Jurisdictional Statement — Clark v. Valeo

‘ Supreme (gurt, U. S

~.RFILED :

IN THE

Supreme Court of the United States

OCTOBER TERM, 1976

No. 76- 76-1 105

RAMSEY CLARK,

Appellant-Pettttorer.

and

UNITED STATES OF AMERICA,

Intervenor,

v.

FRANCIS R. VALEO, et al.,

Appellees-Respondents,

JURISDICTIONAL STATEMENT ON APPEALS FROM,

AND-—-PETTFION-FOR—WRIFS- OF -CERTFIORARE-TO,

THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT AND—FHE

PE ED-SEAFES- DIS FRICTF-COURF-FOR- THE

DISHUCT-OF-COLEUMBIA—

LARRY P. ELLSWORTH

ALAN B. MORRISON

GIRARDEAU A. SPANN

2000 P Street, N.W., Suite 700

Washington, D.C. 20036

202—785-3704

Counsel for Ramsey Clark

ee nee ee me ee a RA SR RR

THE CASILLAS PRESS, INC.-1717 K Street. N. W.—Washington, D. C.-223-1220

(i)

TABLE OF CONTENTS

OPINIONS BELOW .

JURISDICTION .

STATUTES INVOLVED .

QUESTIONS PRESENTED

STATEMENT .

A. Background

B. Proceedings Below

THE QUESTIONS ARE SUBSTANTIAL, AND SO

THIS COURT SHOULD SET THE CASE FOR ARGU-

MENT AS EXPEDITIOUSLY AS POSSIBLE

1. THE COURT BELOW MISCONSTRUED THIS

COURT’S RULING IN BUCKLEY, AND ERRED

IN REFUSING TO FOLLOW AN EXPLICIT

CONGRESSIONAL COMMAND TO EXERCISE

ITS JURISDICTION

ll. THE COURT SHOULD GRANT PLENARY

CONSIDERATION TO THE CONSTITUTION-

ALITY OF THE ONE-HOUSE VETO .

A. The One-House Veto Is Unconstitutional .

B. The Constitutionality Of The One-House Veto

Is A Question Of Such Importance That The

Court Should Decide It In The Interests Of

All Branches of Government

CONCLUSION

(ii)

TABLE OF AUTHORITIES

Cases:

Amalgamated Meat Cutters & Butcher Workmen

v. Connally, 337 F Supp. 737 (D.D.C. 1971)

(three-judge court)

Atkins v. United States,

Nos. 41-76, et seq. (Ct. Cl.)

Baker v. Carr,

369 U.S. 186 (1962)

Buckley v. Valeo,

424 US. 1 (1976)

Buckley v. Valeo,

519 F.2d 831 (1975)

Citronelle-Mobile Gathering, Inc. v.

Gulf Oil Corp., Civ. No. 75-483-P (S.D. Ala.,

Aug. 20, 1976), appealed, No. 76-3712 (Sth Cir.) .

Connally v. Georgia,

45 US.L.W. 3461 (U.S. Jan. 10, 1977) (No. 76-461) .

Friends of the Earth v. Carey,

535 F.2d 165 (2d Cir. 1976) .

Gibson v. Berryhill,

411 US. 564(1973)

McCorkle v. United States,

No. 76-1479 (4th Cir.) .

Moore v. Ogilvie,

394 US. 814(1969)

Panama Refining Co. v. Ryan,

293 U.S. 388 (1935)

Page

19

2 passim

(iii)

Cases (cont'd)

Regional Rail Reorganization Act Cases,

419 US. 102 (1974)

Samuels v. Mackell,

401 US. 66(1973) .

Schechter Poultry Corp. v. United States,

295 U.S. 495 (1935)

Sibbach v. Wilson & Co.,

312 US. 1 (1941)

Trafficante v. Metropolitan Life Insurance Co.,

409 US. 205 (1972)

Tumey v. Ohio,

273 U.S. $10 (1927)

United States v. California,

332 U.S. 19 (1947) .

United States v. Nixon,

418 U.S. 683 (1974)

United States v. Robel,

389 U.S. 258 (1967)

United States v. Weil,

29 Ct. Cl. 523 (1894)

Ward v. Village of Monroeville,

409 U.S. 57(1972) .

Younger v. Harris,

401 U.S. 37(1973) .

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952)

Page

20

14

28

13

19

28

25

27

14

(iv)

Constitutional Provisions:

Constitution of the United States

Article |

Article 1,81.

Article 1, § 6, cl. 2

Article 1,87 .

Article 1, § 7, cl. 3

Artich Po. lt

Article II, § 2, cl. 2

Article Ill

Amendment One

Amendment Five

Statutes:

Clean Air Act Amendments of 1970,

42 US.C. § 1857h-2 .

Consumer Product Safety Act,

15 U.S.C. § 2073 .

Emergency Petroleum Allocation Act of

1973, Pub. L..93-159, 87 Stat. 627

§ 4(g\(2)

Federal Election Campaign Act,

2 U.S.C. § 431, et seq.

2 U.S.C. § 437f(a)

2 U.S.C. § 437f(c)

2US.C.8437h .

2 U.S.C. § 437h(a)

2 US.C. § 437h(b)

2 U.S.C. § 437h(c)

2 US.C. § 438(c)

2 US.C. § 438%(c\ 3)

2 US.C. § 438(c\ 4)

2 U.S.C. § 438(cK5)

2 U.S.C. § 454

. 5,12, 14, 18, 19, 22

Page

se

25, 26

— |

23, 24

15

; 5

. 9,23

ae

. 5,27

32

(v)

Statutes (cont'd)

Federal Election Campaign Act Amendments

of 1976, Pub. L. 94-283, 90 Stat. 482 .

Federal Informers Act,

31 U.S.C. § 232(B)

Federal Salary Act of 1967,

2 U.S.C. § 359 1\B)

Federal Water Pollution Control Act of 1972,

33 US.C.81365 . oa es

Freedom of Information Act,

5 US.C. § 552(aX 3) & (ah 4B) .

Internal Revenue Code, Subtitle H,

26 U.S.C. § 9001, et seq.

26US.C.8900%c) . .

26 U.S.C. § 900% cK 3) .

26 US.C. § 900% c\(4) .

26US.C.89011(b). .

26US.C.§9011(b\1) .

26 US.C. §9011(b){2) .

26 US.C.§903%c) . .

26 US.C. § 903% c\{3) .

26 US.C. § 903% cK4) .

Marine Protection, Research and Sanctuaries

(Ocean Dumping) Act, 33 US.C.81415(g) .

Noise Control Act, 42 U.S.C. § 4911

Title 28

28US.C.§1253. .

28 US.C.§ 12541) .

28 US.C.§1651 .

28 US.C.§ 2103 .

32

20

. 6 4

4,5, 6, 26

11

25

16

.

—

4,5, 6, 26

11

25

wt

(vi) (vii)

Legislative Documents and Bills: Page Law Review Articles: Page

Fo ee ee ee ee ee ee ee eee ee ee Cooper and Cooper, The Legislative Veto and the

58 Cong. Rec. 8074 (1919) tb ie a ee 8 ee es 29 Constitution, 30 Geo. Wash. L. Rev. 467 (1962) . ew @s 30

59 Cong. Rec. 7026-27, 8069(1920) . . . . ....., 29 Ginnane, The Control of Federal Administration By

120 Cong. Rec. 10562 (April 10,1974) . . . ..... 17 Congressional Resolutions and Committees,

121 Cong. Rec. H 10186 (daily ed. October 22,1975) . . . 8 66 Harv. L. Rev. 569(1953). . . . . . . . . - 29,30

122 Cong. Rec. H 7297 (daily ed. July 19,1976) . . . . . 29 Jackson, A Presidential Legal Opinion,

122 Cong. Rec. H 10666-90, H 10718-19 (daily ed. RSS =, eee eee ee

Dc s-“« ew s@ee 6 we ee ee

123 Cong. Rec. H 499 (daily ed. Jan.24,1977) . . . . 30,31 Neuman and Keaton, Congress and the Faithful Execution

of Laws — Should Legislators Supervise Administrators?

