Amicus Curiae Brief — Federal Election Comm'n v. NRA Political Victory Fund

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3 Supreme Court, U.S.

7 | FILED

No. 93-1151 AUG ~ 4 1994

OFFICE OF THE CLERK

In the Supreme Court of the United States

OCTOBER TERM, 1994

FEDERAL ELECTION COMMISSION, PETITIONER

NRA POLITICAL VICTORY FUND, ET AL.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

DREW S. DAys, III

Solicitor General

WALTER DELLINGER

FRANK W. HUNGER

Assistant Attorneys General

PAUL BENDER

Deputy Solicitor General

MALCOLM L. STEWART

Assistant to the Solicitor General

DOUGLAS N. LETTER

EDWARD T. SWAINE

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTIONS PRESENTED

1. Whether constitutional separation-of-powers

principles are violated by the ex officio, non-voting

membership on the Federal Election Commission of the

Secretary of the Senate and the Clerk of the House of

Representatives.

2. Whether, if Question 1 is answered in the affirma-

tive, the Commission’s prior actions (including the civil

penalty imposed in this case) should nevertheless be

given de facto validity.

(I)

TABLE OF CONTENTS

Page

Interest of the United States . . . . 1

r 2

, 8

Argument:

I. The membership on the Commission of the Secretary

of the Senate and the Clerk of the House of Represen-

tatives violates the constitutional separation of

1199111 —ů—ůů 9

II. The prior acts of the Commission should be accorded

facto validity, and the civil penalty imposed in this

caseshould accordingly be sustained 23

eee 29

TABLE OF AUTHORITIES

Cases:

Ball v. United States, 140 U.S. 118 (1891) 24, 25

Bowsher v. Synar, 478 U.S. 714 (1986) 14, 16, 17, 19

Buckley v. Valeo, 424 U.S. 1 (1976) . . . e passim

Chevron Oil Co. v. Huson, 404 U.S. 97 (1971) . . 25, 28

Dirks v. SEC, 463 U.S. 646 (1983) .. 2

EEOC v. Sears, Roebuck & Co., 650 F.2d 14 (2d Cir.

eee 24

England v. Louisiana State Bd. of Medical Examiners,

e 2⁵

FEC v. National Conservative Political Action Comm.,

e 4

FEC v. National Right to Work Comm., 459 U.S. 197

1 4

Harper v. Virginia Dep't of Taxation, 113 S. Ct. 2510

111111 28

(IIT)

—

Cases—Continued: Page

Humphrey's Executor v. United States, 295 U.S. 602

K 2 17

Imbler v. Pachtman, 424 U.S. 409 (1976) . 21

INS v. Chadha, 462 U.S. 919 (1983) 16, 17, 19

James B. Beam Distilling Co. v. Georgia, 501 U.S. 529

ee ee 27

Marshall v. Jerrico, Inc., 446 US. — 27

Massachusetts v. Mellon, 262 U.S. 447 (1923) ... 17

McDowell v. United States, 159 U.S. 596 (1895) .............. 24, 25

Metropolitan Washington Airports Auth. v. Citizens for

Abatement of Aircraft Noise, Inc., 501 U.S. 252

. concessensaseceemenattuhetiiniapetiontananinnviietiodances 5-6, 15, 16, 17

Mistretta v. United States, 488 U.S. 361 (1989) ......... 15, 16, 23

Northern Pipeline Construction Co. v. Marathon Pipe

Line Co., 458 U.S. 50 (1982) 25

Norton v. Shelby County, 118 U.S. 425 (1886) 24

O’Donoghue v. United States, 289 U.S. 516 (1933) ........... 17

Otter Tail Power Co. v. United States, 410 U.S. 366

——ͤ— ff. 2

Public Citizen v. Department of Justice, 491 U.S. 440

LK 0 21

Ryan v. Tinsley, 316 F.2d 430 (10th Cir.), appeal dis-

missed, cert. denied, 375 U.S. 17 (1963) . 25

Schlesinger v. Reservists Committee to Stop the War,

CI 22

United States v. Allison, 481 F. 2d 468 (Sth Cir. 1973) ..... 21

United States v. Brown, 381 U.S. 437 (1965) 21

United States v. Nixon, 418 U.S. 683 (1974) 20

United States v. Olano, 113 S. Ct. 1770 (1998) ................. 21

United States v. Watson, 669 F.2d 1374 (llth Cir.

— . 21

United States ex rel. Doss v. Lindsley, 148 F.2d 22 (7th

Cir.), cert. denied, 325 U.S. 858 (1945) . 24, 27

Waite v. Santa Cruz, 184 U.S. 302 (1902) 24

1. $8, Cl. 4

I., $ 9, Cl. 3 (Bill of Attainder Clause

II, § 2, Cl. 2 (Appointments Clause) 3, 10,

ant

225, 86 Stat. B .... ————..—.—ꝓ,—...ꝗꝗ—·. . . . 2, 9,

Federal Election Campaign Act Amendments of 1974,

Pub. L., No. 98-443, 88 Stat. 1263.

§ 208(a), 88 Stat. 1280-1281

U.S.C.

437c(a)(1) (Supp. V 1975) .

— onestientseetnceitiameataiie

——A . een

D aataelpmniamemniannte

— — 4

o 7 ——7*6d: 4

8980000. —7—7r— 10

c ————— 5

Statutes, regulations and rule Continued: Page

Federal Election Campaign Act Amendments of 1976,

Pub. L. No. 94-283, 90 Stat. 475:

§ 101(a), 90 Stat. 475, 2 U.S.C. 487 eta) 4, 20

§ 112(2), 90 Stat. 490, 2 U.S.C. 441b(a) . 5

111K» 3 — ne 15

11 ˙——— ee ee 22

221% . . Tee 22

26 U.S. C.:

— 3 9, 10, 11

Z —A 6 10

ccc 9, 10, 11

ZK os eee ey ae 10

28 U.S.C. oi) — 22

11 C. F. R.:

r K— 11

Th 8 11

K w 2 — 5

III ccccnnweccnectessasnssessssnssnssecncenssocevssseess 21

Miscellaneous:

120 Cong. Rec. 27,507 (19739 ———..—. . 12

122 Cong. Rec. (1976):

936 —————çꝙ—＋—123S9ꝑ 13

9. 666 ——————— 13

BR. 0600... .———.——————————55 13

9.069 —— 13

99 — 14

Directive No. 10, Federal Election Campaign —

Guide (CCH) (1989) 11

Federal Election Campaign Act Amendments, 1976:

Hearing Before the Subcomm. on Privileges and Elec-

tions of the Senate Comm. on Rules and Admin., 94th

8888.988880 1!ÿꝓc4“C4ꝶ7ꝙ.ß— 14, 19

58 Fed. Reg. (1993):

800 ceccccenscccccsceccceccnscovecsecccosssesnccovecsessssssossosooseoes 7

1 — T 7

11 ———————ji2 8

H. R. Rep. No. 1239, 93d Cong., 2d Sess. (1974) ............... 12

VII

Miscellaneous Continued:

H.R. Rep. No. 1438, 98d Cong., 2d Sess. (1974) . . .

