Chief Justice Burger, concurring in part and dissenting in part.
For reasons set forth more fully later, I dissent from those parts of
the Court's holding sustaining the statutory provisions (a) for
disclosure of small contributions, (b) for limitations on contributions,
and (c) for public financing of Presidential campaigns. In my view, the
Act's disclosure scheme is impermissibly broad and violative of the
First Amendment as it relates to reporting contributions in excess of
$10 and $100. The contribution limitations infringe on First Amendment
liberties and suffer from the same infirmities that the Court correctly
sees in the expenditure ceilings. The system for public financing of
Presidential campaigns is, in my judgment, an impermissible intrusion by
the Government into the traditionally private political process.
More broadly, the Court's result does violence to the intent of
Congress in this comprehensive scheme of campaign finance. By dissecting
the Act bit by bit, and casting off vital parts, the Court fails to
recognize that the whole of this Act is greater than the sum of its
parts. Congress intended to regulate all aspects of federal campaign
finances, but what remains after today's holding leaves no more than a
shadow of what Congress contemplated. I question whether the residue
leaves a workable program.
is, in principle, the salutary and constitutional remedy for most of
the ills Congress was seeking to alleviate. I therefore agree fully
with the broad proposition that public disclosure of contributions by
individuals and by entities particularly corporations and labor
unions is an effective means of revealing the type of political
support that is sometimes coupled with expectations of special favors
or rewards. That disclosure impinges on First Amendment rights is
conceded by the Court, ante at 666, but, given the objectives
to which disclosure is directed, I agree that the need for disclosure
outweighs individual constitutional claims.
Disclosure is, however, subject to First Amendment limitations which
are to be defined by looking to the relevant public interests. The
legitimate public interest is the elimination of the appearance and
reality of corrupting influences. Serious dangers to the very
processes of government justify disclosure of contributions of such
dimensions reasonably thought likely to purchase special favors. These
fears have been at the root of the Court's prior decisions upholding
disclosure requirements, and I therefore have no disagreement, for
example, with Burroughs v. United States, 290 U.S. 534 (1934).
The Court's theory, however, goes beyond permissible limits. Under
the Court's view, disclosure serves broad informational purposes,
enabling the public to be fully informed on matters of acute public
interest. Forced disclosure of one aspect of a citizen's political
activity, under this analysis, serves the public right to know. This
open-ended approach is the only plausible justification for the
otherwise irrationally low ceilings of $10 and $100 for anonymous
contributions. The burdens of these low ceilings seem to me obvious,
and the Court does not try to question this. With commendable candor,
the Court acknowledges:
It is undoubtedly true that public disclosure of contributions to
candidates and political parties will deter some individuals who
otherwise might contribute.
Ante at 68. Examples come readily to mind. Rank-and-file union
members or rising junior executives may now think twice before making
even modest contributions to a candidate who is disfavored by the
union or management hierarchy. Similarly, potential contributors may
well decline to take the obvious risks entailed in making a reportable
contribution to the opponent of a well entrenched incumbent. This fact
of political life did not go unnoticed by the Congress:
The disclosure provisions really have, in fact, made it difficult for
challengers to challenge incumbents.
120 Cong.Rec. 34392 (1974) (remarks of Sen. Long). See Pollard v.
Roberts, 283 F.Supp. 248 (ED Ark.), aff'd per curiam, 393
U.S. 14 (1968).
The public right to know ought not be absolute when its exercise
reveals private political convictions. Secrecy, like privacy, is not
per se criminal. On the contrary, secrecy and privacy as to
political preferences and convictions are fundamental in a free
society. For example, one of the great political reforms was the
advent of the secret ballot as a universal practice. Similarly, the
enlightened labor legislation of our time has enshrined the secrecy of
choice of a bargaining representative for workers. In other contexts,
this Court has seen to it that governmental power cannot be used to
force a citizen to disclose his private affiliations, NAACP v.
Button, 371 U.S. 415 (1963), even without a record reflecting any
systematic harassment or retaliation, as in Shelton v. Tucker,
364 U.S. 479 (1960). For me it is far too late in the day to recognize
an ill-defined "public interest" to breach the historic
safeguards guaranteed by the First Amendment.
We all seem to agree that, whatever the legitimate public interest in
this area, proper analysis requires us to scrutinize the precise means
employed to implement that interest. The balancing test used by the
Court requires that fair recognition be given to competing interests.
With respect, I suggest the Court has failed to give the traditional
standing to some of the First Amendment values at stake here.
Specifically, it has failed to confine the particular exercise of
governmental power within limits reasonably required.
In every case, the power to regulate must be so exercised as not, in
attaining a permissible end, unduly to infringe the protected freedom.
Cantwell v. Connecticut, 310 U.S. 296, 304 (1940). "Unduly"
must mean not more than necessary, and, until today, the Court has
recognized this criterion in First Amendment cases:
In the area of First Amendment freedoms, government has the duty to
confine itself to the least intrusive regulations which are
adequate for the purpose.
Lamont v. Postmaster General, 381 U.S. 301, 310 (1965)
(BRENNAN, J., concurring). (Emphasis added.) Similarly, the Court has
[E]ven though the governmental purpose be legitimate and substantial,
that purpose cannot be pursued by means that broadly stifle
fundamental personal liberties when the end can be more narrowly
achieved. The breadth of legislative abridgment must be viewed in the
light of less drastic means for achieving the same basic purpose.
Shelton v. Tucker, supra at 488.
In light of these views, 1
it seems to me that the threshold limits fixed at $10 and $100 for
anonymous contributions are constitutionally impermissible on their
face. As the Court's opinion notes, ante at 83, Congress gave little
or no thought, one way or the other, to these limits, but rather
lifted figures out of a 65-year-old statute. 2
As we are all painfully aware, the 1976 dollar is not what it used to
be and is surely not the dollar of 1910. Ten dollars in 1976 will, for
example, purchase only what $1.68 would buy in 1910. United States
Dept. of Labor, Handbook of Labor Statistics 1975, p. 313 (Dec.1975).
To argue that a 1976 contribution of $10 or $100 entails a risk of
corruption or its appearance is simply too extravagant to be
maintained. No public right to know justifies the compelled disclosure
of such contributions, at the risk of discouraging them. There is, in
short, no relation whatever between the means used and the legitimate
goal of ventilating possible undue influence. Congress has used a
shotgun to kill wrens as well as hawks.
In saying that the lines drawn by Congress are "not wholly
without rationality," the Court plainly fails to apply the
Precision of regulation must be the touchstone in an area so closely
touching on our most precious freedoms.
NAACP v. Button, 371 U.S. 415, 438 (1938). See, e.g.,
Aptheker v. Secretary of State, 378 U.S. 500 (1964); United
States v. Robel, 389 U.S. 258 (1967); Lamont v. Postmaster
General, supra. The Court's abrupt departure
3 from traditional
standards is wrong; surely a greater burden rests on Congress than
merely to avoid "irrationality" when regulating in the core
area of the First Amendment. Even taking the Court at its word, the
particular dollar amounts fixed by Congress that must be reported to
the Commission fall short of meeting the test of rationality when
measured by the goals sought to be achieved.
Finally, no legitimate public interest has been shown in forcing the
disclosure of modest contributions that are the prime support of new,
unpopular, or unfashionable political causes. There is no realistic
possibility that such modest donations will have a corrupting
influence, especially on parties that enjoy only "minor"
status. Major parties would not notice them; minor parties need them.
Furthermore, as the Court candidly recognizes, ante at 70,
minor parties and new parties tend to be sharply ideological in
character, and the public can readily discern where such parties
stand, without resorting to the indirect device of recording the names
of financial supporters. To hold, as the Court has, that privacy must
sometimes yield to congressional investigations of alleged subversion
is quite different from making domestic political partisans give up
privacy. Cf. Estland v. United States Servicemen's Fund, 421
U.S. 491 (1975). In any event, the dangers to First Amendment rights
here are too great. Flushing out the names of supporters of minority
parties will plainly have a deterrent effect on potential
contributors, a consequence readily admitted by the Court, ante
at 71, 83, and supported by the record. 4
I would therefore hold unconstitutional the provisions requiring
reporting of contributions of more than $10 and to make a public
record of the name, address, and occupation of a contributor of more
(2) CONTRIBUTION AND
fully with that part of the Court's opinion that holds
unconstitutional the limitations the Act puts on campaign expenditures
place substantial and direct restrictions on the ability of
candidates, citizens, and associations to engage in protected
political expression, restrictions that the First Amendment cannot
Ante at 58-59. Yet when it approves similarly stringent
limitations on contributions, the Court ignores the reasons it finds
so persuasive in the context of expenditures. For me, contributions
and expenditures are two sides of the same First Amendment coin.
By limiting campaign contributions, the Act restricts the amount of
money that will be spent on political activity and does so
directly. Appellees argue, as the Court notes, that these limits will
"act as a brake on the skyrocketing cost of political campaigns,"
ante at 26. In treating campaign expenditure limitations, the
Court says that the
First Amendment denies government the power to determine that
spending to promote one's political views is wasteful, excessive, or
Ante at 57. Limiting contributions, as a practical matter,
will limit expenditures and will put an effective ceiling on the
amount of political activity and debate that the Government will
permit to take place. The argument that the ceiling is not, after all,
very low as matters now stand gives little comfort for the future,
since the Court elsewhere notes the rapid inflation in the cost of
political campaigning. 5
Ante at 57.
