Transcript

IN THE SUPREME COURT OF THE UNITED STATES

DONALD J. DEVINE, DIRECTOR, OFFICE OF PERSONNEL MANAGEMENT, Petitioner, v. NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC., ET AL.

No. 84-312

February 19, 1985

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 1:51 o'clock p.m.

APPEARANCES:

REX E. LEE, ESQ., Solicitor General of the United States, Department of Justice, Washington, D.C.; on behalf of the petitioner.

CHARLES STEPHEN RALSTON, ESQ., New York, New York; on behalf of the respondent.

PROCEEDINGS

CHIEF JUSTICE BURGER: We will hear arguments next in Devine against NAACP Legal Defense Educational Fund.

Mr. Solicitor General, I think you may proceed whenever you are ready.

ORAL ARGUMENT OF REX E. LEE, ESQ., ON BEHALF OF THE PETITIONER

MR. LEE: Thank you, Mr. Chief Justice, and may it please the Court, the Combined Federal Campaign is an annual effort by the federal government to solicit contributions to charity from its employees.

Like most employers who engage in like efforts, the federal government has never opened its campaign to all categories of charities. Among the groups who have never participated are churches, universities, opera guilds, animal welfare groups, and other groups, including the respondents in this case.

The question presented here is whether the President has the constitutional authority to limit participation in the Combined Federal Campaign to agencies that provide or support direct health and welfare services to individuals or their families.

Not included within the eligible groups are organizations such as the respondents, legal advocacy groups whose objective is to influence public policy through litigation.

For the first 19 years of its existence, the Combined Federal Campaign did not include legal advocacy groups and was generally understood not to include them. The federal government's practice in this respect was also consistent with the practice of other employers, such as private employers, and also consistent with the practices of federated charitable fundraisers such as the United Way and its predecessors, the United Fund and the old community chests.

In 1980, however, after the petitioner's predecessor had determined them to be ineligible, several legal advocacy groups filed suit in District Court which held that the direct services requirement which they had allegedly failed to meet was unconstitutionally vague.

The President's steps taken in response to that decision, culminating in Executive Order 12404, which --

QUESTION: Was that decision ever appealed?

MR. LEE: It was not.

QUESTION: Is there any indication in the record why it wasn't appealed?

MR. LEE: No, there is not. The Executive Order 12404 which was issued in February, 1983, made explicit that which had been the consistent understanding and practice for 20 years, and I quote from the language of the executive order: "Agencies that seek to influence the determination of public policy through litigation shall not be eligible to participate in the Combined Federal Campaign."

The issue in this case is remarkably narrow. Everyone agrees that the respondent's right to engage in fundraising activities is constitutionally protected, and no one contends that every charity should be constitutionally entitled to participate in the Combined Federal Campaign.

So that the problem is one of line drawing. Who is to be admitted and who is not, and by what criteria does the Constitution permit that distinction to be made? The controlling issue as seen by the Court of Appeals, by the respondents, and by the petitioner, is whether drawing the line where the President has drawn it, the same line that existed through five previous Administrations, is reasonable.

The respondents and the Court of Appeals are absolutely correct in our view in focusing on reasonableness as the relevant and controlling constitutional question, and we will join them orally, as we have in the briefs, on that issue as the issue in the case.

But I want to do so against the background that this necessarily assumes and correctly assumes that we are dealing here with a non-public forum, and that assumption is a correct one. The only public property, indeed, the only place that is at issue in this case is the federal work place, which the federal government most assuredly has not opened generally for expressive activity.

QUESTION: Mr. Lee, does your case stand or fall on that proposition?

MR. LEE: No, it does not, Justice Blackmun. It is simply a recognition at the outset that that is the correct analytical framework, but even if it did not, we would contend that what the President did was still constitutional.

But in any event, there is general agreement that the focal point for analysis in this case should be whether the President's decision was feasible, that is, whether there are differences between these respondents and the Combined Federal Campaign eligible charities which are sufficiently relevant to legitimate governmental objectives that the eligibility criteria are reasonable.

We submit that there is not only a reasonable distinction, but that each of the three objectives stated in the executive order constitutes a separate and independently sufficient reasonable ground for sustaining the criteria, and I will discuss each of them separately.

First, while the government's exclusion of advocacy groups is consistent with the practice of employers generally, the government's involvement in charitable fundraising has a dimension that is not shared by other employers who participate in charitable solicitation efforts, and it is this.

Governments have taken upon themselves the obligation of caring for the needs of the poor, of assuring that certain minimum levels of food, clothing, shelter, and educational opportunities are available.

Segments of that obligation have been undertaken by the federal government, and under those circumstances it is perfectly proper for this same federal government to make some reasonable judgments concerning those organizations whose efforts are most likely to achieve that objective and thereby to minimize the extent to which this task must be performed by government itself.

It will not do in this respect to point to some individual instances where in the opinion of some legal advocacy groups have in fact succeeded through litigation in obtaining money for the poor, because in the first place those efforts sometimes succeed, and they sometimes yield nothing, but even more important, there is in fact a difference in the way that these groups go about performing their tasks.

