Federal Election Commission v. T. Bertram Lance

аgainst We in rem claim bond. opinion concerning no whether the intimate over court had

Florida still which Mississippi, posted

First increase,

bond, require an or whether

transferee district court would have author- bond,

ity issue to order increase yet presented. reasons,

For these the writ DENIED. COMMISSION,

FEDERAL ELECTION

Plaintiff-Appellee, LANCE,

T. Bertram

Defendant-Appellant.

No. 78-1859.

United Appeals, States Court of

Fifth Circuit.

5,May Hi- Bondurant, Griffin, &

Trotter, Miller Bondurant, Atlanta, Ga., shon, Emmet J. C., for Altman, Washington, D. Robert A. defendant-appellant. Counsel, Oldaker, Feder- Gen.

William C. Steele, N. Charles al Election Perkins, Imig Scall, Kathleen Lester N. C., Washington, D. Oliphant, Carolyn U. plaintiff-appellee. COLEMAN, Judge, and Chief

Before TJOFLAT, Judges. Circuit BROWN TJOFLAT, Judge: Circuit validity of an ad- This case concerns the Feder- subpoena, ministrative (FEC or Commis- al Election Commission appear sion), T. Bertram Lance requiring certain doc- produce and to deposition for a is incident uments. illegal possible investigatiоn of enforcement banks by two national of 1974. Campaign Lance for Governor Bert investigation af- began the The Commission U.S.C. determining, pursuant ter there was “reason (1976), that 437g(a)(2) Bert Lance the banks to believe” violated the Fed- Committee Act, Practices eral (1976) (FCPA).1 Upon Lance’s failure stayed enforcement order pending appear deposition, for the the en banc decision. petitioned the district court for the North- ern Georgia District enforce sub- I poena. hearing, After district court of in Georgia Lance ran for Governor ordered Lance to with the comply campaign 12, on August 1974. The ended appeals Lance now from that order. 1974, lost in the when Lance Democratic we Although hold that the district court primary September election. and No- rejected arguments correctly that Lance 1977, the Federal Election vember Commis- proceedings, raised in the enforcement we sion, the basis of acting on information it decline order subpoe- to enforcement of the acquired ordinary had of course na we because conclude that there exists a carrying supervisory responsibilities its out whether the Federal Cor- question serious Act, over the Election Campaign Federal rupt Act If Practices is constitutional. found to believe that reason 1974 Bert unconstitutional, FCPA then subpoe- Committee, Campaign Lance for Governor na, in aid of an intend- (Calhoun the Calhoun First National Bank Act, ed to enforce the must be invalid as Bank), City and the National of Bank panel well. This does not have Rome, (National City Bank), Georgia to issue, resolve the constitutional however. possible violated section 441b. The viola- Section 437h of the Federal Election Cam- by tions relate to extensions of credit paign (FECA), Act of as amended (1976), two be- requires campaign U.S.C. 431-455 banks to cоmmittee §§ question presented fore, to the en banc court. and during, campaign. after Lance’s pertinent applicable of banking sections 441b to this case accordance with the provide: regulations ordinary laws and and in the (a) any bank, business) any candidate, It is unlawful for national or course of to cam- (cid:127) any corporation organized by authority committee, paign political party or or or- any Congress, law to ganization, make a contribution any in connection with election expenditure any or in connection with elec- any to section, of the offices referred to in this any office, political tion to or in connection (A) shall but not include communi- any primary political with election ‍‌‌​​‌​‌‌​‌​‌​‌‌‌‌‌‌​‌​‌​‌‌​‌‌​​​‌​​‌​​​​​‌‌‌‌​​​‍or conven- corporation by a to cations its stockholders tion or caucus select held to candidates for personnel and executive or administrative any political office, any corporation or by organiza- and their families or a labor whatever, any organization, or to labor make tion to its members their and families expenditure a contribution or in connection any subject; (B) nonpartisan registration any presidential election whiсh and get-out-the-vote campaigns by corpo- a presidential vice electors or a Senator or ration aimed at its stockholders and execu- in, Representative Delegate or a or Resident personnel tive or administrative and their to, Congress Commissioner be voted families, organization or a labor aimed for, any primary or in connection with elec- families; (C) at its members and their political tion or convention or held caucus establishment, administration, and so- any foregoing select candidates for separate seg- licitation to a offices, candidate, аny political or for com- pur- regated political fund to be utilized for mittee, person knowingly accept or other poses by corporation, organization, labor any prohibited by or receive contribution membership organization, cooperative, or section, any any any or officer or director of corporation capital corporation any any without stock. or bank offi- national or (Emphasis added.) any organization cer of labor to consent to any corpo- expenditure proscriptions contribution or From until now ration, bank, organization, national or labor set out in were codified as section be, prohibited as the case this sec- Corrupt 610 of the Federal Practices Act of tion. (1970) (repealed 1976). 18 U.S.C. 610 (b) . Although it is now a Elec- Federal (2) purposes For of this section and section Act, tion §§ 431-455 (h) of Title term ‘contribution or 441(b) continues to known as expenditure’ shall include direct or in- Federal Act. Na- Practices See First distribution, loan, advance, payment, direct deposit, Bellotti, tional Bank of Boston v. 435 U.S. 765 gift money, services, or or n.26, L.Ed.2d anything (except of value loan mon- ey by a national State bank made in II suspect contends