The Court attempts to separate the two communicative aspects of
political contributions the "moral" support that the
gift itself conveys, which the Court suggests is the same whether the
gift is $10 or $10,000, 6
and the fact that money translates into communication. The Court
dismisses the effect of the limitations on the second aspect of
contributions: "[T]he transformation of contributions into
political debate involves speech by someone other than the
contributor." Ante at 21. On this premise that
contribution limitations restrict only the speech of "someone
other than the contributor" rests the Court's
justification for treating contributions differently from
expenditures. The premise is demonstrably flawed; the contribution
limitations will, in specific instances, limit exactly the same
political activity that the expenditure ceilings limit, 7
and at least one of the "expenditure" limitations the Court
finds objectionable operates precisely like the "contribution"
The Court's attempt to distinguish the communication inherent in
political contributions from the speech aspects of political
expenditures simply "will not wash." We do little but engage
in word games unless we recognize that people candidates and
contributors spend money on political activity because they
wish to communicate ideas, and their constitutional interest in doing
so is precisely the same whether they or someone else utters the
The Court attempts to make the Act seem less restrictive by casting
the problem as one that goes to freedom of association, rather than
freedom of speech. I have long thought freedom of association and
freedom of expression were two peas from the same pod. The
contribution limitations of the Act impose a restriction on certain
forms of associational activity that are, for the most part, as the
Court recognizes, ante at 29 harmless in fact. And the
restrictions are hardly incidental in their effect upon particular
campaigns. Judges are ill-equipped to gauge the precise impact of
legislation, but a law that impinges upon First Amendment rights
requires us to make the attempt. It is not simply speculation to think
that the limitations on contributions will foreclose some candidacies.
9 The limitations will
also alter the nature of some electoral contests drastically.
At any rate, the contribution limits are a far more severe
restriction on First Amendment activity than the sort of "chilling"
legislation for which the Court has shown such extraordinary concern
in the past. See, e.g., Cohen v. California,
403 U.S. 15 (1971); see also cases reviewed in Miller v.
California, 413 U.S. 15 (1973); Redrup v. New York, 386
U.S. 767 (1967); Memoirs v. Massachusetts, 383 U.S. 413
(1966). If such restraints can be justified at all, they must be
justified by the very strongest of state interests. With this much the
Court clearly agrees; the Court even goes so far as to note that
legislation cutting into these important interests must employ "means
closely drawn to avoid unnecessary abridgment of associational
freedoms." Ante at 25.
After a bow to the "weighty interests" Congress meant to
serve, the Court then forsakes this analysis in one sentence:
Congress was surely entitled to conclude that disclosure was only a
partial measure, and that contribution ceilings were a necessary
legislative concomitant to deal with the reality or appearance of
corruption. . . .
Ante at 28. In striking down the limitations on campaign
expenditures, the Court relies in part on its conclusion that other
means namely, disclosure and contribution ceilings will
adequately serve the statute's aim. It is not clear why the same
analysis is not also appropriate in weighing the need for contribution
ceilings in addition to disclosure requirements. Congress may well be
entitled to conclude that disclosure was a "partial measure,"
but I had not thought until today that Congress could enact its
conclusions in the First Amendment area into laws immune from the most
searching review by this Court.
Finally, it seems clear to me that, in approving these limitations on
contributions, the Court must rest upon the proposition that "pooling"
money is fundamentally different from other forms of associational or
joint activity. But see ante at 66. I see only two possible
ways in which money differs from volunteer work, endorsements, and the
like. Money can be used to buy favors, because an unscrupulous
politician can put it to personal use; second, giving money is a less
visible form of associational activity. With respect to the first
problem, the Act does not attempt to do any more than the bribery laws
to combat this sort of corruption. In fact, the Act does not reach at
all, and certainly the contribution limits do not reach, forms of "association"
that can be fully as corrupt as a contribution intended as a quid
pro quo such as the eleventh-hour endorsement by a former
rival, obtained for the promise of a federal appointment. This
underinclusiveness is not a constitutional flaw, but it demonstrates
that the contribution limits do not clearly focus on this first
distinction. To the extent Congress thought that the second problem,
the lesser visibility of contributions, required that money be treated
differently from other forms of associational activity, disclosure
laws are the simple and wholly efficacious answer; they make the
(3) PUBLIC FINANCING
from Part III sustaining the constitutionality of the public financing
provisions of Subtitle H.
Since the turn of this century, when the idea of Government subsidies
for political campaigns first was broached, there has been no lack of
realization that the use of funds from the public treasury to
subsidize political activity of private individuals would produce
substantial and profound questions about the nature of our democratic
society. The Majority Leader of the Senate, although supporting such
legislation in 1967, said that "the implications of these
questions . . . go to the very heart and structure of the Government
of the Republic." 11
The Solicitor General, in his amicus curiae brief, states that
"the issues involved here are of indisputable moment."
12 He goes on to express
his view that public financing will have "profound effects in the
way candidates approach issues and each other." 13
Public financing, he notes,
affects the role of the party in campaigns for office, changes the
role of the incumbent government vis-a-vis all parties, and affects
the relative strengths and strategies of candidates vis-a-vis each
other and their party's leaders. 14
The Court chooses to treat this novel public financing of political
activity as simply another congressional appropriation whose validity
is "necessary and proper" to Congress' power to regulate and
reform elections and primaries, relying on United States v.
Classic, 313 U.S. 299 (1941), and Burroughs v. United States,
290 U.S. 534 (1934). No holding of this Court is directly in point,
because no federal scheme allocating public funds in a comparable
manner has ever been before us. The uniqueness of the plan is not
relevant, of course, to whether Congress has power to enact it.
Indeed, I do not question the power of Congress to regulate
elections; nor do I challenge the broad proposition that the General
Welfare Clause is a grant, not a limitation, of power. M'Culloch
v. Maryland, 4 Wheat. 316, 420 (1819); United States v. Butler,
297 U.S. 1, 66 (1936).
I would, however, fault the Court for not adequately analyzing and
meeting head on the issue whether public financial assistance to the
private political activity of individual citizens and parties is a
legitimate expenditure of public funds. The public monies at issue
here are not being employed simply to police the integrity of the
electoral process or to provide a forum for the use of all
participants in the political dialogue, as would, for example, be the
case if free broadcast time were granted. Rather, we are confronted
with the Government's actual financing, out of general revenues, a
segment of the political debate itself. As Senator Howard Baker
remarked during the debate on this legislation:
I think there is something politically incestuous about the
Government financing and, I believe, inevitably then regulating, the
day-to-day procedures by which the Government is selected. . . .
I think it is extraordinarily important that the Government not
control the machinery by which the public expresses the range of its
desires, demands, and dissent.
120 Cong.Rec. 8202 (1974). If this "incest" affected only
the issue of the wisdom of the plan, it would be none of the concern
of judges. But, in my view, the inappropriateness of subsidizing, from
general revenues, the actual political dialogue of the people
the process which begets the Government itself is as basic to
our national tradition as the separation of church and state also
deriving from the First Amendment, see Lemon v. Kurtzman, 403
U.S. 602, 612 (1971); Walz v. Tax Comm'n, 397 U.S. 664,
668-669 (1970), or the separation of civilian and military authority,
see Orloff v. Willoughby, 345 U.S. 83, 93-94 (1953), neither
of which is explicit in the Constitution, but both of which have
developed through case-by-case adjudication of express provisions of
Recent history shows dangerous examples of systems with a close, "incestuous"
relationship between "government" and "politics";
the Court's opinion simply dismisses possible dangers by noting that:
Subtitle H is a congressional effort not to abridge, restrict, or
censor speech, but rather to use public money to facilitate and
enlarge public discussion and participation in the electoral process,
goals vital to a self-governing people.
Ante at 92-93. Congress, it reassuringly adds by way of a
footnote, has expressed its determination to avoid such a possibility.
15 Ante at 93 n.
126. But the Court points to no basis for predicting that the
historical pattern of "varying measures of control and
surveillance," Lemon v. Kurtzman, supra at 1,
which usually accompany grants from Government will not also follow in
this case. 16 Up to now,
the Court has always been extraordinarily sensitive, when dealing with
First Amendment rights, to the risk that the "flag tends to
follow the dollars." Yet, here, where Subtitle H specifically
requires the auditing of records of political parties and candidates
by Government inspectors, 17
the Court shows little sensitivity to the danger it has so strongly
condemned in other contexts. See, e.g., Everson v.
Board of Education, 330 U.S. 1 (1947). Up to now, this Court has
scrupulously refrained, absent claims of invidious discrimination,
18 from entering the
arena of intraparty disputes concerning the seating of convention
delegates. Graham v. Fong Eu, 403 F.Supp. 37 (ND Cal.1975),
summarily aff'd, 423 U.S. 1067 (1976); Cousins v. Wigoda, 419
U.S. 477 (1975); O'Brien v. Brown, 409 U.S. 1 (1972). An
obvious underlying basis for this reluctance is that delegate
selection and the management of political conventions have been
considered a strictly private political matter, not the business of
Government inspectors. But once the Government finances these national
conventions by the expenditure of millions of dollars from the public
treasury, we may be providing a springboard for later attempts to
impose a whole range of requirements on delegate selection and
convention activities. Does this foreshadow judicial decisions
allowing the federal courts to "monitor" these conventions
to assure compliance with court orders or regulations?
Assuming, arguendo, that Congress could validly appropriate
public money to subsidize private political activity, it has gone
about the task in Subtitle H in a manner which is not, in my view,
free of constitutional infirmity. 19
I do not question that Congress has "wide discretion in the
manner of prescribing details of expenditures" in some contexts,
Cincinnati Soap Co. v. United States, 301 U.S. 308, 321
(1937). Here, however, Congress has not itself appropriated a specific
sum to attain the ends of the Act, but has delegated to a limited
group of citizens those who file tax returns the power
to allocate general revenue for the Act's purposes, and of course only
a small percentage of that limited group has exercised the power.
