 87 ,74 L FA %) zfi, 103 s ct 41674LEd 2d

rr Appellants 12
ment"); id., at 18

r grant minoritY
exemption from
e requirements,
Iey established a
ich they may ob

exclusive theme
entation of their
bhe District Court
hat the BuckleY
ied. They did not
andard was inaP
d differently, to
ure requirements.
their reply brief,
ars after this suit
at a time when

rpportunity to re-
that appellants

ris new issue into
: v California,347
Ed 561, 74 s ct

y opinion of Jack-
r, it simply cannot
; "fairly included"
.l statement.

-.re issues are nei-
nor considered [bY
his Court will not

s l05l
r them." Adickes v
t98 us 144,147, n
42, 90 s ct 1598
Inited States, 355
n16,2LEd2d

1958). The District
lress the question
rndard other than
r Buckley should
e of campaign ex-
eason for this was

nceded in the Dis-

rey concede here,
y in the proof of in-
o disclosure of con-

tritrutors governed the entire case'

::#';t*;iS*t"tiI'xltl;.f;
Ir**m,ffi:r:l;trl.x*'"Jsil
m'lt*,^r ;frili'.'ffi- #?1
;;ti that "evidence of Past- ha-

?r*rn""t maY be Presented bY Plain-
,iF"- i" cases such as the instant

il"." D"f"tdants' Post-Trial Memo

randum 4-5'

This case Presents no extraordi-
.or*, circumstances justifying devia-

i'ion ftorn this C,ourt's Rule 15'1(a)

""J 
it" long+stablished practice- re'

il"ti"g issues not presented U"-loY

ff;- h;" deviated from the Rule

wfren jurisdictional issues have been

"-itt 
it bY the Parties and lower

@utts, see, e' g., United States v

S;;"; Broadcasiins e,o', 351 U]S 1-9-2r

rgi.-roo L Ed 1081, 76 s ct 763

tfgSel, or when the Court has no
ii""a ;'pl"io error" not assigned' see

6r*"t"* v United States, 330 US

srii, +t2,91 L Ed 973, 67 s ct zil
OgiZl. (ibviouslv, the issue that di
vides the Court from the partial djs'

eent is not jurisdictional' Nor, as the
Court's opinion persuasively demon-

strates, is application of the Buckley
t€st to disclosure of campaign dis-

Uursemen* "plain error'" Indeed, I
consider it quite possibie that, after
full consideiation, the Court would

adopt the BuckleY standard in this
coniext for the reasons stated by the
Crcurt. I also consider it quite possi
ble that, after full consideration, the
Court might wish to revise the Buck-
ley standard as applied to campaign
disbursemenLs-perhaps to take ac-

count of the different types of expen-
ditures covered and their differing
impacts on associational rights,- or
peit.ps along the lines suggested .in
It " p"*i"t d-issent. But this signifi-
cant constitutional

[45e us tTl.i'ion 
should

not be made until the question is

properly presented so that the rec-

ord- iniludes data and arguments
adequate to inform the Court's judg-

ment.

The Court's aPParent reliance on

Procunier v Navarette, 434 US 555'

560, n 6,55 L Ed 2d 24,98 S Ct 855
(19i8), does not provide a rationale
for deciding this issue at this time'
The petitioner there had included in
his petition for certiorari all the
o,resiio.rs we eventuallY decided'

Notwithstanding the fact that the
Court limited its grant of the peti-

tion to a single question, the parties
fully briefed the questions on which
,"ri"ro had been denied' Deciding
those questions, therefore, was nei-

ther unwise nor unfair' In this case'

in contrast, appellants affirmatively
excluded the point at issue in their
jurisdictional statement and in their
trief on the merits. BY faiiing to
raise it until their reply briel appel-
Iants prevented appellees from.re-
sponding to the argument in writing'
Th""" &n be no question that' as

the Court observes, "'our Power tn
decide is not limited by the precise

t r*a of the question Presented'' "
Ante, at 94, n 9, 74 L Ed 2d, at 258
(ouotine Procunier v Navarette, 434

Ui, rtioo, t 6,55 L Ed 2d 24,98 S

Ct 855, (emPhasis suPPlied)' P't
Rule 15.l(a) is designed. as a pruden-

tial matter, to prevent the possibility
that such tactics wiII result in ill-
considered decisions. It is cases Iike
this one that show the wisdom of the
RuIe.

