|Buckley v. Valeo
No. 75-36, 171 U.S.App.D.C. 172, 519 F.2d 821, affirmed in part and reversed in part; No. 75-437, 401 F.Supp. 1235, affirmed.
[ Burger ]
[ White ]
[ Marshall ]
[ Blackmun ]
[ Rehnquist ]
Buckley v. Valeo
APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
MR. JUSTICE WHITE, concurring in part and dissenting in part.
I concur in the Court's answers to certified questions 1, 2, 3(b), 3(C), 3(e), 3(f), 3(h), 5, 6, 7(a), 7(b), 7(C), 7(d), 8(a), 8(b), 8(C), 8(d), 8(e), and 8(f). I dissent from the answers to certified questions 3(a), 3(d), and 4(a). I also join in Part III of the Court's opinion and in much of Parts I-B, II, and IV.
It is accepted that Congress has power under the Constitution to regulate the election of federal officers, including the President and the Vice President. This includes the authority to protect the elective processes against the "two great natural and historical enemies of all republics, open violence and insidious corruption," Ex parte Yarbrough, 110 U.S. 651, 658 (1884); for,
[i]f this government is anything more than a mere aggregation of delegated agents of other States and governments, each of which is superior to the general government, it must have the power to protect the elections on which its existence depends from violence and corruption,
the latter being the consequence of "the free use of money in elections, arising from the vast growth of recent wealth. . . ." Id. at 657-658, 667.
This teaching from the last century was quoted at length and reinforced in Burroughs v. United States, 290 U.S. 534, 546-548 (1934). In that case, the Court sustained the Federal Corrupt Practices Act of 1925, Title III of the Act of Feb. 28, 1925, 43 Stat. 1070, which, among other things, required political committees to keep [p258] records and file reports concerning all contributions and expenditures received and made by political committees for the purposes of influencing the election of candidates for federal office. The Court noted the conclusion of Congress that public disclosure of contributions would tend to prevent the corrupt use of money to influence elections; this, together with the requirement "that the treasurer's statement shall include full particulars in respect of expenditures," made it "plain that the statute as a whole is calculated to discourage the making and use of contributions for purposes of corruption." 290 U.S. at 548. Congress clearly had the power to further as it did that fundamental goal:
The power of Congress to protect the election of President and Vice President from corruption being clear, the choice of means to that end presents a question primarily addressed to the judgment of Congress. If it can be seen that the means adopted are really calculated to attain the end, the degree of their necessity, the extent to which they conduce to the end, the closeness of the relationship between the means adopted and the end to be attained, are matters for congressional determination alone.
Id. at 547-548.
Pursuant to this undoubted power of Congress to vindicate the strong public interest in controlling corruption and other undesirable uses of money in connection with election campaigns, the Federal Election Campaign Act substantially broadened the reporting and disclosure requirements that so long have been a part of the federal law. Congress also concluded that limitations on contributions and expenditures were essential if the aims of the Act were to be achieved fully. In another major innovation, aimed at insulating candidates from the time-consuming and entangling task of raising huge sums of [p259] money, provision was made for public financing of political campaigns for federal office. A Federal Election Commission (FEC) was also created to administer the law.
The disclosure requirements and the limitations on contributions and expenditures are challenged as invalid abridgments of the right of free speech protected by the First Amendment. I would reject these challenges. I agree with the Court's conclusion and much of its opinion with respect to sustaining the disclosure provisions. I am also in agreement with the Court's judgment upholding the limitations on contributions. I dissent, however, from the Court's view that the expenditure limitations of 18 U.S.C. §§ 608(c) and (e) (1970 ed., Supp. IV) violate the First Amendment.
Concededly, neither the limitations on contributions nor those on expenditures directly or indirectly purport to control the content of political speech by candidates or by their supporters or detractors. What the Act regulates is giving and spending money, acts that have First Amendment significance not because they are themselves communicative with respect to the qualifications of the candidate, but because money may be used to defray the expenses of speaking or otherwise communicating about the merits or demerits of federal candidates for election. The act of giving money to political candidates, however, may have illegal or other undesirable consequences: it may be used to secure the express or tacit understanding that the giver will enjoy political favor if the candidate is elected. Both Congress and this Court's cases have recognized this as a mortal danger against which effective preventive and curative steps must be taken.
Since the contribution and expenditure limitations are neutral as to the content of speech and are not motivated by fear of the consequences of the political speech [p260] of particular candidates or of political speech in general, this case depends on whether the nonspeech interests of the Federal Government in regulating the use of money in political campaigns are sufficiently urgent to justify the incidental effects that the limitations visit upon the First Amendment interests of candidates and their supporters.
Despite its seeming struggle with the standard by which to judge this case, this is essentially the question the Court asks and answers in the affirmative with respect to the limitations on contributions which individuals and political committees are permitted to make to federal candidates. In the interest of preventing undue influence that large contributors would have or that the public might think they would have, the Court upholds the provision that an individual may not give to a candidate, or spend on his behalf if requested or authorized by the candidate to do so, more than $1,000 in any one election. This limitation is valid although it imposes a low ceiling on what individuals may deem to be their most effective means of supporting or speaking on behalf of the candidate -- i.e., financial support given directly to the candidate. The Court thus accepts the congressional judgment that the evils of unlimited contributions are sufficiently threatening to warrant restriction regardless of the impact of the limits on the contributor's opportunity for effective speech and, in turn, on the total volume of the candidate's political communications by reason of his inability to accept large sums from those willing to give.
