COMMON CAUSE v. FEDERAL ELECTION COMMISSION, Appellant.
No. 87-5036.
United States Court of Appeals, District of Columbia Circuit.
Argued Jan. 4, 1988. Decided March 15, 1988.
842 F.2d 436
The majority denies such recoupment. I dissent from this denial, because Transit could have passed this deficiency on to farepayers, recovering what it needed through a higher fare. Since this was an uncompensated expense, Transit is, on the strength of the authority cited for claim (3) above, entitled to an equitable offset.
CONCLUSION
In sum, while I concur in Parts I and III of the court‘s opinion, I must respectfully dissent with respect to Part II. Interest should only be computed on Order 773 during the 279 days it was in effect; and restitution should not be computed for any fares received after October 18, 1968 (the date on which Order 773 was superseded by Order 882). Moreover, in calculating the award due farepayers, the Commission should not allocate restitution based on Transit‘s gains from transfer of nondepreciable assets, and should also make the equitable adjustments in the award which the majority rejects.
Carol F. Lee, with whom Roger M. Witten, Washington, D.C., was on the brief for appellee.
Before WALD, Chief Judge, RUTH BADER GINSBURG and WILLIAMS, Circuit Judges.
Opinion for the Court filed by Chief Judge WALD.
Opinion dissenting in part filed by Circuit Judge RUTH BADER GINSBURG.
WALD, Chief Judge:
The Federal Election Commission (FEC or the Commission) appeals from a decision of the district court, see Common Cause v. FEC, 655 F.Supp. 619 (D.D.C.1986), rejecting its interpretation of a provision of the Federal Election Campaign Act (FECA or the Act), which prohibits the use of a candidate‘s name in the “name” of any unauthorized “political committee,”
I. BACKGROUND
In July, 1980, the Carter-Mondale Reelection Committee (Carter-Mondale) filed a complaint against five independent committees as well as Ronald Reagan‘s officially authorized campaign committee. The complaint alleged that the five committees, Americans for Change (AFC), Americans for an Effective Presidency (AEP), Fund for a Conservative Majority (FCM), North Carolina Congressional Club (NCCC)—now National Congressional Club—and National Conservative Political Action Club (NCPAC) impermissibly coordinated expenditures with Ronald Reagan‘s authorized campaign committee and thereby exceeded statutory limits on campaign contributions. See
The FEC General Counsel recommended that the Commission find “reason to believe” that a statutory violation had taken place and investigate the coordination charges against all five independent committees. The Commission initially agreed to the recommendation by a 4-2 vote. One Commissioner, Frank P. Reiche, however, took a different position with respect to two committees (NCCC and AEP), voting not to find “reason to believe” that they had engaged in such coordination. His unexplained shift caused the 3-3 deadlock among the Commissioners that resulted in a dismissal of the coordination claims against these two parties.1
The General Counsel suggested further investigation of the allegations against AFC, FCM, NCCC and NCPAC, with respect to the
After an extensive investigation of the Carter-Mondale claims,3 the General Counsel recommended that the Commission take no additional action on the coordination claims, concluding that further inquiry would probably not lead to evidence of
Regarding the
According to the committees, however, these names referred only to fundraising projects and not to the committees themselves. All of the mailings, with the possible exception of two from FCM, see J.A. at 222, 249, included the disclaimers required by
Under these circumstances, the General Counsel recommended that the Commission find no probable cause to believe that a violation had occurred. Section
On August 1, 1983, Common Cause filed suit in federal district court, arguing that the Commission‘s ultimate dismissal of the coordination and the
The district court reversed the agency on the ground that the FEC‘s reading of
The political machinery is powered by names and what those names symbolize and identify. Therefore, whatever names the committees presented to the public for identification must also constitute a “name” within the meaning of section 432(e)(4).
Common Cause v. FEC, 655 F.Supp. at 621.
The court also ruled that the agency must explain why it dismissed by a 3-3 vote claims that the General Counsel recommended for further investigation. The court concluded that such a statement of reasons was necessary to enable it to review intelligently the Commission‘s determination. Id. at 622-23.