The eligible groups render their services directly, and by contrast, legal advocacy groups attempt to influence the action of other persons and entities, including governments, and they frequently find themselves opposing each other in the courts.

Under those circumstances, it is surely reasonable, it is surely constitutionally permissible for the President of the United States to make some judgments concerning whether a dollar given to a direct providing traditional charity is more likely in general than a dollar given to a public advocacy group to lessen the government's overall burden of providing for health and welfare.

QUESTION: Mr. Lee, some of your listed groups, however, go off on opposite directions, don't they?

MR. LEE: That is correct.

QUESTION: How does that square with what you have just said?

MR. LEE: Well, I think it squares completely. That provides certainly a reasonable basis for the government to conclude that its financial efforts are better expended for groups that provide their services directly, and groups for which there is at least a reasonable basis for the President to conclude that they do a more direct and a more effective job of lessening the government's overall health and welfare burden.

QUESTION: Specifically, I refer to the Moral Majority Foundation on the one hand and Planned Parenthood Foundation on the other hand.

MR. LEE: I misunderstood your question, Justice Blackmun. With regard to those two organizations, the argument, of course, is an underinclusiveness one that in applying these standards we simply made a mistake in applying it to those two.

There is not enough in this record to make a determination as to the propriety or the impropriety of the determination as to those groups, and of course the question presented in this case does not include whether those or any other groups should or should not have been included, but those are issues for other litigation, for other lawsuits and other occasions in the event that --

QUESTION: But your answer is, they just made a mistake?

MR. LEE: Well, that they might have. There just isn't enough in this record to determine whether they did or they did not. I just don't know enough. There isn't enough in this record to determine what the Moral Majority and Planned Parenthood does.

QUESTION: Mr. Solicitor General, may I ask you a question about the record? I notice in the Court of Appeals Judge Star made quite a point of the fact that this was a summary judgment case, and that inferences could be drawn that were different from those drawn by the majority.

And in your brief you don't seem to make much of the point about i being a summary judgment case. What disposition do you ask for, a total reversal or a trial?

MR. LEE: Well, we think what is needed here is a total reversal. We think the Court has enough --

QUESTION: You think the record is adequate?

MR. LEE: We think it is. Yes, Your Honor. And that is the reason.

I turn next to the second objective stated in the executive order, which is to minimize disruption in the federal workplace, reduce the costs of fundraising, and maximize the success of the campaign.

In other words, the President, we submit, could reasonably conclude that the campaign would be less costly and would raise more money structured as he structured it, and this borne out by the record. The nature, the tone, and the magnitude of the controversy that was engendered by the inclusion of these advocacy groups during the interim years when the lower court orders have so required, the difficult barriers that these create for those who attempted to carry out the government's fundraising objectives are summarized in our brief at Pages 37 through 40.

I would particularly invite the Court's attention to Pages 346 through 392 of the Joint Appendix, which does give a fair sample of the kinds of problems that these volunteers who were charged with the responsibility of running the campaign encountered because of the inclusion of these particular groups.

Now, it is, of course, impossible to tell what the performance of the campaign would have been if those groups had been included, what the cost would have been in terms of dollars and time, and how much money would have been raised if things had been other than they were.

But two things are very clear. First, the inclusion of these groups did pose widespread and serious problems in the judgment of those who were charged with the stewardship of running the campaign, and second, and probably even more important, precisely because no one can make a comparison of what was with what might have been, this is the kind of decision that has to be made by someone. Someone has to make those judgments, and it must be upheld so long as it is reasonable.

Here it is the President who had made the judgment, and it is consistent with the judgment of his five predecessors, and is clearly reasonable.

The respondents rely on the Hecklers veto cases, and they contend that their First Amendment rights cannot be suppressed by those employees who disagree with them. Their reliance is misplaced for two reasons.

One is that none of their cases involved a non-public forum. And in cases where a non-public forum was involved, the potential disruptiveness of the activity in terms of disruptiveness to an ongoing governmental activity has been a major factor in upholding constitutionality. And I will mention just two cases.

One is the Perry case, in which the Court found it relevant that exclusion of a rival union from the school mail system would help to preserve labor peace within the schools.

And Lehman versus City of Shaker Heights recognized that exclusion of political advertising from mass transit vehicles was justified in part because it would avoid involving the city in controversy and jeopardizing its revenues.

This just isn't a Hecklers veto kind of case. This brings me to my second point. It is a non-public forum case in which the President has made some judgments about the best way to enlarge employee involvement in a fundraising effort while keeping down the disruptive effects of that effort.

The third reasonable basis for the President's distinction is avoiding both the reality and also the appearance of using federal resources to advance a particular political cause.

This one is squarely supported by the Court's holding in Lehman versus Shaker Heights, where concerns about a voiding the appearance of favoritism were held sufficient to sustain a policy permitting advertising generally on the city's buses, but excluding political candidate advertising.

I would like to invite the Court's attention now to one feature that is common to all three of the President's objectives and that I believe is dispositive of the issue in this case. Underlying each of those objectives is a Presidential resolution of an issue which is partially factbound and whose factual components cannot be verified one way or the other.