The congressional judgment, which I would also accept, was that other steps must be taken to counter the corrosive effects of money in federal election campaigns. One of these steps is § 608(e), which, aside from those funds that are given to the candidate or spent at his [p261] request or with his approval or cooperation, limits what a contributor may independently spend in support or denigration of one running for federal office. Congress was plainly of the view that these expenditures also have corruptive potential; but the Court strikes down the provision, strangely enough claiming more insight as to what may improperly influence candidates than is possessed by the majority of Congress that passed this bill and the President who signed it. Those supporting the bill undeniably included many seasoned professionals who have been deeply involved in elective processes and who have viewed them at close range over many years.
It would make little sense to me, and apparently made none to Congress, to limit the amounts an individual may give to a candidate or spend with his approval but fail to limit the amounts that could be spent on his behalf. Yet the Court permits the former while striking down the latter limitation. No more than $1,000 may be given to a candidate or spent at his request or with his approval or cooperation; but otherwise, apparently, a contributor is to be constitutionally protected in spending unlimited amounts of money in support of his chosen candidate or candidates.
Let us suppose that each of two brothers spends $1 million on TV spot announcements that he has individually prepared and in which he appears, urging the election of the same named candidate in identical words. One brother has sought and obtained the approval of the candidate; the other has not. The former may validly be prosecuted under § 608(e); under the Court's view, the latter may not, even though the candidate could scarcely help knowing about and appreciating the expensive favor. For constitutional purposes, it is difficult to see the difference between the two situations. I would take the word of those who know -- that limiting [p262] independent expenditures is essential to prevent transparent and widespread evasion of the contribution limits.
In sustaining the contribution limits, the Court recognizes the importance of avoiding public misapprehension about a candidate's reliance on large contributions. It ignores that consideration in invalidating § 608(e). In like fashion, it says that Congress was entitled to determine that the criminal provisions against bribery and corruption, together with the disclosure provisions, would not, in themselves, be adequate to combat the evil and that limits on contributions should be provided. Here, the Court rejects the identical kind of judgment made by Congress as to the need for and utility of expenditure limits. I would not do so.
The Court also rejects Congress' judgment manifested in § 608(c) that the federal interest in limiting total campaign expenditures by individual candidates justifies the incidental effect on their opportunity for effective political speech. I disagree both with the Court's assessment of the impact on speech and with its narrow view of the values the limitations will serve.
Proceeding from the maxim that "money talks," the Court finds that the expenditure limitations will seriously curtail political expression by candidates and interfere substantially with their chances for election. The Court concludes that the Constitution denies Congress the power to limit campaign expenses; federal candidates -- and, I would suppose, state candidates, too -- are to have the constitutional right to raise and spend unlimited amounts of money in quest of their own election.
As an initial matter, the argument that money is speech and that limiting the flow of money to the speaker violates the First Amendment proves entirely too much. Compulsory bargaining and the right to strike, both provided for or protected by federal law, inevitably have [p263] increased the labor costs of those who publish newspapers, which are, in turn, an important factor in the recent disappearance of many daily papers. Federal and state taxation directly removes from company coffers large amounts of money that might be spent on larger and better newspapers. The antitrust laws are aimed at preventing monopoly profits and price-fixing, which gouge the consumer. It is also true that general price controls have from time to time existed, and have been applied to the newspapers or other media. But it has not been suggested, nor could it be successfully, that these laws, and many others, are invalid because they siphon off or prevent the accumulation of large sums that would otherwise be available for communicative activities.
In any event, as it should be unnecessary to point out, money is not always equivalent to or used for speech, even in the context of political campaigns. I accept the reality that communicating with potential voters is the heart of an election campaign, and that widespread communication has become very expensive. There are, however, many expensive campaign activities that are not themselves communicative or remotely related to speech. Furthermore, campaigns differ among themselves. Some seem to spend much less money than others, and yet communicate as much as or more than those supported by enormous bureaucracies with unlimited financing. The record before us no more supports the conclusion that the communicative efforts of congressional and Presidential candidates will be crippled by the expenditure limitations than it supports the contrary. The judgment of Congress was that reasonably effective campaigns could be conducted within the limits established by the Act, and that the communicative efforts of these campaigns would not seriously suffer. In this posture [p264] of the case, there is no sound basis for invalidating the expenditure limitations, so long as the purposes they serve are legitimate and sufficiently substantial, which, in my view, they are.
In the first place, expenditure ceilings reinforce the contribution limits and help eradicate the hazard of corruption. The Court upholds the over-all limit of $25,000 on an individual's political contributions in a single election year on the ground that it helps reinforce the limits on gifts to a single candidate. By the same token, the expenditure limit imposed on candidates plays its own role in lessening the chance that the contribution ceiling will be violated. Without limits on total expenditures, campaign costs will inevitably and endlessly escalate. Pressure to raise funds will constantly build, and, with it, the temptation to resort in "emergencies" to those sources of large sums, who, history shows, are sufficiently confident of not being caught to risk flouting contribution limits. Congress would save the candidate from this predicament by establishing a reasonable ceiling on all candidates. This is a major consideration in favor of the limitation. It should be added that many successful candidates will also be saved from large, overhanging campaign debts which must be paid off with money raised while holding public office and at a time when they are already preparing or thinking about the next campaign. The danger to the public interest in such situations is self-evident.