The Commission “оverdrafts in include of credit extensions issue sub- The FEC derives during made loans repaid 437d: poenas from U.S.C. § extensions of credit other campaign, power— (a) The repaid 1974 and during made and 1977 for the made between loans outstanding campaign repaying signed by subpena, require by Commission, at 3. Brief for the debts.” chairman, the the vice the chairman or November On witnesses testimony of attendance and Lance, pro- him to requiring subpoenaed documentary all production of deposi- for a appear and to duce documents of its execution relating to the evidence 2, 1977. Lance moved tion on December duties 22, 1977, to November the Commission on investi- is to of the Commission’s duties One and the Commission quash subpoena, the when FECA gate alleged violations November quash on denied the motion to to . has reason . . “[t]he 29, appear to When Lance failed 1977. occurred has a violation believe that such deposition, the scheduled The 437g(a)(2). 2 . . . .” enforce the court to petitioned the district ground- of Lance is subpoena there exists “reason finding that upon its ed hearing on Janu- The court held a district has been violated. to believe” affi- 16,1978, briefs and and considered ary own not enforce its The Commissiоn raised parties. Lance by davits filed the for enforce- petition must subpoena, but in the district arguments following the court. 2 in the district 441b is a criminal (1) court: since 437d(b). the attempt apply to statute, FEC’s the clearly has indi Supreme The Court investigation of events justify to proceeding in a to that a court’s role cated violates enactment to its prior that occurred is a lim subpoena enforce administrative process clauses and due the ex facto v. Per Corp. Johnson ited one. In Endicott Constitution; limita- (2) the statute of the 339, kins, 501, 87 L.Ed. 424 317 63 U.S. S.Ct. (3) the FEC investigation; the tions bars validity of (1943), the Court considered the investigate violations jurisdiction to has no Secretary of La subpoena the by issued (the of section predecessor section 610 under bor incident to a 441b, prior that occurred supra) note 1 see Act. The Walsh-Healey Public Contracts 1975; already has since the FEC subpoena should Court held that acquire by information that it all the sought “was not since the evidence enforced subpoena, enforcement should be denied irrelevant plainly incompetent or of burden and harassment. On grounds Secretary . . . .” lawful 1978, granted court February the district Id. at at 343. 63 S.Ct. subpoena, reasoning enforcement of well within the Com- subpoena аgain considered Supreme Court statutory inclusive” mission’s “broad and the enforcement principles governing legal investigate violations of authority to subpoena in Oklahoma of an administrative Record at 82. Lance moved the FECA. Walling, 327 U.S. Publishing Press Co. order, mo- and that court reconsider (1946). 614 90 L.Ed. 66 S.Ct. 24, tion was denied on March challenge There, the Court considered the Administrator subpoenas by appeal, again

