FEDERAL ELECTION COMMISSION v. NRA POLITICAL VICTORY FUND ET AL.
No. 93-1151
Supreme Court of the United States
Argued October 11, 1994—Decided December 6, 1994
513 U.S. 88
Lawrence M. Noble argued the cause for petitioner. With him on the briefs were Richard B. Bader and Vivien Clair.
Deputy Solicitor General Bender argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Days, Assistant Attorneys General Dellinger and Hunger, Malcolm L. Stewart, and Douglas N. Letter.
Charles J. Cooper argued the cause for respondents. With him on the brief were Michael A. Carvin and William L. McGrath.
We granted certiorari in this case to review a judgment of the Court of Appeals for the District of Columbia Circuit holding that the congressionally mandated composition of petitioner Federal Election Commission (FEC), including as it did representatives of the Senate and House as nonvoting members, violated the separation-of-powers principle embodied in the Constitution. 512 U. S. 1218 (1994). We do not reach the merits of the question, however, because we conclude that the FEC is not authorized to petition for certiorari in this Court on its own, and that the effort of the Solicitor General to authorize the FEC‘s petition after the time for filing it had expired did not breathe life into it.
The Court of Appeals entered judgment in this case on October 22, 1993. 6 F. 3d 821. The FEC, in its own name, filed a petition for a writ of certiorari on January 18, 1994. The FEC neither sought nor оbtained the authorization of the Solicitor General before filing its petition. By order dated March 21, 1994, 510 U. S. 1190, we invited the United States to file a brief addressing the question “[w]hether the [FEC] has statutory authority to represent itself in this case in this Court.” The United States filed a brief on May 27, 1994, contending that the FEC lacks such statutory authority. The United States stated, however, that pursuant to
A petition for certiorari in a civil case must be filed within 90 days of the entry of the judgment below.
The FEC is an independent agency established by Congress to “administer, seek to obtain compliance with, and formulate policy” with respect to the Federal Election Campaign Act of 1971 (FECA) and chapters 95 and 96 of Title 26. 86 Stat. 3, as amended,
Two separate statutory provisions provide the FEC with independent litigating authority. The first provision,
The FEC brought this civil enforcement action seeking to establish a viоlation of
“Except when the Attorney General in a particular case directs otherwise, the Attorney General and the Solicitor General shall conduct and argue suits and appeals in the Supreme Court . . . in which the United States is interested.”
By regulatiоn, the Attorney General has delegated authority to the Solicitor General:
“The following-described matters are assigned to, and shall be conducted, handled, or supervised by, the Solicitor General, in consultation with each agency or official concerned:
“(a) Conducting, or assigning and supervising, all Supreme Court cases, including appeals, petitions for
and in opposition to certiorari, briefs and arguments, and . . . settlement thereof.” 28 CFR § 0.20 (1994) .
Thus, if a case is one “in which the United States is interested,” § 518(a), “it must be conducted and argued in this Court by the Solicitor General or his designеe.” United States v. Providence Journal Co., 485 U. S. 693, 700 (1988); cf. United States v. Winston, 170 U. S. 522, 524-525 (1898); Confiscation Cases, 7 Wall. 454, 458 (1869).
It is undisputed that this is a case “in which the United States is interested.”
This argument might carry considerable weight if it were not for the cognate provision authorizing the FEC to enforce chapters 95 and 96 of Title 26. There, Congress has explicitly provided that “[t]he [FEC] is authorized on behalf of the United States to appeal from, and to petition the Supreme Court for certiorari to review,” judgments or decrees.
The FEC argues that
We recognize sound policy reasons may exist for providing the FEC with independent litigating authority in this Court for actions enforcing the FECA. Congress’ decision to create the FEC as an independent agency and to charge it with the civil enforcement of the FECA was undoubtedly influenced by Congress’ belief that the Justice Department, headеd by a Presidential appointee, might choose to ignore
That statutory authority, too, represents a policy choice by Congress to vest the conduct of litigation before this Court in the Attorney General, an authority which has by rule and tradition been delegated to the Solicitor General. See
Congress could obviously choose, if it sought to do so, to sacrifice the policy favoring concentration of litigating
The question is at least presumptively governed by principles of agency law, and in particular the doctrine of ratification. “If an act to be effective in creating a right against another or to deprive him of a right must be performed before a specific time, an affirmance is not effective against the other unless made before such time.” Restatement (Second) of Agency § 90 (1958); see also id., Comment a (“The bringing of an action, or of an appeal, by a purported agent can not be ratified after the cause of action or right to appeal has been terminated by lapse of time“). Though in a different context, we have recognized the rationale behind this rule: “The intervening rights of third persons cannot be defeated by thе ratification. In other words, it is essential that the party ratifying should be able not merely to do the act ratified at the time the act was done, but also at the time the ratification was made.” Cook v. Tullis, 18 Wall. 332, 338 (1874) (emphasis added). Here, the Solicitor General attempted to ratify the FEC‘s filing on May 26, 1994, but he could not himself have filed a petition for certiorari on that date because the 90-day time period for filing a petition had expired on January 20, 1994. His authorization simply came too late in the day to be effective. See, e. g., Nasewaupee v. Sturgeon Bay, 77 Wis. 2d 110, 116-119, 251 N. W. 2d 845, 848-849 (1977) (refusing to uphold town board‘s ratification of private attorney‘s unauthorized commencement of lаwsuit where ratification came after the statute of limitations had run); Wagner v. Globe, 150 Ariz. 82, 87, 722 P. 2d 250, 255 (1986) (holding invalid city council‘s attempt to ratify police chief‘s dismissal of police officer after police officer commenced a wrongful discharge action). But see Trenton v. Fowler-Thorne Co., 57 N. J. Super. 196, 154 A. 2d 369 (1959) (upholding city‘s ratification of unauthorized lawsuit filed on its behalf even though ratification occurred after limitations period had expired).