There is nothing to assure that the "fund" will actually be
adequate for the Act's objectives. Thus, I find it difficult to see a
rational basis for concluding that this scheme would, in fact, attain
the stated purposes of the Act when its own funding scheme affords no
real idea of the amount of the available funding.
I agree with MR. JUSTICE REHNQUIST that the scheme approved by the
Court today invidiously discriminates against minor parties. Assuming,
arguendo, the constitutionality of the over-all scheme, there
is a legitimate governmental interest in requiring a group to make a "preliminary
showing of a significant modicum of support." Jenness v.
Fortson, 403 U.S. 431, 442 (1971). But the present system could
preclude or severely hamper access to funds before a given election by
a group or an individual who might, at the time of the election,
reflect the views of a major segment or even a majority of the
electorate. The fact that there have been few drastic realignments in
our basic two-party structure in 200 years is no constitutional
justification for freezing the status quo of the present major
parties at the expense of such future political movements. Cf.
discussion ante at 73. When and if some minority party
achieves majority status, Congress can readily deal with any problems
that arise. In short, I see grave risks in legislation, enacted by
incumbents of the major political parties, which distinctly
disadvantages minor parties or independent candidates. This Court has,
until today, been particularly cautious when dealing with enactments
that tend to perpetuate those who control legislative power. See
Reynolds v. Sims, 377 U.S. 533, 570 (1964).
I would also find unconstitutional the system of matching grants
which makes a candidate's ability to amass private funds the sole
criterion for eligibility for public funds. Such an arrangement can
put at serious disadvantage a candidate with a potentially large,
widely diffused but poor constituency. The ability of a
candidate's supporters to help pay for his campaign cannot be equated
with their willingness to cast a ballot for him. See Lubin v.
Panish, 415 U.S. 709 (1974); Bullock v. Carter, 405 U.S.
join in the attempt to determine which parts of the Act can survive
review here. The statute as it now stands is unworkable and
I agree with the Court's holding that the Act's restrictions on
expenditures made "relative to a clearly identified candidate,"
independent of any candidate or his committee, are unconstitutional.
Ante at 39-51. Paradoxically, the Court upholds the
limitations on individual contributions, which embrace precisely the
same sort of expenditures "relative to a clearly identified
candidate" if those expenditures are "authorized or
requested" by the "candidate or his agents." Ante
at 24 n. 25. The Act, as cut back by the Court, thus places
intolerable pressure on the distinction between "authorized"
and "unauthorized" expenditures on behalf of a candidate;
even those with the most sanguine hopes for the Act might well concede
that the distinction cannot be maintained. As the Senate Report on the
Whether campaigns are funded privately or publicly . . . controls are
imperative if Congress is to enact meaningful limits on direct
contributions. Otherwise, wealthy individuals limited to a $3,000
direct contribution [$1,000 in the bill as finally enacted] could also
purchase one hundred thousand dollars' worth of advertisements for a
favored candidate. Such a loophole would render direct contribution
limits virtually meaningless.
S.Rep. No. 93-689, p. 18 (1974). Given the unfortunate record of past
attempts to draw distinctions of this kind, see ante at 61-62,
it is not too much to predict that the Court's holding will invite
avoidance, if not evasion, of the intent of the Act, with "independent"
committees undertaking "unauthorized" activities in order to
escape the limits on contributions. The Court's effort to blend First
Amendment principles and practical politics has produced a strange
Moreover, the Act or so much as the Court leaves standing
creates significant inequities. A candidate with substantial personal
resources is now given by the Court a clear advantage over his less
affluent opponents, who are constrained by law in fundraising, because
the Court holds that the "First Amendment cannot tolerate"
any restrictions on spending. Ante at 59. Minority parties,
whose situation is difficult enough under an Act that excludes them
from public funding, are prevented from accepting large single-donor
contributions. At the same time the Court sustains the provision aimed
at broadening the base of political support by requiring candidates to
seek a greater number of small contributors, it sustains the
unrealistic disclosure thresholds of $10 and $100 that I believe will
deter those hoped-for small contributions. Minor parties must now
compete for votes against two major parties whose expenditures will be
vast. Finally, the Act's distinction between contributions in money
and contributions in services remains, with only the former being
subject to any limits. As Judge Tamm put it in dissent from the Court
of Appeals' opinion:
[T]he classification created only regulates certain types of
disproportional influences. Under section 591(e)(5), services are
excluded from contributions. This allows the housewife to volunteer
time that might cost well over $1000 to hire on the open market, while
limiting her neighbor who works full-time to a regulated contribution.
It enhances the disproportional influence of groups who command large
quantities of these volunteer services, and will continue to magnify
this inequity by not allowing for an inflation adjustment to the
contribution limit. It leads to the absurd result that a lawyer's
contribution of services to aid a candidate in complying with FECA is
exempt, but his first amendment activity is regulated if he falls ill
and hires a replacement.
171 U.S.App.D.C. 172, 266, 519 F.2d 821, 915 (1975). One need not
call problems of this order equal protection violations to recognize
that the contribution limitations of the Act create grave inequities
that are aggravated by the Court's interpretation of the Act.
The Court's piecemeal approach fails to give adequate consideration
to the integrated nature of this legislation. A serious question is
raised, which the Court does not consider: 20
when central segments, key operative provisions, of this Act are
stricken, can what remains function in anything like the way Congress
intended? The incongruities are obvious. The Commission is now
eliminated, yet its very purpose was to guide candidates and campaign
workers and their accountants and lawyers through an
intricate statutory maze where a misstep can lead to imprisonment. All
candidates can now spend freely; affluent candidates, after today, can
spend their own money without limit; yet, contributions for the
ordinary candidate are severely restricted in amount and small
contributors are deterred. I cannot believe that Congress would have
enacted a statutory scheme containing such incongruous and inequitable
provisions. Although the statute contains a severability clause, 2
U.S.C. § 454 (1970 ed., Supp. IV), such a clause is not an "inexorable
command." 21 Dorchy
v. Kansas, 264 U.S. 286, 290 (1924). The clause creates a
rebuttable presumption that "'eliminating invalid parts, the
legislature would have been satisfied with what remained.'" Welsh
v. United States, 398 U.S. 333, 364 (1970) (Harlan, J.,
concurring, quoting from Champlin Rfg. Co. v. Commission, 286
U.S. 210, 235 (1932)). Here, just as the presumption of
constitutionality of a statute has been overcome to the point that
major proportions and chapters of the Act have been declared
unconstitutional, for me, the presumption of severability has been
rebutted. To invoke a severability clause to salvage parts of a
comprehensive, integrated statutory scheme, which parts, standing
alone, are unworkable and in many aspects unfair, exalts a formula at
the expense of the broad objectives of Congress.
Finally, I agree with the Court that the members of the Federal
Election Commission were unconstitutionally appointed. However, I
disagree that we should give blanket de facto validation to
all actions of the Commission undertaken until today. The issue is not
before us, and we cannot know what acts we are ratifying. I would
leave this issue to the District Court to resolve if and when any
challenges are brought. In the past two decades, the Court has
frequently spoken of the broad coverage of the First Amendment,
especially in the area of political dialogue:
[T]o assure unfettered interchange of ideas for the bringing about of
political and social changes desired by the people,
Roth v. United States, 354 U.S. 476, 484 (1957); and
[T]here is practically universal agreement that a major purpose of
[the First] Amendment was to protect the free discussion of
governmental affairs . . . [including] discussions of candidates . . .
Mills v. Alabama, 384 U.S. 214, 218 (1966); and again:
[I]t can hardly be doubted that the constitutional guarantee [of the
First Amendment] has its fullest and most urgent application precisely
to the conduct of campaigns for political office.
Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971). To
accept this generalization, one need not agree that the Amendment has
its "fullest and most urgent application" only in the
political area, for others would think religious freedom is on the
same or even a higher plane. But I doubt that the Court would tolerate
for an instant a limitation on contributions to a church or other
religious cause; however grave an "evil" Congress thought
the limits would cure, limits on religious expenditures would most
certainly fall as well. To limit either contributions or expenditures
as to churches would plainly restrict "the free exercise" of
religion. In my view, Congress can no more ration political expression
than it can ration religious expression; and limits on political or
religious contributions and expenditures effectively curb expression
in both areas. There are many prices we pay for the freedoms secured
by the First Amendment; the risk of undue influence is one of them,
confirming what we have long known: freedom is hazardous, but some
restraints are worse.
1. The particular verbalization has varied from
case to case. First Amendment analysis defies capture in a single,
easy phrase. The basic point of our inquiry, however expressed, is to
determine whether the Government has sought to achieve admittedly
important goals by means which demonstrably curtail our liberties to
an unnecessary extent.
2. The 1910 legislation required disclosure of the
names of recipients of expenditures in excess of $10.
3. Ironically, the Court seems to recognize this
principle when dealing with the limitations on contributions. Ante
4. The record does not show systematic harassment
of the sort involved in NAACP v. Alabama, 357 U.S. 449 (1958).
