469 F.

2d 1135
18 A.L.R.Fed. 925

UNITED STATES of America, Appellee,

v.
The NATIONAL COMMITTEE FOR IMPEACHMENT et al.,
Appellants.
Nos. 308, 309, Dockets 72-1982, 72-1995.

United States Court of Appeals,

Second Circuit.
Argued Sept. 26, 1972.
Decided Oct. 30, 1972.

Paul G. Chevigny, New York Civil Liberties Union, New York City (Joel
N. Gora, American Civil Liberties Union; Robert L. Bobrick, Norman
Dorsen, Marvin N. Karpatin, New York City, of counsel), for appellants
National Committee for Impeachment and Elizabeth A. Most.
Randolph Phillips, pro se.
T. Gorman Reilly, Asst. U.S. Atty. (Whitney North Seymour, Jr., U. S.
Atty., S.D.N.Y., and V. Pamela Davis, Asst. U. S. Atty., of counsel), for
appellee.
Before HAYS, OAKES and TIMBERS, Circuit Judges.
OAKES, Circuit Judge:

In the May 31, 1972, issue of The New York Times appeared a two-page
advertisement headed "A Resolution to Impeach Richard M. Nixon as President
of the United States." This advertisement,1 comprising 5,100 lines of space and
costing $17,850, was paid for by "The National Committee for Impeachment,"
listed certain officers and sponsors as well as attorneys for the executive
committee, and contained two contributions coupons at the end. About half of
the advertisement and its central portion was occupied by a reprint of a House
Resolution, H.R. 976, 92nd Cong. 2d Sess. (1972), introduced by five
Representatives on May 10, 1972, alleging among other things that the

President has unconstitutionally "arrogated to himself the power to declare war

and the power 'to make Rules for the Government and Regulation of the land
and naval forces,' which are committed by article I, section 8, clauses 11 and 14
of the Constitution solely to the Congress . . . .," and essentially calling for his
impeachment,2 on the grounds of his Vietnam war policies. The remainder of
the advertisement contains language which, the Government urges and the trial
court found, makes the National Committee for Impeachment (hereinafter the
"National Committee") a "political committee" under section 301(f) of the
Federal Election Campaign Act of 1971 (1972 U.S.Code Cong. & Ad. News, p.
13) (hereinafter "FECA" or "the Act"). As such, the National Committee and its
two principal officers have been enjoined3 from "performing the functions of a
political committee . . . including the acceptance of contributions and the
disbursement of monies . . ., unless it first files statements and reports required
by sections 303, 304 and 306 of the Act."4 The National Committee and its two
principal officers have appealed, urging inapplicability of this new regulatory
statute to the Committee, as well as the unconstitutionality of Titles I and III of
FECA on their face and as applied in this case.5 The injunction below is also
claimed to be excessively broad and a prior restraint on free speech.
2

Appellants argue that FECA should be narrowly construed to avoid infringing

their first amendment rights, by requiring the Government to show a closer
nexus between the Committee and a specific candidate than is revealed in the
newspaper advertisement which is the basis of this suit and to make a showing
that the principal aim or thrust of the organization or its questioned
advertisement is to influence an election. We need not reach the constitutional
issues raised by the Act here since we agree with appellants that solely on the
strength of this one advertisement and contributions made in response to it the
Act is inapplicable to them.

The Act applies only if the National Committee is a "political committee"

within the FECA, and more particularly Sec. 301(f) thereof. The Government
advances two reasons for urging what it calls the Act's "obvious" applicability.
The first is that the National Committee "has attempted to influence the
outcome of various Congressional primary and general elections" (Appellee's
Brief at 4) in that the advertisement states that the National Committee has
placed on its "Honor Roll" in addition to the five original sponsors of the
impeachment resolution three congressmen who signed the resolution as cosponsors and Rep. Paul N. McCloskey, Jr., as the first person who stated
publicly that President Nixon should be threatened with impeachment. The
advertisement goes on to say:

4The National Committee for Impeachment will devote its resources in funds and

publicity in aid of any new candidate for election to the House of Representatives or
re-election of an incumbent Member, whether in a primary contest or the actual
election contest, whether Republican, Democrat, Independent, or a new party, in the
order in which their names are officially printed in The Congressional Record.
5

The second ground urged by the Government in its brief and supporting papers
for our declaring the National Committee to be a "political committee" is that
by this advertisement and the contributions made in response to it, the
Committee has attempted to influence "the outcome of the 1972 Presidential
and Vice Presidential elections." (Affidavit of T. Gorman Reilly at p 3.) While
the Government's brief does not fully articulate a third ground, in the affidavit
supporting the motion for a preliminary injunction, as well as on oral argument,
it is urged that because the advertisement is derogatory to the President's stand
on the Vietnam war, the President is a candidate for re-election, and the war is
a campaign issue,6 the advertisement was an attempt to influence the
presidential election. (Id. at p 8.) The Brief on the other hand (4-5) relies on the
language of the advertisement reading as follows:

6 said majority [of the House of Representatives to pass an impeachment resolution]

If
is not obtained by a certain deadline to be set by the Executive Committee of the
National Committee for Impeachment, it will seek to establish, if possible, pursuant
to the appropriate legal methods in each of the 50 States of the Nation, a new
political party for the nomination and election of a new President and VicePresident of the United States, and of new or incumbent members of the House of
Representatives, known as the Puritan Party of the United States.
7

The Government also notes (Brief at 18-19) that the text of the advertisement
concludes with an exhortation "to help finance our work by a contribution of $1
or more," with the above mentioned contribution coupons available to be
clipped.