Robert's Rules of Order Newly Revised (1970) ...............

The Federalist (J. Cooke ed. 1961):

No. 48 (James Madison) — —

No. 70 (Alexander Hamilton)

1 The Works of James Wilson (James DeWitt Andrews

4... —— —

In the Supreme Court of the United States

OCTOBER TERM, 1994

No. 93-1151

FEDERAL ELECTION COMMISSION, PETITIONER

v~.

NRA POLITICAL VICTORY FUND, ET AL.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

INTEREST OF THE UNITED STATES

Both issues presented by this case are of considerable

importance to the United States. The United States has

a substantial interest in questions involving the appli-

cation of constitutional separation-of-powers principles,

and particularly in questions regarding the power of

Congress to place its agents as members of entities

within the Executive Branch. The United States also

has a substantial interest in continued recognition of the

principle that, under appropriate circumstances, the

prior acts of a governmental actor may be accorded de

facto validity even if it has been determined that the

actor’s appointment was legally flawed. At the Court’s

invitation, the United States filed a brief amicus curiae

(1)

at the petition stage of this case, addressed solely to the

question whether the Federal Election Commission has

statutory authority to represent itself in this case in

this Court.

STATEMENT

1. The Federal Election Campaign Act Amendments

of 1974, Pub. L. No. 93-443, 88 Stat. 1263, substantially

altered the legal regime governing presidential and

congressional election campaigns. The 1974 statute

amended the Federal Election Campaign Act of 1971

(FECA or Act) to provide, inter alia, that civil enforce-

ment of federal election laws would be entrusted to the

newly established Federal Election Commission (FEC or

Commission). The statute provided that the Commission

would be composed of the Secretary of the Senate and the

Clerk of the House of Representatives, ex officio and

without the right to vote, and six additional members.

Two of these members would be appointed by the

President pro tempore of the Senate, two by the Speaker

Although the United States disagrees with the Federal

Election Commission regarding the proper disposition of the

separation-of-powers issue posed by this case, the Solicitor General

has authorized the Commission to file a petition for a writ of

certiorari and to represent itself in this Court. On prior occasions

the Solicitor General has deemed it appropriate to authorize

federal agencies to file briefs in this Court on their own behalf

asserting positions contrary to those of the United States. See, e.g.,

Dirks v. SEC, 463 U.S. 646, 648 n.“ (1983) (Securities and

Exchange Commission authorized by Solicitor General to file brief

defending the judgment of the court of appeals, although Solicitor

General filed a brief urging reversal); Otter Tail Power Co. v.

United States, 410 U.S. 366, 367 n.* (1973) (Federal Power

Commission authorized by Solicitor General to file brief amicus

curiae supporting position contrary to that asserted by the United

States).

of the House of Representatives, and two by the

President. All would be subject to confirmation by a

majority vote in both Houses. See 2 U.S.C. 437¢(a)(1)

(Supp. V 1975); see Pub. L. No. 93-443, § 208(a), 88 Stat.

1280-1281.

In Buckley v. Valeo, 424 U.S. 1, 109-141 (1976) (per

curiam), the Court held that this scheme violated the

Appointments Clause, Art. II, § 2, Cl. 2. The Court held

in particular that “[t]he Commission’s enforcement

power, exemplified by its discretionary power to seek

judicial relief,” 424 U.S. at 138, could be exercised only

by “Officers of the United States,” selected in

conformity with the Appointments Clause, id. at 124-141.

The Court suggested as well that the method by which

the voting commissioners were appointed violated more

general separation-of-powers principles. Id. at 118-124.

Significantly, however, the Court concluded that “the

Commission’s inability to exercise certain powers

because of the method by which its members have been

selected should not affect the validity of the Com-

mission’s administrative actions and determinations to

this date * * *. The past acts of the Commission are

therefore accorded de facto validity.” Id. at 142.

In response to this Court’s decision in Buckley,

Congress again amended the FECA. The statute, inter

alia, reestablished the FEC:

There is established a commission to be known as

the Federal Election Commission. The Commission

is composed of the Secretary of the Senate and the

Clerk of the House of Representatives or their

designees, ex officio and without the right to vote,

and 6 members appointed by the President, by and

with the advice and consent of the Senate. No more

than 3 members of the Commission appointed under

this paragraph may be affiliated with the same

political party.

Federal Election Campaign Act Amendments of 1976,

Pub. L. No. 94-283, § 101(a), 90 Stat. 475, codified) as

amended at 2 U.S.C. 437e(a)(1).

The Commission possesses wide-ranging authority to

administer the federal election laws.“ The present case

involves the FEC’s exercise of its power to seek civil

penalties. The Act provides that, if the Commission

* * * determines, by an affirmative vote of 4 of its

members, that it has reason to believe that a person has

committed, or is about to commit, a violation of [the

FECA] or chapter 95 or chapter 96 of title 26,” the

Commission “shall make an investigation of such alleged

violation,” 2 U.S.C. 437g(a)(2), and may attempt to

resolve the matter through a voluntary conciliation

agreement, 2 U.S.C. 437g(a)(4)(A). If efforts to achieve a

voluntary agreement fail, “the Commission may, upon an

affirmative vote of 4 of its members, institute a civil

2 As was true prior to Buckley v. Valeo, the Commission’s

broad-ranging powers fall generally into three categories. See 424

U.S. at 109-113, 137-143. First, the Commission exercises powers of

an investigative or informative nature, including recordkeeping,

investigative, and disclosure functions. See, e.g., 2 U.S.C.

437d(a)(1)-(5) and (9), 438(a) and (b). In addition, the Commission

performs a variety of administrative functions, including

rulemaking (see 2 U.S.C. 437d(a)(8), 438(a)(8)), the rendering of

advisory opinions (see 2 U.S.C. 437d(a)(7), 437f), and formulation

of general policy (see 2 U.S.C. 437c(b)(1)). Finally, the Com-

mission is entrusted with “exclusive jurisdiction with respect to the

civil enforcement of [the Act and Chapter 95 and Chapter 96 of

Title 26].” 2 U.S.C. 437c(b)\(1); see FEC v. National Conservative

Political Action Comm., 470 U.S. 480, 485, 489 (1985); FEC v.

National Right to Work Comm., 459 U.S. 197, 198 n.2 (1982).

action for relief” in federal district court. 2 U.S.C.

437g(a)(6)(A).

