Justia Federal District Court Opinions

Concurring opinion, in which BAZELON, Chief Judge, and J. SKELLY WRIGHT, Circuit Judge, join, filed by TAMM, Circuit Judge.

Concurring opinion filed by LEVENTHAL, Circuit Judge.

Dissenting opinion filed by SPOTTSWOOD W. ROBINSON, III, Circuit Judge.

Dissenting opinion filed by MacKINNON, Circuit Judge.

PER CURIAM:

Ramsey Clark, then a candidate for the nomination of the Democratic Party to run for United States Senator from New York, commenced this action to obtain declaratory and injunctive relief against operation of the provisions governing legislative review of rules, regulations, and advisory opinions of the Federal Election Commission.1 The United States of America, on behalf of the President and the Executive Branch, was granted permissive intervention by the District Court. Five constitutional questions were certified to this court en banc, pursuant to the unique judicial review provision of the Federal Election Campaign Act, as amended (FECA).2 In addition, a three-judge District Court was convened to deal with allegations in the complaint regarding Subtitle H of the Internal Revenue Code of 1954, the provisions establishing public financing of presidential elections.3 We have concluded, after careful review of the stipulated facts and the legal arguments tendered, that the matter before us does not present a ripe "case or controversy" within the meaning of Article III. We therefore return the certified questions to the District Court unanswered, with instructions to dismiss.

While this case presents many novel and thorny jurisdictional questions under Article III, we believe we need not address those pertaining to standing or political question, because the unripeness of the action is so pervasive.

As to plaintiff Clark, we are hard put to find any ripe injury or present "personal stake" in whether or how rules, regulations, and advisory opinions of the Commission are reviewed by the legislature. Any ripe nexus arising out of Clark's position as a senatorial candidate vanished when he failed of nomination. As a voter Clark protested no specific veto action taken by the Congress and identified no proposed regulation tainted by the threat of veto on review. Nor does he suggest that facial provisions of the Act inhibit his political activities as a voter in any way. It may well be that the facial provisions of the Act, if and when implemented, might in some way inhibit his rights as a voter. On this record, however, we must dismiss his present claim as unripe.

The court learned at oral argument that the United States, speaking through the Department of Justice, believes the appropriate test for survival of its complaint in intervention, should Clark be dismissed, is whether it has any independent jurisdictional basis on which to bring suit. We need not decide that question, for it is clear that the sole claim asserted by the United States is also unripe.4

The unconstitutionality complained of by the United States is that the challenged review provisions permitting disapproval of rules or regulations by simple resolution (majority vote) of a single House of Congress "impermissibly intrude upon those areas reserved by the Constitution of the United States to the Executive Branch * * *." Complaint in Intervention at 3, P 10. This claim is expressed at Paragraph 17 as a violation of the separation of powers. More specifically, Paragraph 18 states: "The one-house veto provisions illegally and unconstitutionally permit the evasion of the Presidential veto requirements of Article I, § 7, clauses 1, 2 and 3 of the United States Constitution." Subsequent paragraphs argue that this amounts to an unconstitutional delegation of legislative power from the full Congress to a single body, giving that single body more than plenary legislative powers, depriving the President and the Executive Branch of their full powers, and permitting either House of Congress to separately perform legislative acts.

Significantly, the United States did not claim that the regulations which were propounded and referred and recently lay before Congress under the challenged review provisions are tainted with political interference. Rather, its claim is that review of Commission regulations and possible veto by a single House, without participation of the other House or the President, deprives the President of his veto power with respect to legislation. The difficult question whether legislative review of regulations constitutes legislation to which the presidential veto necessarily applies also need not be reached in these proceedings because of the unripeness of a challenge based upon the veto power.

The challenged review provisions are really of two parts; the first is constitutionally permissible, and only the second is arguably constitutionally suspect.5 The first element of legislative review envisioned by the challenged Acts requires that when the Commission has settled upon final drafts of rules or regulations embodying the Commission's interpretation or extrapolation of the statutes, those rules or regulations may not become immediately effective, but must instead lie before the Congress for a period of time during which the Congress may act to disapprove the regulations. If the statutory scheme for review stopped there, it would be presumptively constitutional under Sibbach v. Wilson & Co., 312 U.S. 1, 61 S.Ct. 422, 85 L.Ed. 479 (1941), which stands for the principle that a lying-over provision which delays the effectiveness of an otherwise valid rule or regulation in order to permit Congress to take negative action is not of itself unconstitutional.⁶ In Sibbach it was assumed that the appropriate negative action by Congress during the lying-over period for the Federal Rules of Civil Procedure would be plenary legislation: the adoption of an Act or Joint Resolution suspending the operation of all or some portion of the proposed Rules. When the expression of negation takes the form of plenary legislation, of course, presidential participation is necessary, and no derogation of presidential prerogative in violation of separation of powers appears.