123 Cong. Rec. S 1802-03 (daily ed. Jan 31,1977) . . .. II fo 8 Oe ee ee ee ee ee ee

123 Cong. Rec. H 961-62 (daily ed. Feb.8,1977). . . . . 33

Norton, Congressional Review, Deferral And Disapproval Schwartz, Legislative Control of Administrative Rules

Of Executive Actions: A Summary And Inventory Of and Regulations, 30 N.Y.U.L. Rev. 1031(1955) . . . . 30

Statutory Authority(1976) . . ....... . 30,31 :

; Watson, Congress Steps Out: A Look at Congressional Control

H.R. Rep. No. 94-1014, 94th Cong., 2d Sess. of the Executive, 63 Calif. L. Rev. 983(1975) . . 25, 26, 29, 30

Dn + » 2 +2 «se ew 6 6 & & 31 ~

H.R. 12048. 94th Cong., 2d Sess.(1976). . . . . . .. 3i Note, Congressional Veto of Administrative Action:

The Probable Response To A Constitutional Challenge,

R. 9 (1977 tse @n se & & 4

ae. CE SSD. SSN STD " 96DukeeL.J.285 ............. 8

H.R. 961, 95th Cong., IstSess.(1977) . . . . . ... Bl

H.R. 1509, 95th Cong., Ist Sess.(1977) . . . . 2. 2...) OB Note, Constitutionality of the Legislative Veto,

oo ey ee ee

Books: Other Materials:

M. Farrand, Records of the Federal Convention K. Davis, Letter to Honorable Elliott H. Levitas,

of 1787, 4 vols.(1966) 6. 1 we ee ee ew ee OS reprinted in 123 Cong. Rec. H 961-62 (daily ed.

ON Py eee ee ee ee ae

J. Harris, Congressional Control of Administration (1964) . 29, 30

R. Dixon, The Executive On A Leash: The “Congressional

J. Madison, A. Hamilton, J. Jay, The Federalist yutw 4nd Gepesation Cf Powers, Adises Gates the

Papers(1961). . . . . . . 2. ee ee 25. Association of American Law Schools, Dec.29,1976 . . 29

(viii)

Other Materials (cont'd) Page

Kraft, The Perils Of The ‘One-House Veto,’ Wash. Post,

i Oe SU UR a cs a ss Se 32

N. Y. Times, Nov. 18, 1976,8A,p.1,col.8(cityed.) . . . 29

IN THE

Supreme Court of the United States

OCTOBER TERM, 1976

No. 76-

RAMSEY CLARK,

Appellant-Petitioner,

and

UNITED STATES OF AMERICA,

Intervenor,

v.

FRANCIS R. VALEO, et al.,

Appellees-Respondents.

JURISDICTIONAL STATEMENT ON APPEALS FROM,

AND PETITION FOR WRITS OF CERTIORARI TO,

THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT AND THE

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF COLUMBIA

Ramsey Clark, a plaintiff below, appeals from the judg-

ments of the United States Court of Appeals for the Dis-

trict of Columbia Circuit, sitting en banc, and the three-

judge District Court for the District of Columbia in these

two virtually identical cases. In the alternative, Ramsey

Clark petitions for writs of certiorari to review the afore-

mentioned judgments. Both courts below declined to re-

solve the issue of the constitutionality, of the one-house

Congressional veto because of their aR rminations that

the issue is not ripe and that judicial prudence dictates

abstention.

The merits of the one-house veto issue affect not only

the operation of the Federal Election Commission, but

also bear upon the validity of numerous other statutes

containing similar provisions, as well as several bills and

proposals under active consideration, including President

Carter’s plans for a major reorganization of the Execu-

tive branch. Because of the need for a prompt resolu-

tion of the important questions presented, plaintiff urges

this Court to review not only the lower courts’ ripeness

determinations, but also to resolve the purely legal ques-

tion of the constitutionality of the one-house veto, based

upon the full record which the parties prepared in the

district court. Such a procedure was followed in Buckley

v. Valeo, 424 U.S. 1, 109-43 (1976), where the same

court of appeals found an analogous issue relating to the

compocition of the Federal Election Commission to be un-

ripe, but this Court reversed that ruling and struck down

the statute as violative of separation of powers principles.

OPINIONS BELOW

The order of the district court (App. I at 52a) includ-

ing findings of fact, which certified five constitutional

questions to the court of appeals, has not been reported. !

“App. __ at ” refers to the designated volume and page,

respectively, of the three-volume Appendix submitted herewith.

The opinion of the en banc court of appeals with concur-

ring and dissenting opinions (App. II at 1-119) has not

yet been reported. The judgment of the three-judge dis-

trict court (App. I at 79a) in the portion of the case not

certified to the court of appeals has not been reported.

JURISDICTION »

The Federal Election Campaign Act, 2 U.S.C. 8 437h(b),

provides that:

Notwithstanding any other provision of law, any

decision on a matter certified under subsection

(a) shall be reviewable by appeal directly to the

Supreme Court of the United States.

Accord, 26 U.S.C. 8 9011(b)(2). It is further provided in

2 U.S.C. 8 437h(c) that:

It shall be the duty of the court of appeals and

of the Supreme Court of the United States to

advance on the docket and to expedite to the

greatest possible extent the disposition of any

matter certified under subsection (a).

Although the court of appeals stated that it was not

deciding the questions certified by the district court (App.

II at 10), it in fact did decide the first question, which

was whether an action brought by a voter and candidate

to challenge the constitutionality of an election law, under

statutory provisions providing for immediate review at the

request of any voter, met the Article III “‘case or contro-

versy”’ requirement (App. II at 10; see App. II at 8 n.2

and App. ! at 53a). In order to eliminate any uncertainty

concerning the proper method of seeking review, plaintiff

Clark requests that these appeals also be treated as peti-

tions for writs of certiorari. 28 U.S.C. § 2103.

\

4

The judgment of the court of appeals was entered on

January 21, 1977 (App. Il). A timely notice of appeal

was filed in the court of appeals on February 7, 1977

(App. I at 10a). The jurisdiction of this Court on appeal

from that judgment is invoked under 2 U.S.C. 8 437h(b).

See Buckley v. Valeo, 424 U.S. 1, 10 n.6 (1976). The

jurisdiction of this Court on the petition for a writ of cer-

tiorari to the court of appeals is invoked under 28 U.S.C.

§ 1254(1).

The judgment of the three-judge district court was en-

tered on January 21, 1977 (App. I at 79a). A timely

notice of appeal was filed in the district court on Feb-

ruary 7, 1977 (App. I at 13a). The jurisdiction of this

Court on appeal from that judgment is invoked under

26 U.S.C. 8 9011(b)(2), and 28 U.S.C. 8 1253. See Buck-

ley v. Valeo, supra, 424 U.S. at 10 n.6. The jurisdic-

tion of this Court on the petition for a writ of certiorari

to the district court is invoked under 28 U.S.C. 88 1254(1)

and 1651. See United States vy. Nixon, 418 U.S. 683,

686-87 (1974) (and cases cited in note | thereof).

STATUTES INVOLVED

The Federal Election Campaign Act, 2 U.S.C. 8 421,

et seq., as amended, (hereinafter the “FECA’’) and Sub-

title H of the Internal Revenue Code of 1954, 26 U.S.C.

88 9001, ef seq., as amended, (hereinafter ‘“‘Subtitle “‘H”’)

are fully set forth in volume III of the Appendix submit-

ted herewith. The specific provisions of those statutes

which are challenged here as unconstitutional are those

providing that a single House of Congress may disapprove

regulations of the Federal Election Commission. 2 U.S.C.

§ 438(c); 26 U.S.C. 8 9009%(c) and 9039(c) (App. Ill at 32-

34; 63-64; 77).

QUESTIONS PRESENTED

The following constitutional questions, which were cer-

tified to the court of appeals pursuant to the procedure

established by 2 U.S.C. 8437h(a) (App. III at 30), are

the questions appellant-petitioner brings to this Court.