The statute in question provides:

8Section 301. When used in this title9******
*10* *(d) "political committee" means any committee, association, or organization
which accepts contributions or makes expenditures during a calendar year in an
aggregate amount exceeding $1,000;
(e) "contribution" means11

(1) a gift, subscription, loan, advance, or deposit of money or anything of value,

12
made for the purpose of influencing the nomination for election, or election, of any
person to Federal office or as a presidential or vice-presidential elector . . . .
(f) "expenditure" means13
14 a purchase, payment, distribution, loan, advance, deposit, or gift of money or
(1)
anything of value, made for the purpose of influencing the nomination for election,
or election, of any person to Federal office, or as a presidential and vice-presidential
elector . . . .
15

The Senate Report, S.Rep.No. 92-96, 92nd Cong. 2d Sess., 1972, U.S.Code
Cong. & Ad.News, p. 45 et seq., which is particularly important because the
Senate Bill was the one passed in lieu of the House bills, may be searched in
vain for any passage which throws further light upon the meaning of "political
committee" or "made for the purpose of influencing."7 Here as elsewhere
Congress "has voiced its wishes in muted strains and left it to the courts to
discern the theme in the cacophony of political understanding." Rosado v.
Wyman, 397 U.S. 397, 412, 90 S.Ct. 1207, 1218, 25 L.Ed.2d 442 (1970). Our
chief resources in this undertaking include not only the words of the statute and,
in the words of Rosado, supra at 412, 90 S.Ct. at 1218, "those common-sense
assumptions that must be made in determining direction without a compass,"
but some fundamental principles of freedom of expression in our democratic
form of government.

16

We deal first with the point of the Government in respect to the "Honor Roll" of
Congressmen, noting that in the case of each of the Congressmen named there
was no authorization or approval on his or her part in respect to the
advertisement.8 Indeed, there is no evidence of any advance knowledge of the
advertisement on the part of any of the Congressmen or of any connection
between any of them and the National Committee or that any money received
by the National Committee has been expended on behalf of any of them in any
way. The Government says it is enough that the advertisement was published
and sought money, since publication alone is said to have been an "obvious"
political activity that was intended to further the candidacies of the
Congressmen so "honored."9

17

The words of the Act themselves point toward some more definite connection
between candidate and committee than was here involved. Section 303(b) (6)
(1972) U.S.Code Cong. & Ad.News, p. 15), for example, includes within the
organizational statement required to be filed by a political committee

18 name, address, office sought, and party affiliation of (A) each candidate whom
the
the committee is supporting, and (B) any other individual, if any, whom the
committee is supporting for nomination for election, or election, to any public office
whatever; or, if the committee is supporting the entire ticket of any party, the name
of the party.
19

While dealing with reports required to be filed by a political committee, the Act
relates specifically to election campaigns, including within the scope of
contributions that have to be reported:

20 total amount of proceeds from (A) the sale of tickets to each dinner, luncheon,
the
rally, and other fund-raising event; (B) mass collections made at such events; and
(C) sales of items such as political campaign pins, buttons, badges, flags, emblems,
hats, banners, literature, and similar materials.
21

Sec. 304(b)(6), 1972 U.S.Code Cong. & Ad. News, p. 17. Thus, the words of
the Act seem to indicate that Congress' concern was primarily with groups
organized or at least authorized by a particular candidate and whose principal
focus is a specific campaign. The central theme of the advertisement at issue
here relates to impeachment of the President, not specific election campaigns or
candidates.

22

The statement in the ad that the Committee will use its "funds and publicity" in
aid of any new candidate for election or re-election of an incumbent looks
toward the future, but does not imply that the Congressmen named have agreed
to such use. It is made, moreover, in the context that an impeachment resolution
requires for passage under art. I, Sec. 2, p 5 of the Constitution a vote of 218 of
the 435 members of the House of Representatives. We reiterate: the basic thrust
of the advertisement is toward impeachment and war-policy condemnation, not
toward the election of Congressmen.

23

As much or more can be said of the language of the advertisement looking

rather vaguely in the future10 toward the creation of a new party to nominate
and elect a President and Vice President and new or incumbent members of the
House, contingent upon the National Committee's failure by a "deadline to be
set" to secure the majority of House members necessary to pass an
impeachment resolution. Again, the central theme is impeachment, not the
seeking of funds. Qualitatively, as well as quantitatively, the advertisement
seeks support of an impeachment resolution, not the election of political
candidates. As such, the purpose of the advertisement as we construe it was at
most only incidentally to support candidates and engage in "political activity"
within the FECA.

