Opinion of BURGER, C. J. 424 U.S. matching grants which makes a candidate's ability to amass private funds the sole criterion for eligibility for public funds. Such an arrangement can put at serious disadvantage a candidate with a potentially large, widely diffused-but poor-constituency. The ability of a candidate's supporters to help pay for his campaign cannot be equated with their willingness to cast a ballot for him. See Lubin v. Panish, 415 U. S. 709 (1974); Bullock v. Carter, 405 U. S. 134 (1972). (4) I cannot join in the attempt to determine which parts of the Act can survive review here. The statute as it now stands is unworkable and inequitable. I agree with the Court's holding that the Act's restrictions on expenditures made "relative to a clearly identified candidate," independent of any candidate or his committee, are unconstitutional. Ante, at 39-51. Paradoxically the Court upholds the limitations on individual contributions, which embrace precisely the same sort of expenditures "relative to a clearly identified candidate" if those expenditures are “authorized or requested" by the "candidate or his agents." Ante, at 24 n. 25. The Act as cut back by the Court thus places intolerable pressure on the distinction between "authorized” and “unauthorized" expenditures on behalf of a candidate; even those with the most sanguine hopes for the Act might well concede that the distinction cannot be maintained. As the Senate Report on the bill said: "Whether campaigns are funded privately or publicly. . . controls are imperative if Congress is to enact meaningful limits on direct contributions. Otherwise, wealthy individuals limited to a $3,000 direct contribution [$1,000 in the bill as finally enacted] could also purchase one hundred thousand 1 Opinion of BURGER, C. J. dollars' worth of advertisements for a favored candidate. Such a loophole would render direct contribution limits virtually meaningless." S. Rep. No. 93-689, p. 18 (1974). Given the unfortunate record of past attempts to draw distinctions of this kind, see ante, at 61-62, it is not too much to predict that the Court's holding will invite avoidance, if not evasion, of the intent of the Act, with "independent" committees undertaking "unauthorized" activities in order to escape the limits on contributions. The Court's effort to blend First Amendment principles and practical politics has produced a strange offspring. Moreover, the Act or so much as the Court leaves standing creates significant inequities. A candidate with substantial personal resources is now given by the Court a clear advantage over his less affluent opponents, who are constrained by law in fundraising, because the Court holds that the "First Amendment cannot tolerate" any restrictions on spending. Ante, at 59. Minority parties, whose situation is difficult enough under an Act that excludes them from public funding, are prevented from accepting large single-donor contributions. At the same time the Court sustains the provision aimed at broadening the base of political support by requiring candidates to seek a greater number of small contributors, it sustains the unrealistic disclosure thresholds of $10 and $100 that I believe will deter those hoped-for small contributions. Minor parties must now compete for votes against two major parties whose expenditures will be vast. Finally, the Act's distinction between contributions in money and contributions in services remains, with only the former being subject to any limits. As Judge Tamm put it in dissent from the Court of Appeals' opinion: "[T]he classification created only regulates certain Opinion of BURGER, C. J. 424 U.S. types of disproportional influences. Under section 591 (e) (5), services are excluded from contributions. This allows the housewife to volunteer time that might cost well over $1000 to hire on the open market, while limiting her neighbor who works full-time to a regulated contribution. It enhances the disproportional influence of groups who command large quantities of these volunteer services and will continue to magnify this inequity by not allowing for an inflation adjustment to the contribution limit. It leads to the absurd result that a lawyer's contribution of services to aid a candidate in complying with FECA is exempt, but his first amendment activity is regulated if he falls ill and hires a replacement." 171 U. S. App. D. C. 172, 266, 519 F. 2d 821, 915 (1975). One need not call problems of this order equal protection violations to recognize that the contribution limitations of the Act create grave inequities that are aggravated by the Court's interpretation of the Act. The Court's piecemeal approach fails to give adequate consideration to the integrated nature of this legislation. A serious question is raised, which the Court does not consider: 20 when central segments, key operative provisions, of this Act are stricken, can what remains function in anything like the way Congress intended? The incongruities are obvious. The Commission is now eliminated, yet its very purpose was to guide candidates and campaign workers-and their accountants and lawyersthrough an intricate statutory maze where a misstep can lead to imprisonment. All candidates can now spend freely; affluent candidates, after today, can spend their own money without limit; yet, contributions for the ordi 20 The problem is considered only in the limited context of Subtitle H. 1 Opinion of BURGER, C. J. nary candidate are severely restricted in amount-and small contributors are deterred. I cannot believe that Congress would have enacted a statutory scheme containing such incongruous and inequitable provisions. Although the statute contains a severability clause, 2 U. S. C. § 454 (1970 ed., Supp. IV), such a clause is not an "inexorable command." 21 Dorchy v. Kansas, 264 U. S. 286, 290 (1924). The clause creates a rebuttable presumption that "eliminating invalid parts, the legislature would have been satisfied with what remained." " Welsh v. United States, 398 U. S. 333, 364 (1970) (Harlan, J., concurring, quoting from Champlin Rfg. Co. v. Commission, 286 U. S. 210, 235 (1932)). Here just as the presumption of constitutionality of a statute has been overcome to the point that major proportions and chapters of the Act have been declared unconstitutional, for me the presumption of severability has been rebutted. To invoke a severability clause to salvage parts of a comprehensive, integrated statutory scheme, which parts, standing alone, are unworkable and in many aspects unfair, exalts a formula at the expense of the broad objectives of Congress. Finally, I agree with the Court that the members of the Federal Election Commission were unconstitutionally appointed. However, I disagree that we should give blanket de facto validation to all actions of the Commission undertaken until today. The issue is not before us and we cannot know what acts we are ratifying. I would leave this issue to the District Court to resolve if and when any challenges are brought. In the past two decades the Court has frequently 21 Section 454 provides that if a "provision" is invalid, the entire Act will not be deemed invalid. More than a provision, more than a few provisions, have been held invalid today. Section 454 probably does not even reach such extensive invalidation. Opinion of BURGER, C. J. 424 U.S. spoken of the broad coverage of the First Amendment, especially in the area of political dialogue: and: "[T]o assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people," Roth v. United States, 354 U. S. 476, 484 (1957); "[T]here is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs . . . [including] discussions of candidates . . .," Mills v. Alabama, 384 U. S. 214, 218 (1966); and again: "[I]t can hardly be doubted that the constitutional guarantee [of the First Amendment] has its fullest and most urgent application precisely to the conduct of campaigns for political office." Monitor Patriot Co. v. Roy, 401 U. S. 265, 272 (1971). To accept this generalization one need not agree that the Amendment has its "fullest and most urgent application" only in the political area, for others would think religious freedom is on the same or even a higher plane. But I doubt that the Court would tolerate for an instant a limitation on contributions to a church or other religious cause; however grave an "evil" Congress thought the limits would cure, limits on religious expenditures would most certainly fall as well. To limit either contributions or expenditures as to churches would plainly restrict "the free exercise" of religion. In my view Congress can no more ration political expression than it can ration religious expression; and limits on political or religious contributions and expenditures effectively curb expression in both areas. There are many prices we pay for the freedoms secured by the First Amendment; the risk of undue |