*1 en the ballot must top lines from ballot, That, parties some given aon
dure. unavoidable; disadvantaged is must be so all, It is is, only top spot. one after
there however, party, each give
possible, minor, equal an chance to major or To ballot.2 top spot given on a
attain quality of this procedure an election
realize which takes into account system a
requires parties and which is major and minor
both character, meaning that it does
neutral one classification of invariably favor
not system That
party over another. Sangmeister, court ordered
which this put which has been system
and it is not I would re Accordingly, here.
before us court with decision of district
verse the again to follow the dictates once
directions reiterated Sangmeister
outlined
here. ACTION COMMIT-
BREAD POLITICAL al., Plaintiffs-Appellants,
TEE et et ELECTION COMMISSION
FEDERAL
al., Defendants-Appellees. 78-1150.
No. Appeals, Court of
United States Circuit.
Seventh
Argued Nov. 12, 1979.
Decided Jan.
recognized
Sangmeister
DuPage
variety
that in
Coun-
a
2. We are informed
Illinois, successfully
ty,
procedure
solutions are
and in fact stated that
utilized
adopt any
parties
gave
achieved ballot
the clerks “should feel free to
consti-
which had
procedure
equal opportunity to be listed at the
.
.
.
fied initial review sitting this court en banc.
After filing their in the district court, moved, 437h, plaintiffs under for § immediate certification to this court of the questions presented. The court hеld a hearing district and rendered denying an oral decision the motion to certi- Cole, 111., Chicago, for Jeffrey N. fy. court construed 437h to restrict § tiffs-appellants. availability expedited of review to the Steele, Election Com- N. Federal Charles types plaintiffs three listed in the first C., mission, Washington, D. for defendants- 437h(a): sentence of Elec- § “[t]he [Federal Commission, appellees. the national committee of tion] any political party, any or individual eligi- FAIRCHILD, Judge, and Before Chief ble to vote a Presidential [in election].” TONE, Judges. Circuit SWYGERT The сourt held that since “the plaintiffs in this action do not fall within the group SWYGERT, Judge. Circuit 437h, specified in . . . they are not § interlocutory appeal requires This us to entitled expedited review for ex ..” The district extraordinary provision court did not dis- construe action, however, holding miss the that it did judicial review of the Federal Elec pedited jurisdiction appellants’ over claims un- Act, amended, as Campaign tion U.S.C. ordinary question jurisdic- der its federal seq. Plaintiffs-appellants 431 et are a §§ tion, 28 U.S.C. 1331. po number of trade associations and action committees. The defendants litical Plaintiffs then moved for the district Commission, the are the Federal Election certify court to question of whether Senate, Secretary the Clerk of the appellants were entitled to invoke Commission, House, the members of the 437h for interlocutory appeal under 28 Attorney 1292(b). and the General. The U.S.C. granted district court constitutionality seek to motion and this court granted appel- lants’ subsequent motion for provisions they say various of the Act which leave to take this appeal. polit restriсt their financial activities appeal ical arena. The issue on this I. whether these invoke the 437h,1 provision, Construction of begin must with language have their constitutional certi of the statute itself. Subsec- provides: Appeal Court; Supreme 1. 2 U.S.C. 437h appeal time for (b) any Notwithstanding provision other -Actions,including 437h. Judicial review.-— law, any decision on a matter certified under declaratory judgments, for construction of (a) subsection able of this section shall be review- questions; eligible plaintiffs; by appeal directly Supreme to thе Court questions certification of such to courts of appeal of the United States. Such shall be appeals sitting en banc days no later than 20 Commission, after the deci- (a) The the national commit- appeals. sion of the court of any political party, tee of individual appellate eligible Advancement on docket and ex- to vote election for office pedited disposition of certified of President of the United States insti- (c) appropriate duty shall be the tute such actions court of thе United district the court of States, including actions and of the Court of the declaratory judgment, may appro- as be United States to advance on the docket and constitutionality priate expedite greatest possible to construe the extent the provision mediately tutionality disposition of this Act. The district court im- matter certified under sub- certify shall of consti- (a) section of this section. this Act to the United States involved, court of which shall for the circuit sitting en hear the matter banc. for insti- of the Act could be (a) provision сhallenged 437h is the tion the Act and for for review of 437h. This case illustrates the tuting point. actions questions to the certifying in this case seek to chal- en banc. appeals sitting Subsec- court lenge provisions of the Act regulate which (a) provides: tion the activities of trade associations. If these *3 Commission,the national com- (a) The plaintiffs cannot invoke 437h to