The Commission appeals from both rulings.4
II. THE MEANING OF “NAME” IN
Our first task in reviewing an agency‘s interpretation of a statute committed to its enforcement is to examine the legislation itself, using traditional tools of statutory construction, to ascertain if its intent is clear. NLRB v. United Food and Commercial Workers Union, Local 23, 484 U.S. 112, 108 S.Ct. 413, 98 L.Ed.2d 429 (1987); INS v. Cardoza-Fonseca, 480 U.S. 421, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987); see also Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 at n. 9, 104 S.Ct. 2778, 2781 n. 9, 81 L.Ed.2d 694 (1984). Clear congressional intent derived from the plain language or legislative history of the statute dictates our result. However, where “the statute and its history are silent or ambiguous with respect to a specific issue,” the
A. The Language and Structure of the 1979 FECA Amendments
1. The Plain Language of
Our “inquiry focuses first on the language and structure of the statute itself.” American Mining Congress v. EPA, 824 F.2d 1177, 1182 (D.C.Cir.1987). The bare text of
The name of each authorized committee shall include the name of the candidate who authorized such committee.... In the case of any political committee which is not an authorized committee, such political committee shall not include the name of any candidate in its name.
The Commission interprets “name” in
Thus, the General Counsel reasoned, the language of
[I]n order to find that
2 U.S.C. § 432(e)(4) was violated, it would be necessary to determine that “Reagan for President in ‘80” met the definition of a “political committee” at the time this name was used.
J.A. at 284. No candidate‘s name appeared in the names of any of the political committees in the case but only in the names of “special projects” of those political committees.8
Common Cause‘s alternative construction of
This is not a totally implausible interpretation of the statute‘s language, but neither is it so obviously the exclusive one as to preclude the Commission‘s quite plausible alternative. There is, in short, a genuine ambiguity in
2. Sections
Common Cause argues, however, that the traditional practice of construing statutory provisions in pari materia cures any ambiguity. It says that the FEC‘s interpretation of “name” in
The name of any separate segregated fund established pursuant to section 441b(b) of this title shall include the name of its connected organization.
Common Cause points out that the Commission has read
For statutory provisions to be construed together under the in pari materia doctrine, however, they must re-
Subsections
Section
In essence, we believe the FEC makes a reasonable case that
The Commission has its own in pari materia argument; the word “name” should be similarly defined in
This requirement of registration by one official name ensures ease of access to the disclosure reports of the committee, since the registered name must be the same one disclosed in
4. The Commission‘s Initial Construction of
Both Common Cause and the district court rely, erroneously we think, on Advisory Opinion 1980-84, 1 Fed.Election Camp. Fin.Guide (CCH) ¶ 5533 (Aug. 28, 1980), for the proposition that the Commission previously “considered the name of a committee as that which is presented to the public; not simply that which is registered officially in the records out of the public view.” Appellee‘s Brief at 18 (quoting Common Cause, 655 F.Supp. at 621).
In Advisory Opinion 1980-84, the Commission told a political committee that it could use stationery bearing a former name, not in compliance with
The FEC explained that “[o]ther uses of the stationery that are not subject to
The Commission‘s view in August, 1980, just after the passage of the Act was thus in conformity with its current view.19
Section
B. The Statute‘s Legislative History
The sparse legislative history on
The Commission argues that Congress was merely targeting ambiguous political committee names, which could mislead a reader as to whether the committees were authorized or not. Section
Common Cause would give
There is, however, no indication, much less any “compelling indication,” in the history of the
Congress’ silence on the subject seems even more telling against Common Cause‘s case when we recall that Congress had only a few years previously addressed at length the problem of potentially misleading campaign communications, culminating in the passage of
We think the likelihood remote that Congress set out stealthily to alter so dramatically the regulation of campaign advertisements and solicitations in the way Common Cause asserts. This is especially so, since
See Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (construing FECA provisions narrowly in attempt to avoid impermissible burdens on free expression); see also FEC v. Massachusetts Citizens for Life, 479 U.S. 238, 107 S.Ct. 616, 623, 93 L.Ed.2d 539 (1986) (relying on Buckley to construe independent spending regulation narrowly to apply only to “express advocacy“).