Thus, for PurPoses of this case' I
would as;sume, as appellants' .iuris'
dictional statement and brief on the
merits assume, that the BuckieY

standard applies to campaiga expen-

285



fi'

U.S. SUPREME C,oURT REPORTS 74LEd2d

ditures just as it applies to contribu-
tions.t Appellees

[459 US 107]
presented "specific

evidence of past or present harass-
ment of members due to their associ-
ational ties; or of harassment di
rected against the organization it-
self," sufficient under the rule in
Buckley to establish a "reasonable
probability" that the Ohio law would
trigger "threats, harassment, or re
prisals" against contributors. 424
US, at 74, 46 L Ed 2d 659, 9G S Ct
612. On this basis, I would affirm the
judgment of the District Court in its
entirety.

Justice O'Connor, with whom
Justice Rchnquist and Justice Ste-
vens join, concurring in part and
dissenting in part.

I concur in the judgment that the
Socialist lVorkers Party (SWP) has
sufficiently demonstrated a reason-
able probability that disclosure of
contributors will subject those per-
sons to threats, harassment, or repri-
sals, and thus under Buckley v Va-
leo, 424 US 1, 46 L Ed 2d 659, 96 S
Ct 612 (1976), the State of Ohio can-
not constitutionally compel the dis-
closure. Further, I agree that the
broad concerns of Buckley apply to
the required disclosure of recipiLnts
ef sempaig-n expenditures. But, as I

view the record presented here, the
SWP has failed to carry its burden
of showing that there is a reasonable
probability that disclosure of recipi-
ents of expenditures will subject the
recipients themselves or the SWP to
threats, harassment, or reprisals.
Moreover, the strong public interest
in fair and honest elections out-
weighs any damage done to the asso-
ciational rights of the party and its
members by application of the
State's expenditure disclosure law.

[459 US loE]
I

Buckley upheld the validity of the
Federal Election Campaign Act of
1971, which requires the disclosure
of names of both contributors to a
campaign and recipients of expendi-
tures from the campaign. Buckley
recognized three major governmen-
tal interests in disclosure require.
ments: deterrence of corruption; en-
hancement of voters' knowledge
about a candidate's possible all,e-
giances and interests; and provision
of the data and means necessary to
detect violations of any statutory
limitations on contributions or ei-
penditures. The precise challenge
that the Buckley Court faced, how-
ever, was the overbreadth of the
Act's requirements "insofar as they

?: fr" partial dissent says it agrees that
"this i6 not the appropriate case to determine
whether a diferent test or gtandard of proof
should be employed in determining the consti-
tutional validity of required disclosure of ex-
pendrtures." Post, at llL, n ?, ?4 L Ed 2d, at
2q9 If that is ao, however appellees' proof.
which the partial dissent agrees establisired a
reasonable probability of threats, harqsment,
or repriaals against contributors. likewise al-
lowed the District Court to find a reasonable
probability of threats, harassment. or repri-
sals against recipients of expenditure. 'ih"
B-uckl_ey etandard permits proof that a partic-
ular discloeure creat€s the requisite likelihmd
of harassment to be based on a showing of

zffi

haraesment directed at members of the party
or at the olganization itrr,lf . 424 US, at ?4, 46
L Ed tut S9. 96 S Ct 612. Thus, I do not
understand how the partial dissent's ',sepa.
rately focused inquiry" can "plainly require a
different reeult," pct, at 1lB. n 7, il t ga U.
at 270, or how it pmsibly can lead to the
conclusion that "appellees did not carry their
burden of production and persuasion insofar
as the.v challenge the expenditure disclosure
provisions," po6t, at 115,74 L H 2tJ., at 271
unless, despitc the partial dissent's uncertain
di-sclaimer, post. at 113. n 7, 74 L Ed 2i, at
27(). its "Eeparate focus" alters Buckley's "rea-
sonable probabilit_v" and "0exible proof' stan-
dards in the context of expenditures.



