Based on this evidence the Hearing Officer and the Board
concluded that enforcement of the Act would violate the first
amendment rights of the SWP and its supporters. AR at 2,
21-21A.*fn1 However, the Board refused to relieve the
plaintiffs of their obligation to file under the Act because
"the Board has no authority to grant an exemption to
Respondents from the requirements of Sections 9-11 and 9-13 of
the [Act]," Order of the Board, AR at 3, and to do so "would
result in the Board exceeding the scope of authority it has
been delegated by the Illinois Legislature." Opinion of the
Hearing Officer, AR at 21A.
CONCLUSIONS OF LAW
This court has jurisdiction over the subject matter of this
case and the parties herein pursuant to 28 U.S.C. § 1331,
1343, 2201 and 2202. Defendants Fahner and Daley argue that,
notwithstanding our jurisdiction, we should abstain from
considering the merits of this case to give the Illinois Courts
an opportunity to construe the Act in question. We disagree.
Abstention is appropriate where a state court decision on a
state statute as yet unconstrued might obviate the need for a
decision on the merits of a federal constitutional claim.
See Railroad Comm'n of Texas v. Pullman Co.,
312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). The concept of
"Pullman" abstention is grounded in the premise that there is
an unsettled question of state law which could be decided in
such a way as to avoid the need to decide the federal
constitutional issue. Thus, "abstention is not indicated if the
state law is clear on its face, or if its meaning has already
been authoritatively decided by the state courts, or if the
constitutional issue would not be avoided or changed no matter
how the statute is construed." 17 C. Wright, A. Miller & E.
Cooper, Federal Practice and Procedure, § 4242 at 456-58
(1978) (footnotes omitted).
In the instant case, abstention is inappropriate for two
reasons. First, there is no ambiguity in the statute itself. As
the Board and Hearing Officer concluded, the statute is plain
on its face and does not vest the Board with discretion to
permit exemptions from the filing requirements. Defendants
Fahner and Daley cite no authority to the contrary and offer no
other reasonable construction of the Act which avoids the
question before us. The law is clear that "[w]here there is no
ambiguity in the state statute, the federal court should not
abstain but should proceed to decide the federal constitutional
claim." Wisconsin v. Constantineau, 400 U.S. 433, 440,
91 S.Ct. 507, 511, 27 L.Ed.2d 515 (1971). See also New
Motor Vehicle Board of California v. Fox, 439 U.S. 96, 100
n. 3, 99 S.Ct. 403, 407 n. 3, 58 L.Ed.2d 361 (1978); Kusper
v. Pontikes, 414 U.S. 51, 55, 94 S.Ct. 303, 306, 38
L.Ed.2d 260 (1973). Cf. Wisconsin Socialist Workers 1976
Campaign Committee v. McCann, 433 F. Supp. 540 (E.D.Wis.
1977) (three judge court) (declining to abstain on
substantially the same facts under Wisconsin disclosure act).
Second, and more importantly, abstaining in favor of the
state court would not avoid the need for a decision on the
constitutional claim; it would simply compel either the state
court or the Board on remand to determine if plaintiffs have
made the necessary showing to qualify for exemption under the
standards of Buckley v. Valeo, 424 U.S. 1, 96 S.Ct.
612, 46 L.Ed.2d 659 (1976). Where the constitutional question
must, of necessity, be decided by some forum, abstention is
inappropriate. See Baggett v. Bullitt, 377 U.S. 360,
375-79, 84 S.Ct. 1316, 1324-27, 12 L.Ed.2d 377 (1964). Thus, we
proceed to the merits of plaintiffs' first amendment claim.
It is well established that compelled disclosure of
membership lists and other material can work a severe hardship,
particularly on those whose political beliefs are unpopular or
outside the mainstream. NAACP v. Alabama,
357 U.S. 449, 462, 78 S.Ct. 1163, 1172,
2 L.Ed.2d 1488 (1958). See also Gibson v. Florida
Legislative Investigation Committee, 372 U.S. 539, 83
S.Ct. 889, 9 L.Ed.2d 929 (1962); Bates v. Little Rock,
361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480 (1960). The right to
freely associate with the political party of one's choosing and
participate in the electoral process, without fear of
intimidation or harassment, is a particularly important
safeguard in a democratic system. See Cousins v.
Wigoda, 419 U.S. 477, 95 S.Ct. 541, 42 L.Ed.2d 595 (1975);
Kusper v. Pontikes, 414 U.S. 51, 94 S.Ct. 303, 38
L.Ed.2d 260 (1973).
Nevertheless, the Supreme Court in Buckley upheld
against first amendment attack the extensive reporting and
disclosure provisions imposed on political parties by the
Federal Elections Campaign Act of 1971 ("FECA"), 2 U.S.C. § 431
et seq. (1976). 424 U.S. at 60-74, 96 S.Ct. at
654-61. The Court found that regulation of campaign finances
was supported by the substantial governmental interest in
deterring corruption through publicity, and informing the
voters of the source of a candidate's support. Id. at
67-68, 96 S.Ct. at 657-58. The same is clearly true of the
Illinois Act. Moreover, the level of contribution which
triggers the reporting obligation is higher than in the FECA,
while the nature of information required is substantially
similar. Thus, there can be no question that the Act is
supported by a legitimate governmental interest and meets the
requirements of Buckley.
However, in rejecting a blanket exemption for minor parties
from the reporting requirements, the Court specifically left
open the possibility that "[t]here could well be a case,
similar to those before the Court in NAACP v. Alabama
and Bates, where the threat to the exercise of First
Amendment rights is so serious and the state interest so
insubstantial that the Act's requirements cannot be
constitutionally applied." Id. at 71, 96 S.Ct. at 659.
The case at bar is just such a case.
The Court provided guidance on how to judge a claim for an
exemption based on first amendment grounds:
We recognize that unduly strict requirements of
proof could impose a heavy burden. . . . Minor
parties must be allowed sufficient flexibility in
the proof of injury to assure a fair consideration
of their claim. The evidence offered need show
only a reasonable probability that the compelled
disclosure of a party's contributors' names will
subject them to threats, harassment, or reprisals
from either Government officials or private
parties. The proof may include, for example,
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
sufficient. Id. at 74, 96 S.Ct. at 661.
The SWP is at present, and has been since its inception in
1939, a minor party, receiving less than one percent of the
vote in the last election on both state and national levels.
The governmental interest in disclosure of its contributors'
names is, therefore, substantially reduced. The Board concluded
that it had "no doubt," based on the record before it, that the
SWP had made the showing required by Buckley. Courts
and administrative bodies in Minnesota, Wisconsin, California,
Washington and the District of Columbia, have granted
exemptions to the SWP from similar state disclosure laws.
See Wisconsin Socialist Workers 1976 Campaign Committee v.
McCann; Doe v. Martin, 404 F. Supp. 753 (D.D.C. 1975);
In Re Manual No. AE 77,005 (California Fair Political
Practices Commission, March, 1977); Socialist Workers 1974
Washington State Campaign v. Washington Public Disclosure
Commission, Nos. 52,505, 54,772 (Wash.Sup.Ct., April,
1977) (transcript of oral opinion), AR at 427-59; In the
Matter of Minnesota Socialist Workers 1974 Campaign Committee
Request for Exemption, No. H-0001 (Minn. State Ethics
Comm., October, 1974), AR at 692-97.