But uncontradicted evidence was adduced with respect to actual
experiences of minor parties indicating a sensitivity on the part of
potential contributors to the prospect of disclosure. See,
e.g., District Court findings of fact, affidavits of
Wertheimer ( 6) and Reed ( 8), 2B App. 736, 742. This evidence
suffices when the governmental interest in putting the spotlight on
the sources of support for minor parties or splinter groups is so
5. The Court notes that 94.9% of the funds raised
by congressional candidates in 1974 came in contributions of less than
$1,000, ante at 26 n. 27, and suggests that the effect of the
contribution limitations will be minimal. This logic ignores the
disproportionate influence large contributions may have when they are
made early in a campaign; "seed money" can be essential, and
the inability to obtain it may effectively end some candidacies before
they begin. Appellants have excerpted from the record data on nine
campaigns to which large, initial contributions were critical. Brief
for Appellants 132-138. Campaigns such as these will be much harder,
and perhaps impossible, to mount under the Act.
6. Whatever the effect of the limitation, it is
clearly arbitrary Congress has imposed the same ceiling on
contributions to a New York or California senatorial campaign that it
has put on House races in Alaska or Wyoming. Both the strength of
support conveyed by the gift of $1,000 and the gift's potential for
corruptly influencing the recipient will vary enormously from place to
place. Seven Senators each spent from $1,000,000 to $1,300,000 in
their successful 1974 election campaigns. A great many congressional
candidates spent less than $25,000. 33 Cong. Quarterly 789-790 (1975).
The same contribution ceiling would seem to apply to each of these
campaigns. Congress accounted for these tremendous variations when it
geared the expenditure limits to voting population; but it imposed a
flat ceiling on contributions without focusing on the actual evil
attacked or the actual harm the restrictions will work.
7. Suppose, for example, that a candidate's
committee authorizes a celebrity or elder statesman to make a radio or
television address on the candidate's behalf, for which the speaker
himself plans to pay. As the Court recognizes, ante at 24 n.
25, the Act defines this activity as a contribution and subjects it to
the $1,000 limit on individual contributions and the $5,000 limit on
contributions by political committees effectively preventing
the speech over any substantial radio or television station. Whether
the speech is considered an impermissible "contribution" or
an allowable "expenditure" turns not on whether speech by "someone
other than the contributor" is involved, but on whether the
speech is "authorized" or not. The contribution limitations
directly restrict speech by the contributor himself. Of course, this
restraint can be avoided if the speaker makes his address without
consulting the candidate or his agents. Elsewhere, I suggest that the
distinction between "independent" and "authorized"
political activity is unrealistic and simply cannot be maintained. For
present purposes I wish only to emphasize that the Act directly
restricts, as a "contribution," what is clearly speech by
the "contributor" himself.
8. The Court treats the Act's provisions limiting a
candidate's spending from his personal resources as expenditure
limits, as indeed the Act characterizes them, and holds them
unconstitutional. As MR. JUSTICE MARSHALL points out, post at
287, by the Court's logic, these provisions could as easily be treated
as limits on contributions, since they limit what the candidate can
give to his own campaign.
9. Candidates who must raise large initial
contributions in order to appeal for more funds to a broader audience
will be handicapped. See n. 5, supra. It is not enough
to say that the contribution ceilings "merely . . . require
candidates . . . to raise funds from a greater number of persons,"
ante at 22, where the limitations will effectively prevent
candidates without substantial personal resources from doing just
10. Under the Court's holding, candidates with
personal fortunes will be free to contribute to their own campaigns as
much as they like, since the Court chooses to view the Act's
provisions in this regard as unconstitutional "expenditure"
limitations, rather than "contribution" limitations. See
n. 8, supra.
11. 113 Cong.Rec. 12165 (1967)
12. Brief for Appellee Attorney General and for
United States as Amicus Curiae 93.
13. Id. at 94.
14. Id. at 93.
15. Such considerations have never before
influenced the Court's evaluation of the risks of restraints on
16. The Court's opinion demonstrates one such
intrusion. While the Court finds that the Act's expenditure
limitations unconstitutionally inhibit a candidate's or a party's
First Amendment rights, it imposes, by invoking the severability
clause of Subtitle H, such limitations on qualifying for public funds.
17. See, e.g., 26 U.S.C. §§
9003 9007, 9033, 9038 (1970 ed., Supp. IV).
18. Cf. Terry v. Adams, 345 U.S. 461
(1953); Smith v. Allwright, 321 U.S. 649 (1944).
19. See generally remarks of Senator Gore,
112 Cong.Rec. 28783 (1966).
20. The problem is considered only in the limited
context of Subtitle H.
21. Section 454 provides that, if a "provision"
is invalid, the entire Act will not be deemed invalid. More than a
provision, more than a few provisions, have been held invalid today.
Section 454 probably does not even reach such extensive invalidation.
Justice White, concurring in part and dissenting in part.
I concur in the Court's answers to certified questions 1, 2, 3(b),
3(C), 3(e), 3(f), 3(h), 5, 6, 7(a), 7(b), 7(C), 7(d), 8(a), 8(b),
8(C), 8(d), 8(e), and 8(f). I dissent from the answers to certified
questions 3(a), 3(d), and 4(a). I also join in Part III of the Court's
opinion and in much of Parts I-B, II, and IV.
I It is
accepted that Congress has power under the Constitution to regulate
the election of federal officers, including the President and the Vice
President. This includes the authority to protect the elective
processes against the "two great natural and historical enemies
of all republics, open violence and insidious corruption," Ex
parte Yarbrough, 110 U.S. 651, 658 (1884); for,
[i]f this government is anything more than a mere aggregation of
delegated agents of other States and governments, each of which is
superior to the general government, it must have the power to protect
the elections on which its existence depends from violence and
the latter being the consequence of "the free use of money in
elections, arising from the vast growth of recent wealth. . . ."
Id. at 657-658, 667.
This teaching from the last century was quoted at length and
reinforced in Burroughs v. United States, 290 U.S. 534,
546-548 (1934). In that case, the Court sustained the Federal Corrupt
Practices Act of 1925, Title III of the Act of Feb. 28, 1925, 43 Stat.
1070, which, among other things, required political committees to keep
records and file reports concerning all contributions and expenditures
received and made by political committees for the purposes of
influencing the election of candidates for federal office. The Court
noted the conclusion of Congress that public disclosure of
contributions would tend to prevent the corrupt use of money to
influence elections; this, together with the requirement "that
the treasurer's statement shall include full particulars in respect of
expenditures," made it "plain that the statute as a whole is
calculated to discourage the making and use of contributions for
purposes of corruption." 290 U.S. at 548. Congress clearly had
the power to further as it did that fundamental goal:
The power of Congress to protect the election of President and Vice
President from corruption being clear, the choice of means to that end
presents a question primarily addressed to the judgment of Congress.
If it can be seen that the means adopted are really calculated to
attain the end, the degree of their necessity, the extent to which
they conduce to the end, the closeness of the relationship between the
means adopted and the end to be attained, are matters for
congressional determination alone.
Id. at 547-548.
Pursuant to this undoubted power of Congress to vindicate the strong
public interest in controlling corruption and other undesirable uses
of money in connection with election campaigns, the Federal Election
Campaign Act substantially broadened the reporting and disclosure
requirements that so long have been a part of the federal law.
Congress also concluded that limitations on contributions and
expenditures were essential if the aims of the Act were to be achieved
fully. In another major innovation, aimed at insulating candidates
from the time-consuming and entangling task of raising huge sums of
money, provision was made for public financing of political campaigns
for federal office. A Federal Election Commission (FEC) was also
created to administer the law.
The disclosure requirements and the limitations on contributions and
expenditures are challenged as invalid abridgments of the right of
free speech protected by the First Amendment. I would reject these
challenges. I agree with the Court's conclusion and much of its
opinion with respect to sustaining the disclosure provisions. I am
also in agreement with the Court's judgment upholding the limitations
on contributions. I dissent, however, from the Court's view that the
expenditure limitations of 18 U.S.C. §§ 608(c) and (e) (1970
ed., Supp. IV) violate the First Amendment.
Concededly, neither the limitations on contributions nor those on
expenditures directly or indirectly purport to control the content of
political speech by candidates or by their supporters or detractors.
What the Act regulates is giving and spending money, acts that have
First Amendment significance not because they are themselves
communicative with respect to the qualifications of the candidate, but
because money may be used to defray the expenses of speaking or
otherwise communicating about the merits or demerits of federal
candidates for election. The act of giving money to political
candidates, however, may have illegal or other undesirable
consequences: it may be used to secure the express or tacit
understanding that the giver will enjoy political favor if the
candidate is elected. Both Congress and this Court's cases have
recognized this as a mortal danger against which effective preventive
and curative steps must be taken.
Since the contribution and expenditure limitations are neutral as to
the content of speech and are not motivated by fear of the
consequences of the political speech of particular candidates or of
political speech in general, this case depends on whether the
nonspeech interests of the Federal Government in regulating the use of
money in political campaigns are sufficiently urgent to justify the
incidental effects that the limitations visit upon the First Amendment
interests of candidates and their supporters.
Despite its seeming struggle with the standard by which to judge this
case, this is essentially the question the Court asks and answers in
the affirmative with respect to the limitations on contributions which
individuals and political committees are permitted to make to federal
candidates. In the interest of preventing undue influence that large
contributors would have or that the public might think they would
have, the Court upholds the provision that an individual may not give
to a candidate, or spend on his behalf if requested or authorized by
the candidate to do so, more than $1,000 in any one election. This
limitation is valid although it imposes a low ceiling on what
individuals may deem to be their most effective means of supporting or
speaking on behalf of the candidate i.e., financial support
given directly to the candidate. The Court thus accepts the
congressional judgment that the evils of unlimited contributions are
sufficiently threatening to warrant restriction regardless of the
impact of the limits on the contributor's opportunity for effective
speech and, in turn, on the total volume of the candidate's political
communications by reason of his inability to accept large sums from
those willing to give.
