The District Court for the Eastern District of New York, George C. Pratt, Judge, certified to this Court pursuant to the Federal Election Campaign Act, 2 U.S.C. §§ 431, et seq., for expedited en banc review, 2 U.S.C. § 437h(a), certain constitutional questions that had been raised by way of defenses and counterclaims in a civil action by the Federal Election Commission to enforce compliance with filing and disclaimer provisions of the Act, 2 U.S.C. §§ 434(e), 441d. The challenged provisions are found to be inapplicable to defendants' activities, so that no case or controversy is presented for bad judiciation within the meaning of Article III of the Constitution. Remanded to the district court with directions to dismiss the complaint.
Before Kaufman, Chief Judge, and Feinberg, Mansfield, Mulligan, Oakes, Timbers, Van Graafeiland, Meskill, Newman and Kearse, Circuit Judges.
In this civil enforcement action in the Eastern District of New York brought by the Federal Election Commission (FEC) pursuant to the Federal Election Campaign Act (FECA), 2 U.S.C. §§ 431, et seq., based on alleged violations of certain of the Act's reporting, disclosure and identification requirements, 2 U.S.C. §§ 434(e), 441d,*fn1 Judge George C. Pratt invoked the Act's extraordinary provision for expedited en banc review of constitutional questions, 2 U.S.C. § 437h(a),*fn2 by certifying to us certain constitutional issues that had been raised by way of defenses and counterclaims. Adopting the procedure used in Buckley v. Valeo, 171 U.S. App. D.C. 172, 519 F.2d 817 (D.C. Cir. 1975), affd. in part, revd. in part, 424 U.S. 1, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976), we remanded the case to the district court for amplification of the record through findings of fact after an evidentiary hearing, to be followed by certification of the record and questions to us. Having now reviewed the entire record, we remand the case to the district court with directions to dismiss the complaint for the reason that the challenged provisions of FECA are inapplicable to defendants' activities and therefore no justiciable case or controversy is presented within the meaning of Article III of the Constitution.
On August 1, 1978, FEC, pursuant to 2 U.S.C. §§ 437d(a)(6)*fn3 and 437g(a) (5),*fn4 filed a civil complaint in the Eastern District of New York charging that the now-defunct Central Long Island Tax Reform Immediately Committee (CLITRIM), its Chairman, Edward Cozzette, and the National Tax Reform Immediately organization (National TRIM), an unincorporated association, had in October, 1976, published a pamphlet costing over $100 and "expressly advocating the election or defeat of a clearly identified candidate" without complying with the filing requirements of 2 U.S.C. § 434(e) and the disclaimer requirements of 2 U.S.C. § 441d. The FEC sought civil penalties and injunctive relief.*fn5
National TRIM filed an answer denying the FEC's claims and counterclaimed for a declaratory judgment pursuant to 28 U.S.C. § 2201 to the effect that the FECA and regulations thereunder were unconstitutional on their face and as applied. CLITRIM and Cozzette, in lieu of answers, filed a motion to dismiss the complaint or for summary judgment. John W. Robbins, Director of National TRIM and a person entitled to vote in presidential elections, filed a motion for leave to intervene pursuant to Fed.R.Civ.P. 24 and 2 U.S.C. § 437h(a) in order to seek the same declaratory relief sought by National TRIM.
By Memorandum Opinion and Order filed January 25, 1979, Judge Pratt, finding that questions as to the constitutionality of the FECA had been raised, (1) stayed further proceedings in the district court, and (2) certified to us the constitutional issues pursuant to 2 U.S.C. § 437h(a), see note 2, supra. Robbins' motion to intervene was referred to us because the only claims asserted by him were challenges to the constitutionality of the FECA. The defendants' motion to dismiss or for summary judgment was adjourned pending our action on the constitutional questions. In response to the defendants' motion for reconsideration of the certification order, Judge Pratt, by order dated March 15, 1979, adhered to his original certification order, holding that a justiciable controversy within the meaning of Article III of the Constitution had been presented and that 2 U.S.C. § 437h(a) mandated immediate certification of all constitutional questions to this Court for resolution before any further steps could be taken by the district court in the matter, even though we might then decide to remand the case for development of a factual record, as done in Buckley v. Valeo, supra.
On March 22, 1979, CLITRIM and Cozzette moved before us to remand the case to the district court on the grounds that in an enforcement proceeding under § 437g, as distinguished from a suit for declaratory relief under § 437h, constitutional and other defenses should first be decided by the district court; thus the district court had erred in not first deciding questions of statutory interpretation and jurisdiction that might render unnecessary a constitutional adjudication under § 437h. FEC took the position that § 437h applied, even though the constitutional issues had been raised by a counterclaim for declaratory judgment rather than by institution of a suit for declaratory relief. We agreed with the FEC.