The application of these principles of agency law here produces a result entirely consistent with, and perhaps required by,
We hold that the FEC may not independently file a petition for certiorari in this Court under
It is so ordered.
JUSTICE GINSBURG took no part in the consideration or decision of this case.
The Federal Election Commission (FEC) “is an independent administrative agency vested with exclusive jurisdiction over civil enforcement of the [Federal Election Campaign] Act.” Federal Election Comm‘n v. National Right to Work Comm., 459 U. S. 197, 198, n. 2 (1982). Both the plain language of the governing statute, § 311(a)(6), 88 Stat. 1282, as amended,
Section 437d(a)(6) expressly provides that the FEC has the power “to initiate . . . , defend . . . or appeal any civil action in the name of the Commission to enforce the provisions of this Act and chapter 95 and chapter 96 of title 26, through its general counsel.” It is undisputed that when the statute was enаcted, the FEC had the authority to invoke our mandatory jurisdiction by filing an appeal under § 437h of the Federal Election Campaign Act of 1971.1 Although the term “appeal” may be construed literally to encompass only mandatory review, a far more natural reading of the term as it is used in § 437d(a)(6) would embrace all appellate litigation whether prosecuted by writ of certiorari, writ of mandamus, or notice of appeal. Indeed,
The ambiguity in the word “appeal” is apparent even in
The historical context in which Congress adopted § 437d(a)(6) demonstrates that the interpretation that the Court adopts today is unfaithful to the intent of Congress. Section 437d(a)(6) was passed as part of the Federal Election Campaign Act Amendments of 1974 (FECA). The 1974 amendments represented a response by Congress to perceived abuses arising out of the 1972 Presidential election campaign and culminating in the resignation of President Nixon. Indeed, the legislative history reveals Congress’ belief that “[p]robably the most significant reform that could emerge from the Watergate scandal is the creation of an independent nonpartisan agency to supervise the enforcement of the laws relating to the conduct of elections.”2
In short, the legislative history of the 1974 amendments shows that Congress intended the FEC to have ample authority to oversee Presidential campaigns free of Executive influence. The FEC‘s authority to conduct civil litigation, including appellate litigation, must be construed in the light of Congress’ intent.
Givеn the language and historical context of § 437d(a)(6), it is unsurprising that the FEC has had a long and uninterrupted history of independent litigation before this Court.3 Though, as the majority notes, ante, at 97, that history does not preclude us from reexamining the FEC‘s authority, the contemporaneous practice of independent litigation, uninterrupted in subsequent years, provides confirmation of Con-
“[J]ust as established practice may shed light on the extent of power conveyed by general statutory language, so the want of assertion of power by those who presumably would be alert to exercise it, is equally significant in determining whether such power was actually conferred.” Ibid., quoting FTC v. Bunte Brothers, Inc., 312 U. S. 349, 352 (1941).
See also FPC v. Panhandle Eastern Pipe Line Co., 337 U. S. 498, 513 (1949) (“Failure to use such an important power for [over 10 years] indicates to us that the Commission did not believe the power existed“).
In rejecting the result dictated by language, history, and longstanding practice, the majority relies primarily on the differences bеtween § 437d(a)(6) and
The differences between §§ 437d(a)(6) and 9040(d) cannot support the weight that the majority wishes them to bear. Thе striking similarity between §§ 9010 and 9040 suggests that when Congress enacted § 9040, it did little more than copy the provisions of § 9010.6 No evidence whatsoever suggests that Congress considered the significance of the wording of those sections when it created § 437d(a)(6). The fact that the FEC‘s authority to file petitions for certiorari is expressed more explicitly in §§ 9010(d) and 9040(d) of Title 26 than in § 437d(a)(6) of Title 2 is thus not a sufficient reason for failing to give the latter provision its ordinary and well-accepted interpretation.7
Furthermore, the majority‘s reading of the statutes rests on the anomalous premise that Congress deсided to give the FEC authority to litigate Fund Act cases in this Court while denying it similar authority in connection with its broader regulatory responsibilities under the FECA. The majority
“[B]oth the Fund Act and FECA play a part in regulating Presidential campaigns. The Fund Act comes into play only if a candidate chooses to accept public funding оf his general election campaign, and it covers only the period between the nominating convention and 30 days after the general election. In contrast, FECA applies to all Presidential campaigns, as well as other federal elections, regardless of whether publicly or privately funded.” Federal Election Comm‘n v. National Conservative Political Action Comm., 470 U. S. 480, 491 (1985).
Finally, though admittedly important, the 1971 Act was a relatively undramatic piece of legislation, enacted before Watergate seized the national (and congressional) attention. Thе notion that Congress was motivated by a concern about improper Presidential influence in 1971 when it enacted the Fund Act, but ignored such concerns in 1974 when it enacted FECA, is simply belied by “a page of history.” See New York Trust Co. v. Eisner, 256 U. S. 345, 349 (1921) (Holmes, J.).
During two decades of FEC litigation we have repeatedly recognized that the FEC‘s express statutory authority to initiate, defend, or “appeal any civil action” to enforce FECA “through its general counsel” encompasses discretionary appellate review as well as the now almost extinct mandatory appellate review in this Court. Because I remain persuaded that this settled practice was faithful to both the plain language and the underlying purpose of § 437d(a)(6), I respectfully dissent.
Notes
“(d) Appeal. The Commission is authorized on behalf of the United States to appeal from, and to petition the Supreme Court for certiorari to review, judgments or decrees entered with respect to actions in which it appears pursuant to the authority provided in this section.”