24

25

Given that conclusion, we think that the publication of this advertisement alone
did not make the National Committee a "political committee" within the FECA.
Were we to think otherwise Title III of the Act would raise serious
constitutional issues, on which we express no opinion11 See, e. g., United States
v. Robel, 389 U.S. 258, 262, 265, 266, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967)
(statutes impinging on first amendment rights must be narrowly drawn); Mills
v. Alabama, 384 U.S. 214, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966) (first
amendment invalidates state statute prohibiting election day editorials);12
NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed. 2d 1488 (1958)
(court-ordered disclosure of names of members of controversial group held an
unconstitutional interference with the right of free association);13 Opinions of
the Justices, 284 N.E.2d 919 (Sup.Jud.Ct.Mass., 1972) (proposed
Massachusetts statute regulating political advertising declared
unconstitutionally vague).
We thus construe the words "made for the purpose of influencing" in Section
301(e) and (f)14 to mean an expenditure made with the authorization or consent,
express or implied, or under the control, direct or indirect, of a candidate or his
agents. For, in the words of Professor Emerson:

26
[R]egulations
confined to candidates and election campaigns are directed to a limited
end and deal with a limited situation. Hence they can be formulated with some
objectivity and avoid the dangers of abuse in administration. This cannot be done
with regulations . . . addressed to the innumerable different kinds of people seeking
to express themselves for different purposes throughout the whole system of free
expression.
27

The System of Freedom of Expression 640 (Vintage ed. 1970). We also

construe the Act to apply only to committees soliciting contributions or making
expenditures the major purpose of which is the nomination or election of
candidates. Here neither statutory test is met: any authorization or control by
any candidate-indeed any connection whatsoever between the National
Committee and any candidate-is missing and the major purpose of the
advertisement was to promote the impeachment movement and to condemn
governmental policy on the Vietnam war, not to elect candidates. In so saying,
we need not determine whether, if one statutory test were met, the statute
would be applicable.

28

In thus narrowly construing the Act we follow United States v. Rumely, 345
U.S. 41, 73 S.Ct. 543, 97 L.Ed. 770 (1953), where the Court gave a limited
construction to the phrase "lobbying activities" "in the candid service" in Mr.
Justice Frankfurter's words "of avoiding a serious constitutional doubt," 345

U.S. at 47, 73 S.Ct. at 546. See also Pipefitters Local Union No. 562 v. United
States, 407 U.S. 385, 92 S.Ct. 2247, 33 L.Ed.2d 11 (1972) (18 U.S.C. Sec. 610
interpreted so as not to prohibit political expenditures from voluntarily-financed
union political funds); United States v. Painters Local Union No. 481, 172 F.2d
854 (2d Cir. 1949) (statute interpreted so as not to prohibit union advertisements
in a newspaper of general circulation). Accord, United States v. CIO, 335 U.S.
106, 121, 68 S.Ct. 1349, 92 L. Ed. 1849 (1948).
29

Such a construction is, we think, also consistent with the principal purpose of
the Act. See United States v. Harriss, 347 U.S. 612, 622-623, 74 S. Ct. 808, 98
L.Ed. 989 (1954). That principal purpose, the Commerce Committee report
indicates, related to "the problem of political campaign reform and excessively
high campaign costs." Sen. Rep. No. 92-96, supra, 1972 U.S.Code Cong. &
Adm.News, p. 58. Congressional concern was with political campaign
financing, not with the funding of movements dealing with national policy.
Admittedly, under this interpretation, enforcement of the Act may be made
somewhat more burdensome, as the supervisory officials will be forced to glean
the principal or major purpose of the organizations they seek to have comply
with the Act. The broad administrative discretion which the Government's
construction of the Act would allow, however, would itself be incompatible
with the first amendment which requires that administrative standards
regulating free expression be precisely drawn. See, e. g., Kunz v. New York,
340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280 (1951); Saia v. New York, 334 U.S.
558, 68 S.Ct. 1148, 92 L.Ed. 1574 (1948); Cantwell v. Connecticut, 310 U.S.
296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940).

30

We dispose more readily of the Government's suggestion that the Act applies to
the National Committee because-quoting from the affidavit supporting its
motion for a preliminary injunction-"with respect to the upcoming election for
President and Vice-President of the United States, the National Committee
derogates President Nixon's stand on a principal campaign issue-the Vietnam
war." On this basis every position on any issue, major or minor, taken by
anyone would be a campaign issue and any comment upon it in, say, a
newspaper editorial or an advertisement15 would be subject to proscription
unless the registration and disclosure regulations of the Act in question were
complied with. Such a result would, we think, be abhorrent; the Government
fails to point to a shred of evidence in the legislative history of the Act that
would tend to indicate Congress meant to go so far. Any organization would be
wary of expressing any viewpoint lest under the Act it be required to register,
file reports, disclose its contributors, or the like. On the Government's thesis
every little Audubon Society chapter would be a "political committee," for
"environment" is an issue in one campaign after another. On this basis, too, a

Boy Scout troop advertising for membership to combat "juvenile delinquency"

or a Golden Age Club promoting "senior citizens' rights" would fall under the
Act. The dampening effect on first amendment rights and the potential for
arbitrary administrative action that would result from such a situation would be
intolerable. The suggestion in the Government's supporting affidavit and on oral
argument is inconsistent with what Judge Learned Hand so eloquently
described as "the spirit of liberty" and which he so beautifully defined as "the
spirit of Him who, near two thousand years ago, taught mankind that lesson it
has never learned, but has never quite forgotten; that there may be a kingdom
where the least shall be heard and considered side by side with the greatest." L.
Hand, The Spirit of Liberty 190 (I. Dilliard ed. 1952). We reject the suggestion
for we believe Congress had no intention of regulating the expression of
opinion on fundamental issues of the day.
31

The granting of a preliminary injunction is therefore reversed, and the cause

remanded for a hearing on the merits at which the Government may, of course,
seek to adduce proof that the statutory standards here enunciated were met in
this instance.
Reversed and remanded.APPENDIX

THE NEW YORK TIMES, WEDNESDAY, MAY 31, 1972

A Resolution to Impeach Richard M.
32
Nixon as president of the United States.
33
34

House Resolution 976, the impeachment Resolution reprinted herein in its

entirety, was officially filed in the House of Representatives by 5 Congressmen
and Women, since supplemented by 4 additional sponsors, and it is still
circulating to other Members of the House for their signature. The Resolution
has been officially referred to the Committee on the Judiciary, the Committee
of the House that has jurisdiction over Resolutions for Impeachment.