Actually, much of the legislative history of
The Commission‘s legislative recommendations in its 1978 Annual Report, suggested several FECA “clarifications,” Federal Election Campaign Act Amendments, 1979: Hearing Before the Senate Comm. on Rules and Administration, 96th Cong., 1st Sess. 23 (1979) among them that:
Under the current law, the name of most principal campaign committees identifies the candidate supported. However, in some cases, it is difficult to determine which candidate a principal campaign committee supports. In such cases the committee name does not contain the candidate‘s name as, for example, “Good Government Committee” or “Spirit of ‘76.”
Id. The Commission concluded that “[i]n order to avoid confusion the Act should require the name of the principal campaign
In the first working draft of the Senate Committee on Rules and Administration, the section entitled “Organization of Political Committees” included this predecessor to
The name of each principal campaign committee of a candidate shall include the name of such candidate.
Hearing at 65.25
During the hearing process the Committee made the following addition:
The name of each principal campaign committee of a candidate shall include the name of such candidate, but only the principal campaign committee or authorized committee of a candidate may use the candidate‘s name in its title.”
Hearing at 110 (emphasis added).26
This counterpoint amendment was understandably advanced as a further step in the clarification process designed to allow anyone reading the name of a political committee to determine immediately whether or not it is an authorized committee by the presence or absence of a candidate‘s name.27
It would thus have “regulate[d] the use of a candidate‘s name in the name of the candidate‘s campaign committee.” S.Rep. No. 319, 96th Cong. 1st Sess. 10 (1979).
Had the new language in the second discussion draft been adopted, however, it would clearly have had other repercussions. Among these, it would have effected the same result as Common Cause‘s interpretation of the present
Although the House version of the bill, which Congress ultimately passed,29
also allows for an immediate identification of a candidate‘s authorized committee (“the name of the candidate must appear in the name of the authorized committee.” H.R. Rep. No. 422, 96th Cong., 1st Sess. 2-3 (1979), U.S.Code Cong. & Admin. News 1979, pp. 2861-2863)30
—it has a less sweeping limitation on the use of a candidate‘s name by other entities:
In the case of any political committee which is not an authorized committee, such political committee shall not include the name of any candidate in its name.
[A]ny committee, club, association, or other group of persons which receives contributions aggregating in excess of $1,000 during a calendar year or which makes expenditures aggregating in excess of $1,000 during a calendar year....
The FEC General Counsel explicitly found that the “special projects,” whose names included references to Ronald Reagan, were not “political committees” under this definition and, therefore,
Thus, little in its legislative history explicitly touches on the precise scope of
or throws doubt on the reasonableness of the FEC‘s narrower interpretation. Remembering Sherlock Holmes’ famous clue of the dog that did not bark, we are most impressed by the notion that a major statutory revision in existing campaign disclosure practice would likely have spurred some greater debate or controversy.
C. Chevron‘s Second Prong
In sum, then, “[t]he best case to be made for [those challenging the agency], upon analysis, is that when one examines the statute and the specific part of the legislative history upon which they rely, it becomes unclear as to what Congress’ intent actually was.” Eagle-Picher Industries v. EPA, 759 F.2d 922, 930 (D.C.Cir.1985).
Deference is particularly appropriate in the context of the FECA, which explicitly relies on the bipartisan Commission as its primary enforcer. See FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 37, 102 S.Ct. 38, 44, 70 L.Ed.2d 23 (1981). FECA‘s judicial review provision,
It may be, as the district court commented, that by adopting Common Cause‘s construction of
Common Cause admits that even under its broad interpretation of
There are as well countervailing considerations for the FEC to ponder. It must allow the maximum of first amendment freedom of expression in political campaigns commensurate with Congress’ regulatory aims. In this case, it has decided that literal adherence to the language of
III. DEADLOCK-VOTE DISMISSALS
The second issue in this case falls within the ambit of our recent decision in Democratic Congressional Campaign Comm. v. FEC, 831 F.2d 1131 (D.C.Cir.1987). There we found that a Commission dismissal of a complaint resulting from a 3-3 deadlock vote was reviewable when the General Counsel had made a contrary recommendation based on FEC precedent. In Democratic Congressional Campaign Comm. (DCCC), we upheld the district court‘s remand to the Commission for a statement of reasons explaining its deadlock dismissal. The Commission did not seek further review of that decision, and although it tries to distinguish the facts there from those here, in our view the DCCC precedent governs this case.