It is not known, for example, and cannot be known whether in fact health and welfare organizations that provide their services directly have a greater ameliorative effect on the total governmental welfare burden than to entities such as these respondents, whose mission is to effect public policy through the bringing of lawsuits.

Neither can it be empirically verified whether the inclusion of these groups in this campaign will or will not affect such things as the ability to campaign to raise money or its costs in dollars, employee time and disruptiveness, or an appearance of favoritism.

But one thing is clear. This Court has faced that same problem in other cases and uniformly has accorded governmental officials the benefit of a presumption in favor of their factual judgments.

In Perry, for example, the school board's judgment was necessarily based on a determination that restricting access to the mailboxes would, and I am quoting from the opinion, "serve to prevent the district schools from becoming a battlefield for interunion squabbles."

And in Lehman, in Greer, and in Jones, those who were charged with specific governmental responsibilities made some judgments, some factbound judgments concerning the likely effect of their decisions on such matters as perceptions of political favoritism and the maintenance of discipline within a military base or a penal institution.

In each institution, that judgment was upheld. Under this Court's precedents, therefore, the Constitution does not prohibit a Presidential decision on the ground that the factual correctness or incorrectness of his determination cannot be verified.

I have just one final point. We submit that this just isn't a case in which there has been a first amendment violation or any serious implication of First Amendment values. The significance of the Combined Federal Campaign is not the expressive opportunity that it offers to charities to convince people to give money to them.

It offers very little opportunity for that kind of appeal, and there are in any event ample other available means which are far more effective for that purpose, such as direct mail, door to door solicitation, commercial advertising.

The reason that these respondents or anyone else would like to be included in the Combined Federal Campaign is not because of opportunities that afford expression, but rather because it is a very effective money-raiser. It is, in the respondent's own words, "qualitatively superior to any other alternative means of fundraising among federal workers."

This just is not like the situation, therefore, in Village of Schaumburg, where government has imposed a negative on any fundraising efforts. The only governmental action in this case has simply been to decline to confer upon a particular individual or group the financial advantage of a more effective fundraising opportunity.

The Court of Appeals attached controlling significance to the fact that the government has already determined these petitioners to be charitable because of their qualification for income tax exempt status under Section 501(c)(3) of the Internal Revenue Code.

That argument, which is central to the Court of Appeals decision, is highly instructive. The determination of what is a tax-exempt organization is made for purposes quite different from those that underlie the determination of eligibility criteria for the CFC.

This is highlighted by the fact that if the two were the same, there could be over 300,000 participants in the campaign, a circumstance for which no one contends and everyone agrees would be undesirable and unworkable.

QUESTION: That would force or at least bring some pressure to include searches as such, would it not?

MR. LEE: Mr. Chief Justice, my answer to that is yes. Now, we are dealing here today with distinctions that affect only a handful of groups, 30 or 40 maybe at the outset, but I don't know of any principal basis short of the proposition that any 501(c)(3) charity that has qualified for 501(c)(3) status is eligible.

In other words, if the distinction between the legal advocacy groups and other groups is not within the President's constitutional power, then I do not see any basis, any constitutional basis for distinguishing churches, universities, or any others.

We submit that what the President did in this instance clearly is reasonable. Of course the lines could have been drawn in other ways, but the Constitution does not so limit the President, and the judgment of the Court of Appeals should be reversed.

I would like to reserve the rest of my time for rebuttal.

CHIEF JUSTICE BURGER: Very well.

Mr. Ralston.

ORAL ARGUMENT OF CHARLES STEPHEN RALSTON, ESQ., ON BEHALF OF THE RESPONDENT

MR. RALSTON: Mr. Chief Justice, and may it please the Court, it is also respondent's position that the issue presented by this case is a narrow and specific one. We would state that issue somewhat differently, however.

And our statement of the issue is, can the government prohibit charitable organizations from participating in the solicitation of federal employees for donations of their money because, Number One, those organizations use litigation to obtain health and welfare benefits for their clientele, and Two, because some federal employees find such organizations controversial or objectionable on some basis or other.

And I think to frame that issue I would like to emphasize a few key facts that are well established by this record.

First of all, the only thing at issue in this case is access of the respondent to designated funds. There are two types of moneys obtained in the Combined Federal Campaign. Undesignated is money that is put into a general pot to be distributed. Designated funds are money that particular federal employees decide freely, voluntarily, on their own to give to a particular organization. That is all any of the respondents get is money that federal employees want to give us.

Second, tens of thousands of federal employees have given the respondents in excess of $1 million in the time period that we have been in the Combined Federal Campaign, again, freely and voluntarily.

The third fact is that the respondents do in fact provide health and welfare services, and the government really has never contested that. The record is replete, as was held the first time this entire issue was litigated, with examples of the health and welfare services we supply, and I will come back to describe some of those in a moment.

The only basis, the only basis for excluding us, and really the proper term is expelling us after we had been in the campaign, is that we accomplish these goals through litigation, litigation activities which this Court has held are at the core of the First Amendment.

We are not Political Actions Organizations. We do not do lobbying activities. Some of us don't do any at all. The rest do whatever lobbying or legislative activities as what any charitable organization can do. The record is clear on that.

