Buckley v. Valeo

MacKINNON, Circuit Judge

(concurring in part and dissenting in part):

I concur generally in the court’s responses to the first seven and the ninth certified constitutional questions. Plaintiffs clearly have made sufficient assertions of interests which are affected by the election statutes under review to give them standing, and the impact on their interests is sufficiently immediate to make most of the issues raised ripe for review. The reporting and disclosure requirements and the limitations on contributions and expenditures are valid exercises of Congress’ power to regulate federal elections. United States v. Classic, 313 U.S. 299 , 61 S.Ct. 1031 , 85 L.Ed. 1368 (1941); Burroughs & Cannon v. United States, 290 U.S. 534 , 54 S.Ct. 287 , 78 L.Ed. 484 (1934). While the $1000 limits on individual contributions and independent expenditures may be low, this is a matter best left to determination by Congress, and the limits it chose cannot be said to be arbitrary or unreasonable.The public financing provisions are within the congressional authority to make expenditures for the “general Welfare of the United States” under Article I, section 8, of the Constitution. While plaintiffs have raised serious questions concerning the impact of these election laws on their first amendment interests, I do not believe that there is any grounds for this court to overturn on a wholesale basis the congressional determinations embodied in the substantive provisions of the Act.

I

I do question the constitutionality of section 437a which requires that:

Any person (other than an individual) who expends any funds or commits any act directed to the public for the purpose of influencing the outcome of an election, or who publishes or broadcasts to the public any material referring to a candidate (by name, description, or other reference) advocating the election or defeat of such candidate, setting forth the candidate’s position on any public issue, his voting record, or other official acts (in the case of a candidate who holds or has held Federal office), or otherwise designed to influence individuals to cast their votes for or against such candidates or to withhold their votes from such candidates shall file reports with the Commission as if such person were a political committee. The reports filed by such person shall set forth the source of the funds used in carrying out any activity described in the preceding sentence in the same detail as if the funds were contributions within the meaning of section 431(e) of this title, and payments of such funds in the same detail as if they were expenditures within the meaning of section 431(f) of this title. The provisions of this section do riot apply to any publication or broadcast of the United States Government or to any news story, commentary, or editorial .distributed through the facilities of a broadcasting station or a bona fide newspaper, magazine, or other periodical publication. A news story, commentary, or editorial is not considered to be distributed through a bona fide newspaper, magazine, or other periodical publication if—

(1) such publication is primarily for distribution to individuals affiliated by membership or stock ownership with the person (other than an individual) distributing it or causing it to be distributed, and not primarily for purchase by the public at newsstands or by paid subscription; or

(2) the news story, commentary, or editorial is distributed by a per *274 son (other than an individual) who devotes a substantial part of his activities to attempting to influence the outcome of elections, or to influence public opinion with respect to matters of national or State policy or concern.

At first glance, this section appears to be a substantial duplication of section 434(e) which requires reports by every person who makes contributions or expenditures (other than to a political committee or a candidate) in excess of $100. There seems to be only two possible reasons for the enactment of section 437a: (1) to force certain persons who expend less than $100 to file reports; or (2) to require the reporting of certain fund outlays which are excluded from the definition of “expenditure” in section 431(f)(4). As the former situation is certainly too trivial to have merited this much congressional attention, only the latter appears to be the real basis for section 437a. Thus the issue is whether Congress has any legitimate interest in requiring disclosure by persons who are not required to report “expenditures” under section 434(e).

The conclusion seems inescapable that section 437a is directed to disclosure of exactly the type of activities carried on by plaintiffs New York Civil Liberties Union and the American Conservative Union, among others. See Remarks of Congressmen Hays and Frenzel, 120 Cong. Rec. H 10327, 10332-33 (Daily ed. Oct. 10, 1974) which specifically disavow earlier statements by Senate sponsors that tended to limit the reach of this section. A restrictive construction of the statute might have certain attractions, but it is simply not supported by the specific language or the legislative history. Since section 437a is explicitly directed to compelling disclosure of activities protected by the First Amendment, ACLU v. Jennings, 366 F.Supp. 1041 (D.D.C.1973) (three-judge court), prob. juris, noted sub rom. Staats v. ACLU, 417 U.S. 944 , 94 S.Ct. 3066 , 41 L.Ed. 2d 664 (1974), vacated as moot, 422 U.S. 1030 , 95 S.Ct. 2646 , 45 L.Ed.2d 686 (1975), in my view this section is unconstitutional. Section 434(e) is by itself sufficient to assure the disclosure of those expenditures which Congress has a legitimate interest in regulating. If in fact what prompted Congress to enact section 437a was a concern that “nonbona fide” publications would appear pri- or to elections and claim to be exempt from reporting due to the definition of “expenditure,” that concern can be allayed simply by construing section 431(f)(4)(A) as referring only to legitimate “publications.”