35

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT

VIEWABLE

36

Each Member, as he signs, has been placed on the Honor Roll of The National
Committee for Impeachment and assigned a number to indicate the order in
which signatures were obtained. They are:

1. William F. Ryan of New York, who filed the first Resolution for Impeachment in
37

the House of Representatives on May 9, 1972, as a member of the Committee on the

Judiciary.
38John Conyers, Jr. of Michigan, who originated the sponsorship of H.Res. 976,
2.
also a member of the Committee on the Judiciary.
3. Bella Abzug of New York, cosponsor of H.Res. 976.
39
4. Shirley Chisholm, of Brooklyn, co-sponsor.
40
5. Ronald Dellums of California, cosponsor.
41
6. Charles Rangel of Harlem, New York, co-sponsor.
42
7. Louis Stokes of Cleveland, Ohio, co-sponsor.
43
8. Parren Mitchell of Baltimore, Maryland, co-sponsor.
44
We also honor
45 N. McCloskey, Jr. of San Francisco, California, the first member of the House
Paul
of Representatives who had the courage to state publicly that President Nixon should
be threatened with impeachment as a means of changing the Administration's
Vietnam policy, thereby putting conscience above reelection, despite a threatened
primary fight for his seat as a Republican.
46

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT

VIEWABLE

47

The National Committee for Impeachment will devote its resources in funds
and publicity in aid of any new candidate for election to the House of
Representatives or re-election of an incumbent Member, whether in a primary
contest or the actual election contest, whether Republican, Democrat,
Independent, or a new party, in the order in which their names are officially
printed in The Congressional Record. We will ask Congressman Ryan to insert
the names of those persons who are not now members of the House in The
Congressional Record in the order in which they are received by his office in
Washington, D. C.

48

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT

VIEWABLE

49

There are now 435 Members of the House of Representatives, of which a

majority is 218, assuming the presence of all members for the final vote on the
Resolution for Impeachment, whether in its present form or consolidated with
additional Resolutions that may be filed. A vote by 218 guarantees the
Impeachment of Richard M. Nixon as President of the United States for "high
crimes and misdemeanors." Constitution of the United States, Article I, Section
2, paragraph 5. The Campaign for Impeachment will be conducted entirely by
non-violent methods exemplified by Gandhi and Martin Luther King, but also
by adaptation of new methods under the banner of The Army of Non-Violence.
50

If said majority is not obtained by a certain deadline to be set by the Executive

Committee of The National Committee for Impeachment, it will seek to
establish, if possible, pursuant to the appropriate legal methods in each of the
50 States of the Nation, a new political party for the nomination and election of
a new President and Vice-President of the United States, and of new or
incumbent members of the House of Representatives, known as The Puritan
Party of The United States.

51

[Attorneys and volunteers for this purpose should sign the enclosed coupon at
the bottom of the last column of this ad, signing merely after their name in
capital letters the initial A or V or both]

52
PURITAN-A
member of any religious sect or party that advocates special purity of
doctrine or practice. [1577] Oxford Universal English Dictionary (1955 ed.)
53

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT

VIEWABLE

54

Upon the Impeachment of Richard Nixon, "for high crimes and

misdemeanors", the Constitution of the United States, provides that he, among
others "shall be removed from office . . . for conviction of, treason, bribery, or
other high crimes and misdemeanors." (Article II, Section 4.)

55

The Constitution of the United States, further provides: "The Senate shall have
the sole power to try all impeachments. When siting for that purpose they shall
be on oath or affirmation. When the President of the United States is tried, the
Chief Justice shall preside. And no person shall be convicted without
concurrence of twothirds of the members present." (Article I, Section 3,
paragraph 6.) "Judgement in cases of impeachment shall not extend further than
to removal from office, and disqualification to hold and enjoy any office of
honor, trust, or profit under the United States, but the party convicted shall,
nevertheless, be liable and subject to indictment, trial, judgment, and

punishment according to law." (Article I, Section 3, paragraph 7.)

56

The National Committee for Impeachment will also in the near future make an
announcement respecting Spiro T. Agnew as Vice-President of the United
States, John N. Mitchell as former Attorney General of the United States, and
Richard Kleindienst as Acting Attorney General of the United States. The
statement herein in no way implies each or all is guilty of impeachable offenses.

THE CONSTITUTIONAL PRECEDENT.

57
58

Of the 11 impeachments that went to trial before the Senate, the impeachment
of President Andrew Johnson in 1868 is the basic Constitutional precedent for
the impeachment of President Nixon.