And the Solicitor General has referred the Court to the letters that are in the record which provided the impetus for our expulsion and I agree, these letters should be read because they are replete with misinformation and a misunderstanding of what we do.

There are charges that we are political organizations, that we aren't charities at all. These facts are simply wrong, and this was the main basis for the opposition.

The fifth point is that the respondents have at all times sought to participate in the Combined Federal Campaign, a forum that it establishes in ways totally compatible with that forum and fully in accord with the regulations that set it up. We are not seeking to wander the halls of government buttonholing federal employees.

We simply want to do the same things that other organizations are allowed to do, which is to have under the regulations here in question our names and 30-word statements in the brochures, and we have reproduced in the appendix to our brief a couple of these brochures.

That is what is at issue, whether we can get that information before federal employees, and whatever other free speech activities are allowed by the particular local Combined Federal Campaign, to get that information before federal employees when they are deciding whether they will give them money at all, whether they will designate it, and if designating it, to whom they will designate, to whom they will give their money.

And this campaign, these methods that the government has set up and which we do not contest, are the only way to reach federal employees effectively as an audience. There are no equivalent alternatives. The courts below in a series of cases held that, and to urge that direct mail, for example, is just as good is simply inaccurate from a fundraising point of view.

The State of New York, for example, in its amicus brief has pointed out one of the great advantages of this method of raising funds is that it maximizes the funds available for the charitable activities of the organizations themselves.

QUESTION: Mr. Ralston --

MR. RALSTON: Yes, Your Honor.

QUESTION: -- I am curious. Do many people throughout the government employee ranks designate rather than not designate?

MR. RALSTON: Yes, Your Honor, in recent campaigns there has been approximately 60 to 65 percent. Before the changes in 1982, there was no encouragement to designate. So approximately 65 percent of the funds were undesignated.

However, in 1982, the government, when it changed the regulations, encouraged designations, and in the past years the predominant amount of money has been through designation. Again, we only get designated funds, that is, money that people want to give to us as individual organizations.

The final point is, as the District Court found, based on what the government put in the record, the motivation for expelling us from the campaign was controversy. There were some federal employees who didn't think we should be in. They were opposed to our continued inclusion, and the government acquiesced to that and ejected us from the campaign.

I think it is also important to focus on exactly what the rule is that keeps us out, because the government has talked a lot about having to draw lines. Our position is, the line that is drawn is simply an unconstitutional one.

We are excluded, and all elements of the rule result in our exclusion, Number One, because we litigate, Number Two, because our litigation consumes in excess of 15 percent of our budgets and/or $1 million, Three, we litigate on behalf of others, and Four, we are selective in our litigation. That is, the cases we select are related to particular causes.

If any one of these isn't present, we would be in. For example, legal aid societies which expend 100 percent or close to it of their budgets for the purposes of litigation are accepted into the Combined Federal Campaing. They have been for a long time.

QUESTION: How about the District of Columbia Bar Association, for example?

MR. RALSTON: Your Honor, if they are charitable activities, such as to qualify them generally, if they qualified as a 501(c)(3) organization and met the other various provisions that are in the regulations, they might be able to qualify. I am not that familiar with what they do.

QUESTION: How about the ACLU?

MR. RALSTON: The ACLU Foundation, which is their tax-exempt arm of the ACLU, would be able to come in in the same way that the NAACP Special Contribution Fund is in the campaign.

QUESTION: When the designations are made, is that controlling?

MR. RALSTON: Yes, Your Honor.

QUESTION: What about the undesignated funds? Who decides how they are divided?

MR. RALSTON: Under the present system, or the system that existed that is in issue here, the undesignated money goes to a private organization which has been designated the principal combined fundraising organization. In virtually every instance it is the local chapter of the United Way.

United Way then decides among the participating organizations how to divide up the undesignated moneys, but we do not get any of that.

QUESTION: Does that take into account the amount that was received, allocated by the designation?

MR. RALSTON: Not under the formulas as I understand them. It is simply -- There used to be under the system before 1982 a rather complex mathematical formula, but the way the system works now is, the PCFC, which again in practical effect is the local United Way branch, decides based on its assessment of local needs. Again, we don't get any of that.

QUESTION: Why not?

MR. RALSTON: Because the District Court held that the rule that we are challenging was only unconstitutional as it related to getting designated funds, and essentially said, if we felt we were being wrongfully denied undesignated funds, we could challenge that under the equal protection claim.

We had challenged the prior undesignated funds system in NAACP Legal Defense Fund Number Two. This is actually the third in a series of cases. We lost that. We did not appeal, primarily because we felt that since the focus of the campaign had shifted almost primarily to designated funds, that was a primary issue. We have essentially acquiesced in our --

QUESTION: The cases were judged that you may constitutionally be kept from sharing the undesignated funds?

MR. RALSTON: Yes. That is the basis on which the District Court decided the case. We did not appeal, and that is binding on us. We do not challenge that in any way.

QUESTION: I am curious why you didn't.

MR. RALSTON: Well, basically, Your Honor, the formula --

QUESTION: Maybe you thought you would lose.

(General laughter.)