II

I do not join in the court’s responses to the issues presented by Question 8 and its subparts. After considering the composition of and the powers vested in the Federal Election Commission, it is my conclusion that as its membership is presently constituted, it violates the separation of powers of the three branches of government as prescribed by the Constitution.

As a threshold matter, it is necessary to determine whether the challenges to the composition and powers of the Election Commission are appropriate for judicial review at this time and in this particular action. With respect to 2 U.S.C. § 456 , which temporarily disqualifies from candidacy for federal office any person who is found by the Commission to have failed to file a required report, Question 8(e) relating to its validity might best be left to challenge in a concrete case brought by someone who has been subjected to disqualification. However, I believe that the remaining challenges are presently ripe for review.

Plaintiffs assert that they are now pursuing or are about to engage in various political activities which will fall within the provisions of the Act and could possibly' result in violations. The Commission’s deep involvement in the regulation of political activities is shown by section 437c(b) which provides:

The Commission shall administer, seek to obtain compliance with, and formulate policy with respect to this Act and sections 608, 610, 611, 613, *275 614, 615, 616, and 617 of Title 18, United States Code. The Commission has primary jurisdiction with respect to the civil enforcement of such provisions.

In addition, section 437d confers broad investigative and subpoena powers on the Commission, and section 437f authorizes it to issue advisory opinions with respect to potential violations. In light of the deep and pervasive involvement of the Commission in the present and anticipated political affairs of the plaintiffs, I would hold that Questions 8(a), 8(b) and 8(d) are ripe for review.

Furthermore, I do not believe that the Commission’s enforcement powers are sufficiently separate from its other duties that review of them should be postponed. Under section 437g(a)(5), the Commission is empowered to commence civil enforcement proceedings whenever it determines “that there is reason to believe that any person has engaged, or is about to engage in any acts or practices which constitute or will constitute a violation of this Act . . . .” (Emphasis added.) This power to anticipate violations and seek injunctions against persons suspected of planning activity which may be unlawful certainly gives the enforcement role of the Commission a much more immediate impact on plaintiffs’ affairs than does the normal statutory enforcement procedure which is brought into play only after a violation has occurred (as is the ease with disqualification under section 456). In light of the “inhibitory effect” which these enforcement powers can have on plaintiffs’ political activities, I would hold that Question 8(c) is also ripe for review at this time.

I find the Commission’s argument that only the President has standing to contest an encroachment on executive powers unconvincing. The plaintiffs have a sufficient interest in having their political affairs regulated by a validly constituted commission to maintain this action.

In an attempt to avoid immediate review, the Commission and the Attorney General argue that all civil enforcement matters might be turned over to the Attorney General under section 437g(a)(7). If this happens, it is asserted, no concrete case will ever arise which presents the issue of whether civil enforcement by the Commission violates the constitutional separation of powers. However, section 437g(a)(7) provides that “upon request by the Commission the Attorney General on behalf of the United States shall institute a civil action for relief . .” (Emphasis added.) The use of the mandatory “shall” quite clearly indicates Congress intended that the Attorney General would have no discretion to determine whether to initiate civil enforcement proceedings when he receives a referral from the Commission. Even if the Commission chooses to refer all cases under this section, it still retains effective control of the civil enforcement powers. The fact that the enforcement authority may be exercised through the Attorney General as a passive intermediary should therefore be irrelevant to determining the ripeness of challenges to the Commission’s enforcement powers.

III

Turning to the merits of the various parts of Question 8, the issue before us is whether the Election Commission, as presently appointed, violates the constitutional principle of separation of powers. The Constitution, without explicitly so stating, provides for a separation of the powers of government into legislative, executive and judicial departments. This “object is basic and vital . namely, to preclude a commingling of these essentially different powers of government in the same hands.” O’Donoghue v. United States, 289 U.S. 516 , 530, 53 S.Ct. 740, 743 , 77 L.Ed. 1356 (1933). This method of political organization and operation seeks to safeguard liberty by preventing the concentration of excessive power in any one branch of the government. However, it is not a complete and absolute separation of powers. As Justice Story wrote:

When we speak of a separation of the three great departments of the *276 government, and maintain that that separation is indispensable to public liberty, we are to understand this maxim in a limited sense. It is not meant to affirm that they must be kept wholly and entirely separate and distinct, and have no common link of connection or dependence, the one upon the other, in the slightest degree. The true meaning is, that the whole power of one of these departments should not be exercised by the same hands which possess the whole power of either of the other departments; and that such exercise of the whole would subvert the principles of a free constitution. This has been shown with great clearness and accuracy by the author of the Federalist. It was obviously the view taken of the subject by Montesquieu and Blackstone in their commentaries; for they were each speaking with approbation of a constitution of government which embraced this division of powers in a general view; but which at the same time established an occasional mixture of each with the others, and a mutual dependency of each upon the others. The slightest examination of the British Constitution will at once convince us that the legislative, executive and judiciary departments are by no means totally distinct and separate from each other.