59

By comparison President Andrew Johnson's alleged defiance of Congress

60

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT

VIEWABLE

61

Of the 435 members of the House of Representatives there are 218

Congressmen and Women who can forthwith do more to end United States
participation in the IndoChina War than any other 218 persons in the Nation.
They are the majority necessary to guarantee the enactment of a Resolution of
Impeachment. Once that Resolution is voted, the authority of Richard M.
Nixon as Commander in Chief of the Army and Navy to order a continuation of
the killing will for all practical purposes be terminated. Is not all this
terrorization of helpless human beings done solely for the purpose of saving
Mr. Nixon's image of himself as Commander-in-Chief in the high office
occupied by George Washington, John Adams, Thomas Jefferson, and
Abraham Lincoln? When any of these

62

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT

VIEWABLE

63

giants went to war they did so to preserve the great name and conscience of the
Republic and not for purposes of re-election.

64

The image they wished to preserve was one of moral integrity and
Constitutional authority of the Congress of the United States.

65

"A weak man compensates with artificial power and boisterous bravado. A

65

"A weak man compensates with artificial power and boisterous bravado. A
great man understands his fallibility and acknowledges error. A weak man
admits no fault."

-SENATOR
EAGLETON of Missouri in the Congressional Record, Senate, April
66
19, 1972, page S 6294.
THE NATIONAL COMMITTEE FOR IMPEACHMENT
HONORARY CHAIRMAN
THE HONORABLE ERNEST GRUENING
Former United States Senator, Alaska
EXECUTIVE COMMITTEE
RANDOLPH PHILLIPS, Chairman
67

Attorney pro se, consultant to attorneys (1944-1972)

68

RICHARD A. FALK, Vice-Chairman,

69

Milbank Professor of International Law, Princeton, N. J.

70

ROBERT L. BOBRICK, General Counsel,

Member of the Bar of the Supreme Court of the United States

71
DR. ELIZABETH A. MOST, Secretary Treasurer
ALFRED HASSLER, Executive Director,
72
Fellowship of Reconciliation, Nyack, N. Y.
73
RON YOUNG, Field Director of Training in Non-Violence,
74
Fellowship of Reconciliation, Washington, D. C.
75
[TITLES OF ORGANIZATION SOLELY FOR PURPOSE OF IDENTIFICATION]
76
77

PLEASE SIGN THE FIRST COUPON AND IF YOU ARE ABLE TO HELP
FINANCE OUR WORK BY A CONTRIBUTION OF $1 OR MORE,
PLEASE ALSO SIGN THE SECOND COUPON.

78

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT

VIEWABLE92 CONGRESS

2D SESSION
H.Res. 976
IN THE HOUSE OF REPRESENTATIVES May 10, 1972
79
80

Mr. CONYERS (for himself, Mrs. ABZUG, Mr. RYAN, Mr. DELLUMS, and
Mrs. CHISHOLM) submitted the following resolution; which was referred to
the Committee on the Judiciary

RESOLUTION
81

Whereas article II, section 4 of the Constitution of the United States provides:
"The President, the Vice President, and all civil Officers of the United States
shall be removed from Office on Impeachment for, and Conviction of, Treason,
Bribery, or other high Crimes and Misdemeanors"; and

82

Whereas article I, section 2, paragraph 5, of the Constitution of the United

States provides: "The House of Representatives shall have the sole Power of
Impeachment"; and

83

Whereas Richard M. Nixon, President of the United States from January 20,
1969, to the present time has known that this House and the Senate of the
United States have at no time declared war against the Democratic Republic of
Vietnam, the National Liberation Front, the sovereign state of Cambodia, or the
sovereign state of Laos, pursuant to article I, section 8, clause 11, of the
Constitution of the United States which provides: "The Congress shall have
power * * * to Declare War"; and

84

Whereas Richard M. Nixon has committed the acts hereinafter set forth, which
constitute high crimes and misdemeanors within the meaning of article II,
section 4, of the Constitution of the United States:

ARTICLE I
85

1. On January 20, 1969, Richard M. Nixon executed the oath of office of

President of the United States, solemnly swearing that "I will faithfully execute
the office of President of the United States, and will, to the best of my ability,
preserve, protect, and defend the Constitution of the United States.

86

2. From January 20, 1969, to the present time, Richard M. Nixon has known
that this House and the Senate of the United States Have at no time declared
war against the Democratic Republic of Vietnam, the sovereign state of
Cambodia, or the sovereign state of Laos, pursuant to article I, section 8, clause
11, of the Constitution of the United States, which provides: "The Congress
shall have power * * * to Declare War," and has nevertheless committed the
acts, including acts of war, hereinafter specified.

87

3. On January 12, 1971, after enactment by the Congress, Richard M. Nixon

approved Public Law 91-672, section 12 of which repealed the Southeast Asia
(Tonkin Gulf) resolution, Public Law 88-408, approved August 10, 1964,
withdrawing and terminating any power which may have been granted under
such Tonkin Gulf resolution to the President respecting the use of the Armed
Forces of the United States in Southeast Asia.

88

4. On November 17, 1971, after enactment by the Congress, Richard M. Nixon

approved the Military Procurement Authorization Act for fiscal year 1972,
Public Law 92-156.