1. Does this action challenging the constitutionality

of 8315(c) of the Federal Election Campaign Act (FECA),

2 U.S.C. § 438(c), and 88 9009(c) and 9039(c) of Subtitle H

of Internal Revenue Code of 1954, 26 U.S.C. 88 9009(c)

and 9039(c), present a justiciable case or controversy under

Article III of the United States Constitution?

2. Do 2 U.S.C. §438(c), and 26 U.S.C. 88 9009(c) and

9039(c), which allow a single House of Congress to disap-

prove rules and regulations, or selected portions thereof,

adopted by the Federal Election Commission, violate the

principles of separation of powers and checks and balances

established by Articles |, Il, and II! of the Constitution;

are they in derogation of the Presidential veto power in

Article I of the Constitution; and are they in excess of

the legislative powers enumerated in Article I of the Con-

stitution?

3. Do the challenged provisions specified in questions

one and two violate the right of a candidate for Federal

office to Due Process of Law under the Fifth Amendment

of the United States Constitution by: a) depriving him

of the right to have laws affecting him enacted by the

full legislative process, including passage by both Houses

of Congress with the opportunity for a Presidential veto;

and, b) invidiously discriminating against him in allowing

incumbent officeholders, but not challengers, to veto rules

and regulations of the Commission?

6

4. Do the challenged provisions violate the Constitu-

tion by delegating the discretion to disapprove regulations

of the Federal Election Commission to a single House of

Congress without fixing any standards or criteria to gov-

ern the exercise of such discretion and without requiring

any statement of reasons for the exercise of such discre-

tion?

5. Do the challenged provisions, by allowing a single

House of Congress to disapprove rules and rcyuiations, or

selected portions of such rules and regulations, adopted

by the Federal Election Commission, create an extra-

Constitutional legislative process in violation of Article I?

STATEMENT

This action challenges the constitutionality of election

statutes which permit a single House of Congress to veto

regulations adopted by an independent agency, the Fed-

eral Election Commission (the “‘Commission”). 2 U.S.C.

§ 438(c); 26 U.S.C. 8% 9009(c) and 9039(c). This issue

was argued, but not decided, in Buckley v. Valeo, 424

U.S. 1 (1976), because of this Court’s ruling that the

Commission as then constituted transgressed principles

of separation of powers. Since the Commission could

therefore not issue any rules, the necessity for deciding

whether such rules could be vetoed by one House of

Congress was obviated. /d. at 140 n.176. However,

the Commission has now been reconstituted as an Execu-

tive agency, its rulemaking powers have been continued,

and the question of whether the one-house veto violates

separation of powers principles cannot be avoided.

A. Background

The 1974 statute establishing the Federal Election Com-

mission also created a vast array of complex reporting re-

quirements and imposed stringent spending and contribu-

tion limitations. It was plain that the law was not entirely

self-explanatory and that candidates, political committees,

and the public at large needed regulations to fill in the

gaps. In the nearly two years since the Commission be-

gan operations, it has made every effort to issue these

badly needed regulations, but has, to date, been unsuc-

cessful, largely because of the intercession of two sepa-

rate one-house vetoes and the extensive delays resulting

from the necessity felt by the Commission to negotiate

the substance of any regulations with relevant Congres-

sional committees prior to transmittal to Congress.

The first regulations that the Commission sought to

put into effect were those dealing with office accounts

of federal officeholders, including Members of Congress.

On July 30, 1975, the Commission sent to Congress rules

that would have required the disclosure of contributions

to, and expenditures from, office accounts of federal of-

ficeholders, including excess campaign funds (Stip. § 4 22-

24, App. I at 60a-6la).2 The proposal evoked an imme-

diate negative response from affected Members of Con-

gress (Stip. 925, App. I at 6la). Thereafter, Commission

hearings were held, the regulations were redrafted, and

on September 30, 1975, a modified version was transmit-

ted to Congress (Stip. 9926, 28-31, App. I at 6la-62a).

2 “Stip. ¢__” refers to the designated paragraph in the Stipu-

lation as to Findings of Fact dated September 2, 1976, and certi-

fied to the court of appeals in the district court’s certification Order

of September 3, 1976.

Yet, when the proposal came to the Senate floor, a pro-

posal to approve the modified version of the office ac-

counts regulation — i.e., to require Members of Congress

running for re-election to disclose their office accounts —

failed by a single vote. Thereafter, both versions of the

FEC’s regulation were vetoed by a voice vote (Stip. 435,

App. I at 62a).

The only other regulations on which either House of

Congress has ever taken action — those relating to the

place of filing of campaign reports and statements respect-

ing Congressional elections — were also defeated, this time

by the House (Stip. 4 4936, 40, App. I at 63a). Those

regulations, which were originally transmitted on August

1, 1975, would have required campaign reports to be

filed initially with the Commission, rather than with the

House and Senate as most Members of Congress preferred

(Stip. 4440, 41, App. I at 63a). While the matter was

pending before Congress, Wayne Hays, then chairman of

the House Administration Committee, met with Thomas

Curtis, then chairman of the Commission, to discuss the

document-filing regulations (Stip. 9938, 39, App. I at

63a). It was later reported to the House of Representa-

tives that they discussed “‘a compromise revision,” sought

to establish a “‘werking relationship between the Commis-

sion and the Congress,’ and recognized the need to con-

sult in advance of transmittal to “permit compromise to

occur and legitimate concerns to be raised before the 30-

day clock starts ticking.” 121 Cong. Rec. H 10186

(daily ed. October 27!, 1975). However, an agreement on

a revision was apparently not reached, and on October

22d, the House accepted the recommendation of the Hays

Committee and voted to disapprove the document-filing

regulations (Stip. 440, App. I at 63a).

9

In December 1975 and January 1976 additional regula-

tions were transmitted by the Commission to Congress

(Stip. 942, App. I at 64a), but the statutory periods had

not expired on January 30 (Stip. 944, App. I at 64a),

when this Court handed down Buckley v. Valeo, holding,

inter alia, that the Commission as then constituted was un-

constitutional because its members were not all appointed

in accordance with Article II, 82, cl. 2 of the Constitu-

tion. The Congress subsequently recreated the Commis-

sion as an independent Executive agency, but left the

— veto provision intact (Stip. § 946-47, App. I at

65a).

On May 26, 1976, the Commission published a

comprehensive set of proposed regulations encompas-

sing matters such as disclosure of contributions, limi-

tations on both spending and contributions, corporate

and union political activity. matching funds to can-

didates in Presidential primaries, convention funding,

and compliance procedures, as well as rules dealing

with office accounts and document-filing on which

earlier regulations had been vetoed (Stip. 948, App. I

at 65a). There was a comment period, during which

the Commission heard oral testimony and accepted writ-

ten submissions from the public (Stip. 4 453-59, App. I

3 The 1976 amendments altered the Congressional veto provision

in two respects to tighten Congressional control over the Commis-

sion. First, section 438(c\5) was added to make clear that either

House could disapprove any portion of a rule which that body con-

cluded was a “‘single separable rule of law.” Second, the 1976 amend-

ments extended the scope of the veto provisions to advisory opin-

ions of general applicability, including those previously issued. See

2 U.S.C. $437f{a) and § 108(b), Pub. L. 94-283, 90 Stat. 482, re-

produced following 2 U.S.C. § 437f(c).

10

at 67a). By June 25th the Commission had reached a

number of decisions, tentatively approving some regula-

tions, sending others back to the staff for further draft-

ing, and deferring decisions on others (Stip. 461, App.

I at 68a). As a result, the Commission was then in a

position to cite these decisions to the public as its cur-

rent thinking on questions which were vitally affecting

the campaigns then in progress; it could not, however,

hold them out as Commission regulations because they

had not yet been sent to Congress for the required time

(Stip. 462, App. I at 68a-69a).