Story, Commentaries on the Constitution § 525, quoted in 1 Sutherland, Statutory Construction § 3.03 (4th ed. Sands 1972). In more recent times, the general view as to the separation of powers was expressed by Chief Justice Taft as follows:

The Federal Constitution and State Constitutions of this country divide the governmental power into three branches. . . . [T]he rule is . in carrying out that constitutional division into three branches it is a breach of the National fundamental law if Congress gives up its legislative power and transfers it to the President, or to the Judicial branch, or if by law it attempts to invest itself or its members with either executive power or judicial power. This is not to say that the three branches are not co-ordinate parts of one government and that each in the field of its duties may not invoke the action of the two other branches in so far as the action invoked shall not be an assumption of the constitutional field of action of another branch. In determining what it may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the governmental co-ordination.

J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 406 , 48 S.Ct. 348 , 72 L.Ed. 624 (1928). Under this interpretation, one department may exercise some powers belonging to other departments when essential to the exercise of its primary functions and when it does not amount to an assumption of the whole power of another department. See Sutherland, supra, at § 3.06.

The degree to which the powers must be kept separate or may overlap depends in the final analysis upon applicable constitutional provisions. In this case, we are concerned with determining whether Congress has overstepped the limitations imposed by the Constitution in setting up the Election Commission. Those who defend the Commission and the powers vested in it by the statute contend that it is a branch of the legislature and that Congress is authorized to establish a body which is in many respects responsible to Congress, or to the separate houses of Congress, because the Constitution gives Congress certain powers with respect to elections.

The Commission refers to several provisions of the Constitution as relevant to the congressional power over federal elections. Article I, section 5, provides:

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members

The Twelfth Amendment provides that the certificates of the votes of the electoral college shall be transmitted to the President of the Senate who “shall, in *277 the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.” If no person receives a majority, the House chooses the President by ballot. The powers conferred by these provisions are quite limited insofar as the present case is concerned since they focus on the results of elections rather than on their conduct.

The congressional power over the conduct of elections to Congress is directly specified in Article I, section 4, which provides:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Place of chusing Senators.

Although the Constitution gives the states authority over the manner of appointing electors in presidential elections, see Article II, section 1, Burroughs & Cannon v. United States, 290 U.S. 534 , 54 S.Ct. 287 , 78 L.Ed. 484 (1934), holds that the congressional power to protect the sanctity of elections extends to the selection of presidential electors. 1 Finally, a general grant of power may be inferred from the “necessary' and proper” clause of Ajrticle I, section 8:

The Congress shall have Power

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

To the extent that the statutes under review regulate and supervise the conduct of federal elections, Congress is within its power in so legislating. However, the method chosen by Congress to accomplish this regulation (i. e. creation of the Federal Election Commission) raises substantial questions as to whether it has appropriated to itself functions constitutionally entrusted to the executive and judicial branches.

Balanced against the congressional powers with respect to elections are other provisions of the Constitution which allocate functions to the executive branch. Article II, section 1, provides:

The executive Power shall be vested in a President of the United States of America.

By way of elaborating upon the intent as to a portion of the power conferred by this provision, section 3 provides that the President “shall take Care that the Laws be faithfully executed . . . .” Thus the Constitution clearly places the responsibility for executing the laws in the executive branch rather than in Congress. Article III similarly vests the judicial power in the Courts of the United States:

The judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

The Constitution is also specific with respect to the method of appointing federal officers. Article II, section 2, provides that the President

*278 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.

The specific provisions of the statute in question must be evaluated against this constitutional framework.

IV

Section 437c(a)(l) establishes the Federal Election Commission which

is composed of the Secretary of the Senate and the Clerk of the House of Representatives, ex officio and without the right to vote, and 6 [six] members appointed as follows:

(A) 2 [two] shall be appointed, with the confirmation of a majority of both Houses of the Congress, by the President pro tempore of the Senate upon the recommendations of the majority leader of the Senate and the minority leader of the Senate;

(B) 2 [two] shall be appointed, with the confirmation of a majority of both Houses of the Congress, by the Speaker of the House of Representatives, upon the recommendations of the majority leader of the House and the minority leader of the House; and

(C) 2 [two] shall be appointed, with the confirmation of a majority of both Houses of the Congress, by the President of the United States.