The congressional judgment, which I would also accept, was that other
steps must be taken to counter the corrosive effects of money in
federal election campaigns. One of these steps is § 608(e),
which, aside from those funds that are given to the candidate or spent
at his request or with his approval or cooperation, limits what a
contributor may independently spend in support or denigration of one
running for federal office. Congress was plainly of the view that
these expenditures also have corruptive potential; but the Court
strikes down the provision, strangely enough claiming more insight as
to what may improperly influence candidates than is possessed by the
majority of Congress that passed this bill and the President who
signed it. Those supporting the bill undeniably included many seasoned
professionals who have been deeply involved in elective processes and
who have viewed them at close range over many years.
It would make little sense to me, and apparently made none to
Congress, to limit the amounts an individual may give to a candidate
or spend with his approval but fail to limit the amounts that could be
spent on his behalf. Yet the Court permits the former while striking
down the latter limitation. No more than $1,000 may be given to a
candidate or spent at his request or with his approval or cooperation;
but otherwise, apparently, a contributor is to be constitutionally
protected in spending unlimited amounts of money in support of his
chosen candidate or candidates.
Let us suppose that each of two brothers spends $1 million on TV spot
announcements that he has individually prepared and in which he
appears, urging the election of the same named candidate in identical
words. One brother has sought and obtained the approval of the
candidate; the other has not. The former may validly be prosecuted
under § 608(e); under the Court's view, the latter may not, even
though the candidate could scarcely help knowing about and
appreciating the expensive favor. For constitutional purposes, it is
difficult to see the difference between the two situations. I would
take the word of those who know that limiting independent
expenditures is essential to prevent transparent and widespread
evasion of the contribution limits.
In sustaining the contribution limits, the Court recognizes the
importance of avoiding public misapprehension about a candidate's
reliance on large contributions. It ignores that consideration in
invalidating § 608(e). In like fashion, it says that Congress was
entitled to determine that the criminal provisions against bribery and
corruption, together with the disclosure provisions, would not, in
themselves, be adequate to combat the evil and that limits on
contributions should be provided. Here, the Court rejects the
identical kind of judgment made by Congress as to the need for and
utility of expenditure limits. I would not do so.
The Court also rejects Congress' judgment manifested in § 608(c)
that the federal interest in limiting total campaign expenditures by
individual candidates justifies the incidental effect on their
opportunity for effective political speech. I disagree both with the
Court's assessment of the impact on speech and with its narrow view of
the values the limitations will serve.
Proceeding from the maxim that "money talks," the Court
finds that the expenditure limitations will seriously curtail
political expression by candidates and interfere substantially with
their chances for election. The Court concludes that the Constitution
denies Congress the power to limit campaign expenses; federal
candidates and, I would suppose, state candidates, too
are to have the constitutional right to raise and spend unlimited
amounts of money in quest of their own election.
As an initial matter, the argument that money is speech and that
limiting the flow of money to the speaker violates the First Amendment
proves entirely too much. Compulsory bargaining and the right to
strike, both provided for or protected by federal law, inevitably have
increased the labor costs of those who publish newspapers, which are,
in turn, an important factor in the recent disappearance of many daily
papers. Federal and state taxation directly removes from company
coffers large amounts of money that might be spent on larger and
better newspapers. The antitrust laws are aimed at preventing monopoly
profits and price-fixing, which gouge the consumer. It is also true
that general price controls have from time to time existed, and have
been applied to the newspapers or other media. But it has not been
suggested, nor could it be successfully, that these laws, and many
others, are invalid because they siphon off or prevent the
accumulation of large sums that would otherwise be available for
In any event, as it should be unnecessary to point out, money is not
always equivalent to or used for speech, even in the context of
political campaigns. I accept the reality that communicating with
potential voters is the heart of an election campaign, and that
widespread communication has become very expensive. There are,
however, many expensive campaign activities that are not themselves
communicative or remotely related to speech. Furthermore, campaigns
differ among themselves. Some seem to spend much less money than
others, and yet communicate as much as or more than those supported by
enormous bureaucracies with unlimited financing. The record before us
no more supports the conclusion that the communicative efforts of
congressional and Presidential candidates will be crippled by the
expenditure limitations than it supports the contrary. The judgment of
Congress was that reasonably effective campaigns could be conducted
within the limits established by the Act, and that the communicative
efforts of these campaigns would not seriously suffer. In this posture
of the case, there is no sound basis for invalidating the expenditure
limitations, so long as the purposes they serve are legitimate and
sufficiently substantial, which, in my view, they are.
In the first place, expenditure ceilings reinforce the contribution
limits and help eradicate the hazard of corruption. The Court upholds
the over-all limit of $25,000 on an individual's political
contributions in a single election year on the ground that it helps
reinforce the limits on gifts to a single candidate. By the same
token, the expenditure limit imposed on candidates plays its own role
in lessening the chance that the contribution ceiling will be
violated. Without limits on total expenditures, campaign costs will
inevitably and endlessly escalate. Pressure to raise funds will
constantly build, and, with it, the temptation to resort in "emergencies"
to those sources of large sums, who, history shows, are sufficiently
confident of not being caught to risk flouting contribution limits.
Congress would save the candidate from this predicament by
establishing a reasonable ceiling on all candidates. This is a major
consideration in favor of the limitation. It should be added that many
successful candidates will also be saved from large, overhanging
campaign debts which must be paid off with money raised while holding
public office and at a time when they are already preparing or
thinking about the next campaign. The danger to the public interest in
such situations is self-evident.
Besides backing up the contribution provisions, which are aimed at
preventing untoward influence on candidates that are elected,
expenditure limits have their own potential for preventing the
corruption of federal elections themselves. For many years, the law
has required the disclosure of expenditures as well as contributions.
As Burroughs indicates, the corrupt use of money by candidates is as
much to be feared as the corrosive influence of large contributions.
There are many illegal ways of spending money to influence elections.
One would be blind to history to deny that unlimited money tempts
people to spend it on whatever money can buy to influence an election.
On the assumption that financing illegal activities is low on the
campaign organization's priority list, the expenditure limits could
play a substantial role in preventing unethical practices. There just
would not be enough of "that kind of money" to go around.
I have little doubt in addition that limiting the total that can be
spent will ease the candidate's understandable obsession with
fundraising, and so free him and his staff to communicate in more
places and ways unconnected with the fundraising function. There is
nothing objectionable indeed, it seems to me a weighty interest
in favor of the provision in the attempt to insulate the
political expression of federal candidates from the influence
inevitably exerted by the endless job of raising increasingly large
sums of money. I regret that the Court has returned them all to the
It is also important to restore and maintain public confidence in
federal elections. It is critical to obviate or dispel the impression
that federal elections are purely and simply a function of money, that
federal offices are bought and sold, or that political races are
reserved for those who have the facility and the stomach
for doing whatever it takes to bring together those interests, groups,
and individuals that can raise or contribute large fortunes in order
to prevail at the polls.
The ceiling on candidate expenditures represents the considered
judgment of Congress that elections are to be decided among candidates
none of whom has overpowering advantage by reason of a huge campaign
war chest. At least so long as the ceiling placed upon the candidates
is not plainly too low, elections are not to turn on the difference in
the amounts of money that candidates have to spend. This seems an
acceptable purpose and the means chosen a common sense way to achieve
it. The Court nevertheless holds that a candidate has a constitutional
right to spend unlimited amounts of money, mostly that of other
people, in order to be elected. The holding perhaps is not that
federal candidates have the constitutional right to purchase their
election, but many will so interpret the Court's conclusion in this
case. I cannot join the Court in this respect.
I also disagree with the Court's judgment that § 608(a), which
limits the amount of money that a candidate or his family may spend on
his campaign, violates the Constitution. Although it is true that this
provision does not promote any interest in preventing the corruption
of candidates, the provision does, nevertheless, serve salutary
purposes related to the integrity of federal campaigns. By limiting
the importance of personal wealth, § 608(a) helps to assure that
only individuals with a modicum of support from others will be viable
candidates. This, in turn, would tend to discourage any notion that
the outcome of elections is primarily a function of money. Similarly,
§ 608(a) tends to equalize access to the political arena,
encouraging the less wealthy, unable to bankroll their own campaigns,
to run for political office.
As with the campaign expenditure limits, Congress was entitled to
determine that personal wealth ought to play a less important role in
political campaigns than it has in the past. Nothing in the First
Amendment stands in the way of that determination.
For these reasons I respectfully dissent from the Court's answers to
certified questions 3(a), 3(d), and 4(a). [p267]
the answers in Part IV of the Court's opinion, ante at
141-142, n. 177, to the questions certified,by the District Court
relating to the composition and powers of the FEC, i.e., questions
8(a), 8(b), 8(c), 8(d) (with the qualifications stated infra
at 282-286), 8(e), and 8(f). I also agree with much of that part of
the Court's opinion, including the conclusions that these questions
are properly before us and ripe for decision, that the FEC's past acts
are de facto valid, that the Court's judgment should be
stayed, and that the FEC may function de facto while the stay
is in effect.
The answers to the questions turn on whether the FEC is illegally
constituted because its members were not selected in the manner
required by Art. II, § 2, cl. 2, the Appointments Clause. It is
my view that, with one exception, Congress could endow a properly
constituted commission with the powers and duties it has given the
Section 437c creates an eight-member FEC. Two members, the Secretary
of the Senate and the Clerk of the House of Representatives, are ex
officio members without the right to vote or to hold an FEC
office. 2 Of the remaining
six, two are appointed by the President pro tempore of the
Senate upon the recommendation of the majority and minority leaders of
that body; two are similarly appointed by the Speaker of the House;
and two are appointed by the President of the United States. The
appointment of each of these six members is subject to confirmation by
a majority of both Houses of Congress. § 437c(a)(1). Each member
is appointed for a term of years; none can be an elected or appointed
officer or employee of any branch of the Government at the time of his
appointment. §§ 437c(a)(2), (3). The FEC is empowered to
elect its own officers, § 437c(a)(5), and to appoint a staff
director and general counsel. § 437c(f). Decisions are by a
majority vote. § 437c(c).