Besides backing up the contribution provisions, which are aimed at preventing untoward influence on candidates that are elected, expenditure limits have their own potential for preventing the corruption of federal elections themselves. For many years, the law has required the disclosure of expenditures as well as contributions. As Burroughs indicates, the corrupt use of money by candidates [p265] is as much to be feared as the corrosive influence of large contributions. There are many illegal ways of spending money to influence elections. One would be blind to history to deny that unlimited money tempts people to spend it on whatever money can buy to influence an election. On the assumption that financing illegal activities is low on the campaign organization's priority list, the expenditure limits could play a substantial role in preventing unethical practices. There just would not be enough of "that kind of money" to go around.
I have little doubt in addition that limiting the total that can be spent will ease the candidate's understandable obsession with fundraising, and so free him and his staff to communicate in more places and ways unconnected with the fundraising function. There is nothing objectionable -- indeed, it seems to me a weighty interest in favor of the provision -- in the attempt to insulate the political expression of federal candidates from the influence inevitably exerted by the endless job of raising increasingly large sums of money. I regret that the Court has returned them all to the treadmill.
It is also important to restore and maintain public confidence in federal elections. It is critical to obviate or dispel the impression that federal elections are purely and simply a function of money, that federal offices are bought and sold, or that political races are reserved for those who have the facility -- and the stomach -- for doing whatever it takes to bring together those interests, groups, and individuals that can raise or contribute large fortunes in order to prevail at the polls.
The ceiling on candidate expenditures represents the considered judgment of Congress that elections are to be decided among candidates none of whom has overpowering advantage by reason of a huge campaign war chest. At least so long as the ceiling placed upon the candidates [p266] is not plainly too low, elections are not to turn on the difference in the amounts of money that candidates have to spend. This seems an acceptable purpose and the means chosen a common sense way to achieve it. The Court nevertheless holds that a candidate has a constitutional right to spend unlimited amounts of money, mostly that of other people, in order to be elected. The holding perhaps is not that federal candidates have the constitutional right to purchase their election, but many will so interpret the Court's conclusion in this case. I cannot join the Court in this respect.
I also disagree with the Court's judgment that § 608(a), which limits the amount of money that a candidate or his family may spend on his campaign, violates the Constitution. Although it is true that this provision does not promote any interest in preventing the corruption of candidates, the provision does, nevertheless, serve salutary purposes related to the integrity of federal campaigns. By limiting the importance of personal wealth, § 608(a) helps to assure that only individuals with a modicum of support from others will be viable candidates. This, in turn, would tend to discourage any notion that the outcome of elections is primarily a function of money. Similarly, § 608(a) tends to equalize access to the political arena, encouraging the less wealthy, unable to bankroll their own campaigns, to run for political office.
As with the campaign expenditure limits, Congress was entitled to determine that personal wealth ought to play a less important role in political campaigns than it has in the past. Nothing in the First Amendment stands in the way of that determination.
For these reasons I respectfully dissent from the Court's answers to certified questions 3(a), 3(d), and 4(a). [p267]
I join the answers in Part IV of the Court's opinion, ante at 141-142, n. 177, to the questions certified,by the District Court relating to the composition and powers of the FEC, i.e., questions 8(a), 8(b), 8(c), 8(d) (with the qualifications stated infra at 282-286), 8(e), and 8(f). I also agree with much of that part of the Court's opinion, including the conclusions that these questions are properly before us and ripe for decision, that the FEC's past acts are de facto valid, that the Court's judgment should be stayed, and that the FEC may function de facto while the stay is in effect.
The answers to the questions turn on whether the FEC is illegally constituted because its members were not selected in the manner required by Art. II, § 2, cl. 2, the Appointments Clause. It is my view that, with one exception, Congress could endow a properly constituted commission with the powers and duties it has given the FEC. [n1]
Section 437c creates an eight-member FEC. Two members, the Secretary of the Senate and the Clerk of the House of Representatives, are ex officio members [p268] without the right to vote or to hold an FEC office. [n2] Of the remaining six, two are appointed by the President pro tempore of the Senate upon the recommendation of the majority and minority leaders of that body; two are similarly appointed by the Speaker of the House; and two are appointed by the President of the United States. The appointment of each of these six members is subject to confirmation by a majority of both Houses of Congress. § 437c(a)(1). Each member is appointed for a term of years; none can be an elected or appointed officer or employee of any branch of the Government at the time of his appointment. §§ 437c(a)(2), (3). The FEC is empowered to elect its own officers, § 437c(a)(5), and to appoint a staff director and general counsel. § 437c(f). Decisions are by a majority vote. § 437c(c).
It is apparent that none of the members of the FEC is selected in a manner Art. II specifics for the appointment of officers of the United States. The Appointments Clause provides:
[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. [n3]
Although two of the members of the FEC are initially selected by the President, his nominations are subject to confirmation by both Houses of Congress. Neither [p269] he, the head of any department, nor the Judiciary has any voice in the selection of the remaining members of the FEC. The challenge to the FEC, therefore, is that its members are officers of the United States the mode of whose appointment was required to, but did not, conform to the Appointments Clause. That challenge is well taken.