The method of appointment of this Commission clearly violates Article II, section 2, in that four members are nominated by congressional officers rather than the President and the two members who are Presidential appointees are subject to confirmation by “a majority of both Houses of the Congress” rather than “by and with the Advice and Consent of the Senate.”

It is argued that the inherent right of both Houses of Congress to appoint their own officers, such as clerks, doorkeepers and other housekeeping personnel, is precedent to justify their appointing the members of this Commission in the manner specified. This comparison is somewhat inapposite since the powers and duties of the Commission are quite different from those related to the day-today internal functioning of Congress, over which it unquestionably has complete control.

It is also contended that precedent for the appointment of this Commission in the manner prescribed exists in the act creating the General Accounting Office with a Comptroller General of the United States at its head, accountable in some respects to Congress and subject to impeachment and removal by Congress. 31 U.S.C. § 41 et seq., ( 42 Stat. 23 , June 10, 1921). However, that act provides that the “Comptroller General of the United States and an Assistant Comptroller General of the United States . shall be appointed by the President with the advice and consent of the Senate.” 31 U.S.C. § 42 , 42 Stat. 23 , c. 18, Title III, § 302, June 10, 1921. Thus the Comptroller General is no precedent for the unique methods chosen for appointing the Election Commission. 2

*279 This is not to say that Congress has no role to play in the appointment of officials to regulate federal elections. Under the 1971 Act, the Secretary of the Senate and the Clerk of the House of Representatives, both legislative officers not appointed under Article II, section 2, were assigned certain duties in connection with the reporting of campaign finances. To the extent that the Commission is performing a similar legislative function, it should not be necessary that its members be appointed in conformity with Article II, section 2. 3 Thus we must determine if the powers vested in the Commission exceed the limits of the powers which may be exercised by the legislative branch under the Constitution. 4 To properly answer this question requires an analysis of the specific provisions of the statute and a determination as to whether any of the powers so granted separately or in the aggregate trespass impermissibly into the executive or judicial fields.

V

The powers of the Election Commission with respect to reporting of contributions and expenditures are specified in section 437d. To the extent that the Commission is empowered to require that candidates for election make reports concerning their financing, to require contributors and political committees to disclose their contributions and expenditures, and to gather and compile this data, the validity of conferring such powers on an appropriate legislative commission is not subject to serious question. Similarly, the power to develop reporting forms and the powers associated with conducting legislative investigations into the implementation of the statute would appear to be proper adjuncts to the congressional power over federal elections. In these areas, the Commission is performing functions analogous to those entrusted to the General Accounting Office. However, the Act confers other duties and responsibilities on the Commission which are not solely related to constitutional powers conferred upon Congress.

Congress has made numerous attempts to vest the Commission with authority to enforce both the reporting and disclosure provisions and the sections of the Criminal Code which limit contributions and expenditures. Section 437d(a)(6) empowers the Commission

to initiate (through civil proceedings for injunctive, declaratory, or other appropriate relief), defend, or appeal any civil action in the name of the Commission for the purpose of enforcing the provisions of this Act, through its general counsel;

(Emphasis added.) Section 437c(b) is even more specific regarding the Commission’s enforcement authority:

The Commission shall administer, seek to obtain compliance with, and formulate policy with respect to this Act and sections 608, 610, 611, 613, 614, 615, 616, and 617 of Title 18, United States Code. The Commission has primary jurisdiction with respect to the civil enforcement of such provisions.

These two provisions must be read together. The power to “administer, seek *280 to obtain compliance with, and formulate policy,” especially with respect to the enumerated sections of the Criminal Code, trespasses directly into the powers conferred by the Constitution upon the executive branch. The same is true of the attempt to give the Commission “primary jurisdiction” to initiate, defend or appeal actions for civil enforcement of the statute. A legislative agency formulating policy on an ad hoc basis with respect to the criminal law and enforcing provisions of the criminal law through civil proceedings would be more than a novel development in American law — it would be an unheard of merger of legislative and prosecutorial powers, which is the precise evil the separation of powers was designed to avoid. The grant of authority to compel compliance with the reporting and disclosure sections similarly intrudes directly into executive functions. The Constitution explicitly allocates to the executive branch the duty to “take care that the laws be faithfully executed.” Since the earliest days, the enforcement of the laws in general and the criminal laws in particular has been a primary responsibility of the Executive Department acting through its Attorney General. 5 Whether laws are enforced by civil or criminal action, a delegation of the enforcement power to a legislative agency amounts to an infringement on the power vested in the executive.