In this Lance raises Division, Department Wage and Hour arguments expounded four that he under Labor, addition, of an he con- of proceedings below. Act. The Court Labor quashed the Fair Standards must be tends еnforcement, holding first amend- ordered “[i]t since section 441b violates the for a law- investigation be enough that the ment. power significance of fully purpose, authorized within the be- distinction investigations ju- Id. tween administrative command.” at been addition, pointed fact-finding recognized dicial also at 505. In the court S.Ct. court: requirement out that the Adminis ‍‌‌​​‌​‌‌​‌​‌​‌‌‌‌‌‌​‌​‌​‌‌​‌‌​​​‌​​‌​​​​​‌‌‌‌​​​‍ arbitrarily trator not act or outside of his [Tjhere grave policy considerations statutory “does not mean that against allowing his that militate investigation to inquiry must be ‘limited . . . . of administrative become nature, it adversary even after be- probable forecasts of result of in ” рarticularized. specific comes These vestigation . . succinctly considerations were stated States, Blair quoting v. United Larche, Supreme in Hannah 273, 282, S.Ct. 468, 471, U.S. L.Ed. [1515, where it 1307], L.Ed.2d stated: Co., United v. Morton States Salt investigative process [T]he 632, 652, 94 L.Ed. 401 completely disrupted could be if inves- (1950), a case involving the investigatory tigative hearings were transformed of the Federal Trade proceedings into trial-like provided the Court with the opportunity to agencies Fact-finding . would elaborate on the ap- standard it had injection plagued by of collateral plied Oklahoma Press : “it is sufficient if issues that would make the investiga- is inquiry within the of thе * * * tion type interminable. This agency, the demand is not too indefinite would make a shambles sought reasonably information is agen- and stifle the relevant.” The emphasized that ad- cy in gathering of facts. investigations ministrative could not be Genuine Parts Co. Federal Trade Com- equated with the more opera- constrained mission, (5th 1971). 445 F.2d Cir. judicial tions of process: Parts the Compa- Genuine Genuine Parts Because if judicial power reluctant not ny order, challenged an issued the Fed- unable to summon evidence until it eral requiring Trade the com- shown to be relevant litiga- to issues in to file pany certain information. The cоurt tion, it does not follow an adminis- company held that submit the trative agency charged seeing with requested information since the administra- may the laws are enforced not have and oppressive tive order was or not unreasona- powers exercise original inquiry. It and, burdensome, bly it for since was inquisition, has a if one chooses purpose, sufficiently authorized was defi- that, to call it which is not derived from nite, reasonably and was relevant judicial function. It is more analo- investigation. of the gous Jury, to the Grand which does not legal policy standards and considera- depend on a or controversy рow- case tions set provide out these cases get er to evidence but can investigate analysis framework for our of Lance’s ob- merely on suspicion that law is being jections to the Federal Election Commis- violated, just or even because it wants sion’s assurance that it is not. When investiga- tive accusatory are delegated duties A. it, statute to body, an administrative objection Lance’s first is based on too, may take steps to inform itself as to ex due post facto and clauses whether probable there is violation points He out that Constitution. law. petition for enforcement ex also, Id. at at 364. See pressly states that Bisceglia, States v. suspected United U.S. incident 915, 919, (1975). 43 L.Ed.2d 88 violations of section 441b the 1974 Bert Committee, proscription the same as sec- 441b contains for Governor Lance falling action it follows that Bank, City National tion the Calhoun 441b could not within the terms of section until 441b was not enacted Bank. Section when done” if the act clear, have been “innocent Lance ar- however. It is May section 610 was in was committed while violations could not suspected gues, The 1976 amendment indicates force. date of the enact- have occurred after the of sec- the reсodification Congress intended facto and due post and that the ex being no one from tion 610 to absolve prosecution founded process clauses bar violating provision. charged with the in- earlier transactions. Since issuance not result vestigation could argu- weakness in Lance’s The second subpoena does not meet complaint, of a on the notion that 2 ment is that it rests requirement of a law- Press Oklahoma out remedies for 437g, which sets Brief of T. Ber- fully purpose. authorized FECA, violations of the is a criminal stat- at 25. tram Lance increases the aggravates ute that a crime or 437g authorizes a broad penalties. Section we cannot why are several reasons There of 441b. range of remedies for violations does run agree with Lance. A statute not may seek an example, For the Commission it afoul of the ex “ facto clause unless it agreement, conciliation informal passing ‘makes an action done before injunction or a fine bring an action for an law, when was innocent and which greater five thousand dollars or an than criminal; action,’ done, such punishes equal amount to the contribution or ex- crime, ‘aggravates or makes ” violation.2 penditure involved in the greаter it it was when than committed.’ explicitly states that the cause of Columbia, City Bouie v. are “civil.” possible penalties action and the 12 L.Ed.2d 894 argues that the remedies available to Bull, (3 Dall.) 386, quoting Calder must, nevertheless, re- problem The first 1 L.Ed. 648 garded as “criminal in nature.” He ‍‌‌​​‌​‌‌​‌​‌​‌‌‌‌‌‌​‌​‌​‌‌​‌‌​​​‌​​‌​​​​​‌‌‌‌​​​‍further proscrip is that the 437g impermissi- that section contends the campaign tion the committee and banks bly penalties” “increased the for a section suspected violating are of has been in effect violation since some of the sanctions Till Congress passed since when the monetary loss on a might impose greater a 864. The Tillman man Act. 34 Stat. Act’s penalties criminal of the violator than the na prohibition political by of statute, predecessor section 610.3 was re-enacted as the Federal tional banks v. Wein- Federal Election Commission Practices Act in 43 1070 Stat. sten, (S.D.N.Y.1978), F.Supp. 243 462 (later codified at 18 U.S.C. 610 § rejected penal- argument court that the (repealed 1976)), and was recodified sec 437g really “qua- ties in set out section tion 441b in 1976. The 1976 amendment si-criminal,” holding “Congress’ that lan- provides effected the recodification guage dispositive penalties and the im- that, stated, except any as otherwise “sec na- posed by сivil in FEC are penalty tion or section shall be 610] [of presented ture.” at Lance has not 252. remaining pur treated as in force for the authority that any reasoning or cited pose sustaining any proper of action or the Weinsten persuades disagree us to prosecution any pen for the enforcement of court. alty, liability.” forfeiture or Pub.L. No. (appearing accept 90 495 note Even if we could the idea Stat. (1976)). 437g to 2 some of the section remedies are crimi- U.S.C. Since $1,000 willful, imprisonment If of not more than one the violation was the violator $10,- willful, both; subject penalty greater year, a civil nоt than if the violation was $10,000 000 or of the unlawful contribution. maximum maximum fine was 200% years. imprisonment was five by 3. Violations of 18 individuals punishable by were than a fine of not more nature, fail action argument might nal in Lance’s would since that the Commission Com- because we cannot assume bring remedy alleged in the future would, proceeding a future mission by violation section 441bwould be barred subjects investiga- against any of the He cites au statute limitations. no tion, penalty permit- request the maximum thority support proposition in direct of the If were ted the statute. may investigate the FEC a sus in an greater penalty to seek no than fine pected period violation after of limita amount the Com- permitted Rather, suggests tions has he run. conceivably action could not vio- mission’s running prevent would late the ex facto or due clauses. a “complaint” issuance of and relies on Har See, Johnson, F.Supp. Smith riman v. Interstate Commerce (E.D.La.1977) (“[I]t is not a violation 115, 53 L.Ed. 253 S.Ct. provision ex post facto for the individual to (1908),for his assertion that the FEC has no less penalty sentenced to a harsh than power to issue a that “cannot the one that it appeared he would be sub- possibly concern ‘matters that [be] to, of, jected given and was noticе ” object complaint.’ Brief of T. [a] crime.”). moment of the 35, quoting Bertram Lance at Harriman at A rejection further reason for our of 419, Although at 118. we admit assumes, is that it as we continuing validity of the Harriman not, that any future FEC statement, Court’s we think that Lance has against the subjects facilely too assumed existence depend would necessarily solely on transac statute of limitations defense means that no tions that before the occurred enactment of complaint may contrary, issue. To the section 441b. Lance argues that the record there is case law to “an the effect that contributions, is сlear that no unlawful though indictment states an offense even the form of overdrafts or other payments, alleged appears crime to be barred could have been made later than January Doyle, limitation.” United States v. 15, 1975. The “record” to which Lance (2d Cir.), denied, F.2d cert. 382 U.S. briefs, affidavits, refers consists of and oth 15 L.Ed.2d 84 We er documents that Lance has submitted to need not decide running whether the observes, court. As correctly the FEC or, if no statute of limitations is statute — he seeks to substitute his own as unsworn applicable, passing the mere of time—would sertion that no violations could have oc deprive an agency ever administrative of its curred later than January judg 1975 for a conduct because based evidence through assimilated principle it is that not manifest such could an investigation. FEC Neither the district proscribe in this FEC’s court nor this speculate court is “free to case. about possible charges that be included in a complaint, future and then to period The of limitations on which determine the [validity] subpoena argument Lance his set in 2 bases out requests by hypothetical reference to those 455(a): charges.” Texaco, 862, FTC v. 555 F.2d person No prosecuted, shall tried (en (D.C.Cir.) banc), cert. denied sub nom. punished for violation I subchapter FTC, Oil Standard Co. of v. California chapter [including section 441b] 974, 2939, 53 L.Ed.2d 1072 in- unless the indictment is or the found (1977). See also Oklahoma Press Publishing years af- formation instituted within Co. Walling, 276, v. 327 U.S. at 66 S.Ct. at ter the date of the violation. 509. ‍‌‌​​‌​‌‌​‌​‌​‌‌‌‌‌‌​‌​‌​‌‌​‌‌​​​‌​​‌​​​​​‌‌‌‌​​​‍The to the institution of statute refers