challenge § any indi- any political party, or mittee of provisions, it is doubtful that anyone any election for eligible vidual to vote could do so. This is so because in enacting of the of President United the office (a), Congress subsection grant could not actions in the may institute such States specified plaintiffs standing beyond the lim- district court of the United appropriate Thus, its of Article III. specified even the States, declaratory including actions for plaintiffs have to show a sufficient to con- judgment, may appropriate as be “personal stake” in the outcome of such a constitutionality any provi- of strue satisfy suit to constitutional “case or con- court imme- sion of this Act. The district trоversy” requirements. Buckley Valeo, certify questions all of con- diately shall 1, 11-12, 46 L.Ed.2d stitutionality of this Act to the United (1976). In a like this suit one—chal- for the court of circuit States lenging provisions regulating trade associa- involved, which shall hear the matter sit- political tions and their action committees— ting en banc. unlikely any it is that of the plaintiffs is clear that the here do not fall tiffs could any “personal show stake” in the types within of the three of not, outcome. If under the district court’s in the first sentence of subsection described construction, 437h would § be unаvailable is, therefore, (a). question to challenge provisions challenged here to Congress intended exclude all other and the apparent Congressional intent to invoking provisions from of provide expedited review to “any attack by naming the types 437h three found in provision” of the Act would be subverted. the statute. The district court so held and The second sentence (a) in subsection con- support position the defendants that on this tains support additional plaintiffs’ for the appeal. plaintiffs, hand, on other position. That requires sentence the dis- purpose contend that 437h is to trict court to “certify all questions of con- provide expedited challenges review of all stitutionality of this Act” (emphasis added) provisions of the Act that court of sitting en banc. expand intended to notions of language This Congress’ further focuses in- purpose. They to achieve that questions tent on the presented in a suit conclude that purpose naming this, such as rather identity than on the types three specified was not to plaintiffs. The direction certify plaintiffs, exclude other but to remove questions indicates again that specified plaintiffs doubt would Congress intended the standing. procedure to apply broadly to challenges to language (a) supports of subsection the plaintiffs’ construction. The first sen- Reading the together, two sentences itself, tence specifying types after three we find an expressed Congressional intent eligible plaintiffs, authorizes suits “to con- apply 437h to all strue the constitutionality any provision constitutionality provision of (emphasis added). оf this Act” This lan- above, Act. As this purpose noted would be guage indicates that Congress intended that severely if the restricted first sentence is could be grant read as an exclusive in the against federal courts under 437h specified plaintiffs the three expe to obtain hand, every part of the Act. On the other review. dited specification of the three types if support plaintiffs’ limits the use of 437h to those Further for the posi- plaintiffs, unlikely every provision it is provid- tion found overall structure judicial 437g, Under
ed in the Act for determination of eithеr the Commission3 arising may bring the act. an individual4 a civil action in a Section provides brought specifical for actions district court to enforce the Act. The deci in such an action ly constitutionality appealed to decide the of the Act. sion be appeals, court of will 437g procedures only contains for en but be re Section viewed Court on a writ comparison forcement of the Act.2 A 437g(a)(11), Under an en 437g the schemes for review under certiorari.5 §§ action must difficulty 437h shows the with the district forcement be advanced on the of each court court’s construction of 437h. calendar ahead of all other chapter provides, chapter 437g pertinent part: tion of this Act or of 95 or U.S.C. of Title 26. procedure Enforcement —Practice and (a)(1) Any person who believes a violation chapter chapter of this Act or of 95 or 96 of (9)(A) Any party aggrieved an order of *4 may complaint a Title 26 has occurred file dismissing complaint the Commission by a filed with the Commission. . party (1), by paragraph under such or a Commission, (2) upon receiving a рart failure on the of the Commission to act complaint paragraph (1), under and if it has complaint on such in accordance with the any person reason to believe that has com- provisions days of this section within 90 after chapter mitted a violation of this Act or of filing complaint, may peti- the of such file a 26, or, chapter or 96 of Title if the Commis- tion with the United States District Court for sion, on the basis of information ascertained the District of Columbia. carrying in the normal course of out its su- (B) filing any petition subpar- under pervisоry responsibilities, has reason to be- (A) agraph shall be