Section 437d(a)(9) authorizes the Commission

to formulate general policy with respect to the administration of this Act and sections 608, 610, 611,. 613, 614, 615, 616, and 617 of Title 18 [United States Code].

It is not at all clear what is meant by the formulation of “general policy” with respect to the administration of a statute, and especially as related to the administration of the . criminal provisions. However, insofar as this section authorizes the formulation of policies relating to enforcement of the statute, it clearly constitutes a further infringement of powers vested in the executive branch. 6

Section 437d(a)(ll) empowers the Commission

to conduct investigations and hearings expeditiously, to encourage voluntary compliance, and to report apparent violations to the appropriate law enforcement authorities.

While investigations and hearings in connection with legislation are certainly proper functions for a congressional organ, an investigation as a preliminary to civil or criminal enforcement of the criminal laws relating to federal elections is not normally a legislative act. Congress’ power to investigate “is justified solely as an adjunct to the legislative [power].” Watkins v. United States, 354 U.S. 178, 197 , 77 S.Ct. 1173, 1184 , 1 L.Ed.2d 1273 (1957). Thus to the extent that the Act seeks to confer power to investigate preliminary. to civil or criminal enforcement of the criminal laws, the broad power to conduct such investigations vested in the Commission exceeds the scope of Congress’ constitutional powers over elections. An exception *281 to this would be those relatively rare instances where an investigation relates to a contested election which is to be decided'by either or both Houses.

Section 437g, entitled “Enforcement,” spells out the details of the Commission’s power to enforce the election laws and is perhaps the most extensive intrusion on executive powers. It provides that any person who believes a violation of the reporting and disclosure laws or of the designated criminal statutes has occurred may file a complaint with the Commission. The Commission then has the option of reporting the matter to the Attorney General or making its own investigation. Commission investigations are kept secret unless the object of the investigation consents in writing to disclosure (section 437g(a)(3)). After a hearing is held and the Commission determines there is reason to believe a present or potential violation of the reporting statutes exists, section 437g(a)(5) gives it the following enforcement options:

[I]t may endeavor to correct such violation by informal methods of conference, conciliation, and persuasion. If the Commission fails to correct the violation through informal methods, it may institute a civil action for relief, including a permanent or temporary injunction, restraining order, or any other appropriate order in the district court of the United States for the district in which the person against whom such action is brought is found, resides, or transacts business. Upon a proper showing that such person has engaged or is about to engage in such acts or practices, the court shall grant a permanent or temporary injunction, restraining order, or other order.

If it discovers violations of the criminal statutes, or if it is unable to correct other violations under paragraph (5), section 437g(a)(6) states that the Commission “shall refer apparent violations to the appropriate law enforcement authorities.

This statutory scheme infringes upon the constitutional functions of coordinate branches of government m two ways. As previously discussed, the responsibility for enforcing the laws is an executive function. Empowering an organ of the legislative branch to perform such duties, whether done through civil or criminal action, clearly infringes upon the specific powers conferred by the Constitution on the executive branch. Second, with respect to the Commission’s investigation of potential criminal violations, it has been empowered to act in the manner of a grand jury, including the use of broad subpoena and investigative powers and secret proceedings. While it does not hand down formal indictments, a congressional unit, absent an election contest, is not performing a constitutional congressional function when it engages in the business of gathering evidence through preliminary investigations and formally recommending prosecution of criminal offenses. See 171 U.S.App.D.C. p. 280, 519 F.2d p. 929, supra.

One of the most serious intrusions on the powers of the executive branch is section 437g(a)(7) which provides in mandatory language that the Attorney General “shall” institute civil actions upon request of the Commission:

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 provision of this Act or of section 608, 610, 611, 613, 614, 615, 616, or 617 of Title 18 [United States Code], upon request by the Commission the Attorney General on behalf of the United States shall institute a civil action for relief, including a permanent or temporary injunction, restraining order, or any other appropriate order in the district court of the United States for the district in which the person is found, resides, or transacts business. Upon a proper showing that such person has engaged or is about to engage in such acts or practices, a permanent or temporary injunction, re *282 straining order, or other order shall be granted without bond by such court.