89

5. Section 601 of the said Act, known as the Mansfield amendment, in pertinent
part declares it to be "the policy of the United States to terminate at the earliest
practicable date all military operations of the United States in Indochina, and to
provide for the prompt and orderly withdrawal of all United States military
forces at a date certain, subject to the release of all American prisoners of war
held by the Government of North Vietnam and forces allied with such
Government and an accounting for all Americans missing in action who have
been held by or known to such Government or such forces."

90

6. Section 601 called upon the President to implement the above-expressed

policy by initiating immediately the following actions:

91

Establishing a final date for the withdrawal from Indochina of all military
forces of the United States contingent upon the release of all American
prisoners of war held by the Government of North Vietnam and forces allied
with such Government and an accounting for all Americans missing in action
who have been held by or known to such Government or such forces.

92

Negotiate with the Government of North Vietnam for an immediate cease-fire

by all parties to the hostilities in Indochina.

93

Negotiate with the Government of North Vietnam for and agreement which

would provide for a series of phased and rapid withdrawals of United States
military forces from Indochina in exchange for a corresponding series of phased
releases of American prisoners of war, and for the release of any remaining
American prisoners of war concurrently with the withdrawal of all remaining
military forces of the United States by not later than the date established by the
President pursuant to paragraph (1) hereof or by such earlier date as may be
agreed upon by the negotiating parties.
94

7. On November 11, 1971, Senator John Stennis, chairman of the Senate

Armed Services Committee, in commenting on section 601 prior to its
enactment, stated to the Senate: "* * * for the first time we now have as a
proposed law, language which makes our withdrawal from Indochina 'the
policy of the United States,' rather than the sense of the Congress as contained
in the previous version. For those who supported the Mansfield amendment, I
would urge that they closely consider the meaning of this change in language.
As a policy matter it binds the Congress and the President of the United
States." (Congressional Record, November 11, 1971, page S 18288).

95

8. On November 17, 1971, upon approving Public Law 92-156 by affixing his
signature thereto, and despite the will of the Congress in enacting section 601,
Richard M. Nixon stated: "Section 601 expresses a judgment about the manner
in which the American involvement in the war should be ended. However, it is
without binding force or effect, and it does not reflect my judgment about the
way in which the war should be brought to a conclusion. My signing of the bill
that contains this section, therefore, will not change the policies I have pursued
and that I shall continue to pursue toward this end."

96

9. On February 16, 1972, the United States District Court for the Eastern
District of New York ruled in DaCosta against Nixon, 72 Civil Action 207
(John F. Dooling, D.J.), that: "When the bill embodying section 601, was
passed by the Congress and approved by the President's signature it established
'the policy of the United States' to the exclusion of any different executive or
administration policy, and had binding force and effect on every officer of the
Government, no matter what their private judgments of that policy, and
illegalized the pursuit of an inconsistent executive or administration policy. No
executive statement denying efficacy to the legislation could have either
validity or effect."

97

10. Despite the aforesaid enactment into law of the said section 601, Richard
M. Nixon ordered the following actions:

(1) On March 23, 1972, broke off the negotiations in Paris with representatives of
98

the Democratic Republic of Vietnam and the National Liberation Front;

(2) From March 24, 1972, to April 26, 1972, refused to return to said negotiations;
99
(3) On May 4, 1972, broke off again said negotiations, suspending them indefinitely;
100
101Since April 1972, escalated the air war in Indochina to levels unprecedented in
(4)
the history of warfare, and on May 8, 1972, without prior consultation with or
consent of the Congress, announced that he had ordered the mining of all North
Vietnamese ports and the interdiction by United States forces of rail lines and other
communications entering the Democratic Republic of Vietnam.
102 11. By refusing to declare a final date for the complete withdrawal of all United
States forces in Indochina, as called for by section 601 of Public Law 92-156,
by insisting upon his Vietnamization policy, and by intimating that a residual
military force would be left in South Vietnam until such time as the Democratic
Republic of Vietnam and forces allied with that Government acceded to his
demands for the release of American prisoners of war, a ceasefire, and new
elections under a caretaker government controlled and administered by Nguyen
Van Thieu, Richard M. Nixon jeopardized the security of the United States.
103 12. By reason of the aforesaid acts, Richard M. Nixon has arrogated to himself
the power to declare war and the power "to make Rules for the Government
and Regulation of the land and naval forces," which are committed by the
article I, section 8, clauses 11 and 14 of the Constitution solely to the Congress,
and has, in violation of his oath as President of the United States, of section 601
of Public Law 92-156, of the Charter of the United Nations, and of principles of
the Law of Nations, to the detriment of the national interest, at the cost of
prolonging the retention of American prisoners of war, and at the risk of
confrontation with the Governments of the Union of Soviet Socialist Republics
and the People's Republic of China, caused untold killing and maiming of
American military personnel and the people of Indochina and inflicting death
and destruction upon the innocent civilian populations of said region, and has
thereby committed and is guilty of high crimes and misdemeanors within the
meaning of article II, section 4 of the Constitution of the United States.
ARTICLE II
104 13. From January 20, 1969, to the present time, Richard M. Nixon, in violation
of
105his oath of office to preserve, protect, and defend the Constitution of the United
(a)
States,