74 LM 2d

presentd here, the
to carry its burden
;here is a reasonable
disclosure of recipi
rres will subject the
elves or the SWP to
nent, or reprisals.
rong public interest
nest elections out-
rge done to the asso-
rf the party and its
rpplication of the
re disclosure law.

us r08l
I

I the validity of the
Campaign Act of

uires the disclosure
h contributors to a
rcipients of expendi-
campaign. Buckley
major governmen-
disclosure require-

e of corruption; en-
voters' knowledge
ate's possible alle
rests; and provision
means necessary to

of any statutory
ontributions or ex-

precise challenge
, Court faced, how-
rverbreadth of the
rts "insofar as they

at members of the party
, itself . 424 US, at 74, 46
Ct 612. Thus, I do not
partial dissent's "sepa-

"' can "plainly require a
, at 113, n7,74LEd?i,
ossibll' can lead to the
,liees did not carry their
anci persuasion insofar

: expenditure disclosure
lli ?4 L Ed 2d, at 271
rrlrer' dlssent's uncertain
l3. r: l. 74 L Ed Zl. at
rs' alters Buckley's "rea-
rnd "flexible proof' stan-
f expenditures.

i'j"#.',,x'#Iliff ,'"*T,::#:;
ii]"t 6849,46 L E<l 2d 659, 96 S Ct

iri te-phr"is added).' Since the aP
*U*t" in BuckleY did not chal-

i""g" the aPPlication of require'
i"it of discloeure of expenditures
t minor Parties, the Court had no

oo""iot, to consider directlY the

Fitrt .e'-"ttdment interests of a mi-

nor political party in preventiry dis-

clcure of expenditures' much less to

weieh them against the governmen-

tal lnterests in disclosure. The test

adopted bY BuckleY, quoted bY-the
maiority, ante, at 93,74 L &l 2d, at
?5i, reflerlts this limitation, for it
ontemplates only assessing possible

barassment of contributor:s, without
a word about considering the harass-

ment of recipients of expenditures if
their names are disclosed or any
efects this harassment maY have on

the partY.

Thi6 is not to saY that BuckleY
provides no guidance for resolving
this clgirn. I agree with the majority
that appellants

[46e us'Hr" 
overstated

their argument in declaring that
Buckley has no apPlication to the
disclocure of recipients of expendi'
tures. Certainly, Buckley enunciates
the general governmental interest in
regulating minor Parties, who, al-

though unlikely to win, can often
affect the outcome of an election.
424 US, at 70, 46 L Ed 2d 659, 96 S
Ct 612. Buckley also emphasizes the
sensitive associational rights of mi
nor parties.

Nevertheless, there are imPortant
differences between disclosure of
contributors and disclosure of recipi-
ents of campaign expenditures-dif-
ferences that the Buckley Court had
no occasion to address, but that com-
pel me to conclude that the lalance
should not necessarily be calibrated
identically. First, unlike the govern-
ment's interest in disclosure of con-
tributions, its interest in disclosure
of expenditures does not decrease
significantly for small parties' The
Court in Buckley recogPized that
knowing the identity of contributors
would not significantly increase the
voters'ability to determine the polit-
ical ideolory of the minor-party can-
didate, for the stance of the minor-
party candidate is usuallY well
known. Ibid.'1 Nor would identifying
a minor party's contributors further
the interest in preventing the "buy-
ing" of a candidate, because of the
improbability of the minor-PartY
candidate's winning the election.
Ibid. Thus, these two major govern-
ment interests in disclosure of con'
tributions are siglificantly reduced
for minor parties.s

BROWN v SOCIALIST WORKERS '74 CAMP' COMM'
459 US 8?,74LFaAt zfi,103 s ct 416

l. Of couree, the plainti.ffs in Buckley chal-
lenged many aspects of the federal Act' in-

cluding expenditure limitotions and the dL+

claure requirements for indepndent contri'
butions and expenditures. The Court upheld
all discloeure requirements, including discle
nue of independent erpenditures "for com-
munications that expreasly advocate the elec-
tion or defeat of a clearly identified candi-
&;tg." 124 US, at 80, 46 L Ed 2d 659, 96 s Ct
812. The plaintiffs in Buckley did not chal-
Laage, however, the federal requirement that
dl political parties, including minor political

parties, disclme the recipients of their expen-
ditures.

2. Oertainly, that is true in this instance,
The general political stance of the SWP and
its candiaaes is readily discernible from the
met cunory glance at its constitution or
literature.