made— occurred, lieve that such a violation has shall (i) in the case of the dismissal of a com- notify person alleged the involved of such plaint by Commission, the no later than 60 investigation and shall violation make an days dismissal; after such or alleged such violation in with accordance the (ii) part in the case of a failure on the provisions of this section. complaint, the Commission to act on such no (3)(A) Any (2) investigation paragraph and days 90-day period later than 60 after the expeditiously shall be conducted and shall specified (A). subparagraph investigation, include an conducted in ac- (C) any proceeding para- In this provisions section, cordance with the of this graph may the court declare that the dismiss- reports by any and statements filed com- action, al of the or the or the plainant subchapter, under this if such com- act, contrary may failure to is to law and plainant is a candidate. . proceed direct the Commission to in con- (5) . . . formity days, with such declaration within 30 (B) If the Commission is unable to correct failing complainant may bring which the prevent any by or such violation . remedy his own name a civil action to methods, may, informal if Commission original complaint. violation involved in the probable the Commission determines there is (10) judgment of the district court cause to believe that a violation has occurred may appealed be to the court of occur, or is about to institute a civil action judgment the ing of the court of affirm- relief, permanent tempo- including for rary injunction, a or aside, setting part, any or in whole or in a order, restraining or oth- final, such order of the district court shall be order, appropriate including penalty er a civil subject by Supreme to review Court of $5,000 greater which does not exceed the upon the United States certiorari or certifica- equal an or amount to the amount of provided tion as in section 1254 arid Title 28. expenditure contribution or involved in such (11) Any brought action under this subsec- violation, in the district court of the United tion shall be advanced on the docket of the person States for the district in which the filed, put in which court ahead of all against brought whom such action is (other actions other than actions un- found, resides, or transacts business. this subsection der or under section 437h of (C) by In civil action instituted title). . this (B), subparagraph Commission under 437g(a)(5)(B). 3. 2 U.S.C. § grant permanent temporary court a order, order, injunction, restraining or other 437g(a)(9). including penalty 4. 2 U.S.C. a civil which does not ex- $5,000 greater ceed the equal amount or an 437g(a)(10). (10) 5. 2 U.S.C. § amount of contribution or Subdivision also violation, expenditure provides by upon Supremе by for involved in such review Court procedure proper showing person a certification involved of 28 U.S.C. 1254(3). engaged engage has or is about to in a viola- cases, language save those filed under 437h. Since of the statute challenges perceive greater to the Act could be raised as in fact speed did need for an proceed Supreme in such enforcement or ultimate Court review defenses of con- 437g provides an alternative method stitutional ing, raised judicial obtaining review of than challenges tо the Act Such defensive could raised others.
be on either constitutional or non-constitu Based on the language of 437h and the And since the entire en grounds. tional judicial provided overall scheme of review proceeding would be advanced forcement Act, applies we hold that 437h hearing on the calendar of each court plaintiffs’ challenge to matter, both constitutional and non-consti provisions they certain Act and that challenges raised as defenses would may expedited provision. invoke thе partially expedited receive this review. noted, language As we have used and contrast, provides
In
provid-
an ac-
the nature of the review mechanism
brought expressly
Congressional
tion
the Act
ed in 437h show a
intent to
grounds
judicial
on constitutional
should receive the
allow
review of all
speedy
even more
review outlined in that
any provision
section and that such actions
be taken
the Act and to
certain that
make
such chal-
the Supreme
appeal.
lenges
Court
direct
be decided
437g(a)(ll)
And
makes it clеar that
Congressional purposes
Con- Court. Thus three
*5
review,
gress
pre-
intended
437h actions to take
are
comprehensive
speedy
clear:
re-
view,
proceedings.
cedence even over enforcement
by
highest
and ultimate review
our
court
challenges
of constitutional
The district court’s construction would
Act. The district court’s construction that
reviewing
add a third method for
the Act.
Congress
standing
intended to restrict
construction,
present plain-
Under that
the
specified plaintiffs
invoke
437h to the
is
challenge
tiffs’ constitutional
would not be
expressed purposes.
inconsistent with these
reviewed under either of the statutorily ex-
proceed
methods.
It
pedited
through
There
no
in the language
is
indication
normal
three-tier
review under ordinary
the statute of
intent
to exclude
Thus,
question jurisdiction.
standing
non-
who have
under
federal
tradi
view,
challenges
Congress
constitutional
in enforcement
tional rules.