The Appointments Clause applies only to officers of the United States whose appointment is not "otherwise provided for" in the Constitution. Senators and Congressmen are officers of the United States, but the Constitution expressly provides the mode of their selection. [n4] The Constitution also expressly provides that each House of Congress is to appoint its own officers. [n5] But it is not contended here that FEC members are officers of either House selected pursuant to these express provisions, if for no other reason, perhaps, than that none of the Commissioners was selected in the manner specified by these provisions -- none of them was finally selected by either House acting alone as Art. I authorizes.
The appointment power provided in Art. II also applies only to officers, as distinguished from employees, [n6] of the United States, but there is no claim the Commissioners are employees of the United States, rather than officers. That the Commissioners are among those officers of the United States referred to in the Appointments Clause of Art. II is evident from the breadth of their [p270] assigned duties and the nature and importance of their assigned functions.
The functions and duties of the FEC relate to three different aspects of the election laws: first, the provisions of the Criminal Code, 18 U.S.C. §§ 608-617 (1970 ed., Supp. IV), which establish major substantive limitations on political contributions and expenditures by individuals, political organizations, and candidates; second, the reporting and disclosure provisions contained in 2 U.S.C. §§ 431-437b (1970 ed., Supp. IV), these sections requiring the filing of detailed reports of political contributions and expenditures; and third, the provisions of 26 U.S.C. §§ 9001-9042 (1970 ed., Supp. IV) with respect to the public financing of Presidential primary and general election campaigns. From the "representative examples of [the FEC's] various powers" the Court describes, ante at 109-113, it is plain that the FEC is the primary agency for the enforcement and administration of major parts of the election laws. It does not replace or control the executive agencies with respect to criminal prosecutions, but, within the wide zone of its authority, the FEC is independent of executive as well as congressional control except insofar as certain of its regulations must be laid before and not be disapproved by Congress. § 438(c); 26 U.S.C. §§ 9009(c), 9039(c) (1970 ed., Supp. IV). With duties and functions such as these, members of the FEC are plainly "officers of the United States" as that term is used in Art. II, § 2, cl. 2.
It is thus not surprising that the FEC, in defending the legality of its members' appointments, does not deny that they are "officers of the United States" as that term is used in the Appointments Clause of Art. II. [n7] Instead, [p271] for reasons the Court outlines, ante at 131-132, 133-134, its position appears to be that, even if its members are officers of the United States, Congress may nevertheless appoint a majority of the FEC without participation by the President. [n8] This position that Congress may itself appoint the members of a body that is to administer a wide-ranging statute will not withstand examination in light of either the purpose and history of the Appointments Clause or of prior cases in this Court.
The language of the Appointments Clause was not mere inadvertence. The matter of the appointment of officers of the new Federal Government was repeatedly debated by the Framers, and the final formulation of the Clause arrived at only after the most careful debate and consideration of its place in the over-all design of government. The appointment power was a major building block fitted into the constitutional structure designed to avoid the accumulation or exercise of arbitrary power by the Federal Government. The basic approach was that official power should be divided among the Executive, Legislative, and Judicial Departments. The separation of powers principle was implemented by a series of provisions, among which was the knowing decision that Congress was to have no power whatsoever to appoint federal officers, except for the power of each House to appoint its own officers serving in the strictly legislative [p272] processes and for the confirming power of the Senate alone.
The decision to give the President the,exclusive power to initiate appointments was thoughtful and deliberate. The Framers were attempting to structure three departments of government so that each would have affirmative powers strong enough to resist the encroachment of the others. A fundamental tenet was that the same persons should not both legislate and administer the laws. [n9] From the very outset, provision was made to prohibit members of Congress from holding office in another branch of the Government while also serving in Congress. There was little if any dispute about this incompatibility provision which survived in Art. I, § 6, of the Constitution as finally ratified. [n10] Today, no person may serve in Congress and at the same time be Attorney General, Secretary of State, a member of the judiciary, a United States attorney, or a member of the Federal Trade Commission or the National Labor Relations Board.
Early in the 1787 Convention, it was also proposed that members of Congress be absolutely ineligible during the term for which they were elected, and for a period thereafter, for appointment to any state or federal office. [n11] But to meet substantial opposition to so stringent a provision, ineligibility for state office was first eliminated, [n12] and, under the language ultimately adopted, Congressmen [p273] were disqualified from being appointed only to those offices which were created, or for which the emoluments were increased, during their term of office. [n13] Offices not in this category could be filled by Representatives or Senators, but only upon resignation.
Immediately upon settling the ineligibility provision, the Framers returned to the appointment power which they had several times before debated and postponed for later consideration. [n14] From the outset, there had been no dispute that the Executive alone should appoint, and not merely nominate, purely executive officers, [n15] but, at one stage, judicial officers were to be selected by the entire Congress. [n16] This provision was subsequently changed to lodge the power to choose judges in the Senate, [n17] which was later also given the power to appoint ambassadors and other public ministers. [n18] But following resolution of the dispute over the ineligibility provision, which served both to prevent members of Congress from appointing themselves to federal office and to limit their being appointed to federal office, it was determined that the appointment of all principal officers, whether executive or not, should originate with the President, and that the Senate should have only the power of advice and consent. [n19] Inferior officers [p274] could be otherwise appointed, but not by Congress itself. [n20] This allocation of the appointment power, in which, for the first time, the Executive had the power to initiate appointment to all principal offices and the Senate was empowered to advise and consent to nominations by the Executive, [n21] was made possible by adoption of the ineligibility provisions, and was formulated as part of the fundamental compromises with respect to the composition of the Senate, the respective roles of the House and Senate, and the placement of the election of the President in the electoral college.