3. The majority is obvious)1'correct in not'
ing that the third governmentai interest ar-
ticuiated in Buckley-using drsclosures to po
lice limitations on contributtons and expendi-
tures-has no application to either contribu-
tions or expendituree in Ohio, since the Ohio
statute Bets no limitations on them.

267



U.S. SUPREME COURT REPORTS 74LEd2d

In sharp contrast, however, the
governmental interest in disclosure
of expenditures remains significant
for minor parties. The puipose of
requiring parties to disclose expendi-
tures is to deter improper influenc-
ing of voter6. Corruption

[459 US ll0]

torat process can take ,,,:liT":Iff,
the actual buying of votes; the use of
"slush funds;" dirty tricks; and
bribes of poll watchers and other
election ofrcials. Certainly, a ,,per-

suasive" campaign worker on elec-
tion day can corral voters for his
minor-party candidate with even a
modest "slush fund.". Even though
such improper practices are unlikely
to be so successful as to attraci
enough votes to elect the minor-
p?rty candidate, a minor party,
whose short-term goal is merely ret-
ognition, may be as tempted to re-
sort to impermissible methods as are
qnajor parties, and the resulting de-
flection of votes can determinJ the
outcome of the election of other can-
didates.o The requirement of a full
and verifiable report of expenditures
is important in deterring iuch prac-
tices, for otherwise the party couldhide the improper traniactions
through an accounting sleight of
hand.6

On the other side of the balance,
disclosure of recipients of expendi-
tures will have a lesser impact on a
minority party's First Amendment
interests than will disclosure of con-
tributors.

[46e US rrr]
As the majority states,

ante, at 91,74 L Ed 2d, at 256, the
First Amendment interest here is
"[t]he right to privacy in one's politi-
cal associations and beliefs.'; We
have never drawn sharp distinctions
between members and contributors,
Buckley, 424 lJS, at 66, 46 L Ed, Zd,
659, 96 S Ct 612. As we recognized
in Buckley, the privacy rights of
contributors are especially sensitive,
srnce many seek to express their
political views privately through
their pocketbook rather than pu*b-
licly through other means. Discle
sure of contributors direcfly impli
cates the contributors, assoiiational
rights.

The impact on privacy interests
arising from disclosure of expendi-
tures is of a quite different-and
generally lesser-jimension. Many
expenditures of the minority party
will be for quite mundane pu.posei
to persons not intimately connected
with the organization. Payments for
such things as office supplies, tele-

4. As Justice White noed in partial diseentin Buckley, 424 US, at 264-26E, 46 L M id
S9, 96_q q 

-612. 
citing Burroughs v United

ststes. 290 US S34, ?8 L Ed 48{: 54 S Ct 282
(1934):
"[f]he corrupt use of mone.r- by candidates is
as much to be feared as tire torroeive in6u-
ence of large contributions. There are manJ
illegal wayr of spending money to in6uence
elections. One would be blind'to history to
deny that unlimited mone), temprs people to
spend it on whatcver moni1. can-buy to'i.rffr_
ence an election." (Emphasis in origiaai.)

_ 5. C.ertainly the SWp could have this effect.
For example, appellants noted at or"l 

"*.ment that the SWP candidate in the ld'?a
Ohio gubernatorial election recejved *-" gS,_
000 votes. The Republican candidate's -r"gin
268

of victory over the Democratic candidate was
only some 13,500 votes. Tr of Oral Arg 1g.
The impact of minor parties on electiois in
the UniiedtStates is well documented. See
generally W. Hesseltine, Third-partv Move_
ments in the United Statec (1962).

6. I therefore disagree with the majorit.v,s
suggestion, anre, at 98-99, n 16. ?4 L Ed id.
at 260-261, that the government interesr in
deterring corruption is not furthered bv drs-
cloeure of all expenditures, including those for
commercial services. Even if improprieties are
unlikely to occur in expenditures for commer_
cial eervices. full and verifiable drsclosure is
needed to ensure that other. improper expen.
ditures are not hidden in commercial 

' 
ac.