2. This case began as an enforcement action brought

by the FEC against various entities and an officer of the

National Rifle Association (NRA). The NRA’s Institute

for Legislative Action (ILA) conducted mailings in 1988

to raise funds for the Political Victory Fund (PVF), a

separate segregated fund of the NRA that provides

financial support to candidates for election. See Pet. 5-6.

The PVF reimbursed the ILA for the cost of those

mailings, but the ILA subsequently transferred an

identical amount to the PVF. See Pet. App. 2a-3a. The

FEC concluded that this transaction violated 2 U.S.C.

441b(a), which prohibits corporate contributions and

expenditures in connection with federal elections. See

11 C.F.R. 114.5(b).

After unsuccessful negotiations with the NRA, the

FEC brought this civil enforcement action against NRA

entities and one of its officials. Respondents asserted

three constitutional challenges to the statute establish-

ing the Commission. First, respondents argued that the

Act impermissibly restricts the President’s nomination

power by requiring that no more than three of the six

voting members of the Commission can be affiliated with

the same political party. Second, they asserted that, in

the absence of any statutory provision authorizing

removal of commissioners by the President, the Com-

mission’s civil enforcement powers encroach on the

President’s authority to “take Care that the Laws be

faithfully executed,” U.S. Const. Art. II, § 3. Third, they

contended that by making the Secretary of the Senate

and the Clerk of the House of Representatives ex officio

members of the Commission, Congress had exceeded its

authority under Article I. See Pet. App. 3a-6a.

The district court rejected these arguments on

standing grounds. It concluded that “it is the President

and not the [respondents] who can challenge alleged

infringements of presidential powers because only the

President’s interests are affected.” Pet. App. 24a. It

stated that “ultimately, [respondents] have raised an

issue that bears on the rights of a third party, namely

the President, and not on their own legal interests,” id.

at 26a; it noted as well that respondents had “not alleged

that the Secretary and the Clerk were even present for

or participated in the proceedings in question,” ibid.

The district court granted summary judgment in favor of

the Commission on the merits of the enforcement action

and awarded declaratory and injunctive relief and

assessed a financial penalty of $40,000. Id. at 27a-28a,

29a-30a, 31a-34a, 35a.

3. The court of appeals een Pet. App. la-18a. It

held that respondents had standing to raise two of their

constitutional claims, id. at 6a- 11a, and that the ex

officio membership of congressional officers—the

Secretary and Clerk—violated separation-of-powers

principles, id. at 13a-16a. The court concluded that the

only conceivable purpose of this membership was to

influence the Commission, and that “the mere presence

of agents of Congress on an entity with executive powers

offends the Constitution.” Id. at 15a (citing

Metropolitan Washington Airports Auth. v. Citizens

The Court concluded, however, that respondents’ challenge to

the statutory restrictions on party affiliation was not justiciable.

Pet. App. 8a-lla. It rejected respondents’ contention that the

Commission’s independence unconstitutionally limited the

President’s authority to execute the laws, concluding that the

statute could properly be construed to afford the President

constitutionally sufficient power to remove commissioners from

their positions. See id. at 11a-12a.

for Abatement of Aircraft Noise, Ine, 501 U.S. 252

(1991)). It rejected the FEC’s argument that “Congress

intended ex officio membership to fulfill [a] coordinating

function by having the Secretary and the Clerk play a

mere ‘informational or advisory role’ in agency

decisionmaking,” Pet. App. 15a, explaining:

Advice, however, surely implies influence, and

Congress must limit the exercise of its influence,

whether in the form of advice or not, to its legislative

role. In that capacity, Congress enjoys ample

channels to advise, coordinate, and even directly

influence an executive agency. It can do so through

oversight hearings, appropriation and authorization

legislation, or direct communication with the

Commission. What the Constitution prohibits Con-

gress from doing, and what Congress does in this

case, is to place its agents ‘beyond the legislative

sphere’ by naming them to membership on an entity

with executive powers.

Id. at 15a-16a (citation and footnote omitted). The court

held that the de facto officer doctrine could not be used to

redeem the Commission’s actions in this enforcement

proceeding. It explained that respondents “raise the

constitutional challenge as a defense to an enforcement

action, and we are aware of no theory that would permit

us to declare the Commission’s structure uncon-

stitutional without providing relief to the [respondents]

in this case.” Id. at 17a-18a.*

4 On October 26, 1993, four days after the court of appeals’

decision, the Commission “reconstituted itself as a body of six

voting members subject to further judicial action.” 58 Fed. Reg.

59,640 (1993). Shortly thereafter, the reconstituted Commission

issued orders ratifying the FEC’s existing forms and regulations,

id. at 59,640-59,641, and announcing that its past advisory opinions

SUMMARY OF ARGUMENT

1. The membership on the Federal Election

Commission of the Secretary of the Senate and the Clerk

of the House of Representatives violates constitutional

separation-of-powers principies. As Commission mem-

bers, these congressional officers are entitled to all the

prerogatives of membership not specifically proscribed.

The legislative history evidences Congress’s expec-

tation that these officials would play a substaf@tial role in

the Commission’s exercise of its duties. Such placement

of congressional agents on an Executive Branch entity

threatens “the encroachment or aggrandizement of one

branch at the expense of the other.” Buckley v. Valeo,

424 US. 1, 122 (1976) (per curiam).

These constitutional principles are not rendered

inapplicable because the Secretary and Clerk do not have

the right to vote. This Court’s decisions make clear that

Congress may not exert control, whether formally or “in

effect,” over the exercise of executive authority. Con-

gress therefore may not make its agents members of a

body if that entity possesses functions and powers that

Congress may not exercise itself. By giving con-

gressional agents the influence that comes from

participation in all the deliberations of an Executive

Branch agency, Congress has improperly enlarged. its

own power beyond the legislative sphere. The presence

of congressional agents as members of an Executive

Branch agency also threatens to impair the Com-

mission’s independent conduct of its responsibilities.

2. Even though the ex officio membership of the

Secretary and Clerk violates separation-of-powers

would continue to be given the same precedential effect as before

the court of appeals’ decision, id. at 59,642. 1

principles, the Court should —as it did in Buckley v.

Valeo accord de facto validity to the Commission’s

previous acts, including the civil penalty imposed in this

case. That disposition would be consistent with the

Court’s longstanding application of the “de facto officer

doctrine,” which gives validity to acts of officers

regardless of any defects in the legality of their appoint-

ment or election. Prospective application of the Court’s

decision would be especially appropriate in the present

case, since any connection between the Commission’s

unlawful composition and the judgment ultimately

entered against respondents is far too attenuated to

outweigh the public interest in effective implementation

of the federal campaign laws.