Nonetheless, we decline to apply the precedent retroactively to this case, which arose before our DCCC decision. See Great Northern Ry. Co. v. Sunburst Co., 287 U.S. 358, 364, 53 S.Ct. 145, 148, 77 L.Ed. 360 (1932) (Cardozo, J.) (decision of
A. The Commission Fails to Distinguish Democratic Congressional Campaign Committee
In DCCC, we found that “[n]othing in the text of FECA‘s judicial review prescription precludes review of a dismissal due to a deadlock....” 831 F.2d at 1133. Here, as in DCCC, the Commission dismissed the complaint for lack of the requisite four votes in favor of pursuing the investigation. The dismissal, in both cases, was contrary to the General Counsel‘s recommendation to proceed.
The Commission argues that here, unlike in DCCC, the General Counsel‘s recommendation was not based on clear legal precedent. The General Counsel, however, cited both Commission regulations and advisory opinions in support of his recommendation to investigate the coordination charges against AEP and NCCC. J.A. at 120-22.
We decline the Commission‘s invitation to distinguish for remand purposes between deadlock dismissals which run contrary to General Counsel recommendations based on clear legal precedent and recommendations based on the General Counsel‘s less definitive assessment of what the law requires in light of the factual allegations in the case. Such fine-tuning would inevitably invite Talmudic discourses about whether General Counsel recommendations were based on precedent in point, not in point, a little in point or a lot in point, or on sound or unsound applications of the law in particular factual situations.
In DCCC, we found that important statutory policies were served by requiring an explanation for deadlock dismissals contrary to the recommendation of the General Counsel. Those policies are equally relevant here, even if there is no Commission precedent directly on point. A statement of reasons, in either situation, is necessary to allow meaningful judicial review of the Commission‘s decision not to proceed. Section
Requiring a statement of reasons by the declining-to-go-ahead Commissioners at the time when a deadlock vote results in an order of dismissal also contributes to reasoned decisionmaking by the agency; it ensures reflection and creates an opportunity for self-correction.
Finally, some explanation of the views of the decliners will enhance the predictability of Commission decisions for future litigants. For example, some statement from Commissioner Reiche, while not law,32
would have informed Common Cause of the evidence practically necessary to convince a majority of the Commission to proceed with an investigation of a committee.
Although the panel in DCCC limited its holding to the facts of that case, see 831 F.2d at 1132, we cannot find a principled distinction between the situation in DCCC and the case at bar,33
that would obviate the need for an explanation of the declination to proceed.
Nonetheless, we decline to give retroactive effect to our ruling in DCCC insofar as it would require a statement of reasons to be made in order to permit judicial review. To do so, in this case at least, would be an exercise in futility and a waste of the Commission‘s resources.
In Chevron Oil Company v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), the Supreme Court discussed three factors relevant to the decision whether a court-made rule should be given prospective or retroactive effect. Each of these criteria is met in the instant case. First, if the decision is to be applied prospectively only, it must establish a new principle of law. Id. at 106, 92 S.Ct. at 355. The requirement of a statement of reasons announced in DCCC was new in the sense that it was declared after Commission practice to the contrary that persisted for years prior to the institution of a court challenge.