(Emphasis added.) The suggestion made at oral argument that “shall” really means “may” is simply not consistent with the explicit language or congressional intent as indicated by the tone of the entire Act. Congress quite clearly intended to deprive the Attorney General of his normal discretion in bringing actions to enforce the laws and reduce him to a mere functionary acting under the control of the Commission. This immediate congressional supervision and control of the exercise of powers constitutionally committed to the executive branch certainly contravenes the constitutional separation of powers. 7

Under section 437f, the Commission is required to render advisory opinions

with respect to whether any specific transaction or activity by such individual, candidate, or political committee would constitute a violation of this Act, of chapter 95 or chapter 96 of Title 26 [of the U.S.Code], or of section 608, 610, 611, 613, 614, 615, 616, or 617 of Title 18 [United States Code].

Any person who relies on such opinions is presumed to be in compliance with the election laws:

(b) Notwithstanding any other provision of law, any person with respect to whom an advisory opinion is rendered under subsection (a) who acts in good faith in accordance with the provisions and findings of such advisory opinion shall be presumed to be in compliance with the provision of this Act, of chapter 95 or chapter 96 of Title 26 [of the U.S.Code], or of section 608, 610, 611, 613, 614, 615, 616, or 617 of Title 18 [United States Code], with respect to which such advisory opinion is rendered.

2 U.S.C. § 437f(b). Thus the decisions of the Commission will effectively override the decisions of Government prosecutors interpreting the criminal statutes. While advisory opinions by a properly constituted agency would be highly desirable in light of the complexity of the statute, giving such status to advisory opinions issued by a congressional commission is, in my opinion, another impermissible intrusion into the constitutionally conferred powers and duties of the executive branch, i. e. to execute the laws.

The majority opinion cites a portion of the House Report on section 437f(b) which states that “the bill provides for a presumption of compliance; this presumption would be rebuttable, and, therefore, legal action would not be foreclosed.” H.Rep. 93-1239, 93d Cong., 2d Sess. 9 (1974). The purpose of section 437f(b) is quite clearly to prevent the Government from obtaining the conviction of someone who can prove he has acted “in good faith and in accordance with the provisions of such advisory opinion’’ by arguing that the advisory opinion is not a proper interpretation of the statute. Assuming that the statute is to be construed as providing for only a “rebuttable” presumption of compliance with the statute, however, the Government would “rebut” the presumption by showing that the accused’s actions were in fact not “in compliance with” the statute he is accused of violating. 8 But

*283 this is exactly the showing the Government must make to establish its case against the accused in the absence of any presumption. Thus, unless the presumption of compliance with the Act is a conclusive presumption, arising once the accused establishes his good faith compliance with the advisory opinion, section 437f(b) is simply a nullity. Despite the language in the legislative history, I do not believe this court can so easily assume that the full Congress intended to pass meaningless legislation.

I also believe section 438(c) is invalid. That section prohibits the Commission from issuing rules and regulations without first submitting the proposed language to the affected house, or to both houses in the case of rules applying to presidential candidates, and affording an opportunity for the exercise of a “congressional veto.” This provision, applying as it does to the broad policy-making functions of the Commission, implicates Congress itself as well as the Commission in the exercise of those powers discussed above which violate the separation of powers. In addition, to the extent that the regulations may be substantive, as opposed to procedural or mere housekeeping matters, the exercise of a legislative veto by either or both houses arguably violates Article I, section 4, to the extent that it requires congressional regulation of elections to be accomplished “by Law.”

Finally, section 456, entitled “Additional enforcement authority,” provides:

(a) In any case in which the Commission, after notice and opportunity for a hearing on the record in accordance with section 554 of title 5, United States Code, makes a finding that a person who, while a candidate for Federal office, failed to file a report required by title III of this Act, and such finding is made before the expiration of the time within which the failure to file such report may be prosecuted as a violation of such title III, such person shall be disqualified from becoming a candidate in any future election for Federal office for a period of time beginning on the date of such finding and ending one year after the expiration of the term of the Federal office for which such person was a candidate.

(b) Any finding by the Commission under subsection (a) shall be subject to judicial review in accordance with the provisions of chapter 7 of title 5, United States Code.

While this section may not be ripe for review until someone is actually disqualified and appeals, I have no doubt that it must be ultimately held that the disqualification of a candidate from future elections by a legislatively-appointed body like the Commission is improper. Such action, based upon a finding of the Commission that the candidate failed to file a required report, constitutes in effect a trial and the (automatic) imposition of sentence. This is judicial action with a vengeance and infringes upon the judicial power vested in the courts by Article III, section l. 9

*284 In light of the various provisions of the statute discussed above, it is my conclusion that the Election Commission has been vested by the statute with duties which under the Constitution are not solely or primarily conferred on the Congress. Nor can it be said that these are powers necessarily exercised by the legislative branch in order to assure the proper performance of its role with respect to federal elections. There has been no showing that vesting the Commission with these broad rule-making, interpretive, policy making, investigatory and enforcement powers is essential to the accomplishment of constitutional congressional objectives. Finally, this intrusion into the powers of the executive and judiciary can in no way be described as minimal. I therefore must conclude that the powers vested in the Election Commission, when considered in light of the manner provided by the statute for the appointment of its members, impermissibly infringes upon the powers constitutionally allocated to other branches of government, and thus the Act violates the separation of powers required by the Constitution. See Springer v. Government of the Philippine Islands, 277 U.S. 189 , 48 S.Ct. 480 , 72 L.Ed. 845 (1928).