counts



i 74LEd2d

eide of the balance.
cipients of expendi-
a lesser impact on a
I First Amendment
ill disclosure of con-

rUS llll
r the majority states,
, Ed 2d, at 256, the
nt interest here is
'ivacy in one's politi-

and beliefs." We
n sharp distinctions
rs and contributors,
i, at 66, 46 L Ed 2d
2. As we recognized

privacy rights of
especially sensitive,
k to express their
privately through

: rather than pub-
her means. Disclo
tors directly impli
rutors' associational

r privacy interests
closure of expendi-
uite different-and
{imension. Many
the minority party
mundane purposes
rtimately connected
ttion. Payments for
ffice supplies, tele-

rmocratic candidate was
es. Tr of Oral Arg 18.
parties on elections in
well documentpd. See

ine, Third-Party Move.
tates (1962).

ree with the majority's
I-99. n 16.74LEd2d,
government interest in
s not furthered by dis-
res. including those for
ven if improprieties are
penditures for commer-
verifrable disclosure is
other, improper expen-
en in commercial ac-

BROWN v SOCIALIST WORKERS '74 CAMP. COMM.
459 US 87,74 L M tut 2fi, 103 S Ct 416

Dhone service, bank charges, Print-
ine and photograPhy costs would

ce-nerally fall in this category' The
lkehhood that such business trans-
actions would dry uP if disclosed is

nemote at best. Unlike silent contrib
utort, whom disclosure would reveal
to the Public as supPorters of the
oarty's ideological positions, persons

broviding business services to a mi-
nor PartY are not generally Per-
ceived by the Public as suPPorting
the party's ideolory, and thus are
unlikely to be harassed if their
names are disclosed. Consequently,
the party's associational interests
are unlikely to be affected by disclo-
sure of recipients of such expendi-
tures.

Other recipients of expenditures
may have closer ideological ties to
the party. The majority suggests
that campaign workers receiving per
diem, travel, or room expenses may
frt in this category. Ante, at 97, n L2,
74 L Ed %1, at 259. lt is certainly
eonceivable that such persons may
be harassed or threatened for their
conduct. Laws requiring disclosure

of recipients of expenditures, how-
ever, are not likely to contribute to
this harassment. Once an individual
has openly shown his close ties to
the organization by campaigning for
it, disclosure of receipt of expendi-
tures is unlikely to increase the de-
gree of

[459 US 1r2]
harassment so significantly

as to deter the individual from cam-
paigning for the party. Further, in
striking the balance, the governmen-
tal concerns are greatest precisely
for the actions of campaign workers
that might improperly influence vot-
ers. Thus, whatever marginal deter-
rence that may arise from disclosure
of expenditures is outweighed by the
heightened governmental interest.

In sum, the heightened govern-
mental interest in disclosure of ex-
penditures and the reduced mar-
ginal deterrent effect on associa-
tional interests demand a separately
focused inquiry into whether there
exists a reasonable probability that
disclosure will subject recipients or
the party itself to threats, harass-
ment, or reprisals.?

7, According to the majority, "the question
shether the BuckJey test applies to the com-
pelled disclmure of recipients of expenditures
ia properly before us." Ante, at 94, n 9, 74 L
il fu|, at 257. The majority declares that, in
answering this question, "the District Court
neceasarily held 0) that the Buckley stan-
dard, which permits flexible proof of the rea-
rcnable probability of threats, harassment, or
reprisals, applies to both contributions and
erpenditures, and (2t that the evidence u'as
cufrcient to show a reasonable probabiiitv
that discloeure would subject both contrib-
utors and recipients to public hostility and
harassment." Ibid. (emphasis added).

Justice Blackmun, ant€, at 702.74 L Ed 2d,
at 263, however, more accurately character-
ues the District C,ourt's action as assuming
tnat the Buckiey standard applies to discle
sure of expenditures and holding the evidence
su6cient to meet this standard. The Distrrct
(ourt's assumption is understandable, since
appellants did not question it beiow. Thus,
this is not the appropriate case to determine

whether a different test or standard of proof
should be employed in determining the consti-
tutional validitv of required disclosure of ex-
penditures.