MR. RALSTON: We thought we might lose, and quite frankly, it began to become de minimis, because when we first challenged it, 65 percent of the funds were undesignated. It has now shifted heavily to a designated program, which we think is the right kind of program.

Let me continue with some examples of some other organizations that are in, and we are out. I mentioned the NAACP Special Contribution Fund, which is a separate organization from the lead respondent here. They do exactly the same kind of litigation that we do. It is just apparently they do it less than 15 percent of their budget.

Another example of the way we are excluded even though organizations which do the same thing or get the same results are included, we are the only category of organizations excluded because we focus on a particular cause. American Cancer Society is in. Various health agencies that focus on a particular issue are in.

The regulations, and I would refer the Court to again our appendix, Page 37A, which contains the definitions of the agencies which are included under the executive order, permit in organizations that provide for the care and treatment of prisoners, a specific category, a specific cause.

The record again establishes, without contradiction from the government whatsoever, that because of litigation brought by the NAACP Legal Defense Fund, $20 million has been spent in the State of Georgia to build medical care and mental health care facilities for prisoners in the State of Georgia, and another $46 million spent to totally rehabilitate the main prison there.

We would submit that these are exactly the kinds of benefits, services to prisoners that the regulations contemplate that other organizations provide. The only reason we are out is because we do it through litigation.

The government's reasons --

QUESTION: May I ask this?

MR. RALSTON: Yes, Your Honor.

QUESTION: Who does the weighing, and on what standards would they do the weighing to decide whether the presence of certain organizations would lead some employees to boycott the entire enterprise?

MR. RALSTON: Your Honor, that is basically the government's controversy argument, and our first position would be --

QUESTION: That is a little more than -- it is broader than controversy, isn't it?

MR. RALSTON: Yes. Well, as a result of their opposition to us being in, they don't want to contribute at all.

QUESTION: I was thinking of Planned Parenthood, for example. You would automatically have a certain reflex reaction with some people, would you not?

MR. RALSTON: Yes, and as the Planned Parenthood amicus brief establishes, it provides health services of exactly the kind that other organizations are in, and in fact the record in that case establishes that the petitioner attempted to keep him out because he didn't like them along with other organizations didn't like them.

But they were attempted to be kept out because they were too controversial, even though their services were clearly within the scope of these regulations, and that is what the District Court so found, and again, I refer the Court to the Planned Parenthood amicus brief, which describes that entire incident.

Our basic position is that the fact that some people think that we shouldn't be in is essentially legally irrelevant and in fact a constitutionally unacceptable reason for ejecting us.

Plus the fact that unless one accepts the government's view that the reasons given have to be simply accepted with no review of them whatsoever, which is what I now understand their position to be, the notion that because we are in created such great controversy that the Combined Federal Campaign was on the verge of destruction simply has no support in this record at all.

And I would like to recount briefly the precise history of our involvement in the Combined Federal Campaign. The government in its brief simply leaves out a very important piece of it.

In 1980, three organizations that were basically legal organizations applied, the Special Contribution Fund of the NAACP, which is a separate organization, Puerto Rico Legal Defense Fund, and the NAACP Legal Defense Fund. The Special Contribution Fund was let in. We were excluded under the direct services rule, basically on the ground that we weren't legal aid societies. If we were, we were in. Because we weren't, they said we were out.

We brought an action. Judge Gizzell not simply that that provision was vague, but that the direct services rule was inconsistent with the Executive Order enacted in 1961 by President Kennedy which the government relies on in giving a continuous history of 20 years of everybody understanding what it meant.

All I can say is, I didn't understand the Executive Order to exclude us, nor did the regulations exclude us. I didn't even understand the direct services rule to exclude us.

Judge Gizzell found that the direct services rule, which has basically been resurrected by the government now, was inconsistent with the executive order because the executive order was not limited to health and welfare agencies. It stated health, welfare, and other appropriate agencies.

In 1981, we were all let in, or five of us, excuse me, were let in because the government said they didn't have time to try to redo the regulations. Late in 1981, they proposed -- OPM proposed to the President a new Executive Order which would be very similar to the Executive Order and regulations that are here at issue which would exclude us.

The President did not adopt that Executive Order. Rather, he enacted a superseding Executive Order which retained exactly the language that Judge Gizzell had held did not exclude us, health, welfare, and other appropriate agencies.

The government then issued regulations that specifically included us, not under court order, but under the provisions of the President's new Executive Order, and announced that it had decided to remove any doubt of our being able to participate by stating that we were entitled to be in as health, welfare, and/or other appropriate agencies.

So, we were in, and the other two respondents came in, along with some other legal defense funds.

Now, between 1979, the year -- I'm sorry, 1980, the year before any of us were in the Combined Federal Campaign, and 1983, when all of us were in, receipts from the Combined Federal Campaign rose from $87 million to $109 million. That is an increase of 25 percent.

The government says, well, the level of participation went down, but again, in the year before any of us were in, that is, 1980, 59 percent of federal employees gave. The first year any of us were in, 1981, when five of us were admitted, receipts went up, and 60 percent of federal employees gave. There was no controversy in 1981. The government has produced no letters from anybody complaining about the fact that we were in.