The majority describes the Commission’s powers as “quasi-executive” or “quasi-judicial.” It should be apparent from the foregoing discussion, however, that many of these powers are in fact “executive” or “judicial.” The majority itself acknowledges that “some of the provisions — for example, those conferring civil enforcement and candidate disqualification powers on the Commission — raise very serious constitutional questions.” 171 U.S.App.D.C. at 243, 519 F.2d at 892. I agree wholeheartedly. In political campaigning, even the suggestion of wrongdoing can prove fatal, and this is especially so when thq accusation is made by an official organ of the Government. Under such circumstances, I cannot agree with the majority that consideration of “serious constitutional questions” which challenge the Commission’s power to even begin to perform various activities should be postponed until these actions are actually taken, at which point a substantial portion of the harm is likely to have already occurred.

VI

The obvious solution to this problem would be for Congress to amend the statute to provide that all members of the Commission shall be appointed in conformity with Article II, section 2. Both the Commission and the Intervening Defendants argue that this procedure would be inconsistent with the purposes of the Act since the members of the Commission would then be obligated to a President who is also the head of his party and who himself may be a candidate for reelection. By the same token, members of Congress are also members of parties and candidates for reelection. However, it is the Constitution that provides the answer to this argument by its requirement that officers appointed- by the President under Article II, section 2, be confirmed by the Senate. This provision defines the manner and extent of congressional participation the Framers thought necessary to avoid undue presidential or congressional control over federal officers and preserves the system of checks and balances between the branches of government. In contrast, the present Election Commission is the result of an attempt to evade the constitutional role of the executive as a check on congressional power. Since this court is not empowered to rewrite the statute, however, we are limited to striking down those portions of the Commission’s duties and responsibilities which infringe upon the powers of the executive and judicial branches. 10

*285 As previously indicated, I believe that the powers vested in the Commission, other than its authority to collect and compile reports of contributions and expenditures and its duties incidental thereto, involve the exercise of powers beyond those allocated to the legislative branch by the Constitution. Thus I would answer Questions 8, 8(a) and 8(c) in the affirmative, and Questions 8(b) and 8(d) in the affirmative to the extent the powers involved relate to functions other than the collection of reports. In my opinion, Question 8(e) must also ultimately be answered in the affirmative although it may not presently be ripe for review.

Subject to the exceptions discussed above, I otherwise join in the responses to the certified constitutional questions contained in the court’s order entered today.

. While presidential electors are not officers or agents of the federal government (In re Green, 134 U.S. 377, 379 [ 10 S.Ct. 586 , 33 L.Ed. 951 ]), they exercise federal functions under, and discharge duties in virtue of authority conferred by, the Constitution of the United States. The President is vested with the executive power of the nation. The importance of his election and the vital character of its relationship to and effect upon the welfare and safety of the whole people cannot be too strongly stated. To say that Congress is without power to pass appropriate legislation to safeguard such an election from the improper use of money to influence the result is to deny to the nation in a vital particular the power of self protection. Congress, undoubtedly, possesses that power, as it possesses every other power essential to preserve the departments and institutions of the general government from impairment or destruction, whether threatened by force or by corruption.

290 U.S. at 545 , 54 S.Ct. at 290 .

. It is a misstatement for the majority opinion to assert that the so-called certification and audit functions of the Commission are similar to those exercised by the Comptroller General under 31 U.S.C. § 65 (d). In practice, the General Accounting Office (GAO) does not certify appropriations. That is handled by the Office of Management and Budget, although the GAO does countersign some warrants. Generally the function of the GAO is to conduct a management review as to the efficiency with which appropriations are expended. Thus when the Election Commission acts in this respect, as it is authorized to do ( 26 U.S.C. §§ 9005 , 9007-9), it is acting in the manner that executive departments of the federal government act. Moreover, there is nothing in the instant law to indicate that the normal functions of the GAO do not extend to the operations of the Commission or that Congress was providing for the two bodies to duplicate the same activity.