In our
intend
proceedings
expeditious
would receive more
expand
standing
ed to
the limits of
under
than would
challenges
review
437h
the
extent
under Article
plaintiffs other than the
wholly
three
III. This intent
is
consistent with
437h(a).
in
specified
While Congress
expressed purposes
the
of the statute. Un
view,
purpose
could have discerned differences in the need
for
Congress’
naming
der this
among
types
the three
found in sub
insure,
challenges
parties,
(a)
raised
different
it
within
is
section
was to
constitu
limits,
to conceive a rationale for viewing
standing
difficult
tional
their
to raise consti
challenge
Congress
non-constitutional
as more
to the Act.
raising
urgent
ques- may
than one
well have entertained doubts about the
tiоns,
identity
the
regardless
standing
specified plaintiffs
of the
of the
to chal
Moreover,
is no
Act’s
lenge many
provisions.6
tiffs.
there
indication in
of the
And
argument,
standing
challenge
federal
counsel
for both
no
in the
courts to
6. At oral
sides
agreed
agency
that without
enumeration
in
the statute the
or officer
bound to
437h(a),
&
R.
v.
serious
could be raised
enforce. Columbus
Greenville
Co. Mil-
ler,
96,
392,
standing
of each of the
283 U.S.
51 S.Ct.
Congress apparently
in addition
plaintiffs,
those
important
sparse legislative history
437h
interest
personal
with obvious
to others
adds little to the analysis
purpose.9
of its
Act,7 be
imposed by
restrictions
law,
in Buckley
v.
As to case
decisions
constitutionality
of the
allowed to test
Valeo,
1,
612,
424 U.S.
96
46 L.Ed.2d
S.Ct.
has a
specified plaintiffs
Each of
Act.
(1976) aff’g
part
rev’g
part,
659
operation
interest
genеralized
172,
U.S.App.D.C.
(1975),
171
35
Fund,
Human Article
Victory
controversy
III case or
requirement,
the Conservative
few,
Events,
that
any,
Inc. It is clear
if
of without reference
the standing
of the
organizations could be classified as
organizational plaintiffs still present in the
any political
the “national committee of
case.
tions organi clear that 10 makes it And foоtnote Valeo, Buckley If v. 424 it were not for 437h if standing under § have zations 612, 1, 11-12, L.Ed.2d 659 S.Ct. U.S. requirements meet they otherwise more doubt about the (1976), I would have Hunt v. standing.” See “associational statutory language than is meaning of Commission, Advertising Apple Washington of this court. The opinion expressed 2434, 333, 343, 53 L.Ed.2d Court in that adopted by view (1977).12 us, however, and I therefore case, governs sum, Buckley ful judgment. the decisions In concur in 437h(a) and our construction ly support in this case holding
our expedited re standing to invoke its
have procedure.
view
III. court, jurisdic-
The district because of its stance, any consti- certify refused to tional America, UNITED STATES complaint. rаised Plaintiff-Appellee, addition, rep- In counsel for defendants disput- are argument at that there resented fact issues in the case. For these rea- ed LANDOF, William Richard sons, will to the dis- the case be remanded Defendant-Appellant. required by the certification trict court for 77-3638. No. 437h(a). the district court On remand (1) identify the constitutional and should: Appeals, Court of United States (2) complaint; issues raised take fact Ninth Circuit. necessary evidence the court finds whatever issues; (3) to a decision of those make find- Oct. 1978. fact; (4) certify ings of assembled Banc Rehearing En Rehearing and the constitutional aris- record Jan. Denied therefrom to this court for decision ing 437h. The district court pursuant
should, course, expedite proce- the above greatest extent.
dures denying order of the district court 437h(a)
certification under 2 U.S.C. § fur-
reversed and the case is remanded for proceedings opin-
ther consistent with this
ion. appears (1) recently From this it matters.
12. We have held
that a trade associa-
organizations
“organizational
standing”
tion had
individual members
authorizing inspection
of meat
437h and could show
local ordinances
*8
vehicles,
delivery
applying
personal
the test set out
in the constitutional
stake
Hunt, supra. Chicago-Midwest
raised;
(2)
Meat Associа-
are
First Amendment
Evanston,
(7th
City
purposes
organi-
Cir.
political
tion v.