ARGUMENT

I. THE MEMBERSHIP ON THE COMMISSION

OF THE SECRETARY OF THE SENATE AND

THE CLERK OF THE HOUSE OF RE-

PRESENTATIVES VIOLATES THE CON-

STITUTIONAL SEPARATION OF POWERS

A. 1. The Federal Election Commission was estab-

lished by Congress to “administer, seek to obtain

compliance with, and formulate policy” with respect to

the Federal Election Campaign Act of 1971, as amended,

and Chapters 95 and 96 of Title 26. 2 U.S.C. 437¢e(b)(1).

See pages 2-5, supra. The Commission’s enforcement

power is “poth direct and wide ranging” and

substantially independent of the Attorney General and

the Department of Justice. See Buckley v. Valeo, 424

U.S. 1, 111-113 (1976) (per curiam). The decision whether

to undertake enforcement actions rests solely with the

Commission’ (which also possesses independent litigat-

ing authority with respect to various provisions of the

Act and Chapters 95 and 96 of Title 26). See 2 U.S.C.

437d(a)(6); 26 U.S.C. 9010(d), 9040(d). In Buckley, this

Court held that the Commission’s enforcement powers

and administrative functions are of a type that may be

exercised only by Executive Branch “Officers of the

United States” appointed pursuant to Article II, § 2, Cl.

2, of the Constitution. 424 U.S. at 137-141.

2. All decisions of the Commission must be made by a

majority of the voting members, with an affirmative vote

of four members required to initiate or appeal civil

actions, to render advisory opinions, to develop or alter

rules or forms, and for certain other acts. See 2 U.S.C.

437c(c). The Secretary and Clerk do not have the right

to vote on Commission actions. In all other respects,

however, the statute describes these officials as

“members” of the Commission. See 2 U.S.C. 437e(a)(3)-

(5) (providing that “members (other than the Secretary

of the Senate and the Clerk of the House of

Representatives)” are subject to specified limitations

and privileges). This Court in Buckley also so

characterized them, stating that the Commission

“consists of eight members. The Secretary * and

the Clerk * * * are ex officio members of the Com-

mission without the right to vote.” 424 U.S. at 113

(footnote omitted); see also id. at 267-268 (White, J.). As

5 Responsibility for criminal enforcement of federal election

laws remains with the Department of Justice. The Commission

may refer to the Attorney General and willful violations

of the Act, or of Chapter 95 or 96 of Title 26, if it finds probable

cause to believe that such a violation has occurred or is about to

occur. 2 U.S.C. 437g(a)(5)(C). The Attorney General is then

obliged to report any actions taken with respect to the apparent

violation. 2 U.S.C. 437g(c).

members, the Secretary and Clerk are entitled to all the

prerogatives of membership not specifically proscribed.

Thus, they may attend and participate fully in the

Commission’s meetings and discussions (see 2 U.S.C.

437¢e(d)) concerning the exercise of any of its functions

(including the bringing of an enforcement action), assist

in the formulation of the Commission’s internal rules

and procedures (see 2 U.S.C. 437e(e)),° and participate in

The rules employed by the Commission at the time of the

court of appeals’ decision (prior to the reconstitution of the FEC as

a body of six voting members, see note 4, supra), purported to

exclude the Secretary and Clerk from the definition of “member.”

Directive No. 10, Federal Election Campaign Financing Guide

(CCH) 4 2043, at 2512 (1989) (subpart A(1)). Under these rules,

the Secretary and Clerk could not call meetings in addition to

those required by statute (id. subpart A), contrast 2 U.S.C. 437¢(d)

(“The Commission shall meet at least once each month and also at

the call of any member.”); did not contribute to the presence or

absence of a quorum (Directive No. 10, supra, 1 2043, at 2512

(subpart B)); and could not request that motions be reduced to

writing or vote on certain motions (id. at 2512-2513 (subpart E)).

It is unclear under the rules whether opposition by an ex officio

member to adoption of a matter would compel that a vote be taken

prior to its adoption (id. at 2513 (subpart G)).

As “Commissioner(s],” however, the ex officio members appear

to have possessed the right to speak as a matter of personal

privilege under the rules. Directive No. 10, supra, 1 2043, at 2513

(subpart F); compare 11 C. F. R. 5.1(b) (“Commissioner” includes

Secretary and Clerk for purposes of considering public access to

documents) with 11 C.F.R. 7.2(b) (“Commissioner” limited to

voting members for purposes of provisions regarding standard of

conduct). The FEC also subscribes to Robert’s Rules of Order

Newly Revised (1970), see Directive No. 10, supra, 1 2043, at 2514

(subpart K). Under Robert’s Rules of Order, no member can be

precluded from attending meetings except where he or she has

run afoul of bylaws or is properly subject to discipline. See id. § 60,

at 539; cf. id. § 46, at 386 (honorary members have the right to

personnel decisions and in the Commission’s coordina-

tion with other Executive Branch entities (see 2 U.S.C.

437c(f)). They may also participate in writing the

Commission’s advisory opinions, which exempt specified

persons from liability for conduct undertaken in good

faith reliance on the opinion, even if that conduct is later

determined to constitute a violation of the FECA. See

2 U.S.C. 437f.

The legislative history of the FECA further evidences

Congress’s expectation that the Secretary and Clerk

would play a broad role in the Commission’s exercise of

its functions, despite the absence of voting power. Under

the prior statutory scheme (the Federal Election

Campaign Act of 1971, Pub. L. No. 92-225, 86 Stat. 3

(1972)), the Secretary and Clerk were given a broad

range of duties, including the responsibility for report-

ing apparent violations of law, the authority to direct the

Attorney General to institute civil actions, and rule-

making and regulatory functions. Pub. L. No. 92-225,

§§ 301(g), 308, 86 Stat. 12, 16-18. The creation by the 1974

Amendments of an eight-member Commission (on which

the Secretary and Clerk were included as non-voting

members) was prompted in part by concerns that these

officials had executed their responsibilities in an

inefficient and partisan fashion.’ See Pub. L. No. 93-443,

§ 208(a), 88 Stat. 1280; see also H.R. Rep. No. 1438, 93d

Cong., 2d Sess. 88-90 (1974).

Immediately following this Court’s decision in

Buckley, Congress considered legislation that would re-

attend meetings and to speak, but not to make motions or vote

unless that authority is specifically provided).

7 See, e.g., H.R. Rep. No. 1239, 98d Cong., 2d Sess. 131-133

(1974) (supp. views of Rep. Frenzel); 120 Cong. Rec. 27,507 (1974)

(Rep. Broyhill). :

establish the Commission in a manner consistent with

the Appointments Clause. When the Senate debates

began, Senator Griffin introduced an amendment that

would have eliminated the Secretary and Clerk as

Commission members. 122 Cong. Rec. 6691 (1976). To

explore the intended scope of the participation of the ex

officio members, Senator Mansfield incorporated into the

record a letter from the incumbent Secretary of the

Senate, who explained that his present role (and the role

of his full-time designee) was to represent the interests

of the Senate in a variety of ways. Id. at 6705. The

Secretary also reported the views of the present com-

missioners that “ex officio members should have all

rights and privileges and responsibilities of the other

Commissioners, except the right to vote.” Ibid.