. The majority begins its analysis of the validity of the Commission’s composition with a discussion of Article II, section 2, designed to show that the legislative branch has power to appoint its own inferior officers to carry out appropriate legislative functions. As I read the instant opinions, no one disagrees with this proposition. My disagreement with the majority arises instead from my conclusion that the powers vested in this Commission are not “appropriate legislative functions.”

. It might be argued that the President’s role in nominating a minority of the members of a body performing functions constitutionally delegated to Congress in connection with regulating federal elections impermissibly involves the executive in the activities of the legislative branch. If this were the case, the unique composition of the Commission could result in its being unable to perform any governmental functions. However, the remainder of this discussion will presume that the Commission is a legislative body and thus may properly be vested with legislative duties.

. See Ponzi v. Fessenden, 258 U.S. 254 , 42 S.Ct. 309 , 66 L.Ed. 607 (1922):

The Attorney General is the head of the Department of Justice. Rev.Stat. § 346. He is the hand of the President in taking care that the laws of the United States in protection of the interests of the United States in legal proceedings and in the prosecution of offenses be faithfully executed. United States v. San Jacinto Tin Co., 125 U.S. 273 [ 8 S.Ct. 850 , 31 L.Ed. 747 ]; In re Neagle, 135 U.S. 1 [ 10 S.Ct. 658 , 34 L.Ed. 55 ]; Kern River Co. v. United States, 257 U.S. 147 , 42 S.Ct. 60 , 66 L.Ed. 175 ; . . .

Id. at 262 , 42 S.Ct. at 311.

. Another broad power exists in section 437d(a)(8) which authorizes the Commission

to make, amend, and repeal such rules, pursuant to the provisions of chapter 5 of Title 5, United States Code, as are necessary to carry out the provisions of this Act;

Obviously the promulgation of rules to implement portions of the Act which infringe upon the separation of powers will simply compound the constitutional violation. While the full import of this section will not be known until the Commission acts to promulgate rules, it has great potential for intrusion on functions not assigned to Congress by the Constitution.

. The congressional desire to regulate the activities of the Attorney General with respect to enforcing the instant statute is also evidenced by section 437g(b) which provides:

(b) In any case in which the Commission refers an apparent violation to the Attorney General, the Attorney General shall respond by report to the Commission with respect to any action taken by the Attorney General regarding such apparent violation. Each report shall be transmitted no later than 60 days after the date the Commission refers any apparent violation, and at the close of every 30-day period thereafter until there is final disposition of such apparent violation. The Commission may from time to time prepare and publish reports on the status of such referrals.

While Congress clearly has power to require that executive officers supply information to the Commission, this section suggests an intent that the Commission is to play a more active role in assuring that the Attorney General enforces the statutes according to the desires of Congress.

. One might argue that by calling the presumption “rebuttable,” the House Report simply means that the Government could over- o *283 come it by showing lack of good faith or failure to comply with the terms of the advisory opinion. If the term has this limited meaning, however, all one need do is postulate a case where the Government is unable to make either showing. In that situation, the presumption comes into play to override any interpretation of the legality of the individual’s con- ' duct by either the Attorney General or the court which would conflict with the Commission’s advisory opinion. It should follow automatically that vesting this power to override the prosecutor’s or the court’s interpretation of the law and the facts in a legislative body is unconstitutional.

. While obviously not a part of the Commission’s enforcement powers, section 441 presents an interesting question of congressional intent:

(a) Any person who violates any of the provisions of this subchapter shall be fined not more than $1,000 or imprisoned not more than 1 year, or both.

(b) In case of any conviction under this subchapter, where the punishment inflicted does not include imprisonment, such conviction shall be deemed a misdemeanor conviction only.

Since the maximum penalties authorized by subsection (a) do not rise to the dignity of a *284 felony, see 18 U.S.C. § 1 , it is hard to understand what the purpose of subsection (b) could be.

. Arguably, since the Commission has been vested with executive powers, the failure to appoint its members in compliance with Article II, section 2, has resulted in those members •failing to meet the “qualification” requirement of section 315(b) of Pub.L. 93-443 :

(b) Until the appointment and qualification of all the members of the Federal Election Commission and its general counsel and until the transfer provided for in this subsection, the Comptroller General, the Secretary *285 of the Senate, and the Clerk of the House of Representatives shall continue to carry out their responsibilities under title I and title III of the Federal Election Campaign Act of 1971 as such titles existed on the day before the date of enactment of this Act.

If so, the clearly legislative functions' would continue to be performed by these three designated officials and the formulation of policy and enforcement of the criminal provisions would be left to the executive branch in the same manner as with all other criminal statutes.