(b) article I, section 8, clauses 11 and 14 of the Constitution of the United States,
106
which assign solely to Congress the powers to declare war and to make rules for the
Government and regulation of the land and naval forces of the United States.
107section 601 of the Military Procurement Authorization Act for fiscal year 1972,
(c)
Public Law 92-156, declaring it to be "the policy of the United States to terminate at
the earliest practicable date all military operations of the United States in
Indochina",
108section 12 of Public Law 91-672, the congressional repeal of the Gulf of Tonkin
(d)
resolution, which withdrew and terminated any power which may have been granted
by such Gulf of Tonkin resolution to the President, and
109the Charter of the United Nations, to which the United States is a signatory, and
(e)
which is therefore part of the supreme law of the land, which obligates the United
States to refrain from the unilateral use or threat of force in its international relations,
and which obligates the United States to settle international disputes by peaceful
means,
110 did willfully and intentionally cause and direct the Armed Forces of the United
States to continue to engage in military hostilities and to continue to carry on a
war against the territory and people of South Vietnam, the Democratic
Republic of Vietnam, the sovereign state of Cambodia, and the sovereign state
of Laos, all without a declaration of war by the Congress of the United States
pursuant to article I, section 8, clause 11 of the Constitution.
111 14. By reason of the aforesaid acts, Richard M. Nixon has arrogated to himself
the power to declare war and the power "to make Rules for the Government
and Regulation of the land and naval Forces", which are committed by article I,
section 8, clauses 11 and 14, of the Constitution solely to the Congress, and has,
in violation of his oath as President of the United States, of section 601 of
Public Law 92-156, of the Charter of the United Nations, and of principles of
the Law of Nations, to the detriment of the national interest, at the cost of
prolonging the retention of American prisoners of war, and at the risk of
confrontation with the Governments of the Union of Soviet Socialist Republics
and the People's Republic of China, caused untold killing and maiming of
American military personnel and the people of Indochina and inflicting death
and destruction upon the innocent civilian populations of said region, and has
thereby committed and is guilty of high crimes and misdemeanors within the
meaning of article II, section 4, of the Constitution of the United States.
ARTICLE III

15. From January 20, 1969, to the present time, Richard M. Nixon has caused
112 and directed the Armed Forces of the United States to engage in acts of terror
against the civilian population and of devastation of the territory of Indochina,
to kill and wound hundreds of thousands of innocent civilians by means of
aerial, land, and naval bombardments directed against noncombatants, the
designation of "free fire zones," "harassment," and "interdiction" fire,
indiscriminate use of antipersonnel bombs, napalm, and defoliants, to drive
innocent civilians from their homes into squalid refugee camps, and to commit
other similar acts, all in violation of113"the supreme law of the land," pursuant to article VI, clause 2 of the Constitution
(i)
of the United States, as embodied in the Hague Convention Numbered IV of 18
October 1907, Respecting the Laws and Customs of War on Land (36 Stat. 2277,
Treaty Series 539); Geneva Convention Relative to the Protection of Civilian
Persons in Time of War of 12 August 1949 (T.I.A.S. 3365); Hague Convention
Numbered IX of 18 October 1907, Concerning Bombardment by Naval Forces in
Time of War (36 Stat. 2351; Treaty Series 542); Geneva Convention for the
Amelioration of the Condition of the Wounded and Sick of Armies in the Field of 27
July 1929 (47 Stat. 2047: Treaty Series 847), to which the United States is a
signatory,
(ii) the Law of Land Warfare embodied in United States Field Manual 27-10, and
114
115 the laws of civilized society, including crimes against peace, crimes against
(iii)
humanity, and war crimes, agreed upon in "The Principles of International Law
Recognized in the Charter of the Nuremburg Tribunal" adopted unanimously by the
first General Assembly of the United Nations at the initiative of the United States.
116 16. By reason of said acts in violation of the said laws and principles, Richard
M. Nixon is guilty of high crimes and misdemeanors within the meaning of
article II, section 4 of the Constitution of the United States: Now, therefore, be
it
117 Resolved, That Richard M. Nixon, President of the United States ought to be,
and he hereby is impeached by this House, and further
118 Resolved, That the Speaker appoint a Committee of Managers on the part of
the House, and further
119 Resolved, That a message be sent to the Senate to inform them that this House
has appointed managers to conduct the impeachment of the President of the
United States, and have directed the said managers to carry to the Senate the

articles agreed upon by this House, as contained in this resolution, to be

exhibited in maintenance of their impeachment against Richard M. Nixon, and
that the Clerk of the House do go with said message, and further
120 Resolved, That the articles agreed to by this House, as contained in this
resolution, be exhibited in the name of the House and of all the people of the
United States, against Richard M. Nixon, President of the United States, in
maintenance of the impeachment against him of high crimes and misdemeanors
in office, and be carried to the Senate by the managers appointed to conduct the
said impeachment on the part of this House.