After further exchange (122 Cong. Rec. 6705-6706

(1976)), Senator Mansfield secured Senator Cannon’s

agreement that the Secretary was to serve “in con-

nection with Senate campaign matters which come

within the purview of the Commission and that the law

permits the Secretary to advise with, discuss, question

and, except for the right to vote, participate fully in the

proceedings of the Commission in this respect.” Id. at

6940. Senator Griffin’s view was solicited, and he

stressed the committee’s intent that “to the extent of

constitutionality” the Secretary and Clerk would be

participating (but non-voting) members of the FEC.

Senator Mansfield agreed, and Senator Allen added that

the Secretary “would have the full right to advise with

the Commission and to participate in any discussion or

in any matter coming before the Commission; to give his

advice, arising from his expertise in this area, but not to

have the right to cast a vote.” Ibid.

Following conference on the Senate bill, Representa-

tive Brademas indicated agreement with the Senate’s

assessment of the ex officio members. Representative

Brademas noted that the bill would change the method by

which the six voting members were selected (in response

to Buckley), but stated that

lim other respects, * the makeup of the

Commission will remain essentially unchanged. The

Clerk of the House and the Secretary of the Senate

will continue to serve on the Commission, ex officio.

The Clerk and Secretary will not have the right to

vote, but otherwise will be accorded all of the other

rights, including participation in Commission

meetings, which belong individually to the six

Presidentially appointed Commissioners.

122 Cong. Rec. 12,203 (1976).*

B. This Court held in Buckley that many of the

functions performed by the FEC—including the civil

enforcement authority at issue in this case—involve the

exercise of executive power. See 424 U.S. at 138. In

Bowsher v. Synar, 478 U.S. 714, 722-727 (1986), the Court

reaffirmed that officials responsible to Congress may not

be vested with authority to execute the laws. See also

8 While supporting legislation to reestablish the Commission, the

Ford administration recommended that the membership of the

Secretary and Clerk be eliminated. Testifying before a Senate

subcommittee on behalf of the Department of Justice, one

administration official explained that “the spirit of the [Buckley]

opinion, and even the letter of the Constitution, require this

result.” Federal Election Campaign Act Amendments, 1976:

Hearing Before the Subcomm. on Privileges and Elections of the

Senate Comm. on Rules and Admin., 94th Cong., 2d Sess. 119

(1976) (1976 Hearings) (testimony of Assistant Attorney General

Scalia). At a minimum, he stated, the inclusion of congressional

officials in the Commission’s membership would pose an

unacceptable risk of further litigation. Id. at 120; see also id. at

134-137. .

Metropolitan Washington Airports Auth. v. Citizens

for Abatement of Aircraft Noise, Inc., 501 U.S. 252, 276

(1991) (MWAA) (“If the power is executive, the Consti-

tution does not permit an agent of Congress to exercise

it.“). It is therefore entirely clear that the Secretary

and Clerk could not, consistent with this Court’s

separation-of-powers decisions, be made voting members

of the Commission.“ The question in this case is

whether the absence of voting power renders constitu-

tional the participation of congressional agents on an

agency exercising substantial executive powers. We

believe that question must be answered in the negative.

1. Although “the Framers did not require—and

indeed rejected—the notion that the three Branches

must be entirely separate and distinct,” Mistretta v.

United States, 488 U.S. 361, 380 (1989), this Court has

reviewed with particular vigilance statutory provisions

that threaten “the encroachment or aggrandizement of

one branch at the expense of the other.” Buckley, 424

U.S. at 122. “It is this concern of encroachment and

aggrandizement that has animated [the Court's]

separation-of-powers jurisprudence and aroused [its]

vigilance against the ‘hydraulic pressure inherent

within each of the separate Branches to exceed the outer

limits of its power.’” Mistretta, 488 U.S. at 382 (quoting

The Secretary and Clerk are among the “officers of the

Congress” elected by the Members, see 2 U.S.C. 60-1(b); Buckley,

424 U.S. at 128 & nn.163-164, and they indisputably function as

congressional agents. Indeed, the potential for Legislative Branch

control is greater here than in prior cases: neither the individual

Members of Congress who served on the Board of Review in

MWAA, nor the Comptroller General in Bowsher, was as respon-

sive to Congress as are the Secretary and Clerk.

INS v. Chadha, 462 U.S. 919, 951 (1983))."° The records of

the Constitutional Convention and the Federalist

Papers, moreover, particularly emphasize the danger

that Congress “will aggrandize itself at the expense of

the other two branches.” Buckley, 424 U.S. at 129 &

n.166. As James Madison recognized,

it is against the enterprising ambition of [the

legislative] department, that the people ought to

indulge all their jealousy and exhaust all their

precautions.

* ** Its constitutional powers being at once more

extensive and less susceptible of precise limits, it can

with the greater facility, mask under complicated and

indirect measures, the encroachments which it

makes on the co-ordinate departments.

The Federalist No. 48, at 332-334 (J. Cooke ed. 1961). See

MWAA, 501 U.S. at 273-274. Accord Bowsher, 478 U.S.

at 727 (“The dangers of congressional usurpation of

Executive Branch functions have long been recog-

nized.”).

2. Bowsher and MWAA enunciate two principles that

are central to judicial application of the anti-aggrandize-

ment principle. First, Congress may not assert control,

whether formally or “in effect,” over the exercise. of

executive authority. See, e.g., MWAA, 501 U.S. at 274

(anti-aggrandizement principle aimed at “forestall[ing]

the danger of encroachment beyond the legislative

sphere”) (internal quotation marks omitted); Bowsher,

478 U.S. at 734 (“Congress in effect * * * retain([s]

10 The Court noted in Mistretta that it had “upheld statutory

provisions that to some degree commingle the functions of the

Branches, but that pose no danger of either — or

encroachment. 488 U.S. at 382.

— ee

— ee ee

control over the execution of the Act and * * *

intrude[s] into the executive function. The Constitution

does not permit such intrusion.”).'' Second, judicial

enforcement of the anti-aggrandizement principle

involves the application of bright-line rules, designed to

determine whether a particular statutory scheme

creates the potential for congressional usurpation of

Executive Branch functions, rather than a fact-specific

inquiry into the actual manner in which that scheme has

been implemented. See Bowsher, 478 U.S. at 730; see

also MWAA, 501 U.S. at 269 n.15 (“the likelihood that

Congress will discipline Board members by depriving

them of committee membership” was “irrelevant for

separation-of-powers purposes”); id. at 277 (irrelevant

that statutory scheme “might prove to be innocuous”).