Even assuming the general applicability of
the Buckley standard, though, the question
presented here requires us to inquire whether
the evidence of harassment establishes a "rea-
sonable probabilitl"' that the Ohio law would
trigger r"threats, harassment, or reprisals"
against rxipients of expenditures that in
turn may harm the party's associational in-
terests. ThG inquiry is necessarily distinct
from the inquiry whether the evidence estab-
lishes a reasonable probabilit)' that disclosure
would trigger threats, harassment, or repri-
eais against contributors. Although the proof
requirements guiding this separarc inquirl'
remain flexible, and direct proof of harm from
disclosure is not required, ultimately the
part)' must prove that the harm to it from
disclosure of recipients outweighs the govern-
mental interest in disclosure. This separatell'
focused inquiry does not necessarily alter

289



U.S. SUPREME COURT REPORTS 74LEd2d,

[{69 US ll3]
n

Turning to the evidence in this
case, it is important to remember
that, even though proof require.
ments must'be flexible, Buckley, su-
pra, at 74, 46 L Ed 2d 659, 96 S Ct
612, the minor party carries the bur-
den of production and perruasion to
show that its First Amendment in-
terests outweigh the governmental
interests. Additionally, the applica-
tion of the Buckley standard to the
historicat evidence is most properly
characterized as a mixed question of
law and fact, for which we normally
assess the record independently to
determine if it supports the conclu-
sion of unconstitutionality as ap
plied.s

Here, there is no direct evidence
of harassment of either contributors
or recipients of expenditures.
Rather, as the majority accurately
represents it, the evidence concerns
hara" 6sn1 and reprisals of visible
party members, including violence
at party headquarters and loss of
jobs. I concur in the majority,s con-
clusion that t.Ilis eyidence, viewed in
its entirety, supports the conclusion
that there will be a reasonable prob-
ability of harassment of contributors
if their names are disclosed. This

evidence is sufficiently linked to dis-
closure of contributors in large part
because any person publicly krro*r,
to gupport the SWP,s unpopular
ideological position may suffei the
reprisals that this record shows ac-
tive party members suffer, and the
disclosure of contributors may lead
the public to presume these people
support the party's ideology.

[459 US rr4]
In contrast, the record, read in it.s

entirety, does not suggest that dis-
closure of recipients of expenditures
would lead to harassmenl of recipi-
ents or reprisals to the party or its
members. Appellees gave no break-
down of the types of expenditures
they thought would lead to harass-
ment if disclqsed. The record does
contain the expenditure statements
of the SWP, which itemize each ex-
penditure with it6 purpose while
usually omitting the name and ad-
dress of the recipient. The majority
of expenditures, both in numbei and
dollar amount, are for business
transactions such as office supplies,
food, printing, photographs,--tele.
phone service, and books. There is
virtually no evidence that disclosure
of the recipients of these expendi-
tures will impair the SWP's ability
to obtain needed services.g Even if

BucLlsy's "reasonable probability,, test or
"flexible proof' standard. It does, however,
plainly require a di-ferent result.
Moreover, the FBI's actions against the SWp
have long been ended, see Final Report of the
Select Committee to Srudy Governmental Op
eratione with Respect to Intelligence Actiyi-
ties, S Rep No.94-755, Vol 4-5, pp 3-4 (1926),
and Congreas has since instituted more rigor-
ous overaight of FBI and other intelligence
activities, aee 50 USC 9413 (19?6. ed, Supp
fV) [50 USCS $ 413] An inferenci from these
two incidents that disclosure oi reciprents ol
expenditures would increase anr ciifficult.v the
party might have in obtainrng ofhce space
would be tenuous, and is plainir. outweighed
by the "eubetantial public interest in disclo
yto

sure," Buckley, 424 US, at ?2, 46 L Ed 2d 659,
96 S Ct 612.

-q. 
See Prllman-standard v Swint, 456 US

273, 289, n tg, 72 L FA 2d 66, iO2 S Ct 1Z8i(1982t. The majority does not clearlv articu_Ipte the standard of rerien. it is appi-ving. By
determining that the District C.il',.;.";";;
concluded" the evidence established . ."ioon-
able probatility of harcrcment. ant€, at 100,
74 L Ed 2d,. at 261, the majority *-" to
apply an independent-review siandard

0. The District Courr admitted Exhibit 129
into the record. which is a certifed ..pi;f
fndings of fact made by the Federal El&io;
uommrsalon pursuant to a l9Z7 court order in
Socialist Workers 1924 National Campaign
C,ommittee v Jennings, No. ?,1-183g (DC, atip



74LDd2d

ently linked to di+
utors in large part
on publicly known
SWP'e unpopular
)n may suffer the
s record shows ac-
lrs sufler, and the
ributors may lead
sume these people
s ideologT.