The text of the advertisement is appended to this opinion

The resolution is framed not dissimilarly to the bill of impeachment brought

against President Andrew Johnson. Proceedings in the Trial of Andrew
Johnson, President of the United States, Before the United States Senate on
Articles of Impeachment (1868)

Pending appeal on the merits, a stay of the district court's order was granted by
Judges Lumbard and Feinberg and was continued by this panel. This appeal
was heard on an expedited basis

Section 303 requires a political committee which anticipates receiving

contributions or making expenditures of over $1,000 in a calendar year to file a
"statement of organization" which must include, among other things, names and
addresses of affiliated or connected organizations, principal officers, candidates
being supported, and a listing of depositories. 1972 U.S.Code Cong. &
Ad.News, p. 15. Section 304 requires political committees to file reports of
receipts and expenditures, the names of contributors and recipient candidates.
Id. at pp. 16-17. Section 306 simply authorizes the Act's supervisory officers,
which include the Comptroller General, see FECA Sec. 301 (g), 1972 U.S.Code
Cong. & Ad.News, p. 13, to prescribe the form of the forms required to be filed
and to make certain exceptions to the filing requirements, immaterial here, in
the case of local elections. Pursuant to Section 306, the Comptroller General
has issued a manual of regulations and instructions for the Act. See 37 Fed.Reg.
6156 et seq. (1972)

We note that in a pending case in the District Court for the District of Columbia
based on the now repealed Federal Corrupt Practices Act of 1925, the
defendant has raised the issue of the unconstitutionality of legislative
enactments which require the naming of campaign contributors, an argument

that could apply to the FECA as well. Common Cause v. Finance Comm. to
Re-elect the President, Civil No. 1780-72 (D.D.C. filed Sept. 6, 1972), in N. Y.
Times, Sept. 30, 1972, at 1, col. 1-2 & 16, col. 4. That issue is not specifically
raised here, appellants' claims being more broadly based
6

This was one of the bases of the complaint made about the advertisement to the
General Accounting Office by the Schuchman Foundation Center for the
Public Interest on June 7, 1972. A second complainant, the Committee for the
Re-election of the President, did not spell out its grounds. Common Cause, the
third complainant, based its complaint almost exclusively on the fact that the
advertisement derogated the President's Vietnam policies. While we put no
weight on the fact, of 284 complaints apparently made by the "Campaign
Monitoring Project" for Common Cause, the only one being prosecuted as of
August 1972 was the one at bar, according to the affidavit of the Project's
Research Director. (Affidavit of Thomas R. Pokorni.)

In ways immaterial to this case the definitions of "contribution" and

"expenditure" under previous law were expanded. See FECA Secs. 301(e)-(f),
1972 U.S.Code Cong. & Ad.News at pp. 12-13. Also the Act plugged the
loophole which permitted committees organized in the District of Columbia or
United States territories to escape all provisions of the law. Id. at 131

One, Congresswoman Bella S. Abzug, on June 2, 1972, was quoted as saying

that it was "highly improper" to use an advertisement about the impeachment
drive to solicit funds for the election campaigns of candidates; she, as well as
some others, said she would not accept such funds. See N. Y. Times, June 3,
1972, at 33, col. 4. See also 118 Cong. Rec. E5920 (daily ed. June 1, 1972)
(statement of Congresswoman Abzug)

Parenthetically we note in this connection that two of them, the late William F.
Ryan and Bella S. Abzug, were engaged in a primary contest against each other
at the time of the publication of the advertisement

10

The introductory language to this effect -"If said majority is not obtained by a
certain deadline to be set by the Executive Committee of the National
Committee for Impeachment . . ."-was omitted in quotation of the
advertisement at page 5 of the Government's brief. When this language is
added, the context is clear that here also the advertisement was referring to the
indefinite future

11

A Washington, D. C., three-judge court is, at the writing of this opinion,

considering the constitutionality of the Federal Election Campaign Act. ACLU
v. Jennings, Civil No. 1967-72 (D.D.C.1972)

12

No distinction may be made for first amendment purposes between a political

editorial and a paid political advertisement. See New York Times Co. v.
Sullivan, 376 U.S. 254, 266, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); United
States v. Painters Local Union No. 481, 172 F. 2d 854 (2d Cir. 1949). Cf.
Business Executives' Move for Vietnam Peace v. FCC, 146 U.S.App.D.C. 181,
450 F.2d 642 (1971), cert. granted, 405 U.S. 953, 92 S.Ct. 1174, 31 L.Ed.2d
230 (1972)

13

Attorney Gen. v. Irish Northern Aid Comm., 346 F.Supp. 1384 (S.D.N.Y.,
Aug. 7, 1972), aff'd without opinion, 465 F.2d 1405 (2d Cir., Aug. 23, 1972), is
not inconsistent with the line of cases following NAACP v. Alabama since it
involves agents raising money for a civil war in a foreign country. Cf. 357 U.S.
at 465, 78 S.Ct. at 1163; Communist Party v. SACB, 367 U.S. 1, 90-91, 81
S.Ct. 1357, 6 L.Ed.2d 625 (1961)

14

We are here concerned not only with contributions made to the National
Committee; while there is not a shred of evidence that it made any expenditures
on behalf of any candidate, the Government argues that paying for the original
advertisement itself was an "expenditure" within Sec. 301(f)

15

At argument, Government counsel attempted valiantly to distinguish newspaper

editorials from paid advertisements. But as Judge Augustus Hand pointed out in
United States v. Painters Local Union No. 481, 172 F.2d 854, 856 (2d Cir.
1949), not everyone can afford to own a newspaper; indeed in this day and age
fewer and fewer people can do so and hence must resort to purchasing space in
someone else's newspaper or time on someone else's radio or TV station. Cf.
Business Executives' Move for Vietnam Peace v. FCC, 46 U.S.App.D.C. 181,
450 F.2d 642 (1971), cert. granted, 405 U.S. 953, 92 S.Ct. 1174, 31 L.Ed.2d
230 (1972) (first amendment requires broadcasters to allow purchase of air time
for political advertisements)