As to the second factor, the Supreme Court has stated that a court “must ... weigh the merits and demerits [of retroactive application] in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” Id. at 106-07, 92 S.Ct. at 355 (citing Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965)). In this particular case, retrospective application of the rule requiring a statement of reasons in cases of deadlock votes contrary to the recommendation of the General Counsel clearly would not further the purposes of the rule. Today only two of the six Commissioners who participated in the challenged vote still remain at the FEC. Commissioner Reiche, who cast the deciding vote to terminate further inquiry into the allegations against AEP and NCCC, is among those no longer with the Commission. To attempt to reconstruct and review his reasoning at this late date when he is no longer a public official would be to engage in a strange exercise indeed. We are reasonably confident that retroactive application of the rule would produce similar oddities in other cases since FEC Commissioners serve staggered six-year terms and the Commission‘s composition, accordingly, changes every two years. See
Furthermore, there is little chance that similarly situated parties have been treated in a materially different fashion in this instance. While the investigations did not proceed against AEP and NCCC, the Commission also eventually dismissed the remaining investigations of NCPAC, AFC and FCM. No conciliation agreement was proposed to these parties and no judicial action taken against them. Therefore, although the various complaints went to different graves, they are all now equally dead.
Nor would requiring a statement of reasons now contribute in any way to reasoned decisionmaking in future cases. Whatever Commissioner Reiche‘s reasons for distinguishing AEP and NCCC from the other committees, their elucidation would not enhance the predictability of future outcomes before the Commission of which he is no longer a member.
The final relevant factor in retroactivity decisions involves weighing the inequities imposed against the benefits gained by retroactive application of the rule. In this case, the principal inequity would lie in interfering with the Commission‘s use of its resources. The district court‘s remand order did not come until three and one-half years after the Commission had closed the file in this case. There is only a minuscule chance that reopening the proceeding would eventually result in a successful complaint, given the fates of those complaints upon which the Commission voted favorably. More likely, investigative resources would be squandered. See Bethlehem Steel Corporation v. EPA, 782 F.2d 645, 649 (7th Cir.1986) (“[E]ven if wrong there was, [it would] be a poor exercise of our equitable remedial discretion.... The [agency] has limited resources....“). In 1988, an election year, the Commission has far more pressing matters to address than
While we see no clear way to distinguish a dismissal based on a deadlock vote arising in the circumstances of this case from the situation in DCCC, we decline to implement the statement of reasons requirement of that case retroactively. We will, however, enforce the DCCC rule with respect to all Commission orders of dismissal based on deadlock votes that are contrary to General Counsel recommendations issued subsequent to our decision in that case.34
IV. CONCLUSION
We reverse the decision of the district court rejecting the FEC‘s interpretation of
RUTH BADER GINSBURG, Circuit Judge, dissenting in part:
I concur in part III. of the court‘s opinion holding the DCCC rule applicable, prospectively, to all Commission dismissal orders based on tie votes when the dismissal is contrary to the recommendation of the FEC General Counsel. In accord with the district court, however, I conclude that the Commission‘s interpretation of
defies common sense and fosters the very confusion Congress sought to prevent when it decreed:
[A] political committee which is not an authorized committee shall not include the name of any candidate in its name.
Mindful of the overriding and unambiguous legislative purpose “to avoid confusion,” the district court held that, sensibly read, “name” for
The FEC reasons, however, that a name is a name is a name. For Commission registration purposes, a political committee must state its “name,”
The practical effect of the Commission‘s interpretation is inescapably evident and abundantly documented in the record. A few examples follow. The political committee Americans for Change (AFC) created “Reagan for President in ‘80,” urged potential contributors to send checks made out to “Reagan for President ‘80,” and en-
Even the politically astute missed the “project“/“committee” distinction. Former Senator Robert Griffin of Michigan, for example, initially agreed to join AFC not realizing it was “an ‘independent’ fundraising committee,” and believing it to be part of the Reagan campaign. Letter dated June 19, 1980 from Robert P. Griffin to Hon. Harrison Schmitt, reproduced in Joint Appendix at 192.4
Despite the inevitable result of allowing independent committees to use a candidate‘s name as a name in its campaign letterheads, fundraising literature, contributor response cards, and business reply envelopes, the FEC donned blinders when it construed
reveals a common failing of the legal mind: “The tendency to assume that a word which appears in two or more legal rules, and so in connection with more than one purpose, has and should have precisely the same scope in all of them, runs all through legal discussions. It has all the tenacity of original sin and must constantly be guarded against.” Cook, “Substance” and “Procedure” in the Conflict of Laws, 42 YALE L.J. 333, 337 (1933).6
Congress enacted
I would so hold and therefore would affirm the judgment of the district court on this issue.
