452

Plaintiffs, of course, are free to pursue whatever remedy they now deem appropriate, but the Court cannot, consistent with law and the constitutional principles that reserve to Congress the conferral of jurisdiction, validate the present course.

OCTOBER 17, 1973.

JOHN J. SIRICA,

Chief Judge.

EXHIBIT 9

(Excerpts from Opinion of the United States Supreme Court in Buckley v. Valeo (January 30, 1976))

(Part IV of per curiam opinion of United States Supreme Court in which Brennan, Stewart, Powell, Marshall, Blackmun, and Rehnquist join follows. Chief Justice Burger joined in Part IV "except insofar as it accords de facto validity for past acts of the Commission." Justice White's opinion concurring in part and dissenting in part appears following the Court's per curiam opinion.)

IV. THE FEDERAL ELECTION COMMISSION

The 1974 Amendments to the Act created an eightmember Federal Election Commission, and vest in it primary and substantial responsibility for administering and enforcing the Act. The question that we address in this portion of the opinion is whether, in view of the manner in which a majority of its members are appointed, the Commission may under the Constitution exercise the powers conferred upon it. We find it unnecessary to parse the complex statutory provisions in order to sketch the full sweep of the Commission's authority. It will suffice for present purposes to describe what appear to be representative examples of its various powers.

Chapter 14 of Title 2148 makes the Commission the principal repository of the numerous reports and statements which are required by that Chapter to be filed by those engaging in the regulated political activities. Its duties under § 438 (a) with respect to these reports and statements include filing and indexing, making them available for public inspection, preservation, and auditing and field investigations. It is directed to "serve as a national clearinghouse for information in respect to the administration of elections." § 438 (b).

148 Unless otherwise indicated, all statutory citations in Part IV are to Title 2 of the United States Code, the relevant provisions of which are set forth in the Appendix, infra, at 138–173.

Beyond these recordkeeping, disclosure, and invesugative functions, however, the Commission is given extensive rulemaking and adjudicative powers. Its duty under § 438 (a) (10) is "[u]o prescribe rules and regulations to carry out the provisions of . . . chapter [14]." Under § 437 (a) (8) the Commission is empowered to make such rules "as are necessary to carry out the provisions of this Act." 149 Section 437d (a) (9) authorizes it to "formulate general policy with respect to the administration of this Act" and enumerated sections of Title 18's criminal code, 150 as to all of which provisions the Commission "has primary jurisdiction with respect to [their] civil enforcement." § 427c (b).151 The Commission is authorized under § 437f (a) to render advisory opinions with respect to activities possibly violating the Act, the Title 18 sections, or the campaign funding provisions of Title 26,152 the effect of which is that "[n]otwithstanding any other provision of law, any person with respect to whom an advisory opinion is rendered . . . who

149 In administering Chapters 95 and 95 of Title 26, which provide for funding of Presidential election and primary campaigns, respectively, the Commission is empowered, inter alia, "to prescribe such rules and regulations . . . as it deems necessary to carry out the functions and duties imposed on it" by each Chapter. 26 U. S. C. § 9009 (b). See also 26 U. S. C. § 9039 (b).

150 The sections from Title 18, incorporated by reference into several of the provisions relating to the Commission's powers, were either enacted or amended by the 1971 Act or the 1974 Amendments. They are codified at 18 U. S. C. §§ 608, 610, 611, 613, 614, 615, 616, and S17 (hereinafter referred to as Title 18 sections).

151 Section 437c (b) also provides, somewhat redundantly, that the Commission "shall administer, seek to obtain compliance with, and formulate policy with respect to this Act" and the Title 18 sections.

152 The Commission is charged with the duty under each Act to receive and pass upon requests by eligible candidates for campaign money and certify them to the Secretary of the Treasury for the latter's disbursement from the Fund. See 26 U. S. C. §§ 9003-9007, 9033-9038.

acts in good faith in accordance with the provisions and findings [thereof] shall be presumed to be in compliance with the [statutory provision] with respect to which such advisory opinion is rendered." § 437f (b). In the course of administering the provisions for Presidential campaign financing, the Commission may authorize convention expenditures which exceed the statutory limits. 26 U. S. C. § 9008 (d) (3).

The Commission's enforcement power is both direct and wide-ranging. It may institute a civil action for (i) injunctive or other relief against "any acts or practices which constitute or will constitute a violation of this Act," § 437g (a)(5); (ii) declaratory or injunctive relief "as may be appropriate to implement or contrue [sic] any provision" of Chapter 95 of Title 26, governing administration of funds for Presidential election campaigns and national party conventions, 26 U. S. C. § 9011 (b) (1); and (iii) “such injunctive relief as is appropriate to implement any provision" of Chapter 96 of Title 26, governing the payment of matching funds for Presidential primary campaigns, 26 U. S. C. § 9040 (c). If after the Commission's post-disbursement audit of candidates receiving payments under Chapter 95 or 96 it finds an overpayment, it is empowered to seek repayment of all funds due the Secretary of the Treasury. 26 U. S. C. §§ 9010 (b), 9040 (b). In no respect do the foregoing civil actions require the concurrence of or participation by the Attorney General; conversely, the decision not to seek judicial relief in the above respects would appear to rest solely with the Commission.153 With respect to the

153 This conclusion seems to follow from the manner in which the subsections of § 437g interrelate. Any person may file, and the Clerk of the House or the Secretary of the Senate shall refer, believed or apparent civil or criminal violations to the Commission. Upon receipt of a complaint or referral, as the case may be, the

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referenced Title 18 sections, § 437g (a) (7) provides that if, after notice and opportunity for a hearing before it, the Commission finds an actual or threatened criminal violation, the Attorney General "upon request by the Commission shall institute a civil action for relief." Finally, as "Additional enforcement authority," § 456 (a) authorizes the Commission, after notice and opportunity for hearing, to make "a finding that a person who, while a candidate for Federal office, failed to file" a required report of contributions or expenditures. If that finding is made within the applicable limitations period for prosecutions, the candidate is thereby "disqualified from becoming a candidate in any future election for

Commission is directed to notify the person involved and to report the violation to the Attorney General or to make an investigation. § 437g (a)(2). The Commission shall conduct a hearing at that person's request. § 437g (a) (4). If after its investigation the Commission "determines that there is reason to believe" that a "violation of this Act," i. e., a civil violation, has occurred or is about to occur, it "may endeavor to correct such violation by informal methods," failing which, the Commission "may institute a civil action for relief." § 437g (a) (5). Finally, paragraph (6) provides as follows:

"The Commission shall refer apparent violations to the appropriate law enforcement authorities to the extent that violations of provisions of chapter 29 of Title 18, United States Code, are involved, or if the Commission is unable to correct apparent violations of this Act under the authority given it by paragraph (5), or if the Commission determines that any such referral is appropriate." § 437g (a) (6) (emphasis added).

While it is clear that the Commission has a duty to refer apparent criminal violations either upon their initial receipt or after an investigation, it would appear at the very least that the Commission, which has "primary jurisdiction" with respect to civil enforcement, § 437c (b), has the sole discretionary power "to determine" whether or not a civil violation has occurred or is about to occur, and consequently whether or not informal or judicial remedies will be pursued.