11 See also Humphrey’s Executor v. United States, 295 U.S. 602,

629 (1935) (“[EJach of the three general departments of

government [must remain] entirely free from the control or coercive

influence, direct or indirect, of either of the others”) (emphasis

added); O’Donoghue v. United States, 289 U.S. 516, 530 (1933)

(“[EJach department should be kept completely independent of the

others—independent not in the sense that they shall not cooperate

to the common end of carrying into effect the purposes of the

Constitution, but in the sense that the acts of each shall never be

controlled by, or subjected, directly or indirectly, to, the coercive

influence of either of the other departments.”) (emphasis added).

Cf. Chadha, 462 U.S. at 951 (the Constitution created three

defined Branches “to assure, as nearly as possible, that each branch

of government would confine itself to its assigned responsibility”);

M -ssachusetts v. Mellon, 262 U.S. 447, 488 (1923) (“The general

rule is that neither department may invade the province of the

other and neither may control, direct or restrain the action of the

other.”) (emphasis added); 1 The Works of James Wilson 367

(James DeWitt Andrews ed., 1896) (each department’s proceedings

“should be free from the remotest influence, direct or indirect, of

either of the two other powers”) (quoted in O’Donoghue, 289 US.

at 530).

3. In our view, one such bright-line rule is that

Congress may not place its agents as members of a

governmental body, even in a non-voting capacity, if that

body exercises powers that Congress may not exercise

itself. Inclusion of the Secretary and Clerk as members

of the Commission is therefore unconstitutional.'*

a. By making them Commission members, the Act

secures for these agents of Congress a comprehensive

and impermissible means of influence over the Com-

mission’s decisionmaking. The FECA compels the Com-

mission to afford the Secretary and Clerk an integral

role in all its deliberative processes. By participating as

members in the FEC’s deliberations, the ex ofticio

agents give Congress the ability to express its views

from within the Commission on issues involving the

execution and administration of the FECA in specific

12 Respondents, in their brief in opposition, have indicated that

they may raise in defense of the judgment two other claims

rejected by the court of appeals below: that the absence of any

statutorily specified removal authority unconstitutionally impairs

the President’s ability to “take Care that the Laws be faithfully

executed,” U.S. Const. Art. II, § 3; and that the statute

unconstitutionally restricts the President’s nomination power

under the Appointments Clause by imposing restrictions on the

party affiliation of appointments to the Commission. See 2 U.S.C.

437¢(a)(1).

We believe that those issues were resolved correctly by the court

of appeals. While the FECA is silent as to the President’s power to

remove commissioners, the court correctly reasoned that the Act

may be construed to afford the President constitutionally sufficient

removal power. Pet. App. lla-12a. As to the alleged restriction on

the President’s appointment power, we also agree with the court of

appeals that respondents lack standing to raise that claim, since it

is impossible to determine in this case whether the bipartisanship

requirement actually served to limit the President's choices. Id. at

Sa-Ila.

‘

cases and instances.“ Placement of the Secretary and

Clerk on the Commission’s membership also has the

likely effect (as well as the apparent purpose) of causing

the other commissioners to regard them as colleagues

(rather than as members of a separate Branch of

government) and to interact with them on that basis.“

Although Congress has ample power to investigate or

inform through legislative hearings or similar pro-

cedures, its attempt to participate (through its agents)

in all the activities of the Commission constitutes a

circumvention of the ordinary legislative role.

There is, of course, nothing illegitimate about efforts

by members of one Branch to influence the decisions of

the others. The continuous dialogue between the

political Branches gives rise to numerous occasions for

committees, Members, and agents of Congress to

express their views to Executive Branch agencies

concerning the administration and enforcement of

13 As we explain above, see pages 11-14, supra, the ex officio

members are entitled by statute to all of the prerogatives of

membership not specifically proscribed. Moreover, even if the

statute were construed to permit the voting members to exclude

the Secretary and Clerk from their deliberations, the Act would

place the burden of resisting all encroachment on the voting

members of the Commission. Under the statute, the onus is plainly

on those who would resist congressional access, rather than on

those seeking access, a form of burden-shifting that reflects

legislative encroachment.

14 See also 1976 Hearings 119 (“The power to be present and to

participate in discussions is the power to influence. Normally, a

judge, commissioner or juror, or even a corporate director, who is

disqualified for conflict of interest, is expected to recuse himself

not only from voting but from deliberations as well.”) (testimony

of Assistant Attorney General Scalia). That sort of structural

defect is sufficient to violate the constitutional separation of

powers.

federal law. Congress must engage in such advocacy,

however, in a manner consistent with the structural

limitations imposed by separation-of-powers principles.

Frank interchange of views between the Branches is

entirely consistent with these principles; but Congress

may not attempt to assert its views from within the

Executive Branch by creating for its agents positions as

members of an agency exercising executive powers.“

b. Quite apart from the ability of the Secretary and

Clerk to participate in and influence the Commission’s

decisionmaking processes, the presence of these officials

as Commission members threatens to impede the voting

commissioners in the independent exercise of their

statutory responsibilities. The prospect that these

congressional employees will report on FEC proceedings

to Congress may cause the other members to “temper

candor with a concern for appearances and for their own

interests to the detriment of the decisionmaking

process.” United States v. Nixon, 418 U.S. 683, 705-706

(1974); see also The Federalist No. 70, at 472 (Alexander

Hamilton) (J. Cooke ed. 1961). For its law enforcement

functions, in particular, a lack of confidentiality may

cause the FEC to “shade [its] decisions instead of

15 Certain constitutional provisions confer on one of the

Branches a formal constitutional role in submitting its advice and

recommendations to another Branch. See Art. II, § 2, Cl. 2 (the

President shall have the power, “by and with the Advice and

Consent of the Senate,” to appoint officers and make treaties); Art.

II, § 3 (the President “shall from time to time * * * recommend

to [Congress's] Consideration such Measures as he shall judge

necessary and expedient”). Neither of the constitutional

provisions cited above, however, contemplates a procedure by

which agents of one Branch will attempt to assert influence from

within the other Branch. But see Art. I, § 3, Cl. 4 (“The Vice

President of the United States shall be President of the Senate.”).

exercising the independence of judgment required by

[its] public trust.” Imbler v. Pachtman, 424 U.S. 409, 423

(1976). This lack of confidentiality may also impair the

FEC’s ability to gather information and otherwise

perform its statutory mission if candidates for elective

office are deterred from cooperating because of the

presence and participation of congressional employees.

Cf. Public Citizen v. Department of Justice, 491 U.S.

440, 488 (Kennedy, J., concurring in the judgment).

4. Congressional participation in the Commission’s

decisionmaking processes also contravenes related

constitutional principles. Although the Bill of Attainder

Clause, U.S. Const. Art. I, §9, Cl. 3, is not applicable

here, its adoption reflects the Framers’ determination to

separate Congress’s authority to prescribe generally

applicable laws from the power to enforce and apply those

laws in specific cases, which inheres in the Executive

and the Judiciary. See United States v. Brown, 381 U.S.