Under Art. II, as finally adopted, law enforcement authority was not to be lodged in elected legislative officials subject to political pressures. Neither was the Legislative Branch to have the power to appoint those who were to enforce and administer the law. Also, the appointment power denied Congress and vested in the President was not limited to purely executive officers, but reached officers performing purely judicial functions, as well as all other officers of the United States.
I thus find singularly unpersuasive the proposition that, because the FEC is implementing statutory policies with respect to the conduct of elections, which policies Congress has the power to propound, its members may be appointed by Congress. One might as well argue that the exclusive and plenary power of Congress over interstate commerce authorizes Congress to appoint the members of the Interstate Commerce Commission and of many other regulatory commissions; that its exclusive power to provide for patents and copyrights would permit the administration of the patent laws to be carried out by a congressional committee; or that the exclusive power of the Federal Government to establish post offices authorizes [p275] Congress itself or the Speaker of the House and the President pro tempore of the Senate to appoint postmasters and to enforce the postal laws.
Congress clearly has the power to create federal offices and to define the powers and duties of those offices, Myers v. United States, 272 U.S. 52, 129 (1926), but no case in this Court even remotely supports the power of Congress to appoint an officer of the United States aside from those officers each House is authorized by Art. I to appoint to assist in the legislative processes.
In Myers, a postmaster of the first class was removed by the President prior to the expiration of his statutory four-year term. Challenging the President's power to remove him contrary to the statute, he sued for his salary. The challenge was rejected here. The Court said that, under the Constitution, the power to appoint the principal officers of the Executive Branch was an inherent power of the President:
[T]he reasonable implication, even in the absence of express words, was that as part of his executive power [the President] should select those who were to act for him under his direction in the execution of the laws.
Id. at 117. Further, absent express limitation in the Constitution, the President was to have unrestricted power to remove those administrative officers essential to him in discharging his duties. These fundamental rules were to extend to those bureau and department officers with power to issue regulations and to discharge duties of a quasi-judicial nature -- those members of "executive tribunals whose decisions after hearing affect interests of individuals." Id. at 135. As for inferior officers such as the plaintiff postmaster, the same principles were to govern if Congress chose to place the appointment in the President with the advice and consent of the Senate, as [p276] was the case in Myers. Under the Appointments Clause, Congress could -- but did not in the Myers case -- permit the appointment of inferior officers by the heads of departments, in which event, the Court said, Congress would have the authority to establish a term of office and limit the reasons for their removal. But in no circumstance could Congress participate in the removal:
[T]he Court never has held, nor reasonably could hold, although it is argued to the contrary on behalf of the appellant, that the excepting clause enables Congress to draw to itself, or to either branch of it, the power to remove or the right to participate in the exercise of that power. To do this would be to go beyond the words and implications of that clause and to infringe the constitutional principle of the separation of governmental powers.
Id. at 161.
Humphrey's Executor v. United States, 295 U.S. 602 (1935), limited the reach of the Myers case. There, the President attempted to remove a member of the Federal Trade Commission prior to the expiration of his statutory term and for reasons not specified in the statute. The Court ruled that the Presidential removal power vindicated in Myers related solely to "purely executive officers," 295 U.S. at 628, from whom the Court sharply distinguished officers, such as the members of the Federal Trade Commission, who were to be free from political dominance and control, whose duties are "neither political nor executive, but predominantly quasi-judicial and quasi-legislative." Id. at 624. Contrary to the dicta in Myers, such an officer was thought to occupy "no place in the executive department," to exercise "no part of the executive power vested by the Constitution in the President," 295 U.S. at 628, and to be immune from removal by the President except on terms specified by Congress. The Commissioners were described as being [p277] in part an administrative body carrying out legislative policies and in part an agency of the Judiciary, ibid.; such a body was intended to be
independent of executive authority, except in its selection, and free to exercise its judgment without the leave or hindrance of any other official or any department of the government.
Id. at 625-626. (Emphasis in original.)
The holding in Humphrey's Executor was confirmed in Wiener v. United States, 357 U.S. 349 (1958), but the Court did not question what Humphrey's Executor had expressly recognized -- that members of independent agencies are not independent of the Executive with respect to their appointments. Nor did either Wiener or Humphrey's Executor suggest that Congress could not only create the independent agency, specify its duties, and control the grounds for removal of its members, but could also itself appoint or remove them without the participation of the Executive Branch of the Government. To have so held would have been contrary to the Appointments Clause as the Myers case recognized.
It is said that, historically, Congress has used its own officers to receive and file the reports of campaign expenditures and contributions as required by law, and that this Court should not interfere with this practice. But the Act before us creates a separate and independent campaign commission with members, some nominated by the President, who have specified terms of office, are not subject to removal by Congress, and are free from congressional control in their day-to-day functions. The FEC, it is true, is the designated authority with which candidates and political committees must file reports of contributions and expenditures, as required by the Act. But the FEC may also make rules and regulations with respect to the disclosure requirements, may investigate reported violations, issue subpoenas, hold its own hearings [p278] and institute civil enforcement proceedings in its own name. Absent a request by the FEC, it would appear that the Attorney General has no role in the civil enforcement of the reporting and disclosure requirements. The FEC may also issue advisory opinions with respect to the legality of any particular activities so as to protect those persons who in good faith have conducted themselves in reliance on the FEC's opinion. These functions go far beyond mere information gathering, and there is no long history of lodging such enforcement powers in congressional appointees.