At the Commission’s July 8th meeting, further discus-

sions took place concerning the schedule for sending the

regulations to Congress for the thirty-legislative-day con-

sideration period. It was concluded that pre-transmittal

Congressional consultation was necessary, but that, because

key Congressional aides were then away at the Democratic

Convention, no meeting with Congressional staffs could be

held until July 21st (Stip. 964, App. I at 69a). In fact,

those meetings were delayed until July 27 and 28 and

then on July 29 and 30 the Commission met and approved

the final regulations (Stip. § 965-67, 77, App. I at 70a-

71a). While not all of the Congressional suggestions were

adopted, several were (Stip. § 968-73, App. I at 70a-71a).

Among the adopted amendments was one relating to of-

fice accounts, which reduced the number of times per

year that reports had to be filed, and changed the date

of filing to relieve Members of Congress from alleged bur-

dens (Stip. 974-76, App. I at 71a).

On August 3, 1976, the Commission transmitted to

Congress the comprehensive regulations first proposed in

late May, along with other regulations governing the gen-

eral Presidential election which had also been approved

in late July (Stip. 9477-80, App. I at 7la-72a). How-

ever, even though these regulations were never vetoed,

they have not become effective because thirty “legislative”

days — i.e., days on which both the House and Senate were

in session* — did not pass prior to the October adjourn-

ment of the Congress sine die. Thus, the entire 1976

election passed without any implementing regulations.

Moreover, since the legislative clock commenced anew with

a new Congress, regulations which have again been trans-

mitted to Congress must lie for a full thirty legislative days

before they can be made effective, if not vetoed. See

123 Cong. Rec. S 1802-03 (daily ed. Jan. 31, 1977).

Only time will tell whether they will become effective

in time for the special elections to fill the House seats

of the three Members who have resigned to take posi-

tions in the Executive branch.

B. Proceedings Below

The complaint in this action was filed on July 1, 1976,

by plaintiff Clark, a voter and then candidate for the Demo-

cratic nomination for United States Senator from the State

of New York. The defendants, the Secretary of the Senate,

the Clerk of the House, and the Federal Election Commis-

sion, had also been the defendants in Buckley vy. Valeo,

supra. On August 27th, the United States was allowed to

intervene permissively in support of plaintiff's position that

the Congressional veto is unconstitutional. On September

2d, a stipulation of facts, prepared by the parties and con-

sisting of 81 paragraphs, was presented to the district court,

along with a proposed order certifying five constitutional

4 2 US.C. §438(c\(4); 26 U.S.C. $8 900%c3) and 903%cX(3).

12

questions to the court of appeals for its consideration. The

following day, the stipulation was adopted by the trial

court as its findings, and a slightly modified version of

the certification order was signed and filed (App. I at

S2a-55a). A request for the convening of a three-judge

district court was also entered. That same afternoon the

court of appeals, noting the impending New York primary

on September 14th, issued an order establishing an accel-

erated briefing schedule and setting oral argument for Sep-

tember 10th.

Both plaintiff Clark and the United States extensively

briefed each of the five certified questions, but the de-

fendants chose to brief only the first — justiciability.

Defendants Valeo and Henshaw later filed amicus curiae

briefs on the merits of the one-house veto issue in two

— cases. but they declined to submit them in this

case.

The en banc court of appeals and the three-judge dis-

trict court sat together to hear oral arguments as sched-

uled, but it was more than four months later before the

courts issued their decisions. The court of appeals is-

sued a per curiam opinion, three concurring opinions, and

two dissenting opinions totaling 119 pages in all (App.

Il). The three-judge court simply expressed agreement

with the result reached by the majority of the court of

appeals (App. I at 79a-80a). By a vote of 5 to 2, the

appellate court held that this case does not present an

Article Ill “‘case or controversy” because “the unripeness

of the action is so pervasive” (App. II at 10). The per

> McCorkle v. United States, No. 76-1479 (4th Cir.); Atkins v.

United States, Nos. 41-76, et seq. (Ct. Cl.). See note 18, infra.

13

curiam opinion indicated that there could be no ripe con-

troversy at least until there was a one-house veto of reg-

ulations of the reconstituted Commission (App. li at 15-

16). Although the court was aware that two regulations

had already been vetoed (App. II at 24), it apparently

viewed the injury resulting from those one-house vetoes

as insufficient to create a ripe controversy because those

were regulations of a “legislative” Commission, rather than

an “‘executive’’ Commission (see App. II at 15, 24). Al-

though plaintiff Clark had alleged a present injury result-

ing from pre-transmittal delay caused by the Commission’s

consultations with House and Senate staffs over the sub-

stance of these regulations in order to avoid a veto, the

per curiam opinion did not consider that injury, but as-

dressed a different question — whether cognizable injury

resulted from post-transmittal delay in Congress. This lat-

ter question the majority answered in the negative on the

grounds that Sibbach v. Wilson & Co., 312 US. 1 (1941),

had upheld the constitutionality of “lying-over” periods

(App. II at 12-15).

The majority further stated that plaintiff Clark had “iden-

tified no proposed regulation tainted by the threat of veto

on review” (App. II at 11), and that the United States had

not claimed that the regulations were “tainted with political

interference” (App. II at 12). Although both plaintiff Clerk

and the United States relied heavily upon this Court’s ripe-

ness ruling in Buckley on the issue of the composition of

the Commission, the per curiam opinion relegeted that case

to an appendix, where it concluded that “it seems fair to

say that the separation of powers questions inherent in Sec-

tion 438(c) were more starkly presented by the facts obtaining

in Buckley when the [Supreme] Court considered it” (App. II

at 24). Thus, according to the court of appeals, this Court’s

14

decision in Buckley not to resolve the one-house veto is-

sue supported a refusal to resolve it in this case also. /d.

Finally, the majority below held that even if this case did

present an Article III case or controversy, the court “would

nevertheless refuse to reach the merits of the unicameral

veto under the doctrine of judicial prudence enunciated in

Samuels v. Mackell, 401 U.S. 66, 73 (1973) (App. II at

16-17 n.10).®

Judge Wilkey concurred in the result reached in the

per curiam opinion, but did not join the opinion (App.

I] at 18). A separate concurrence by Judge Tamm, joined by

Judges Bazelon and Wright, expressed the view that the

United States lacked independent standing to challenge

the actions of one branch of the Government as an un-

constitutional invasion of the powers of another branch

(App. II at 27-35). In a third concurrence, Judge Leven-

thal expressed the view that he would have preferred to

decide the case on the non-constitutional ground that it

lacked ripeness because of prudential considerations (App.

Il at 36-51), and suggested that the constitutionality of

the one-house veto might turn on the reasons for a par-

ticular veto (App. II at 38-41).

In the two lengthy dissents, Judges Robinson and Mac-

Kinnon each concluded that plaintiff Clark had standing

as a voter (App. II at 73-76, 83-97) and that the case was

ripe for adjudication (App. II at 54-72, 83-86). Moreover,

Judge MacKinnon expressed the opinion that plaintiff

Clark’s standing as a candidate was not mooted by his fail-

ure to be elected, since the case is “capable of repetition,

6 Samuels, a companion case to Younger v. Harris, 401 U.S. 37

(1973), was a case in which this Court determined that for reasons

of federalism, Federal district courts should not interfere with on-

going State criminal prosecutions by issuance of declaratory relief.

15

yet evading review” (App. II at 109-11 n.21). Finally,

Judge MacKinnon alone reached the merits of the consti-

tutional challenge to the one-house veto provision, declar-

ing that it subverted “the constitutional legislative process”

and violated the Presidential veto provisions of Article I,

§ 7, cl. 3 (App. II at 109).

THE QUESTIONS ARE SUBSTANTIAL, AND SO THIS

COURT SHOULD SET THE CASE FOR ARGUMENT AS

EXPEDITIOUSLY AS POSSIBLE.

This case raises issues of fundamental importance left

undecided by this Court’s decision in Buckley v. Valeo,

424 U.S. 1 (1976), issues which are at the heart of our

tripartite form of government as embodied in the princi-

ples of separation of powers and checks and balances.