1982, there was a controversy engendered almost exclusively because one particular organization came in, and our position is that the government could have taken reasonable steps to deal with that controversy including informing the people who were writing the letters that they had all their facts wrong, which was in fact they case.

They didn't. They simply said, all right, we are now going to change our mind and throw all these legal defense funds back out. So it is simply not accurate to state that there is this historical understanding that everybody always had that traditional charities, whatever that term is supposed to mean, were the only ones ever intended to be in the Combined Federal Campaign.

QUESTION: Well, isn't it true that from '61 until the first court action in this case that traditional charities were the only ones in the Federal Combined Campaign?

MR. RALSTON: Well, Your Honor, I don't understand quite what traditional means. If it means organizations that serve as conduits of money from one group to another, if one looks at the list, primarily such organizations are in.

But legal aid societies, for example, were in as subagencies of local United Ways, and this was why when we applied in 1980, and were told, well, you would be in if you were a legal aid society, and you are out because you are not, and that is because we don't provide direct services, we didn't understand that at all, quite frankly. I still don't understand the attempted distinction, among others, between us and legal aid societies, since whatever we do, we do through litigation.

So, this concept of traditional charities and the notion that somebody had that in mind all along, even if it can be defined, which I contend it cannot be define, is circular anyway, because it still doesn't get around to the question of whether assuming such a restriction existed, whether it was a reasonable restriction.

The government also relies on the argument relating to appearance of impartiality. Of course, we think the government should be impartial also, but it is not being impartial. It is essentially saying, look, we think there are some agencies that are really worthwhile, some agencies that aren't so worthwhile, and we don't want federal employees even to be able to think about giving to the agencies that we don't think should get the money, so we are not going to let even their names or 30 words be before the federal employees.

QUESTION: Mr. Ralston, can I interrupt you?

MR. RALSTON: Yes, Your Honor.

QUESTION: You referred us to the Planned Parenthood amicus brief which I looked at during your argument, and their first argument is that the Executive Order is an attempt to suppress ideas with which the petitioner disagrees. You don't make that argument, do you?

MR. RALSTON: Your Honor, we -- well, we have not relied in our brief on a viewpoint argument, although the government has always taken the position that it wants us out because it doesn't want federal employees to read our 30 words and perhaps give us their money, so in a way that is an attempt to express the expression of our views, our ideas as to how their money should be spent.

QUESTION: If you don't make that argument, and I understand you make it marginally, I guess, what is the standard? There is a line drawing problem. Your opponent argues that, well, we basically have got to draw the line somewhere. Maybe you say no, anybody who applies ought to -- for example, what about churches? Would they exclude all churches?

MR. RALSTON: There are -- well, to begin with, I will answer your question, but my first point would be, and I would like to reemphasize it, assuming a line needs to be drawn, the line they have drawn here is an unconstitutional one. That is our fundamental position.

The second position is that before the government draws a line which is going to result in excluding, denying people First Amendment rights, and the government does, I think, concede that the First Amendment has something to do with this case, there has to be a reason for that exclusion.

And if one looks at how the Combined Federal Campaign works, the need for drawing a lot of very strict lines and excluding groups is not at all clear. In the first place, everything is on the local level, 550 approximately local Combined Federal Campaigns. Agencies that are part of the United Way get in through the United Way. That is something around, over 30,000 agencies.

The line the government has drawn here out of this alleged universe of 300,000 organizations excludes 40, maybe 100 organizations. It simply is not a line designed to limit the number of organizations. Now, there are some lines that I think are perfectly reasonable, 501(c)(3) organizations, organizations that seek contributions from the public, because after all, the Combined Federal Campaign is an attempt to get contributions from the public. That would exclude private foundations. It would exclude many private schools, for example, which don't seek money from the public generally.

Churches, political -- actual political action groups, which of course are not 501(c)(3) organizations anyway, i think could be reasonably excluded on the same grounds that this Court has upheld in the Hatch Act, for example. Getting government employees directly involved in political activities could be a problem.

There are many church-related charities in the Combined Federal Campaign. If one looks at the list that we have provided, you will see many organizations, Catholic charities, Unitarian charities are in the campaign. Actual churches per se are not. I don't have any idea whether any have applied or any ever will apply.

They could be excluded, I would think, if the government had to do it, could be excluded on the grounds that this might be too direct support to the establishment of religion, but again, the government has --

QUESTION: Do you think the government allowing churches to solicit as a part of a general charitable campaign could be construed as the government supporting religion?

MR. RALSTON: Your Honor, I don't say that. I am trying to respond to if a line had to be drawn, could some lines be drawn. I am simply suggesting that there may be some reasonable lines. I don't feel, and this relates to the government's subsidy argument, that sort of comes up and then disappears from time to time, that the Combined Federal Campaign is really a subsidy or direct support.

Again, it is an attempt to get people, individuals to decide to whom to give their money. I don't really -- Our basic position is that no necessity for drawing a line here has been shown, and there has really been no necessity shown to draw any particular line because there is no real indication of any inundation, that there are so many charities that are in fact going to apply that it is going to overwhelm the campaign at all.

The health and welfare line generally, if it could be defined in a way that related to some government purpose, might be a possible line if it was necessary to draw one.