rs u4l
record, read in its
suggest that dis-

,ts of expenditures
'assment of recipi-
o the party or its
es gave no break-
s of expenditures
ld lead to harass-
The record does

diture statements
r itemize each ex-
:s purpose while
he name and ad-
ent. The majority
th in number and
rre for business
as office supplies,
hotographs, tele.
I books. There is
ce that disclosure
rf these expendi-
:he SWP's ability
rervices.e Even if
ar 72,46 L Ed 2d 659,

ard v Swint, 456 US
2d ffi, to2 s ct 1781
rs not clearly articu-
ie*' it is applying. By
itrict C-ourt "properly
estsblished a reaaon-
ssment, ante, at 100,
Le mqiority Beems to
.iew atandard.

rdmitted Exhibit 129
s a oertifed copy of
the Federal Election
a 1977 court order in
National Campargn

Io. 7,1-1338 (DC, atip

BROWN v SOCIALIST WORKER.S '74 CAMP. COMM.
459 US 87 , 74 L A 2d zfi, 103 S Ct 416

we a8sume that a Portion
[{5e us u6]

of expendi-
tures went to temPorary campaign
workere or other€ whom the public
Elght identify aB supporting the par-
ty'a ideologY,ro these persons have
already publicly demonstrated their
support by their campaign work.
lhere is simply no basis for infer-
riry that such persons would there-
aftcr be harassed or threatened or
otherwise deterred from working for
the party by virtue of inclusion of
their names in later expenditure re.

ports, or that if any such remote
danger existed, it would outweigh
the concededly important govern-
mental interests in disclosure of re.
cipients of expenditures.

It is plain that appellees did not
carry their burden of production and
persuasion insofar as they challenge
the expenditure disclosure provi-
sions. I would therefore uphold the
constitutionality of those portions of
the Ohio statute that require the
SWP to disclose the recipients of
expenditures.tt

ulated judeoent entered Jan. 3, 1979). The
fEC in that case analyzed affidavits submit-
tad by SIVP members and other documentary
widence of public and private harassment of
SWP members. In frnding No. 126, the FEC
acceptcd the SWP's propoeed finding that in
l9?1 a landlady in San Francisco rejected the
application of two SWP members for an
apa.rtment, becauee the FBI had visited the
landlady and warned her of the dangers of
the SWP. [n finding No. 127, the FF,C ac-
cepted the SWP's propoeed finding that in
1974 a landlady in Chicago evicted a SWP
member from her apartment. The landlady
erplained, "they told me all about you," refus-
ing to identify who "they" were.

lheee two incidents are, of courae, remot€
in time and place, and do not Buggest that the
party itself has had di6culty in finding oftce
apa.ce. Nor do they suggest that the general
public is likely to engage in eimilar activity.

10. As the majority notes, ante, at 97, n 12,
71 L EA fuJ., at 259 some entriec in the erpen-
diture forms are designated as per diem,
travel expenses, and room rental. At least
until 1978, the expenditure statements gave
the names of persons receiving per diem

funds from the SI{P. Apparently, party trea-
gurers and party candidates received per diem
payments. There is no evidence that filing
thes€ statements with the Ohio Secretary of
Stat€ caused any harassment of the named
persons, and indeed it is highly unlikely that
this disclosure would increase the exposure of
persons already ao publicly identifed with the
party.

ll. In holding a Btate Btatute unconstitu-
tional as applied, a court must gever and
apply constitutional portions unless the leg'is-
Iature would not have intended to have ap
plied "'thoae provisions which are within its
power, independently of that which is not
. . .,"'Buckleyi Bupra, at 108,46 L Ed 2d 659,
96 S Ct 612 (severing constitutional portions
of Federal Election Campaig"n Ac-t after hold-
ing other portions unconstitutional on their
face), quoting Champlin Refining Co. v C,orpo.
ration Comm'n of OkIa., 286 US 21O, 2U,76
L Ed 1062. 52 S Ct 559, 85 ALB 403 (1932).

Clearly, the expenditure discloaure require
ments of the Ohio Btstut€ should be severed
and applied even though the contribution
disclosure requirements cannot be applied in
this instarce, for the two requirements are
analytically and practically distinct.

27r