The Congressional veto provisions challenged here are typi-

cal of dozens of others which are contained in a variety

of statutes and which are proposed to be extended to all

regulations of the entire Executive branch. See p. 31,

infra. If upheld, these statutes would fundamentally alter

the balance of power in our Government by permitting a

single House of Congress, acting without any role for the

other House or the President, to write its own laws and

effectively frustrate implementation of entire legislative

enactments.

The court below recognized that this issue is ““momen-

tous” (App. II at 16), and voiced agreement with the Jus-

tice Department’s characterization of this case as a “con-

tinuation of a dispute of major constitutional proportions

which has been brewing for forty years” (id.). It was

also aware that Congress recognized the serious constitu-

tional questions raised by this regulatory system, and that

16

Congress had sought to insure that there would be an im-

mediate and certain resolution of constitutional challenges.

2 U.S.C. 8437h. Nonetheless, the court of appeals declined

to reach the merits of the controversy. Because the court

below erred in failing to follow this Court’s ruling of last

Term in Buckley on precisely the same ripeness issue, and

because the legal issue presented by the one-house veto

needs no further development, but does need prompt reso-

lution, plaintiff Clark urges this Court to note probable

jurisdiction, or to grant writs of certiorari, on all questions

presented. The parties have made as complete a record

as they desired, and the time is now for the adjudication

of the constitutionality of the one-house veto.

I. THE COURT BELOW MISCONSTRUED THIS COURT'S

RULING IN BUCKLEY, AND ERRED IN REFUSING TO

FOLLOW AN EXPLICIT CONGRESSIONAL COMMAND

TO EXERCISE ITS JURISDICTION.

In enacting the Federal Election Campaign Act, Congress

was aware that the Act raised many important constitu-

tional questions requiring prompt resolution in order to

effectively implement the badly needed election reforms

embodied in the Act. For this reason, Congress included

sections in both the FECA and Subtitle H, requiring the

courts to resolve all constitutional challenges as expedi-

tiously as possible.? However, the court below refused

to acceed to the congressional command to exercise its

72 USC. 8 437h(a); 26 U.S.C. $§ 9011(b). Senator Buckley stated

during the debate on the Election Act:

(continued)

1?

jurisdiction at the behest of any voter and dismissed on

the grounds of ripeness and judicial prudence. In so do-

ing, the court rendered a decision which is directly in

conflict with this Court’s holding in Buckley y. Valeo,

supra, a case construing the very same statute at issue

here, but which the court of appeals’ per curiam opinion

discussed only in an appendix.

In Buckley, several plaintiffs, including individual voters

and a candidate for the Senate in New York, called upon

the court of appeals to decide the merits of a large num-

ber of constitutional questions arising under the 1974

amendments to the election laws. Although resolving most

of those issues, the court of appeals expressly declined to

rule on whether the method by which the Cominission

was appointed violated principles of separation of powers,

relying on the same ripeness grounds that it used here in

refusing to reach the merits. Buckley v. Valeo, 519 F.2d

831, 891-97 (1975). This Court, however, disagreed with

that ruling, found the question to be justiciable, and con-

cluded that the Commission had been unconstitutionally

appointed. Buckley v. Valeo, supra, 424 U.S. at 109-43.

This Court then turned to the question of whether the one-

house veto was constitutional, but declined to decide that

issue because of “our holding that the manner of appointment

of the members of the Commission precludes them from

7 (continued)

. if, in fact, there is a serious question as to the con-

Stitutionality of this legislation, it is in the interest of

everyone to have the question determined by the Supreme

Court at the earliest possible time. [120 Cong. Rec. 10562

(April 10, 1974)].

18

exercising the rulemaking powers in question... .” /d.

at 140 n.176. This was certainly a reasonable course

since Congress might well have re-evaluated the one-house

veto in light of the holding in Buckley, and since the par-

ties and numerous amici curiae had cumulatively devoted

only about four pages of their briefs to this far-reaching

issue. Nonetheless, Justice White considered the one-

house veto question to be sufficiently ripe and sufficiently

important to discuss it in his separate opinion. /d. at 282-

86.

In this case, a voter and candidate for the Senate in

New York again challenges the constitutionality of the

one-house veto provision, an issue that is now timely

since the Election Commission has been reconstituted with

rulemaking powers. However, the D.C. Circuit has once

again held that the issue is not ripe. Essentially, the ma-

jority below ruled that, absent an actual veto of regula-

tions of the reconstituted Election Commission (there

were two vetoes of regulations of the former “‘legislative’’

agency), Ramsey Clark as a voter had no “personal stake”

in the outcome (App. II at 11) and no ripe controversy

existed. Thus, while phrasing its dismissal in terms of

ripeness, the majority focused on issues generally associated

with standing, and held that a voter seeking redress of injur-

ies inflicted by a Congressional interference with a suppos-

edly independent, executive Commission regulating elections,

failed both Article III and prudential justiciability tests, even

though Congress has made a legislative determination that

8 See Brief of Appellants 208 n.9; Brief of the Attorney General

as Appellee and the United States as Amicus Curiae 111-12 n.70;

Brief of the Federal Election Commission 57-58 n.49; Reply Brief

of the Appellants 112-13.

19

any voter does have the required personal stake. 2 U.S.C.

§ 437h(a); 26 U.S.C. $9011(b)(1). In reaching this result,

the majority misconstrued the test of justiciability under

Article III and Buckley, and misconceived the nature of

the injuries suffered by plaintiff Clark as both a voter and

a candidate.?

This Court established in Trafficante v. Metropolitan Life

Ins. Co., 409 U.S. 205 (1972), that Congress can create sub-

stantive rights and can confer standing to enforce those rights

just as it did in the FECA and Subtitle H.!° Thus, where

actions by a plaintiff suing under congressional authorization

would benefit the public, as is the case here, the power of

Congress to confer such standing on “any person” has been

upheld. See Friends of the Earth v. Carey, 535 F.2d 165,

172-73 (2d Cir. 1976). Moreover, this Court has held that

a voter’s interest in even a fraction of a vote is adequate to

satisfy the requirements of Article II]. Baker v. Carr, 369

U.S. 186 (1962). Therefore, the lower court’s decision —

9 The majority below held that plaintiff's standing as a candidate

was mooted during the pendency of this action because of his defeat

in the New York primary. However, as Judge MacKinnon noted (App.

II at 109-11 n.21), this case is “capable of repetition, yet evading

review.’ Moore v. Ogilvie, 394 U.S. 814, 816 (1969). The fact that

plaintiff filed this suit on July 1, 1976, yet could not secure the first

opinion in the case until January 21, 1977, bears ont Judge MacKin-

non’s observation that, “[t]he normal period ir. most states between

the close of primary filings for candidates and the date of the primary

election is insufficient time within which to commence a suit and ob-

tain a decision under normal trial and appellate procedures.” App.

Il at 119. Indeed, the time has proved insufficient even under an

extraordinarily short briefing and argument schedule.

10 > U.S.C. §437h(a); 27 U.S.C. §9011(bX1).

20

that neither a voter’s personal stake in a fair election pro-

cess, nor the public’s stake represented by a voter authorized

by Congress to sue, is sufficient to give the court jurisdic-

tion — conflicts with fundamental decisions of this Court

and threatens to invalidate numerous other statutes grant-

ing standing to any “person” or to any “citizen.””!!

In addition, this Court in Buckley did not require any-

thing like the specificity in injury that the court of appeals

has sought to require in the present case. Thus, in finding

the composition of the Commission issue to be justiciable,

this Court recognized a present injury to the voter and can-

didate plaintiffs, even though it was impossible to prove

that Commissioners appointed by the Congress would ever

vote differently from Commissioners appointed by the Pres-

ident. See Buckley v. Valeo, supra, 424 U.S. at 113-18.

See also Regional Rail Reorganization Act Cases, 419 U.S. 102,

123-24, 138-45 (1974). The injury recognized in Buckley was

a subtle, yet inevitable, interference with the workings of a

coordinate branch of government. That same, subtle injury

to the separation of powers is present here.