QUESTION: Well, I suppose the exclusion was for some reason. In the litigation was there some reason given for excluding it?

MR. RALSTON: Yes, the reason given in the District Court, and this was the main defense of the government in the District Court, was the controversy, that they got all these letters from people complaining about the fact legal defense funds or these political organizations --

QUESTION: Well, do you accept that as the reason, that that was really the active reason?

MR. RALSTON: That is what the District Court so found, and we believe that is the only reason that makes any sense to us. None of the other reasons do.

QUESTION: And you say that -- and your position is, that is just inadequate?

MR. RALSTON: That it is not only inadequate, it is an unconstitutional reason. Our position would be that our First Amendment rights cannot be denied because someone out there doesn't want us to exercise them.

And again, the whole point of this, the attempted exclusion, is so that our names and our 30 words will be removed from the brochures. That is what the exclusion amounts to.

QUESTION: How about the Socialist Party?

MR. RALSTON: Pardon me, Your Honor?

QUESTION: How about the Socialist Party of America?

MR. RALSTON: Your Honor, they are not a charitable organization, and that simply is not at issue. We would have no -- I think the government could draw a line --

QUESTION: It certainly would involve the First Amendment points that you were making.

MR. RALSTON: That is true, Your Honor, but --

QUESTION: If this is a forum and the First Amendment applies, I have difficulty seeing how the Socialist Party could be excluded.

MR. RALSTON: Your Honor we do not contend that the government, having opened up with, we contend, which we urge first is a limited public forum, a forum for the specific purpose of charitable solicitation, then as required to under the decisions of this Court, open it up to any type of solicitation.

The Socialist Party is not a charity. Its involvement in a forum which is dedicated to charitable solicitation would be totally incompatible with the purposes of that forum. In our brief, we have pointed out that our basic position is that this is a limited public forum, and we have also said, assuming that it isn't, is not a public forum, we have essentially taken on the government, as it states its case, that the bases for our exclusion are not reasonable anyway.

But our contention is that this is a forum clearly dedicated to charitable solicitation. It is as if, if you will, the government has set up two bulletin boards in the hallway of a federal agency. One over on one side is for official government business. The one on the other side is labeled Charitable Solicitation, and the organizations are allowed to post a card with their 30 words on that bulletin board.

That is all we want, is access to that bulletin board on the same basis as other organizations, free of distinctions which we contend are basically unconstitutional. That is our basic underlying final contention, that the government has used an unconstitutional reason, that is, the controversy we have allegedly or someone has engendered, to stop a free speech activity --

QUESTION: Well, you would -- I take it if your argument is sound it wouldn't make any difference how much controversy had been -- would be engendered, and even if half or three-quarters of the people who had been participating would no longer participate, you would still be entitled to be in.

MR. RALSTON: Yes, Your Honor.

QUESTION: For your argument it is just irrelevant how much controversy there is.

MR. RALSTON: That is right. The point is that the government has -- the reason for the government's action is the controversy, and our first argument is, that is an unconstitutional reason. It cannot justify our being denied our First Amendment rights because somebody objects to our doing so.

QUESTION: But all of this depends upon whether this is or is not a public forum, does it not?

MR. RALSTON: Your Honor, our basic position is that even assuming it is a nonpublic forum in the Perry analysis, the reasons given are unreasonable and indeed are unconstitutional reasons.

Our first position is that it is a limited public forum, using the Perry analysis. But even assuming a nonpublic forum, we still contend that what the government has done is unconstitutional, because Perry makes it clear that even a nonpublic forum is subject to the First Amendment and, for example, states that the government cannot exclude organizations because they don't want their ideas expressed.

I mean, that is the reason why we are being excluded. The government does not want our 30 words to get before the federal employees.

QUESTION: Your position you don't think is inconsistent with Shaker Heights?

MR. RALSTON: No, Your Honor. Our position is that Shaker Heights was a forum dedicated to commercial advertising. This is a forum dedicated to charitable solicitation. That is all we want to do. We are the same kind of organizations that are let in.

Thank you.

CHIEF JUSTICE BURGER: Do you have anything further, Mr. Solicitor General?

ORAL ARGUMENT OF REX E. LEE ESQ., ON BEHALF OF THE PETITIONER - REBUTTAL

MR. LEE: Just two matters, Mr. Chief Justice. First, I would like to point out that Mr. Ralston had addressed only one of the three reasonable bases for what the President did, and that is the address of the avoidance of controversy.

With regard to the lessening of the federal government's --

QUESTION: You said that was the only --

MR. LEE: The only one he thought was any good.

QUESTION: -- testimony before the District Court. Is that true or not?

MR. LEE: Well, whether that is true or not, certainly the President is entitled to make some reasonable judgments.

QUESTION: How do we know what the reasons were for his actions, excluding? How do we know that? You may --

MR. LEE: Well, the reasons are really set forth --

QUESTION: It may be that there are a lot of reasons he might have had, but what were they?