437, 441-446 (1965). While Congress may proscribe

particular types of conduct, it may not seek to determine

whether its proscription has been violated in a particular

16 In this respect, the analogy drawn by the court of appeals to

the non-voting participation of alternate jurors is an apt one. Pet.

App. l4a (citing Fed. R. Crim. P. 24(c)). Just as the presence of

alternate jurors during jury deliberations may not be presumed to

affect substantial rights of a litigant absent a specific showing of

prejudice, see United States v. Olano, 113 S. Ct. 1770, 1779 (1993),

it cannot be assumed that the potential influence of the ex officio

members influenced this particular case. Nevertheless, it is

readily apparent that alternate members might participate in jury

deliberations, see id. at 1780-1781, and that their presence might

exert an effect on the decisions of the regular jurors, ibid. (citing

United States v. Watson, 669 F.2d 1374, 1391 (11th Cir. 1982), and

United States v. Allison, 481 F.2d 468, 472 (5th Cir. 1973)).

By making its agents members of an entity with

executive powers, however, Congress by statutory

command has inserted itself into deliberations re-

garding enforcement decisions in specific cases, retain-

ing influence over the Branch charged with the

execution of its laws.“

5. The statutory assignment of Members of Congress,

or congressional agents, to positions within the other

Branches poses risks not apparent in the assignment of

executive or judicial officials to positions in a different

Branch. Compare, e.g., 20 U.S.C. 42 and 43 (ex officio

membership of Chief Justice of the United States, among

others, on Smithsonian Institution Board of Regents); 28

U.S.C. 991(a) (ex officio membership of Attorney General

or her designee on the Sentencing Commission).

Neither the Executive nor the Judicial Branch can

compel the creation of positions benefitting its members.

17 See also Schlesinger v. Reservists Committee to Stop the War,

418 U.S. 208, 221 n.10 (1974) (“Congress can initiate inquiry and

action, define issues and objectives, and exercise virtually

unlimited power by way of hearings and reports, thus making a

record for plenary consideration and solutions. The legislative

function is inherently general rather than particular and is not

intended to be responsive to adversaries asserting specific claims or

interests peculiar to themselves.”).

18 Respondents have not contended that the ex officio

membership of the Secretary and Clerk violates the Appointments

Clause, and we accordingly express no view on the question. We

note, however, that the inclusion of the Secretary and Clerk within

an Executive Branch agency, and their potential to affect the

outcome of the Commission’s deliberations, might also support the

contention that these officials (insofar as they act as members of

the FEC) function as “Officers of the United States.” If that

contention were accepted, the placement of the Secretary and

Clerk upon the Commission would also violate the Appointments

Clause under the reasoning of Buckley v. Valeo.

The dangers of aggrandizement are therefore not so

great when Congress assigns cross-Branch functions to

members of other Branches as when Congress

establishes positions in other Branches for its own

Members or agents. See Mistretta, 488 U.S. at 382."

II. THE PRIOR ACTS OF THE COMMISSION

SHOULD BE ACCORDED DE FACTO

VALIDITY, AND THE CIVIL PENALTY

IMPOSED IN THIS CASE SHOULD ACCORD-

INGLY BE SUSTAINED

Although the membership of congressional agents on

an executive body violates constitutional separation-of-

powers principles, the civil penalty imposed in this case

should nevertheless be sustained. In Buckley, this

Court held that the Commission as then composed could

not constitutionally exercise the substantial executive

powers vested in it by the governing statute. The Court

concluded, however, that

the Commission’s inability to exercise certain

powers because of the method by which its members

19 In Mistretta, this Court principally considered whether the

duties of the Sentencing Commission could be assigned to Article

III judges removable from the Commission by the President. In

addition, the Court addressed the question whether Congress could

“requir{e] that those judges share their rulemaking authority with

nonjudges.” 488 U.S. at 384. The Court held that such a

requirement was consistent with the Constitution. Had Congress

appointed its own Members or agents to the Sentencing Com-

mission, however, the case would have raised “the particular

danger of the Legislative Branch’s accreting to itself judicial or

executive power.” Id. at 382. That particular danger does arise

from the membership of congressional agents on the Federal

Election Commission.

have been selected should not affect the validity of

the Commission’s administrative actions and deter-

minations to this date * * *. The past acts of the

Commission are therefore accorded de facto validity,

just as we have recognized should be the case with

respect to legislative acts performed by legislators

held to have been elected in accordance with an

unconstitutional apportionment plan.

424 U.S. at 142 (citing cases). This Court should follow

the same course of action here.

‘A. In holding that the Commission’s prior acts should

be “accorded de facto validity,” 424 U.S. at 142, despite

the constitutional flaw in the appointment of its

members, the decision in Buckley was in keeping with

this Court’s longstanding application of the “de facto

officer” doctrine. See, e.g., Norton v. Shelby County, 118

U.S. 425, 441-449 (1886); Ball v. United States, 140 U.S.

118, 128-129 (1891); McDowell v. United States, 159 U.S.

596, 601-602 (1895); Waite v. Santa Cruz, 184 U.S. 302,

323 (1902). Under that doctrine, a “person actually

performing the duties of an officer under color of title is

an officer de facto, and his acts as such officer are valid

so far as the public or third parties who have an interest

in them are concerned.” United States ex rel. Doss v.

Lindsley, 148 F.2d 22, 23 (7th Cir.), cert. denied, 325 U.S.

858 (1945).

The de facto officer doctrine “is founded upon

considerations of policy and necessity, for the protection

of the public and individuals whose interests may be

affected thereby.” Norton, 118 U.S. at 441. Accord

EEOC v. Sears, Roebuck & Co., 650 F.2d 14, 17 (2d Cir.

1981) (“The de facto officer doctrine was developed to

protect the public from the chaos and uncertainty that

would ensue if actions taken by individuals apparently

occupying government offices could later be invalidated

by exposing defects in the officials’ titles.”). These

concerns are directly applicable to the present case.

B. In one significant respect this Court’s de facto

officer doctrine cases are distinguishable from more

recent decisions such as Buckley. Where the de facto

officer doctrine has been applied, the Court has typically

declined to address the legal validity of the officer’s

appointment or election, on the theory that the purported

unlawfulness of the officer’s selection furnished no basis

for a “collateral attack” on his acts in office. Ball, 140

U.S. at 129; see also McDowell, 159 U.S. at 601-602;

Lindsley, 148 F.2d at 23; Ryan v. Tinsley, 316 F.2d 430,

132 (10th Cir.), appeal dismissed, cert. denied, 375 U.S. 17

(1963). In more recent decisions, by contrast, the Court

has addressed and decided issues concerning the legality

of the challenged officers’ appointment -xercise of

power, but has determined that its decision should be

given prospective effect only. See, e.g., Buckley v. Valeo,

supra; Northern Pipeline Construction Co. v. Mara-

thon Pipe Line Co., 458 U.S. 50, 88 (1982) (plurality

opinion); id. at 92 (Rehnquist, J., concurring in the

judgment); see also Chevron Oil Co. v. Huson, 404 U.S.