Moreover, plaintiff Clark has alleged three distinct, con-

tinuing injuries, which are supported by the record, and

which directly result from the threat of the veto regardless

of whether another veto ever occurs. First, if the office

11 There is a wide range of statutes granting standing to any per-

son and their constitutionality has never been questioned. See, e.z.,

Clean Air Act Amendments of 1970, 42 U.S.C. § 1857h-2; Noise

Control Act, 42 U.S.C. §4911; Federal Water Pollution Control Act

of 1972, 33 U.S.C. § 1365; Marine Protection, Research and Sanctu-

aries (Ocean Dumping) Act, 33 U.S.C. § 1415(g); Consumer Product

Safety Act, 15 U.S.C. § 2073; Federal Informers Act, 31 U.S.C.

§ 232(B); and Freedom of Information Act, 5 U.S.C. §552(a3) and

(aX 4\(B).

21

accounts and document-filing regulations, which sought to

ameliorate certain of the advantages of incumbency, had

not been vetoed, the Commission would not have been

forced to water them down to their present form. See

Stip. ¢ 4 22-43, 74-77, App. I at 60a-64a, 7la. Second,

voters and candidates alike have suffered from the delays

resulting not from the “lying before Congress” provision

of the Acts, but from the delays in sending regulations

to Congress resulting from negotiations over the substance

of the regulations with Congressional staff after the closing

of the period for public commenting. Stip. § 463-76,

App. I at 69a-7la; App. II at 54-57 (Robinson, J., dissent-

ing); App. II at 86-91 (MacKinnon, J., dissenting). The

failure of any regulations to take effect can be traced di-

rectly to the extra month of delay caused by these nego-

tiations. /d. Third, voters and candidates alike have been

injured by the undue influence which the veto threat has

allowed Members of Congress to exert over the substance

of regulations, such as that concerning office accounts. /d.

As stated by Judge MacKinnon, the only member of the

court of appeals to have also served in Congress (App. Il

at 114):

A great deal of the harm comes from the threat,

the potential of a one-house veto. Indeed, if the

system works the way plaintiffs allege, all either

house of Congress would have to do is to influence

the FEC’s proposed regulations so that they always

come out favorable [sic]. Then, piously, each house

could refrain from any legislative action incanting,

“If that’s the way the FEC wants it, so be it.”

[footnote omitted].

The injury sought to be prevented by invalidation of the

veto provision is unlikely to ever be more clearly docu-

22

mented than it is in the present case. Since Congress has

directed that this Court exercise the full extent of its

Article III jurisdiction to resolve disputes as to the consti-

tutionality of the election laws, the one-house veto issue

is ripe for decision by this Court at this time.

Il. THE COURT SHOULD GRANT PLENARY CONSIDERA-

TION TO THE CONSTITUTIONALITY OF THE ONE-

HOUSE VETO.

A. The One-House Veto Is Unconstitutional.

The American constitutional system is one of affirmative

grants of power: each of the three coordinate branches is

limited to those powers delegatedwto it. Youngstown Sheet

& Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952). In Arti-

cle I, the Constitution explicitly delegates the lawmaking

role to the Congress, comprised of the Senate and the

House of Representatives, working in conjunction with

the President. Nowhere in that Article, or in any other

place in the Constitution, is the Congress given any power

to issue rules and regulations implementing the statutes that

it has enacted. Nor is there any specific provision allowing

the Congress to exercise any veto power over the acts of

the Executive branch when it issues such regulations, let

alone is there any such authority granted to a single House

of Congress. To the contrary, as explained below, this

extra-constitutional power claimed by the Congress con-

flicts with the specific checks written into the Constitution

to prevent one branch or one house from usurping the pow-

ers of other Government bodies.

The substantiality of the doubt concerning the constitu-

tionality of the one-house veto is confirmed by the dissent

23

of Judge MacKinnon below (App. II at 97-109) and the

fact that most scholars who have addresssd the subject have

concluded that it violates one or more constitutional prin-

ciples (see note 16, infra). The fundamental thrust of these

objections is that the one-house Congressional veto violates

what James Madison called the most “sacred” principle of

our Constitution (1 Annals of Cong. 604); namely, “‘that the

powers of the three great branches of the National Govern-

ment be largely separate from one another.”’ Buckley v. Valeo,

supra, 424 U.S. at 120. Thus, under our constitutional system,

no one branch may legitimately perform the functions or con-

trol the performance of another branch, unless there is an

express constitutional exception—a check and balance—creat-

ing that interbranch blending of power.!?

By considering the possible functions performed by a one-

house veto of a Commission regulation, it becomes evident

that it cannot be exercised consistently with the Constitu-

tion. Thus, where Congress vetoes a regulation (or secures

changes by the Commission due to the threat of the veto)

because the Commission has “misinterpreted” a statutory

provision, the veto may be for a legitimate purpose, but

the means employed are impermissible, since under the Con-

stitution it is the jndiciary, not the legislature, which is re-

sponsible for ascertaining Congressional intent and correct-

ing executive misinterpretations. On the other hand, if

the Commission’s interpretation would be upheld by a court,

then a one-house veto is, in effect, a rewriting of the stat-

ute by a method other than by action of both Houses of

Congress and the President. Finally, if the purpose of the

12 E.g., Article 1, §7 (Presidential veto of proposed legislation);

Article II, §2, cl. 2 (Senate’s advice and consent on treaties and

appointments).

24

Congressional veto is to implement a Congressional percep-

tion that the regulation is unclear or represents an unwise,

although permissible, policy choice, then Congress is unduly

interfering with the proper exercising of an executive func-

tion. Therefore, under any of these assumptions, the Con-

gressional veto runs afoul of separation of powers principles.

Analyzing the issue from the perspective of “control,” or

interbranch inteference with the performance of another’s

responsibilities, leads to the same conclusion. Admittedly,

the Congress has broad discretion in the manner in which it

allocates responsibilities under a given law. However, once it

statutorily assigns a power to an executive agency, such as

the power to issue rules, that power becomes an executive,

not a Congressional, authority. Thereafter, Congress cannot

constitutionally interfere with the execution of that execu-

tive responsibility except through validly enacted legislation

passed by both houses in conjunction with the President.

Indeed, it makes no difference that a Congressional veto is

never exercised for, as Judge MacKinnon recognized (App.

Il at 114), equally pervasive and pernicious interference

can be exercised simply because the threat of a veto exists.

A further constitutional difficulty with the Congressional

veto is that it deprives the President of his veto power un-

der Article 1, Section 7. Mr. Justice White has expressed

the view that there is no constitutional infirmity regarding

the Presidential veto power because regulations become ef-

fective through Congressional “nonaction” which is not the

“equivalent of legislation.” Buckley v. Valeo, supra, 424

U.S. at 284-86. However, Judge MacKinnon explained in

detail why terming the Congressional veto process as “non-

action”’’ misconceives the reality of the situation (App. Il

at 98-101), and a thorough review of the constitutional

history of the Presidential veto clause demonstrates, we

25

submit, that the Framers deliberately created a single exec-

utive with the power to exercise a qualified veto on his

own initiative over every bill, resolution, vote, or similar

measure emanating from Congress, which has the effect of

law. See, e.g.. M. Farrand, Records of the Federal Con-

vention of 1787, vol. Il, pp. 301-05 (1966); United States

v. California, 332 U.S. 19, 28 (1947); Watson, Congress

Steps Out: A Look at Congressional Control of the Exec-

utive, 63 Calif. L. Rev. 983, 1066 n.428 (1975).'3 Cer-

tainly a one-house veto disapproving a regulation, which

would otherwise have the effect of law, revises the law

just as much as a statutory change revoking a regulation

already having the effect of law. The former, like the

latter, changes the law, and the former, like the latter,

requires submission to the President. “In the words of

Madison, the convention ‘gave the Executive alone .. .

the revisionary control on the laws, unless overruled by

two-thirds of each branch.’”’ United States v. Weil, 29

Ct. Cl. 523, 546 (1894).