Nor do the FEC's functions stop with policing the reporting and disclosure requirements of the Act. The FEC is given express power to administer, obtain compliance with, and "to formulate general policy" [n22] with respect to 18 U.S.C. §§ 608-617, so much so that the Act expressly provides that "[t]he Commission has primary jurisdiction with respect to the civil enforcement of such provisions." [n23] Following its own proceedings, the FEC may request the Attorney General to bring civil enforcement proceedings, a request which the Attorney General must honor. [n24] And good faith conduct taken in accordance [p279] with the FEC's advisory opinions as to whether any transaction or activity would violate any of these criminal provisions "shall be presumed to be in compliance with" these sections. [n25] § 437f(b). Finally, the FEC has the central role in administering and enforcing the provisions [p280] of Title 26 contemplating the public financing of political campaigns. [n26]
It is apparent that the FEC is charged with the enforcement of the election laws in major respects. Indeed, except for the conduct of criminal proceedings, it would appear that the FEC has the entire responsibility for enforcement of the statutes at issue here. By no stretch of the imagination can its various functions in this respect be considered mere adjuncts to the legislative process or to the powers of Congress to judge the election and qualifications of its own members.
It is suggested, without accounting for the President's role in appointing some of its members, that the FEC would be willing to forgo its civil enforcement powers, and that, absent these functions, it is left with nothing that purely legislative officers may not do. The difficulty is that the statute invests the FEC not only with the authority, but with the duties that unquestionably make its members officers of the United States, fully as much as the members of other commissions charged with the major responsibility for administering statutes. What is more, merely forgoing its authority to bring suit would still leave the FEC with the power to issue rules and regulations, its advisory opinion authority, and primary duties to enforce the Act. Absent notice and hearing by the FEC and a request on its part, it would not appear that the Executive Branch of the Government would have any authority under the statute to institute civil enforcement proceedings with respect to the reporting and disclosure requirements or the relevant provisions of Titles 18 and 26.
There is no doubt that the development of the administrative [p281] agency in response to modern legislative and administrative need has placed severe strain on the separation of powers principle in its pristine formulation. See Kilbourn v. Thompson, 103 U.S. 168, 191 (1881). Any notion that the Constitution bans any admixture of powers that might be deemed legislative, executive, and judicial has had to give way. The independent agency has survived attacks from various directions: that it exercises invalidly delegated legislative power, Sunshine Coal Co. v. Adkins, 310 U.S. 381 (1940); that it invalidly exercises judicial power, ibid.; and that its functions are so executive in nature that its members must be subject to Presidential control, Humphrey's Executor v. United States, 295 U.S. 602 (1935). Until now, however, it has not been insisted that the commands of the Appointments Clause must also yield to permit congressional appointments of members of a major agency. With the Court, I am not convinced that we should create a broad exception to the requirements of that Clause that all officers of the United States be appointed in accordance with its terms. The provision applies to all officers, however their duties may be classified; and even if some of the FEC's functions, such as rulemaking, are purely legislative, I know of no authority for the congressional appointment of its own agents to make binding rules and regulations necessary to or advisable for the administration and enforcement of a major statute where the President has not participated either in the appointment of each of the administrators or in the fashioning of the rules or regulations which they propound.
I do not dispute the legislative power of Congress coercively to gather and make available for public inspection massive amounts of information relevant to the legislative process. Its own officers may, as they have [p282] done for years, receive and file contribution and expenditure reports of candidates and political committees. Arguably, the Commissioners, although not properly appointed by the President, should at least be able to perform this function. But the members of the FEC are appointed for definite terms of office, are not removable by the President or by Congress, and, even if their duties were to be severely limited, they would appear to remain Art. II officers. In any event, the task of gathering and publishing campaign finance information has been one of the specialties of the officers of the respective Houses, and these same officers, under the present law, continue to receive such information, and to act as custodians for the FEC, at least with respect to the Senate and House political campaigns. They are also instructed to cooperate with the FEC. § 438(d).
For these reasons, I join in the Court's answers to certified questions 8(a), 8(b), 8(c), 8(e) and 8(f), and with the following reservations to question 8(d).
Question 8(d) asks whether § 438(c) violates the constitutional rights of one or more of the plaintiffs in that "it empowers the Federal Election Commission to make rules under the F.E.C.A. in the manner specified therein." Section 438(c) imposes certain preconditions to the effectiveness of "any rule or regulation under this section . . . ," but does not itself authorize the issuance of rules or regulations. That authorization is to be found in § 438(a)(10), which includes among the duties of the FEC the task of prescribing "rules and regulations to carry out the provisions of this subchapter, in accordance with the provisions of subsection (c)." The "subchapter" referred to is the subchapter dealing with federal election campaigns and the reports of contributions and expenditures required to be filed with the FEC. [n27] Subsection [p283] (c), which is the provision expressly mentioned in question 8(d), requires that any rule or regulation prescribed by the FEC under § 438 shall be transmitted to the Senate or the House, or to both, as thereafter directed. After 30 legislative days, [n28] the rule or regulation will become effective unless (1) either House has disapproved the rule if it relates to reports by Presidential candidates or their supporting committees; (2) the House has disapproved it if it relates to reports to be filed by House candidates or their committees; or (3) the Senate has disapproved it if the rule relates to reports by Senate candidates or their related committees.