Notes
My colleagues appear to attribute separate entity status to a “special project” of a “political committee.” See court‘s opinion at 447. The special project, however, is nothing more than a label used by a political committee. The political committee is the only entity that exists.
Whenever any person makes an expenditure for the purpose of financing communications expressly advocating the election or defeat of a clearly identified candidate, or solicits any contribution through any broadcasting station, newspaper, magazine, outdoor advertising facility, direct mailing, or any other type of general public political advertising, such communication—
(3) if not authorized by a candidate, an authorized political committee of a candidate, or its agents, shall clearly state the name of the person who paid for the communication and state that the communication is not authorized by any candidate or candidate‘s committee.
Only by denigrating the confusion-avoidance purpose of Congress as mere “rhetoric,” see court‘s opinion at 445, could one maintain that the position Common Cause has espoused “would also prohibit” use of the name “Americans against [Candidate X].” See court‘s opinion at 445 n. 22.
The name of each authorized committee shall include the name of the candidate who authorized such committee.... [A]ny political committee which is not an authorized committee shall not include the name of any candidate in its name.
Although the legislation requires a disclaimer for political advertising and solicitation, it is not our intention to require that this disclaimer appear on the front face or page of such material.
Id.
Furthermore, it is without significance that the Commission adopted and reaffirmed this interpretation by a divided vote. Under the statute, a 4-2 vote is sufficient for a valid Commission decision.
Similarly, a rigid adherence to the name ban would also prohibit a committee opposed to a candidate from fundraising under a project name like “Americans Against Reagan.” Our dissenting colleague claims that because “Americans Against Reagan” is not a confusing name for an unauthorized committee,
Allowing candidates’ names in fundraising project names may also make particular sense in the context of multi-candidate political committees. It allows the committee to tailor its message to promote candidates or raise funds more effectively when addressing various political or regional audiences.
Authorized committees that do not identify their candidate in their names are also in violation of
(1) Each candidate for Federal office (other than the nominee for the office of Vice President) shall designate in writing a political committee in accordance with paragraph (3) to serve as the principal campaign committee of such candidate. Such designation shall be made no later than 15 days after becoming a candidate. A candidate may designate additional political committees in accordance with paragraph (3) to serve as authorized committees of such candidate. Such designation shall be in writing and filed with the principal campaign committee of such candidate....
(3)(A) No political committee which supports or has supported more than one candidate may be designated as an authorized committee, except that—
(i) the candidate for the office of President nominated by a political party may designate the national committee of such political party as a principal campaign committee, but only if that national committee maintains separate books of account with respect to its function as a principal campaign committee; and (ii) candidates may designate a political committee established solely for the purpose of joint fundraising by such candidates as an authorized committee.
While the purpose is to require the committee name to identify, clearly and by unambiguous reference, the authorizing candidate, common sense must prevail. In most cases, the use of the last name alone would be sufficient. In rare situations, such as a race with two candidates with the same last name, first names or initials would be necessary. On the other hand, committees which are not authorized may not include the name of the candidate in the name of the committee.
H.R.Rep. No. 422, 96th Cong., 1st Sess. 13 (1979), U.S.Code Cong. & Admin.News 1979, p. 2873.
Nothing in this passage, however, actually reveals whether Congress meant “name” to refer only to the official title of a committee rather than to any designation employed to identify a committee or any of its projects. While it demonstrates Congress’ general intent to prevent confusion arising from misleading committee names, it also indicates Congress’ desire that the FEC not be so overzealous in implementing the provisions as to deter participation in the political process. This view is consistent with another congressional concern in enacting the FECA Amendments of 1979, to encourage greater political participation, particularly at the local level. S.Rep. No. 319, 96th Cong., 1st Sess. 1 (1979).