In addition, Article 1, Section 1, of the Constitution

vests all legislative powers “in a Congress’ consisting of

both “a Senate and House of Representatives.” This bi-

13 The Presidential veto power was included in part to check un-

wise Congressional decisions, but was intended primarily as a defen-

sive weapon to prevent Legislative encroachment upon Executive

powers. E.g., J. Madison, A. Hamilton, and J. Jay, The Federalist

Papers, No. 73 (1961). It is thus especially ironic that after the

Framers refused to give the President an absolute veto to defend

himself from the Legislature, the Legislature should now claim the

right of an absolute veto to use against the Executive. Equally

ironic is the Congressional claim to a “line item” veto power, allow-

ing Congress to modify regulations by vetoing only selected portions,

another power denied the President by the Framers. See 2 U.S.C.

§ 438(cK5); 26 U.S.C. 8% 900% cK 4) and 9039(c\4).

26

cameralism leaves no rooin for the two Houses to reallocate

legislative authority as provided in FECA and Subtitle H,

so that the House can control rules for elections to the

House and the Senate can control rules for elections to

the Senate. 2 U.S.C. § 438(c)(3) and 26 U.S.C. §§ 900%c)

and 9039%(c). Indeed, the requirement that every legislative

action be taken by both Houses was intended to prevent

just the possibility of self-interested action which FECA

presents. See Federalist No. 51. See also Watson, supra,

63 Calif. L. Rev. at 1032-43.

Bicameralism made possible the most important compro-

mise in the formation of the Federal Union: the agreement

between large and small states for apportioning representa-

tion in the House and the Senate. Each House was to serve

as a check upon the other, but the one-house veto emascu-

lates this principle by permitting one House to undo a legis-

lative compromise by vetoing regulations adopted by the

Executive to implement that compromise. Moreover, if

the effective authority to modify the law can be vested in

one house, it can as easily be vested in one committee or

one chairperson. Indeed, this is the practical effect that

the veto has created through the negotiation process which

has developed between the respective Congressional commit-

tee chairmen and the Commission (Stip. § 463-76; App. I.

at 69a-7la). But this power to rewrite the election laws

without the approval of both Houses is precisely the power

forbidden by Article I, Section 1.

Another constitutional infirmity, which may be unique

to the situation presented under the FECA, derives from

the fact that those who sit in judgment on whether to veto

the Commission’s regulations are directly and personally af-

fected by those regulations whenever they run for re-election

to federal office. The conflici-of-interest problem raised is

27

quite different from that presented by the normal legislative

process concerning election laws, where each House checks

the excesses of the other, and both are checked by the

President. It is not necessary to ascribe to Congress any

bad faith; it is only necessary to recognize that it is almost

impossible for any person to be wholly objective when as

important a matter as re-election for the Member, or the

election of the candidate of the Member’s party for Pres-

ident, may be affected by the outcome of the vote. See

Gibson v. Berryhill, 411 U.S. 564, 578 (1973). This Court

has recognized that actual bias is often impossible to estab-

lish in situations such as this, and hence has ruled that due

process requires disqualification where there is a “possible

temptation” standing in the way of a fair determination.

Ward v. Village of Monroeville, 409 U.S. 57, 60 (1972),

quoting Tumey v. Ohio, 273 U.S. 510, 532 (1927). Ae-

cord, Connally v. Georgia, 45 U.S.L.W. 3461 (U.S. Jan. 10,

1977) (No. 76-461).

Finally, even if the Members of Congress as legislators

can delegate the veto power to the Members of one House

as administrators, that delegation is unconstitutional] in this

instance because it wholly lacks standards and its exercise

is not subject to judicial review.!4 Requirements for mean-

ingful standards for exercising delegated powers are espec-

ially appropriate in cases like this where exercise of the

delegated powers impacts so directly on First Amendment

14 in this administrative capacity, Members of Congress are seen

as serving as “Officers of the United States,” and this conflicts with

the Constitution’s incompatability clause—“no Person holding any

Office under the United States, shall be a Member of either House

during his Continuance in Jffice.”” U.S. Const. art. 1, §6, cl. 2. See

Buckley v. Valeo, supra, 424 US. at 124-41.

28

interests. See United States v. Robel, 389 U.S. 258, 277

(1967) (Brennan, J., concurring). Since under the election

laws either House has the unfettered discretion to veto a

rule because it is unauthorized, unwise, or unworkable, or be-

cause it fails to retain an advantage for incumbents, or for

any other reason at all, there can be no meaningful judicial

review, and thus the one-house veto is also an unconstitu-

tional delegation. Schechter Poultry Corp. v. United States,

295 U.S. 495 (1935); Panama Refining Co. v. Ryan, 293

U.S. 388 (1935); Amalgamated Meat Cutters & Butcher

Workmen v. Connally, 337 F. Supp. 737 (D.D.C. 1971)

(three-judge court).

B. The Constitutionality Of The One-House Veto

Is A Question Of Such Importance That The Court

Should Decide It In The Interests Of All Branches

Of Government.

If the sole impact of a ruling on the merits of this case were

on the rules of the Federal Election Commission, it might

be advisable to obtain the views of the lower courts before

this Court passed on the constitutional questions presented.

Similarly, if this were an ordinary statute, and not one af-

fecting the very process by which the leaders of our de-

mocracy are chosen, there might be a reason not to decide

constitutional questions until a full airing in the lower courts

had taken place. But those conditions do not obtain here

since Congress has specifically mandated in section 437h

that constitutional challenges to the election laws should

be promptly determined by expedited appeals to this Court

and because the inclusion of Congressional veto provisions

has increased markedly and is likely to advance at an even

faster pace, at least until a definitive ruling is issued on

the constitutional question. This question is of concem

to both the Executive and Legislative branches, as well as

29

to the public at large, and it is therefore especially appro-

priate that this Court resolve the issue at this time.

Although the insertion of Congressional veto provisions

is quite common today, it was not until 1932 that the

first one was enacted. This device for aggrandizing Con-

gressional power was used only sparsely over the next few

decades, but during the late 1960’s and 1970’s it has

emerged as a primary tool of Congressional control over

15 Congressional veto provisions were adopted by the Congress

for the first time in 1919-20, but the only bill to rea.» President

Wilson was vetoed on constitutional grounds. 59 Cong. Rec. 7026-27,

8069 (1920); 58 Cong. Rec. 8074 (1919). See Ginnane, The Con-

trol of Federal Administration By Congressional Resolutions and

Committees, 66 Harv. L. Rev. 569, 575 £1953).

Other Presidents have also vetoed such provisions, e.g., Ford,

122 Cong. Rec. H 7297 (daily ed. July 19, 1976); and every Pres-

ident since Herbert Hoover, supported by opinions of their Attor-

neys General, have argued that such provisions are unconstitutional.

See Watson, supra, 63 Calif. L. Rev. at 988 n.9.

Upon occasion, Presidents have actually suggested the use of the

Congressional veto mechanism in connection with proposals to grant

broad new powers to the President. In these cases, however, Con-

gress has often rejected the proposals. See J. Harris, Congressional

Control of Administration 205 (1964). Newspaper accounts suggest

that President Carter is at least considering agreeing to the use of

the Congressional veto provision in order to secure passage of Exe-

cutive reorganization authority. N.Y. Times, Nov. 18, 1976, 8A,

p. 1, col. 8 (city ed.). Some commentators, however, argue that

the Congressional veto may be valid in the unique context of the

reorganization acts, even though the veto generally cannot be up-

held, and most specifically is unconstitutional as used in the elec-

tion laws at issue here. F.g., R. Dixon, The Executive on A Leash:

The “Congressional Veto” and Separation of Powers, Address Before

the Association of American Law Schools, Dec. 29, 1976.

30

Executive actions. !® Thus, while the election laws are

unique in allowing a Congressional veto over every rule

issued by an entire agency, during the last session alone,

Congress adopted the veto as part of ten separate pieces

of regulatory legislation. See 123 Cong. Rec. H 499 (daily

ed. January 24, 1977).