B. “indictment,” not “information” or an but Thus, Lance that remedy. next contends the Com civil pursuit to the of a mission’s should not be period enforced indicates that the statutory language of limitations thorized prosecutions history of reading of the statute. 2d Sess. ence Cong. & limitations “criminal action” noted rights of the FEC’s are civil. ble ble to civil enforcement remedy. state period of occurred within Employment Opportunity Commission As we stated limitations were argument demands that 1975), bly uncover tion trative Griffin Wheel persuaded by explains to suits hypothesize FEC, in a the actions Report, statutes of limitation there above, Even if the section of limitations that (1974), reprinted 2by Admin.News, limitations for civil actions. Since section power to seek a section applies for violations appears that evidence that a S.Rep.No.93-1237, above, applies sovereign, there is no a federal Co., the fruits of that (emphasis applicable, Lance’s See 511 F.2d 456 to enforce an did not tо be no time limit to however, 437g explicitly period section 455 j.441 The only pp. the FEC supports The Senate pp. we assume that actions agency see, would be of the FECA au- argument. are not to the criminal could not ^[1974] general 370-371 added). As we bringing of limitations. we would not provide violation has e. a court brought by 93d this literal may bring legislative to enforce investiga period g., period U.S.Code (5th adminis applica- applica- Confer- federal supra.4 Cong., states Equal 5668- possi for a of a 437g Cir. gress created date on which Act of become effective. Amendments predecessor tends violations of section sion jected the notion that a enforcement No.93-443, (amending the Federal Practices Act thority for his contention ers are mission only prospective the effective Campaign gave 95 S.Ct. leged violations 2086. Lance’s procedure action is authority over such violations. ambiguity of assumes that 1975 . “after noted, powers with January 1971, prospective only, has no Amendments relies on Commission gave proper Act Amendments for the Commission’s 2086-87. The of section 88 Stat. holding “established date of the Federal . .” Id. at occurring prior to set case, the reference 45 L.Ed.2d processing the Commission Stat. argument the Amendments jurisdiction over section January 1975.” Cort phrase was intended to Lance does 3). the Federal the Amendments. primary remedy violations of 441b; rather, he con- 610 after gave over section Election Supreme Court re- such that the Com- Section 74-75, 95 an administrative that the FEC has Election Commis- Amendments, complaints of al- Ash, 422 the Amendments occurring before private cause of depends on the 1, 1975, as the (Amendments) remedial and exclusive 1974, its enforce- not 1975. Con- investigate January 410 of the Id. at 74- were to Election 610, the dispute Pub.L. phrase as au- pow- an- modify “violations.” merely saying the Court was swers that C. “рrocedure processing com- objection January the sub effective “after plaints” Lance’s third was to be juris poena is that the Commission has no 1975.” We think that the is language con of the Court’s investigations interpretation diction to conduct civil is no doubt There only the the reasonable one. cerning violations of Federal any speculation gage suggests argument in conclude that no does not to 4. Lance that his depend speculation after that date. about the evidence the violation could have occurred reading through investiga- accept might obtain We decline Commission to statute, Rather, hold, evade permit to matter of candidates tion. he asks us to as a for it would law, and prohibit on contributions 441b does not contri- the FECA’s restrictions that section campaigns by running a expenditures at their the elec- butions made after an election. Since collecting after