By expressly referring to subsection (c), question 8(d) appears to focus on the disapproval requirement; but the Court's answer is not responsive in these terms. Rather, the Court expressly disclaims holding that the FEC's rules and regulations are invalid because of the requirement that they are subject to disapproval by one or both Houses of Congress. Ante at 140 n. 176. As I understand it, the FEC's rules and regulations, whether or not issued in compliance with § 438(c), are invalid because the members of the FEC have not been appointed in accordance with Art. II. To the extent that this is the basis for the Court's answer to the question, I am in agreement.
If the FEC members had been nominated by the President and confirmed by the Senate as provided in Art. II, [p284] nothing in the Constitution would prohibit Congress from empowering the Commission to issue rules and regulations without later participation by, or consent of, the President or Congress with respect to any particular rule or regulation or initially to adjudicate questions of fact in accordance with a proper interpretation of the statute. Sunshine Coal Co. v. Adkins, 310 U.S. 381 (1940); RFC v. Bankers Trust Co., 318 U.S. 163 (1943); Humphrey's Executor v. United States, 295 U.S. 602 (1935). The President must sign the statute creating the rulemaking authority of the agency or it must have been passed over his veto, and he must have nominated the members of the agency in accordance with Art. II; but agency regulations issued in accordance with the statute are not subject to his veto even though they may be substantive in character and have the force of law.
I am also of the view that the otherwise valid regulatory power of a properly created independent agency is not rendered constitutionally infirm, as violative of the President's veto power, by a statutory provision subjecting agency regulations to disapproval by either House of Congress. For a bill to become law, it must pass both Houses and be signed by the President or be passed over his veto. Also, "Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary . . . " is likewise subject to the veto power. [n29] Under § 438(c), the FEC's regulations are subject to disapproval; but, for a regulation to become effective, neither House need approve it, pass it, or take any action at all with respect to it. The regulation becomes effective by nonaction. This no more invades the President's powers than does a regulation not required to be laid before Congress. Congressional influence over the substantive content of agency regulation may be enhanced, [p285] but I would not view the power of either House to disapprove as equivalent to legislation or to an order resolution, or vote requiring the concurrence of both Houses. [n30]
In terms of the substantive content of regulations and the degree of congressional influence over agency lawmaking, I do not suggest that there is no difference between the situation where regulations are subject to disapproval by Congress and the situation where the agency need not run the congressional gauntlet. But the President's veto power, which gives him an important role in the legislative process, was obviously not considered an inherently executive function. Nor was its principal aim to provide another check against poor legislation. The major purpose of the veto power appears to have been to shore up the Executive Branch and to provide it with some bargaining and survival power against what the Framers feared would be the overweening power of legislators. As Hamilton said, the veto power was to provide a defense against the legislative department's intrusion on the rights and powers of other departments; without such power, "the legislative and executive powers might speedily come to be blended in the same hands." [n31]
I would be much more concerned if Congress purported to usurp the functions of law enforcement, to control the outcome of particular adjudications, or to preempt the President's appointment power; but, in the [p286] light of history and modern reality, the provision for congressional disapproval of agency regulations does not appear to transgress the constitutional design, at least where the President has agreed to legislation establishing the disapproval procedure or the legislation has been passed over his veto. It would be considerably different if Congress itself purported to adopt and propound regulations by the action of both Houses. But here no action of either House is required for the agency rule to go into effect, and the veto power of the President does not appear to be implicated.
1. That is, if the FEC were properly constituted, I would answer questions 8(b), 8(C), 8(d) (see infra at 282-286), and 8(f) in the negative. With respect to question 8(e), I reserve judgment on the validity of 2 U.S.C. § 456 (1970 ed., Supp. IV) which empowers the FEC to disqualify a candidate for failure to file certain reports. Of course, to the extent that the Court invalidates the expenditure limitations of the FECA, Part I-C, ante at 39-59, the FEC, however appointed, would be powerless to enforce those provisions.
Unless otherwise indicated, all statutory citations in this part of the opinion are to the Federal Election Campaign Act of 1971, §§ 301-311, 86 Stat. 11, as amended by the Federal Election Campaign Act Amendments of 1974, §§ 201-407, 88 Stat. 1272, 2 U.S.C. § 431 et seq. (1970 ed., Supp. IV).
2. References to the "Commissioners," the "FEC," or its "members" do not include these two ex officio members.
3. U.S.Const., Art. II, § 2, Cl. 2.
4. Id. Art. I, §§ 2, 3, and the Seventeenth Amendment.
5. "The House of Representatives shall chuse their Speaker and other Officers. . . ." U.S.Const., Art. I, § 2, cl. 5.
The Vice President of the United States shall be President of the Senate, but . . . [t]he Senate shall chuse their other Officers, and also a President pro tempore in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.
§ 3, cls. 4, 5.