Cumulatively, according to a 1976 Congressional Research

Service study, Congress has enacted 295 provisions in 196

different laws which authorize some form of Congressional

supervision of Executive actions. Norton, Congressional

Review, Deferral and Disapproval of Executive Action: A

Summary and Inventory of Statutory Authority 1-10 (1976).

Even though these figures include many statutes which are

not currently in effect, and a large number of statutes hav-

ing significant differences from those at issue here, it is evident

that the Congressional veto assumes great importance in the

164 number of books and articles have described the way the

Congressional veto has worked in practice over the past forty-four *

years, and have also addressed the constitutional problems it raises.

The most thorough of these are: J. Harris, Congressional Control of

Administration 204-48, 282-84 (1964); Watson, Congress Steps Out:

A Look at Congressional Control of the Executive, 63 Calif. L. Rev.

983 (1975); Ginnane, The Control of Federal Administration By

Congressional Resolutions and Committees, 66 Harv. L. Rev. 569

(1953). See also Note, Congressional Veto of Administrative Action:

The Probable Response To A Constitutional Challenge, 1976 Duke

L. J. 285; Note, Constitutionality of the Legisiative Veto, 13 Harv.

J. Legis. 593 (1976); Cooper and Cooper, The Legislative Veto and

the Constitution, 30 Geo. Wash. L. Rev. 467 (1962); Schwartz, Leg-

islative Control of Administrative Rules and Regulations, 30 N.Y.U.L.

Rev. 1031, 1041-45 (1955); Neuman and Keaton, Congress and the

Faithful Execution of Laws - Should Legislators Supervise Adminis-

trators? 4} Calif. L. Rev. 565, 587-88 (1953); Jackson, A Presiden-

tial Legal Opinion, 66 Harv. L. Rev. 1353 (1953).

3]

workings of government today.'’ This importance is grow-

ing significantly greater each year as the rate of passage of

statutes containing veto provisions (generally of the one-

house variety) is increasing at an increasing rate. In fact,

a number of bills now pending before Congress would

subject every regulation of every Executive agency to a

possible one-house veto, except in narrowly defined emer-

gencies. H.R. 959; H.R. 961; H.R. 1509. See 123 Cong.

Rec. H 499-500 (daily ed. January 24, 1977). The prede-

cessor of one of these bills was favorably reported by the

House Judiciary Committee near the end of the last session

and reached the floor under a suspension of the rules,

where it failed to gather the necessary two-thirds majority

by only two votes. 122 Cong. Rec. H 10666-90, H 10718-19

(daily ed. Sept. 21, 1976) (debate and vote on H.R. 12048);

H.R. Rep. No. 94-1014, 94th Cong., 2d Sess. (part I) (1976).

Of course, neither the other Congressional veto statutes

nor the other pending bills is before this Court, and this

\7 The listing of statutes is over-inclusive in several other respects.

First, it includes many statutes which were re-enactments of earlier

provisions of limited duration. Second, the list includes statutes which

merely provide that Congress must be consulted, or that a rule must

be allowed to sit before Congress for a fixed period of time. These

are not Congressional veto statutes; they only give Congress an oppor-

tunity to consider passing another statute before the rule takes effect.

Third, the list includes statutes which require affirmative Congressional

approval by both Houses of specific actions proposed by the President,

a very different situation from one-house disapproval. Fourth, the

study also brings within its scope those statutes which require dis-

approval by both Houses which at least assures that principles of

bicameralism are preserved, although still precluding any role in the

process for the President. There are also numerous variations in

wordings, periods of time involved, and types of actions to which

the legislative veto is applicable. Norton, supra, at 1-10.

32

Court need not decide their legality. Nonetheless, this

ever-increasing trend toward insertion of Congressional veto

provisions underscores the fact that resolution of the merits

of this case will have far-reaching implications for the way

in which our government seeks to insure agency accounta-

bility in the foreseeable future. Just as importantly, failure

to decide the issue at this juncture will only postpone the

decision until a time when the impact of a declaration of

unconstitutionality may have staggering effects, not only

upon the relations of government branches, but upon the

financial well-being of the Country, as Congressional veto

provisions are increasingly being utilized in statutes affect-

ing economic conditions. !®

IB Ee Emergency Petroleum Allocation Act of 1973, § 4(g\2),

Pub. L. 93-159, 87 Stat. 627; Federal Salary Act of 1967, 2 U.S.C.

§ 359(1(B). See Kraft, The Perils of the ‘One-House Veto’, Wash.

Post, Jan. 13, 1977, 8A, p. 27, col. 1. The Congressional veto pro-

visions in each of these acts have been the subject of legal challenges,

but none of the cases is likely to result in a decision on the merits.

Citronelle-Mobile Gathering, Inc. v. Gulf Oil Corp., Civ. No. 75-483-P

(S.D. Ala., Aug. 20, 1976), appealed, No. 76-3712 (Sth Cir.), an ac-

tion for breach of contract which also involved a challenge to the

Petroleum Act veto provisions, was dismissed as to the veto issue on

the ground that that plaintiff lacked standing to raise it. /d. slip. op.

at 17-18. Likewise, both of the Pay Act cases have been strenuously

defended on that ground, as well as non-retroactivity and, most im-

portantly, non-severability grounds. See Atkins v. United States, Nos.

41-76, et al. (Ct. Cl.); McCorkle v. United States, No. 76-1479 (4th

Cir.). The case at bar, however, is distinguishable from the Pay Act

cases in that here, unlike there, the statute involved contains a sev-

erability clause, 2 U.S.C. §454, and nothing in the legislative history

suggests that, but for the Congressional veto, Congress would have

withheld the power to fill in the gaps by regulation. See Buckley

v. Valeo, supra, 424 U.S. at 108-09.

33

Finally, the issue presented is purely a legal one which

has been fully briefed by the representatives of Congress,

albeit not in these proceedings. There is a full record,

which each party considers adequate to the task, to enable

the Court to reach a determination of whether the one-

house veto of rules of the Commission is consistent with

the Constitution. There is nothing more that this Court

needs to know in order to rule on this question, and there-

fore, as in Buckley, where the composition of the Commis-

sion was passed on without a ruling below, this is the time

to decide the merits of this controversy.

CONCLUSION

The Constitution is a complex bundle of compromises

and concessions, with each check and balance representing

an important part of the whole without which there could

have been no concensus. To allow the Congress to cir-

cumvent established checks on precipitous actions merely

by labeling as non-legislation, acts having the effects of

legislation, would soon undo the whole fabric of the Cons-

titution. The dangers of the one-house veto were clearly

recognized by Professor Kenneth Culp Davis in a recent

letter to Congressman Elliott H. Levitas, a sponsor of

several such bills. Professor Davis admonished (123 Cong.

Rec. H 961-62 (daily ed. Feb. 8, 1977):

The idea that a part of Congress, on the basis

of political pressures, should set aside professional

findings of fact based on a rulemaking record

seems to me to be a threat to the American

system of government, one of the most serious

threats that have come to my attention during

my lifetime. It seems to me especially dangerous

34

because many in Congress may vote for it in

order to gain advantage for themselves. Repeal-

ing it will be difficult for the same reason, even

if the damage it does is devastating.

Although I realize that you probably have the

votes, I have not given up hope. Those who

agree with me still have a good many lines of

defense—enough Congressmen may perceive the

need to maintain the proper balance between

politicians and professionals, the new President

may veto and induce the country to understand

the dangers to the American system of govern-

ment, the courts may quickly and firmly hold

the measure unconstitutional (as I fully expect),

and even if the measure becomes law a later

Congress may realize the damaging effects and

quickly repeal it.

In order to resolve these vital questions, the Court should

note probable jurisdiction or, in the alternative, issue writs

of certiorari as to all questions presented.

Respectfully submitted,

LARRY P. ELLSWORTH

ALAN B. MORRISON

GIRARDEAU A. SPANN

2000 P Street, N.W., Suite 700

Washington, D.C. 20026

202—785-3704

Counsel for Ramsey Clark

February 9, 1977