97, 105-109 (1971); England v. Louisiana State Bd. of

Medical Examiners, 375 U.S. 411, 422 (1964).

In determining that those decisions should be given

prospective application, the Court has invoked con-

siderations closely related to those that underlie the de

facto officer doctrine. In Northern Pipeline, for

example, the plurality explained that retroactive appli-

cation of its holding “would surely visit substantial

injustice and hardship upon those litigants who relied

upon the Act’s vesting of jurisdiction in the bankruptcy

courts.” 458 U.S. at 88; see also id. at 92 (Rehnquist, J.,

concurring in the judgment).

Respondents in the present case do not quarrel with

the manner in which the Commission processed their

case; rather, as in Buckley and Northern Pipeline, they

assert a systemic challenge to the composition of the

governmental body. As in those cases, retroactive appli-

cation of a decision in their favor would call into question

a substantial number of actions taken by the Commission

over a prolonged period of time. The public interest in

effective enforcement of federal campaign laws weighs

strongly against this result.

Moreover, prospective application of the Court’s

decision would not be inequitable to respondents.

Respondents do not contend, and the court of appeals did

not suggest, that the presence of the Secretary and

Clerk somehow tilted the Commission’s proceedings in

this case in a manner adverse to their interests.

“Indeed, [respondents] have not alleged that the

Secretary and the Clerk were even present for or

participated in the proceedings in question.” Pet. App.

26a. Nor is there any reason to believe that the

membership of the Secretary and Clerk would, as a

general matter, disserve the interests of private parties

such as respondents.

It bears noting, in addition, that the present case

involves a challenge to the Commission’s prosecutorial

rather than adjudicative functions. Respondents do not

contest the impartiality or constitutional qualifications

of the district judge who, in adjudicating the Com-

mission’s complaint, found the existence of a statutory

violation and determined an appropriate civil penalty.

They argue instead that the proceeding was tainted

because the agency that brought the action was im-

properly constituted. Any connection between the

Commission’s unlawful composition and the judgment

ultimately entered against respondents by the, district

court is far too attenuated to outweigh the public

interest in effective implementation of the federal

election laws.”

C. The legitimacy of prospective judicial decision-

making has, we recognize, recently been called into

question. In James B. Beam Distilling Co. v. Georgia,

501 U.S. 529 (1991), Justices Souter and Stevens

expressly reserved the question whether such “pure”

prospectivity was permissible, id. at 544, although they

acknowledged that in a few prior cases the Court had

followed this course, id. at 536 (citing, inter alia,

Buckley v. Valeo). The Chief Justice and Justices White,

O’Connor, and Kennedy would have held in James Beam

that the Court could decline, in an appropriate case, to

apply newly announced rules of law to the parties before

it, see id. at 544-547 (White, J., concurring in the

judgment), 549-559 (O’Connor, J., dissenting); Justices

Blackmun, Marshall, and Scalia would have held that it

could not, id. at 547-548 (Blackmun, J., concurring in the

judgment), 548-549 (Scalia, J., concurring in the

judgment).

20 Cf. Marshall v. Jerrico, Inc., 446 U.S. 238, 248 (1980) (“The

rigid [conflict-of-interest standards], designed for officials

performing judicial or quasi-judicial functions, are not applicable to

those acting in a prosecutorial or plaintiff-like capacity.”); id. at

248-250.

21 Somewhat different issues are raised by the practice of

“selective prospectivity,” by which a court appllies] a new rule in

the case in which it is pronounced, then returnls] to the old one

with respect to all others arising on facts predating the

pronouncement.” James Beam, 501 U.S. at 537 (opinion of Souter,

J.). Selective prospectivity “breaches the principle that litigants

in similar situations should be treated the same, a fundamental

component of stare decisis and the rule of law generally.” Ibid.

The Court has definitively rejected this practice, holding that

when [the Supreme] Court applies a rule of federal law to the

Unless and until the Court’s prior decisions employ-

ing pure prospectivity are overruled, established law

makes clear that this course of action is permissible in

appropriate situations.“ In our view, prospective

application of a judicial decision can be an essential

means of preventing unjustified disruption of settled

expectations, while ensuring that important legal

questions do not remain unresolved. Such an approach is

particularly suitable in cases like the present one.

"espondents raise a systemic challenge to the com-

position of a governmental body, such that retroactive

application of a decision in their favor would sub-

stantially disrupt the implementation of federal election

law; yet the asserted flaw in the FEC’s composition is

not one that could realistically be supposed to have

disserved their interests. Under these circumstances

the Court should, as it did in Buckley, accord de facto

validity to the Commission’s prior actions.”

parties before it, that rule is the controlling interpretation of

federal law and must be given full retroactive effect in all cases

still open on direct review and as to all events, regardless of

wuether such events predate or postdate [the Court’s] announce-

ment of the rule.“ Harper v. Virginia Dep't of Taxation, 113 8.

Ct. 2510, 2517 (1993).

2 In the instant case, the court of appeals (without citing James

Beam or acknowledging the existence of prior decisions employing

pure prospectivity) simply stated that “we are aware of no theory

that would permit us to declare the Commission’s structure

unconstitutional without providing relief to the appellants in this

case.” Pet. App. 18a. In light of this Court’s precedents, that

reasoning is plainly inadequate.

% This Court has reserved the use of pure prospectivity for

decisions that “establish a new principle of law, either by

overruling clear past precedent on which litigants may have

relied, or by deciding an issue of first impression whose resolution

was not clearly foreshadowed.” Chevron Oil, 404 U.S. at 106

CONCLUSION

For the reasons stated above, the judgment of the

court of appeals should be reversed.

Respectfully submitted.

Drew S. Days, III

Solicitor General

WALTER DELLINGER

FRANK W. HUNGER

} Assistant Attorneys General

PAUL BENDER

Deputy Solicitor General

MALCOLM L. STEWART

Assistant to the Solicitor General

DOUGLAS N. LETTER

EDWARD T. SWAINE

Attorneys

AUGUST 1994

(citation omitted). The court of appeals acknowledged that this

Court “has not considered the circumstances of this case,” since

prior separation-of-powers disputes involved the grant of “explicit

voting or decisionmaking power that is not present here.” Pet.

App. 15a. Although we believe that this distinction does not save

the statute from constitutional attack, see pages 15-21, supra, the

invalidation of the challenged provision cannot be said to have been

“clearly foreshadowed” by this Court’s prior decisions.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.