6. The distinction appears ante at 126 n. 162.
7. Indeed the FEC attacks as "erroneous" appellants' statement that the Court of Appeals ruled that
the FEC commissioners are not officers of the United States. Rather, it held that the grant of power to the President to appoint civil officers of the United States is not to be read as preclusive of Congressional authority to appoint such officers to aid in the discharge of Congressional responsibilities.
Brief for Appellee Federal Election Commission 16 n.19 (hereafter FEC Brief).
8. How Congress may both appoint officers itself and condition appointment of the President's nominees on confirmation by a majority of both Houses of Congress is not explained.
9. Watson, Congress Steps Out: A Look at Congressional Control of the Executive, 63 Calif.L.Rev. 983, 1042-1043 (1975).
10. U.S.Const., Art. I, § 6, Cl. 2, provides in part:
[N]o Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.
See 1 M. Farrand, The Records of the Federal Convention of 1787, pp. 379-382 (1911) (hereafter Farrand); 2 Farrand 483.
11. 1 Farrand 20.
12. Id. at 210-211, 217, 219, 221, 222, 370, 375-377, 379-382, 383, 384, 419, 429, 435; 2 Farrand 180.
13. Id. at 487. As ratified, the Ineligibility Clause provides:
No Senator or Representative shall, during the time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time. . . .
U.S.Const., Art. I, § 6, Cl. 2.
14. Farrand 116, 120, 224, 233; 2 Farrand 37-38, 41-44, 71-72, 116, 138.
15. 1 Farrand 63, 67.
16. Id. at 21-22.
17. Id. at 224, 233.
18. 2 Farrand 183, 383, 394.
19. Id. at 533
20. Id. at 627.
21. C. Warren, The Making of the Constitution 641-642 (1947).
22. § 437d(a)(9).
23. § 437c(b).
24. Section 437g(a)(7) provides:
Whenever in the judgment of the Commission, after affording due notice and an opportunity for a hearing, any person has engaged or is about to engage in any acts or practices which constitute or will constitute a violation of any [relevant] provision . . . upon request by the Commission the Attorney General on behalf of the United States shall institute a civil action for relief. . . .
(Emphasis supplied.) The FEC argues that
"there is no showing in this case of a convincing legislative history that would enable us to conclude that ‘shall' was intended to be the ‘language of command.'"
FEC Brief 62 n. 52, quoting 171 U.S.App.D.C. 172, 244 n.191, 519 F.2d 821, 893 n.191 (1975). The contention is that the FEC's enforcement power is not exclusive, because the Attorney General retains the traditional discretion to decline to institute legal proceedings. However this may be, the FEC's civil enforcement responsibilities are substantial. Moreover it is authorized under 26 U.S.C. §§ 9010 9040 (1970 ed., Supp. IV), to appear in and to defend actions brought in the Court of Appeals for the District of Columbia Circuit under §§ 9011, 9041, to review the FEC's actions under Chapters 95 and 96 of Title 26, and to appear in district court to seek recovery of amounts repayable to the Treasury under §§ 9007, 9008, 9038.
25. Although the FEC resists appellants' attack on its position that it has "no general substantive rulemaking authority with regard to Title 18 spending and contribution limitations" (FEC Brief 49), it agrees "that there is inevitably some interplay between Title 2 and Title 18." (Id. at 55.) It seeks to minimize the importance of the interplay by noting that its definitions of what is to be disclosed and reported would not be binding in judicial proceedings to determine whether substantive provisions of the Act had been violated, but would simply be extended a measure of deference as administrative interpretations. Appellants' reply is the practical one that, whether the FEC's power is substantive or not, persons violating its regulations do so at their peril. To illustrate the extent to which the FEC's regulations implicate the provisions of Title 18, appellants point to the FEC's interim guidelines for the New Hampshire and Tennessee special elections, 4 Fed.Reg. 40668, 43660 (1975), and its regulations, rejected by the Senate, providing that funds contributed to and expended from the "office accounts" of Members of Congress were contributions or expenditures "subject to the limitations of 18 U.S.C. §§ 608 610, 611, 613, 614 and 615." See notice of proposed rulemaking, id. at 32951. Unless the FEC's regulations are to be given no weight in criminal proceedings, it seems plain that, through those regulations, the FEC will have a significant role in the implementation and enforcement of criminal statutes.
26. The FEC itself cannot fashion coercive relief by, for example, issuing cease and desist orders. To obtain such relief, it must apply to the courts itself or through the Attorney General.
27. The same preconditions are imposed with respect to regulations issued under the public financing provisions of the election laws. 26 U.S.C. §§ 9009 and 9039 (1970 ed., Supp. IV). No such requirement appears to exist with respect to the FEC's power to make "policy" with respect to the enforcement of the criminal provisions in Title 18 or with respect to any power it may have to issue rules and regulations dealing with the civil enforcement of those provisions. See also § 439a.
28. Section 438(c)(4) defines "legislative day." See also 26 U.S.C. §§ 9009(c)(3), 9039(c)(3) (1970 ed., Supp. IV).
29. U.S.Const., Art. I, § 7, cl. 3.
30. Surely the challengers to the provision for congressional disapproval do not mean to suggest that the FEC's regulations must become effective despite the disapproval of one House or the other. Disapproval nullifies the suggested regulation and prevents the occurrence of any change in the law. The regulation is void. Nothing remains on which the veto power could operate. It is as though a bill passed in one House and failed in another.
31. The Federalist No. 3, pp. 46469 (Wright ed.1961).