deficit and then tion involved in the Commission’s place en- took in we would not have to the election. that the section 410 of 1974 Amendments We need not conclusively resolve at this 1, 1975, the January states that is effective question time the whether the FEC’s reme- including date of the the powers retroactively dial applicable, Amendments — provisions creating the Commission giv- and however. Even if it were settled that ing authority. it civil enforcement In the Commission no to investigate is opinion, context entire it clear that violations of section 610 be- that occurred intent simply convey Court’s fore January again it would some general uncontroversial fact speculate improper for us to that the inves- information background about Amend- tigation could not uncover evidence that There ments. was no reason to consider any violation occurred after that date. See powers whether Commission’s remedial pp. supra. 370-371 only were prospectively applicable, if and issue, had chosen to address this D. it would so surely not have done in such an argument The fourth Lance raises off-hand manner. against subpoena enforcement of the is that opposition to the Cort v. Ash lan subpoena “unnecessarily burdensome relies, guage on which Lance there is pow harassing” because “the information Congress erful evidence specifically in sought already from Lance Mr. tended pow Commission’s enforcement possession.” T. FEC’s ‍‌‌​​‌​‌‌​‌​‌​‌‌‌‌‌‌​‌​‌​‌‌​‌‌​​​‌​​‌​​​​​‌‌‌‌​​​‍Brief of Bertram ers retroactively to be applicable. When 43. The all Commission obtained in recodified 1976 the substantive relevant information about prohibitions 441b, it section as section gubernatorial contends, campaign, Lance enacted at the savings same time a clause “as a prior investigations result of two providing repeal of section 610 and Comptroller Currency investigat the penalties for its violation “shall not ing appellant’s testimony before the Senate have releasing the effect of or extinguish Committee on Governmental Affairs.” ing forfeiture, any penalty, liability in We agree with Lance “burden penalty, curred under such section or ground harassment” sometimes be a such or penalty shall be treated as deny for a court to enforcement of an ad remaining in force for the purpose of sus p. ministrative subpoena, supra, see taining proper action or prosecution for and we suppose unduly it forfeiture, the enforcement of penalty, require burdensome for agency some liability.” P.L. 90 Stat. produce one very evidence that (appearing to 2 (1976)). note has agency previously acquired. In this was, face, Section 610 on its a criminal case, however, assume, we cannot on the statute; however, the savings clause “sus assertiоns, basis of Lance’s the docu only tains” not criminal prosecutions for requested by ments the subpoena are identi-. violations “any prop but also cal to those that the Commission obtain er action.” The phrase “any proper action” sources; ed from accept other nor we can apparently refers to the civil remedies that Lance’s contention that the al Commission might pursue under section ready has the deposition ques answers to Thus, 437g. savings clause evidences yet tions that it has not asked. Congress’s intent Commission have the authority apply its own enforcement E. powers “rеtroactively” remedy violations opposition Lance’s final section 610. we As observed our dis principle that subpoena draws on the cussion of Lance’s ex facto-due argument, there courts will refuse to enforce is no constitutional bar to the sub applying newly unless the to which penalties enacted civil —or lawfully “for authoriz penalties poena lesser criminal is incident is pre-existing a—to supra. p. Congress 370 of prohibition. power See ed purpose, criminal within 374 theory in the trial court had the new Publishing oped Press Co. Oklahoma