It is apparent that none of the members of the FEC is selected in a
manner Art. II specifics for the appointment of officers of the United
States. The Appointments Clause provides:
[The President] shall nominate, and by and with the Advice and
Consent of the Senate, shall appoint Ambassadors, other public
Ministers and Consuls, Judges of the supreme Court, and all other
Officers of the United States, whose Appointments are not herein
otherwise provided for, and which shall be established by Law: but the
Congress may by Law vest the Appointment of such inferior Officers, as
they think proper, in the President alone, in the Courts of Law, or in
the Heads of Departments. 3
Although two of the members of the FEC are initially selected by the
President, his nominations are subject to confirmation by both Houses
of Congress. Neither he, the head of any department, nor the Judiciary
has any voice in the selection of the remaining members of the FEC.
The challenge to the FEC, therefore, is that its members are officers
of the United States the mode of whose appointment was required to,
but did not, conform to the Appointments Clause. That challenge is
The Appointments Clause applies only to officers of the United States
whose appointment is not "otherwise provided for" in the
Constitution. Senators and Congressmen are officers of the United
States, but the Constitution expressly provides the mode of their
selection. 4 The
Constitution also expressly provides that each House of Congress is to
appoint its own officers. 5
But it is not contended here that FEC members are officers of either
House selected pursuant to these express provisions, if for no other
reason, perhaps, than that none of the Commissioners was selected in
the manner specified by these provisions none of them was
finally selected by either House acting alone as Art. I authorizes.
The appointment power provided in Art. II also applies only to
officers, as distinguished from employees, 6
of the United States, but there is no claim the Commissioners are
employees of the United States, rather than officers. That the
Commissioners are among those officers of the United States referred
to in the Appointments Clause of Art. II is evident from the breadth
of their assigned duties and the nature and importance of their
The functions and duties of the FEC relate to three different aspects
of the election laws: first, the provisions of the Criminal Code, 18
U.S.C. §§ 608-617 (1970 ed., Supp. IV), which establish
major substantive limitations on political contributions and
expenditures by individuals, political organizations, and candidates;
second, the reporting and disclosure provisions contained in 2 U.S.C.
§§ 431-437b (1970 ed., Supp. IV), these sections requiring
the filing of detailed reports of political contributions and
expenditures; and third, the provisions of 26 U.S.C. §§
9001-9042 (1970 ed., Supp. IV) with respect to the public financing of
Presidential primary and general election campaigns. From the "representative
examples of [the FEC's] various powers" the Court describes, ante
at 109-113, it is plain that the FEC is the primary agency for the
enforcement and administration of major parts of the election laws. It
does not replace or control the executive agencies with respect to
criminal prosecutions, but, within the wide zone of its authority, the
FEC is independent of executive as well as congressional control
except insofar as certain of its regulations must be laid before and
not be disapproved by Congress. § 438(c); 26 U.S.C. §§
9009(c), 9039(c) (1970 ed., Supp. IV). With duties and functions such
as these, members of the FEC are plainly "officers of the United
States" as that term is used in Art. II, § 2, cl. 2.
It is thus not surprising that the FEC, in defending the legality of
its members' appointments, does not deny that they are "officers
of the United States" as that term is used in the Appointments
Clause of Art. II. 7
Instead, for reasons the Court outlines, ante at 131-132,
133-134, its position appears to be that, even if its members are
officers of the United States, Congress may nevertheless appoint a
majority of the FEC without participation by the President.
8 This position that
Congress may itself appoint the members of a body that is to
administer a wide-ranging statute will not withstand examination in
light of either the purpose and history of the Appointments Clause or
of prior cases in this Court.
The language of the Appointments Clause was not mere inadvertence.
The matter of the appointment of officers of the new Federal
Government was repeatedly debated by the Framers, and the final
formulation of the Clause arrived at only after the most careful
debate and consideration of its place in the over-all design of
government. The appointment power was a major building block fitted
into the constitutional structure designed to avoid the accumulation
or exercise of arbitrary power by the Federal Government. The basic
approach was that official power should be divided among the
Executive, Legislative, and Judicial Departments. The separation of
powers principle was implemented by a series of provisions, among
which was the knowing decision that Congress was to have no power
whatsoever to appoint federal officers, except for the power of each
House to appoint its own officers serving in the strictly legislative
processes and for the confirming power of the Senate alone.
The decision to give the President the exclusive power to initiate
appointments was thoughtful and deliberate. The Framers were
attempting to structure three departments of government so that each
would have affirmative powers strong enough to resist the encroachment
of the others. A fundamental tenet was that the same persons should
not both legislate and administer the laws. 9
From the very outset, provision was made to prohibit members of
Congress from holding office in another branch of the Government while
also serving in Congress. There was little if any dispute about this
incompatibility provision which survived in Art. I, § 6, of the
Constitution as finally ratified. 10
Today, no person may serve in Congress and at the same time be
Attorney General, Secretary of State, a member of the judiciary, a
United States attorney, or a member of the Federal Trade Commission or
the National Labor Relations Board.
Early in the 1787 Convention, it was also proposed that members of
Congress be absolutely ineligible during the term for which they were
elected, and for a period thereafter, for appointment to any state or
federal office. 11 But to
meet substantial opposition to so stringent a provision, ineligibility
for state office was first eliminated, 12
and, under the language ultimately adopted, Congressmen were
disqualified from being appointed only to those offices which were
created, or for which the emoluments were increased, during their term
of office. 13 Offices not
in this category could be filled by Representatives or Senators, but
only upon resignation.
Immediately upon settling the ineligibility provision, the Framers
returned to the appointment power which they had several times before
debated and postponed for later consideration. 14
From the outset, there had been no dispute that the Executive alone
should appoint, and not merely nominate, purely executive officers,
15 but, at one stage,
judicial officers were to be selected by the entire Congress.
16 This provision was
subsequently changed to lodge the power to choose judges in the
Senate, 17 which was
later also given the power to appoint ambassadors and other public
ministers. 18 But
following resolution of the dispute over the ineligibility provision,
which served both to prevent members of Congress from appointing
themselves to federal office and to limit their being appointed to
federal office, it was determined that the appointment of all
principal officers, whether executive or not, should originate with
the President, and that the Senate should have only the power of
advice and consent. 19
Inferior officers could be otherwise appointed, but not by Congress
itself. 20 This
allocation of the appointment power, in which, for the first time, the
Executive had the power to initiate appointment to all principal
offices and the Senate was empowered to advise and consent to
nominations by the Executive, 21
was made possible by adoption of the ineligibility provisions, and was
formulated as part of the fundamental compromises with respect to the
composition of the Senate, the respective roles of the House and
Senate, and the placement of the election of the President in the
Under Art. II, as finally adopted, law enforcement authority was not
to be lodged in elected legislative officials subject to political
pressures. Neither was the Legislative Branch to have the power to
appoint those who were to enforce and administer the law. Also, the
appointment power denied Congress and vested in the President was not
limited to purely executive officers, but reached officers performing
purely judicial functions, as well as all other officers of the United
I thus find singularly unpersuasive the proposition that, because the
FEC is implementing statutory policies with respect to the conduct of
elections, which policies Congress has the power to propound, its
members may be appointed by Congress. One might as well argue that the
exclusive and plenary power of Congress over interstate commerce
authorizes Congress to appoint the members of the Interstate Commerce
Commission and of many other regulatory commissions; that its
exclusive power to provide for patents and copyrights would permit the
administration of the patent laws to be carried out by a congressional
committee; or that the exclusive power of the Federal Government to
establish post offices authorizes Congress itself or the Speaker of
the House and the President pro tempore of the Senate to
appoint postmasters and to enforce the postal laws.
Congress clearly has the power to create federal offices and to
define the powers and duties of those offices, Myers v. United
States, 272 U.S. 52, 129 (1926), but no case in this Court even
remotely supports the power of Congress to appoint an officer of the
United States aside from those officers each House is authorized by
Art. I to appoint to assist in the legislative processes.
In Myers, a postmaster of the first class was removed by the
President prior to the expiration of his statutory four-year term.
Challenging the President's power to remove him contrary to the
statute, he sued for his salary. The challenge was rejected here. The
Court said that, under the Constitution, the power to appoint the
principal officers of the Executive Branch was an inherent power of
[T]he reasonable implication, even in the absence of express words,
was that as part of his executive power [the President] should select
those who were to act for him under his direction in the execution of
Id. at 117. Further, absent express limitation in the
Constitution, the President was to have unrestricted power to remove
those administrative officers essential to him in discharging his
duties. These fundamental rules were to extend to those bureau and
department officers with power to issue regulations and to discharge
duties of a quasi-judicial nature those members of "executive
tribunals whose decisions after hearing affect interests of
individuals." Id. at 135. As for inferior officers such
as the plaintiff postmaster, the same principles were to govern if
Congress chose to place the appointment in the President with the
advice and consent of the Senate, as was the case in Myers.