MR. LEE: The reasons are set forth in the content of the executive order themselves. They are spelled out with at least the amount of detail that were spelled out, for example, in the Perry case as to what the reason was for avoiding the conflict between the two unions, or in the Lehman case as to what the reason was for the city's judgment there in avoiding disruptive activity --

QUESTION: So we are to find the reasons in the Executive Order? Is that where we look for them?

MR LEE: Well, the basis, at least, for those judgments, but the point is that there has to be a certain amount of leeway for -- there is no way that anyone can determine for sure whether the President was right or wrong in determining that the contribution to the government's net welfare benefit will be positive or negative.

That is a factbound issue concerning which no one can tell --

QUESTION: Now, is that the reason stated in the executive order?

MR. LEE: Yes, it is. Yes, it is. And with regard to the matter of keeping down the costs of the campaign and making judgments concerning which way the campaign will be able to raise more money, that also is a reasonable basis.

Now, with regard to the one of the three bases that Mr. Ralston has addressed, namely, the avoiding of controversy, with regard to that one, he necessarily concedes and properly concedes that it matters not how controversial, how extreme the controversy may be, and in that respect he has necessarily asked the Court to overrule its holding not only in Lehman versus Shaker Heights but also in Perry versus Perry Local Educators' Association, because in that case this Court expressly ruled as one of the bases for its decision that the policy of excluding communication through the mailboxes in that case serves, and I am quoting from Page 52 of the Court's opinion, "serves to prevent the district schools from becoming a battlefield for interunion squabbles," the very kind of thing, the very kind of reasonable basis that is also involved in this particular case.

QUESTION: I suppose the application of those criteria might lead to striking some of the other people who are now on the approved list.

MR. LEE: Of course, Mr. Chief Justice, and that is the final point that I want to make. All that Mr. Ralston has succeeded in doing is making a case that it would be reasonable, it would not have been unreasonable to have included the legal advocacy groups within the Campaign.

What he has shown is that if there is to be a campaign, the reasonableness test that has to govern has to be a test that permits a fair degree of operating room for the President's decision, because I submit that everyone, churches, certainly universities, every 501(c)(3) charitable organization can make a point that the government might achieve its objectives through some other way, or might make a point that they are very similar to some other organization that has been included.

And if that is the only unprincipled, unanchored rule of law that governs in this instance, then there simply is no stopping it short of everyone, every 501(c)(3) organization.

The Court of Appeals really acknowledged that there were these differences, but the Court of Appeals simply held that the differences weren't good enough and that maybe there was some other way to achieve it.

Now, if that is the test, then it is a test that is completely open-ended. We submit that the test must be, is the President's decision reasonable, and is it free of arbitrariness and caprice?

I fail to see, for example, how it would be possible if Mr. Ralston's First Amendment argument is correct, how it would be possible to exclude churches, because they also have First Amendment arguments that would be equally applicable.

The respondents, in short, are very willing to suggest deferential lines by which churches could be expelled, by which universities could be expelled, but that there is no particular need to draw any line as to them. Any principled basis on which the federal campaign can be maintained within any kind of manageable bounds has to be -- has to rest upon a constitutional rule that is not only a reasonableness test, but a reasonableness test that permits the President considerable deference.

QUESTION: Mr. Lee?

MR. LEE: Yes.

QUESTION: What about his suggestion that you could limit it to organizations that solicit funds, their principal source of funds are derived from general public solicitations, which I suppose would take churches out of it? Wouldn't that be a reasonable --

MR. LEE: Of course it would be a reasonable ground. Of course it would be a reasonable ground.

QUESTION: So you could draw a line that would exclude churches, I take it.

MR. LEE: Sure, if you adopt the kind of standard that we are proposing, that is, a standard that is truly a reasonableness standard, and gives a certain amount of equity in drawing those kinds of lines, but if you turn it around the other way, and then you ask yourself the question, but do you have to do it that way --

QUESTION: Well, I guess you would agree you at least have to say that your reason has to be a constitutionally permissible reason.

MR. LEE: That is correct.

QUESTION: And neutral, so that if, for example, controversy is not a constitutionally permissible reason, then you have solved the problem.

MR. LEE: That is correct, but it is not just --

QUESTION: As suggested by Perry.

MR. LEE: That is correct, but we still have the other two, and I turn back to Perry and to Lehman, and the reason that Perry and Lehman are good law, Justice Stevens, is not that it gives a Hecklers veto, right to veto. It is simply that it is looking to other objectives, other than just the fact that we are going to agree with the disagreement of these particular individuals.

We are going to look to other legitimate governmental concerns that arise independently of the disagreement, such as the disruption in the work place that would have occurred in Perry, and that I have simply see as indistinguishable, the indistinguishable kind of disruption that --

QUESTION: Well, you don't claim that controversy causes that sort of harm. You just say it might chill the total contributions. That is the only significance of controversy.

MR. LEE: Well, it might chill the total contributions, and it might increase, or a person could certainly conclude that it might increase the amount of time and effort of federal employees in conducting the campaign, and as I say, that is one of the three reasons .

Unless the Court has further questions, thank you.

CHIEF JUSTICE BURGER: Thank you, gentlemen. The case is submitted.

(Whereupon, at 2:50 o'clock p.m., the case in the above-entitled matter was submitted.)