command.” there; judicial 66 S.Ct. at in that case Walling, presеnted 327 U.S. been v. effect, contends, that section 441b is avoided prejudice is served and economy unconstitutional, it is and that (FCPA) is present- the facts binding parties to autho- of within the Here, argued the theories below.” ed and an unconstitutional of rize the enforcement however, the “new Higginbotham, as in statute. legal question. No purely raises a theory developed to aid our could have been facts is unconstitu- arguing that the FCPA In the issue.” Id. Also as resolution of Buckley tional, heavily most on Lance relies post- parties have filed Higginbotham, Valeo, 96 46 L.Ed.2d 424 S.Ct. discussing the issue at argument briefs of Bos- oral First National Bank сourt. id. In the Bellotti, request of the See ton v. 435 U.S. S.Ct. case, agree which was decided we circumstances of 55 L.Ed.2d appeal his from the dis- “it would be after Lance filed court that Higginbotham Buckley In trict court’s enforcement order. to consider the unjust to refuse ... Valeo, held unconsti- Supreme Court Milhouse v. Id. See also argument.” new $1,000 per tutional the FECA’s candidate (D.C.Cir. 1976); Levi, 548 F.2d in federal ceiling political “expenditures” on Jones, 527 F.2d United States v. later, Two in First Nation- years elections. 1975). (D.C.Cir. Boston, al held unconsti- Bank of Nevertheless, there is an additional tutional violative of the first amendment considering Lance’s first panel’s bar to prohibiting “busi- a Massachusetts statute 437h(a) of argument. amendment Section incorporated under the corporation[s] ness court im provides: “The district the FECA laws in the Common- doing of or business of con certify questions all mediately shall ex- making wealth” from contributions or Act to the United stitutionality of this penditures “for the the circuit in appeals court of States affecting the vote on influencing or sitting volved, hear the matter which shall submitted to the voters . . .” question intent in en obvious Congress’s en banc.” n.2, at 1412. Dis- U.S. at deprive district acting this section Boston, senting in First National Bank of the circuit courts of panels courts and Justice White warned that the combined the con to consider appeals effect v. Valeo and First Nation- Buckley view, In our stitutionality of the FECA. simply al Bank of Boston was “to reserve appeal depends present the formal interment of the Prac- the outcome of day.” question tices Act 435 on the resolution of the for another is, 441b, urges at 1439. Lance which constitutionality of section Therefore, course, that Justice White was correct and that the FECA. day has arrived. to the en banc we must submit this case the first amendment court for resolution of Since Lance did not raise the first amend issue. proceedings, ment issue in the district court our inquiry first is whether the issue BANC COURT. TO EN appeal. general

be raised on rule is SUBMITTED that, miscarriage “in the absence of a COLEMAN, concurring spe- Judge, Chief justice, presented issues not raised or cially. court will not be for the lower considered agree I case should be submitted that the appeal.” first time on Excavators of consti- to the en banc court the issue Inc., Erectors, Engineers, Inc. v. Bullard so, I would hold 1973). tutionality. being That 318, 320(5th Higginboth Cir. F.2d go there entirety in its should Co., case 540 F.2d v. Ford Motor am should subsidiary issues for the reason that (5th 1976), explained, n.10 we “the ra Cir. pending not be a determination requires application tionale for the rule decided been devel- constitutionality. if additional facts would have

Case Details

Case Name: Federal Election Commission v. T. Bertram Lance

Court Name: Court of Appeals for the Fifth Circuit

Date Published: May 5, 1980

Citation: 617 F.2d 365

Docket Number: 78-1859

Court Abbreviation: 5th Cir.