Under the Appointments Clause, Congress could but did not in
the Myers case permit the appointment of inferior
officers by the heads of departments, in which event, the Court said,
Congress would have the authority to establish a term of office and
limit the reasons for their removal. But in no circumstance could
Congress participate in the removal:
[T]he Court never has held, nor reasonably could hold, although it is
argued to the contrary on behalf of the appellant, that the excepting
clause enables Congress to draw to itself, or to either branch of it,
the power to remove or the right to participate in the exercise of
that power. To do this would be to go beyond the words and
implications of that clause and to infringe the constitutional
principle of the separation of governmental powers.
Id. at 161.
Humphrey's Executor v. United States, 295 U.S. 602 (1935),
limited the reach of the Myers case. There, the President
attempted to remove a member of the Federal Trade Commission prior to
the expiration of his statutory term and for reasons not specified in
the statute. The Court ruled that the Presidential removal power
vindicated in Myers related solely to "purely executive
officers," 295 U.S. at 628, from whom the Court sharply
distinguished officers, such as the members of the Federal Trade
Commission, who were to be free from political dominance and control,
whose duties are "neither political nor executive, but
predominantly quasi-judicial and quasi-legislative." Id.
at 624. Contrary to the dicta in Myers, such an officer was
thought to occupy "no place in the executive department," to
exercise "no part of the executive power vested by the
Constitution in the President," 295 U.S. at 628, and to be immune
from removal by the President except on terms specified by Congress.
The Commissioners were described as being in part an administrative
body carrying out legislative policies and in part an agency of the
Judiciary, ibid.; such a body was intended to be
independent of executive authority, except in its selection,
and free to exercise its judgment without the leave or hindrance of
any other official or any department of the government.
Id. at 625-626. (Emphasis in original.)
The holding in Humphrey's Executor was confirmed in Wiener
v. United States, 357 U.S. 349 (1958), but the Court did not
question what Humphrey's Executor had expressly recognized
that members of independent agencies are not independent of the
Executive with respect to their appointments. Nor did either Wiener
or Humphrey's Executor suggest that Congress could not only
create the independent agency, specify its duties, and control the
grounds for removal of its members, but could also itself appoint or
remove them without the participation of the Executive Branch of the
Government. To have so held would have been contrary to the
Appointments Clause as the Myers case recognized.
It is said that, historically, Congress has used its own officers to
receive and file the reports of campaign expenditures and
contributions as required by law, and that this Court should not
interfere with this practice. But the Act before us creates a separate
and independent campaign commission with members, some nominated by
the President, who have specified terms of office, are not subject to
removal by Congress, and are free from congressional control in their
day-to-day functions. The FEC, it is true, is the designated authority
with which candidates and political committees must file reports of
contributions and expenditures, as required by the Act. But the FEC
may also make rules and regulations with respect to the disclosure
requirements, may investigate reported violations, issue subpoenas,
hold its own hearings and institute civil enforcement proceedings in
its own name. Absent a request by the FEC, it would appear that the
Attorney General has no role in the civil enforcement of the reporting
and disclosure requirements. The FEC may also issue advisory opinions
with respect to the legality of any particular activities so as to
protect those persons who in good faith have conducted themselves in
reliance on the FEC's opinion. These functions go far beyond mere
information gathering, and there is no long history of lodging such
enforcement powers in congressional appointees.
Nor do the FEC's functions stop with policing the reporting and
disclosure requirements of the Act. The FEC is given express power to
administer, obtain compliance with, and "to formulate general
policy" 22 with
respect to 18 U.S.C. §§ 608-617, so much so that the Act
expressly provides that "[t]he Commission has primary
jurisdiction with respect to the civil enforcement of such provisions."
23 Following its own
proceedings, the FEC may request the Attorney General to bring civil
enforcement proceedings, a request which the Attorney General must
honor. 24 And good faith
conduct taken in accordance with the FEC's advisory opinions as to
whether any transaction or activity would violate any of these
criminal provisions "shall be presumed to be in compliance with"
these sections. 25 §
437f(b). Finally, the FEC has the central role in administering and
enforcing the provisions of Title 26 contemplating the public
financing of political campaigns. 26
It is apparent that the FEC is charged with the enforcement of the
election laws in major respects. Indeed, except for the conduct of
criminal proceedings, it would appear that the FEC has the entire
responsibility for enforcement of the statutes at issue here. By no
stretch of the imagination can its various functions in this respect
be considered mere adjuncts to the legislative process or to the
powers of Congress to judge the election and qualifications of its own
It is suggested, without accounting for the President's role in
appointing some of its members, that the FEC would be willing to forgo
its civil enforcement powers, and that, absent these functions, it is
left with nothing that purely legislative officers may not do. The
difficulty is that the statute invests the FEC not only with the
authority, but with the duties that unquestionably make its members
officers of the United States, fully as much as the members of other
commissions charged with the major responsibility for administering
statutes. What is more, merely forgoing its authority to bring suit
would still leave the FEC with the power to issue rules and
regulations, its advisory opinion authority, and primary duties to
enforce the Act. Absent notice and hearing by the FEC and a request on
its part, it would not appear that the Executive Branch of the
Government would have any authority under the statute to institute
civil enforcement proceedings with respect to the reporting and
disclosure requirements or the relevant provisions of Titles 18 and
There is no doubt that the development of the administrative agency
in response to modern legislative and administrative need has placed
severe strain on the separation of powers principle in its pristine
formulation. See Kilbourn v. Thompson, 103 U.S. 168, 191
(1881). Any notion that the Constitution bans any admixture of powers
that might be deemed legislative, executive, and judicial has had to
give way. The independent agency has survived attacks from various
directions: that it exercises invalidly delegated legislative power,
Sunshine Coal Co. v. Adkins, 310 U.S. 381 (1940); that it
invalidly exercises judicial power, ibid.; and that its
functions are so executive in nature that its members must be subject
to Presidential control, Humphrey's Executor v. United States,
295 U.S. 602 (1935). Until now, however, it has not been insisted that
the commands of the Appointments Clause must also yield to permit
congressional appointments of members of a major agency. With the
Court, I am not convinced that we should create a broad exception to
the requirements of that Clause that all officers of the United States
be appointed in accordance with its terms. The provision applies to
all officers, however their duties may be classified; and even if some
of the FEC's functions, such as rulemaking, are purely legislative, I
know of no authority for the congressional appointment of its own
agents to make binding rules and regulations necessary to or advisable
for the administration and enforcement of a major statute where the
President has not participated either in the appointment of each of
the administrators or in the fashioning of the rules or regulations
which they propound.
I do not dispute the legislative power of Congress coercively to
gather and make available for public inspection massive amounts of
information relevant to the legislative process. Its own officers may,
as they have done for years, receive and file contribution and
expenditure reports of candidates and political committees. Arguably,
the Commissioners, although not properly appointed by the President,
should at least be able to perform this function. But the members of
the FEC are appointed for definite terms of office, are not removable
by the President or by Congress, and, even if their duties were to be
severely limited, they would appear to remain Art. II officers. In any
event, the task of gathering and publishing campaign finance
information has been one of the specialties of the officers of the
respective Houses, and these same officers, under the present law,
continue to receive such information, and to act as custodians for the
FEC, at least with respect to the Senate and House political
campaigns. They are also instructed to cooperate with the FEC. §
For these reasons, I join in the Court's answers to certified
questions 8(a), 8(b), 8(c), 8(e) and 8(f), and with the following
reservations to question 8(d).
Question 8(d) asks whether § 438(c) violates the constitutional
rights of one or more of the plaintiffs in that "it empowers the
Federal Election Commission to make rules under the F.E.C.A. in the
manner specified therein." Section 438(c) imposes certain
preconditions to the effectiveness of "any rule or regulation
under this section . . . ," but does not itself authorize the
issuance of rules or regulations. That authorization is to be found in
§ 438(a)(10), which includes among the duties of the FEC the task
of prescribing "rules and regulations to carry out the provisions
of this subchapter, in accordance with the provisions of subsection
(c)." The "subchapter" referred to is the subchapter
dealing with federal election campaigns and the reports of
contributions and expenditures required to be filed with the FEC.
27 Subsection (c), which
is the provision expressly mentioned in question 8(d), requires that
any rule or regulation prescribed by the FEC under § 438 shall be
transmitted to the Senate or the House, or to both, as thereafter
directed. After 30 legislative days, 28
the rule or regulation will become effective unless (1) either House
has disapproved the rule if it relates to reports by Presidential
candidates or their supporting committees; (2) the House has
disapproved it if it relates to reports to be filed by House
candidates or their committees; or (3) the Senate has disapproved it
if the rule relates to reports by Senate candidates or their related
By expressly referring to subsection (c), question 8(d) appears to
focus on the disapproval requirement; but the Court's answer is not
responsive in these terms. Rather, the Court expressly disclaims
holding that the FEC's rules and regulations are invalid because of
the requirement that they are subject to disapproval by one or both
Houses of Congress. Ante at 140 n. 176. As I understand it,
the FEC's rules and regulations, whether or not issued in compliance
with § 438(c), are invalid because the members of the FEC have
not been appointed in accordance with Art. II. To the extent that this
is the basis for the Court's answer to the question, I am in
If the FEC members had been nominated by the President and confirmed
by the Senate as provided in Art. II, nothing in the Constitution
would prohibit Congress from empowering the Commission to issue rules
and regulations without later participation by, or consent of, the
President or Congress with respect to any particular rule or
regulation or initially to adjudicate questions of fact in accordance
with a proper interpretation of the statute. Sunshine Coal Co. v.