By order dated April 23, 1979, and amended May 2, 1979, we granted leave to Robbins to intervene as a counterclaiming defendant, noted that we appeared to have jurisdiction under 2 U.S.C. § 437h as the record then stood, and remanded the case to the district court to take evidence, make factual findings, and certify to us the record and the constitutional questions for resolution. We thus followed the procedure adopted by the D.C. Circuit in Buckley v. Valeo, supra, 171 U.S.App.D.C. at 173, 519 F.2d at 818, and advocated by the Seventh Circuit in its recent decision in Bread Political Action Committee v. Federal Election Commission, 591 F.2d 29, 36 (7th Cir. 1979).
After extensive evidentiary hearings Judge Pratt, on August 22, 1979, certified to us a substantial record in the case, including transcripts of testimony, exhibits, and some 83 pages of procedural history, constitutional and statutory questions, and findings of fact. The district court adhered to the view that because of its certification of certain constitutional issues pursuant to 2 U.S.C. § 437h(a) the action was no longer pending before it but was a circuit court case which had been remanded solely for the specific purposes set forth in our order of April 23, 1979, as amended. Hence it did not rule upon the defendants' motions to dismiss or for summary judgment. However, in order to avoid a further remand for rehearing, it thoughtfully provided us with its views on pertinent issues of statutory interpretation, concluding that if it had jurisdiction it would hold that the FEC enforcement action was dismissable on the ground that the Fall, 1976, CLITRIM Bulletin which was the subject of the action did not "expressly advocate" the election or defeat of a candidate within the meaning of 2 U.S.C. §§ 434(e) and 441d.
The facts, briefly summarized, are as follows. The John Birch Society, Inc. (Society), a Massachusetts corporation founded in 1958 by Robert Welch, publishes the TRIM (Tax Reform Immediately) Bulletin, a quarterly in which the Society is identified as the publisher. The Society, which is not affiliated with any political party, committee or candidate, primarily serves the educational interests of its followers and not any pecuniary business interest. It is supported by membership dues and voluntary contributions. National TRIM is a committee established by the Society, consisting of a network of local TRIM committees throughout the United States, advocating lower taxes and less government spending. The local TRIM committees are expected to send to TRIM a monthly report on their activities and income, as well as one-half of all dues and donations received.
Since 1975 National TRIM has researched, written and mailed to the local TRIM committees "camera-ready" copy of the quarterly TRIM Bulletin, with instructions for printing. The copy sets forth (1) positions with respect to certain economic and tax issues, (2) the voting records of all members of Congress on specific legislation concerning these issues, along with a characterization of votes as "For Lower Taxes and Less Government" or "For Higher Taxes and More Government," and (3) a commentary reflecting National TRIM's views as to the merits of the bills identified. No mention is made of any particular federal election, the political affiliation of any congressman, the fact that he is or is not a candidate for elective office, or the name or views of any electoral opponent of any congressman. The instructions suggest to the local TRIM committees that they use a photograph of their congressman, since this permits voters to connect him or her with his or her voting record and aids in "unseating a liberal," "unseating or changing the voting pattern of a "moderate,' " or "strengthening a conservative" representative.
Armed with this material, numerous local TRIM committees, including CLITRIM, have published and distributed the TRIM Bulletin, tailored to set forth the voting records and characterizations of the votes of their respective local congressmen. Approximately 460,600 Fall, 1976, TRIM Bulletins were published.
In the summer of 1976 defendant Cozzette, a resident of Huntington Station, Long Island, who has been active with others in advancing views on economic and social issues, formed CLITRIM, a non-profit unincorporated association whose purpose was to inform Long Island residents of the need for lowering taxes through less government. It became affiliated with National TRIM, held meetings at which there were discussions and films shown with respect to the danger of higher taxes, and decided to distribute the TRIM Bulletin.
Using the material received from TRIM, CLITRIM prepared a Fall, 1976, TRIM Bulletin. Two of its four pages set forth the general views of the organizations,*fn6 identified the officers of the Committee, furnished information about the CLITRIM members and invited others to join. The remaining pages reported the voting record of Congressman Jerome A. Ambro, a local representative of central Long Island. These pages included a photograph of Congressman Ambro and a chart of 24 votes cast by him, 21 of which were characterized as for "Higher Taxes and More Government" and 3 as for "Lower Taxes and Less Government." CLITRIM's stand against higher taxes and "Big Government" in favor of lower taxes and "Less Government" was made clear by slogans and commentaries. However, the leaflet did not refer to any federal election, to Congressman Ambro's political affiliation or candidacy, or to any electoral opponent of the Congressman. Some 5,000 to 10,000 copies were handed out at the local railroad station, shopping centers and a public meeting at which Congressman Ambro spoke. The cost of ...