Adkins, 310 U.S. 381 (1940); RFC v. Bankers Trust Co., 318
U.S. 163 (1943); Humphrey's Executor v. United States, 295
U.S. 602 (1935). The President must sign the statute creating the
rulemaking authority of the agency or it must have been passed over
his veto, and he must have nominated the members of the agency in
accordance with Art. II; but agency regulations issued in accordance
with the statute are not subject to his veto even though they may be
substantive in character and have the force of law.
I am also of the view that the otherwise valid regulatory power of a
properly created independent agency is not rendered constitutionally
infirm, as violative of the President's veto power, by a statutory
provision subjecting agency regulations to disapproval by either House
of Congress. For a bill to become law, it must pass both Houses and be
signed by the President or be passed over his veto. Also, "Every
Order, Resolution, or Vote to which the Concurrence of the Senate and
House of Representatives may be necessary . . . " is likewise
subject to the veto power. 29
Under § 438(c), the FEC's regulations are subject to disapproval;
but, for a regulation to become effective, neither House need approve
it, pass it, or take any action at all with respect to it. The
regulation becomes effective by nonaction. This no more invades the
President's powers than does a regulation not required to be laid
before Congress. Congressional influence over the substantive content
of agency regulation may be enhanced, but I would not view the power
of either House to disapprove as equivalent to legislation or to an
order resolution, or vote requiring the concurrence of both Houses.
In terms of the substantive content of regulations and the degree of
congressional influence over agency lawmaking, I do not suggest that
there is no difference between the situation where regulations are
subject to disapproval by Congress and the situation where the agency
need not run the congressional gauntlet. But the President's veto
power, which gives him an important role in the legislative process,
was obviously not considered an inherently executive function. Nor was
its principal aim to provide another check against poor legislation.
The major purpose of the veto power appears to have been to shore up
the Executive Branch and to provide it with some bargaining and
survival power against what the Framers feared would be the
overweening power of legislators. As Hamilton said, the veto power was
to provide a defense against the legislative department's intrusion on
the rights and powers of other departments; without such power, "the
legislative and executive powers might speedily come to be blended in
the same hands." 31
I would be much more concerned if Congress purported to usurp the
functions of law enforcement, to control the outcome of particular
adjudications, or to preempt the President's appointment power; but,
in the light of history and modern reality, the provision for
congressional disapproval of agency regulations does not appear to
transgress the constitutional design, at least where the President has
agreed to legislation establishing the disapproval procedure or the
legislation has been passed over his veto. It would be considerably
different if Congress itself purported to adopt and propound
regulations by the action of both Houses. But here no action of either
House is required for the agency rule to go into effect, and the veto
power of the President does not appear to be implicated.
1. That is, if the FEC were properly constituted, I
would answer questions 8(b), 8(C), 8(d) (see infra at
282-286), and 8(f) in the negative. With respect to question 8(e), I
reserve judgment on the validity of 2 U.S.C. § 456 (1970 ed.,
Supp. IV) which empowers the FEC to disqualify a candidate for failure
to file certain reports. Of course, to the extent that the Court
invalidates the expenditure limitations of the FECA, Part I-C, ante at
39-59, the FEC, however appointed, would be powerless to enforce those
Unless otherwise indicated, all statutory citations in this part of
the opinion are to the Federal Election Campaign Act of 1971, §§
301-311, 86 Stat. 11, as amended by the Federal Election Campaign Act
Amendments of 1974, §§ 201-407, 88 Stat. 1272, 2 U.S.C. §
431 et seq. (1970 ed., Supp. IV).
2. References to the "Commissioners," the
"FEC," or its "members" do not include these two
ex officio members.
3. U.S.Const., Art. II, § 2, Cl. 2.
4. Id. Art. I, §§ 2, 3, and the
5. "The House of Representatives shall chuse
their Speaker and other Officers. . . ." U.S.Const., Art. I, §
2, cl. 5.
The Vice President of the United States shall be President of the
Senate, but . . . [t]he Senate shall chuse their other Officers, and
also a President pro tempore in the Absence of the Vice President, or
when he shall exercise the Office of President of the United States.
§ 3, cls. 4, 5.
6. The distinction appears ante at 126 n.
7. Indeed the FEC attacks as "erroneous"
appellants' statement that the Court of Appeals ruled that
the FEC commissioners are not officers of the United States. Rather,
it held that the grant of power to the President to appoint civil
officers of the United States is not to be read as preclusive of
Congressional authority to appoint such officers to aid in the
discharge of Congressional responsibilities.
Brief for Appellee Federal Election Commission 16 n.19 (hereafter FEC
8. How Congress may both appoint officers itself
and condition appointment of the President's nominees on confirmation
by a majority of both Houses of Congress is not explained.
9. Watson, Congress Steps Out: A Look at
Congressional Control of the Executive, 63 Calif.L.Rev. 983, 1042-1043
10. U.S.Const., Art. I, § 6, Cl. 2, provides
[N]o Person holding any Office under the United States, shall be a
Member of either House during his Continuance in Office.
See 1 M. Farrand, The Records of the Federal Convention of
1787, pp. 379-382 (1911) (hereafter Farrand); 2 Farrand 483.
11. 1 Farrand 20.
12. Id. at 210-211, 217, 219, 221, 222,
370, 375-377, 379-382, 383, 384, 419, 429, 435; 2 Farrand 180.
13. Id. at 487. As ratified, the
Ineligibility Clause provides:
No Senator or Representative shall, during the time for which he was
elected, be appointed to any civil Office under the Authority of the
United States, which shall have been created, or the Emoluments
whereof shall have been encreased during such time. . . .
U.S.Const., Art. I, § 6, Cl. 2.
14. Farrand 116, 120, 224, 233; 2 Farrand 37-38,
41-44, 71-72, 116, 138.
15. 1 Farrand 63, 67.
16. Id. at 21-22.
17. Id. at 224, 233.
18. 2 Farrand 183, 383, 394.
19. Id. at 533
20. Id. at 627.
21. C. Warren, The Making of the Constitution
22. § 437d(a)(9).
23. § 437c(b).
24. Section 437g(a)(7) provides:
Whenever in the judgment of the Commission, after affording due
notice and an opportunity for a hearing, any person has engaged or is
about to engage in any acts or practices which constitute or will
constitute a violation of any [relevant] provision . . . upon request
by the Commission the Attorney General on behalf of the United States
shall institute a civil action for relief. . . .
(Emphasis supplied.) The FEC argues that
"there is no showing in this case of a convincing legislative
history that would enable us to conclude that 'shall' was intended to
be the 'language of command.'"
FEC Brief 62 n. 52, quoting 171 U.S.App.D.C. 172, 244 n.191, 519 F.2d
821, 893 n.191 (1975). The contention is that the FEC's enforcement
power is not exclusive, because the Attorney General retains the
traditional discretion to decline to institute legal proceedings.
However this may be, the FEC's civil enforcement responsibilities are
substantial. Moreover it is authorized under 26 U.S.C. §§
9010 9040 (1970 ed., Supp. IV), to appear in and to defend actions
brought in the Court of Appeals for the District of Columbia Circuit
under §§ 9011, 9041, to review the FEC's actions under
Chapters 95 and 96 of Title 26, and to appear in district court to
seek recovery of amounts repayable to the Treasury under §§
9007, 9008, 9038.
25. Although the FEC resists appellants' attack on
its position that it has "no general substantive rulemaking
authority with regard to Title 18 spending and contribution
limitations" (FEC Brief 49), it agrees "that there is
inevitably some interplay between Title 2 and Title 18." (Id.
at 55.) It seeks to minimize the importance of the interplay by
noting that its definitions of what is to be disclosed and reported
would not be binding in judicial proceedings to determine whether
substantive provisions of the Act had been violated, but would simply
be extended a measure of deference as administrative interpretations.
Appellants' reply is the practical one that, whether the FEC's power
is substantive or not, persons violating its regulations do so at
their peril. To illustrate the extent to which the FEC's regulations
implicate the provisions of Title 18, appellants point to the FEC's
interim guidelines for the New Hampshire and Tennessee special
elections, 4 Fed.Reg. 40668, 43660 (1975), and its regulations,
rejected by the Senate, providing that funds contributed to and
expended from the "office accounts" of Members of Congress
were contributions or expenditures "subject to the limitations of
18 U.S.C. §§ 608 610, 611, 613, 614 and 615." See
notice of proposed rulemaking, id. at 32951. Unless the FEC's
regulations are to be given no weight in criminal proceedings, it
seems plain that, through those regulations, the FEC will have a
significant role in the implementation and enforcement of criminal
26. The FEC itself cannot fashion coercive relief
by, for example, issuing cease and desist orders. To obtain such
relief, it must apply to the courts itself or through the Attorney
27. The same preconditions are imposed with
respect to regulations issued under the public financing provisions of
the election laws. 26 U.S.C. §§ 9009 and 9039 (1970 ed.,
Supp. IV). No such requirement appears to exist with respect to the
FEC's power to make "policy" with respect to the enforcement
of the criminal provisions in Title 18 or with respect to any power it
may have to issue rules and regulations dealing with the civil
enforcement of those provisions. See also § 439a.
28. Section 438(c)(4) defines "legislative
day." See also 26 U.S.C. §§ 9009(c)(3),
9039(c)(3) (1970 ed., Supp. IV).
29. U.S.Const., Art. I, § 7, cl. 3.
30. Surely the challengers to the provision for
congressional disapproval do not mean to suggest that the FEC's
regulations must become effective despite the disapproval of one House
or the other. Disapproval nullifies the suggested regulation and
prevents the occurrence of any change in the law. The regulation is
void. Nothing remains on which the veto power could operate. It is as
though a bill passed in one House and failed in another.
31. The Federalist No. 3, pp. 46469 (Wright