In the instant case, however, the statutes in suit contemplate that the expression of negation during the 30-legislative-day lying-over period (the second part of the review scheme) may be by simple resolution of one House only the unicameral or one-house veto. It is this aspect of the federal election laws' legislative review scheme that is strongly challenged. However, it is only the first part of the scheme that has come into play; the clock had run for 28 legislative days when the 94th Congress adjourned sine die.⁷ The challenged part, adoption of a simple resolution of disapproval by either House, has not occurred. If the Commission were to resubmit these same regulations to the 95th Congress, and if the lying-over period expired without any legislative activity, the Commission would then be free to promulgate the proffered regulations, and no presidential prerogative whatever would have been violated. For this reason we hold that this matter is not justiciable on the ground of unripeness with respect to the claim of the United States.⁸ Until Congress exercises the one-house veto, it may be difficult to present a case with sufficient concreteness as to standing and ripeness to justify judicial resolution of the pervasive constitutional issue which the one-house veto provision involves. See note 10 infra. See also Appendix A infra.

This case has proceeded through the District Court and this court on an expedited schedule with abbreviated briefing. As the Department of Justice notes, its central issue the constitutional validity of a congressional disapproval device "represents the continuation of a dispute of major constitutional proportions which has been brewing for forty years."⁹ No good reason appears why, in the circumstances of this case, this court should now strain to exercise its jurisdiction to resolve this momentous political as well as legal problem. Compare Samuels v. Mackell, 401 U.S. 66, 73, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971). Neither plaintiff nor intervening plaintiff has presented a ripe justiciable "case or controversy" which would permit this court to reach and decide the merits of the constitutional questions respecting a unicameral veto of Commission regulations.¹⁰ The certified questions are returned to the District Court unanswered, and the District Court is instructed to dismiss the case.¹¹

So ordered.

WILKEY, Circuit Judge, concurs in the result.APPENDIX A

The Supreme Court in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), correctly noted that this court had held unripe for resolution constitutional attacks upon five powers delegated to the Federal Election Commission by statute (including the power to make rules subject to lying-over and one-house veto). Thus this court in Buckley limited its constitutional analysis to the propriety of the Commission, as then appointed, exercising those powers respecting which there was record evidence of exercise. As to those found to be exercised, they were determined to be powers properly delegated to a constitutionally appointed legislative commission. The rulemaking power then being unexercised, the challenge to it was deemed unripe.

The Supreme Court's approach was fundamentally different. Focusing upon the full panoply of delegated powers, the Court essayed to determine what method of appointment was necessary for a body exercising all such powers, and determined that the Commission, as then appointed, could not exercise them without running afoul of Art. II, § 2, cl. 2. The Court likewise noted that circumstances had changed since this court's opinion, as the Commission had undertaken to issue rules and regulations under authority of Section 438(a)(10). It further stated that, while

many of (the Commission's) other functions remain as yet unexercised, the date of their all but certain exercise is now closer by several months than it was at the time (of the Court of Appeals' ruling). Congress was understandably most concerned with obtaining a final adjudication of as many issues as possible litigated pursuant to the provisions of § 437h. Thus, in order to decide the basic question whether the Act's provision for appointment of the members of the Commission violates the Constitution, we believe we are warranted in considering all of those aspects of the Commission's authority which have been presented by the certified questions.

424 U.S. at 116-117, 96 S.Ct. at 681.

That said, it is useful to examine the circumstances pertaining to exercise of the one-house veto at the time of the Court's consideration of Buckley and its treatment of Certified Question No. 8(d), which directly asked the constitutionality of Section 438(c).1 Buckley was argued to this court en banc, sitting jointly with the three-judge District Court, on June 13, 1975. After its submission the Commission, on July 10, 1975, referred to both Houses of Congress regulations that would have subjected contributions to and expenditures from the office accounts of federal officeholders to FECA's strictures and limitations. Following discussion between the Commission and at least one member of Congress and congressional staff, the regulations were redrafted and resubmitted on September 30, 1975. After hearings the Senate Committee on Rules and Administration submitted its report and a resolution, S. Res. 275, to disapprove both drafts of the regulations. An amendment to the resolution effectively approving the second draft was defeated on the floor by one vote, and then, on October 8, 1976, S. Res. 275 disapproving both drafts was agreed to.

Meanwhile, another skein of regulations governing the place-of-first-filing for reports required under the disclosure provisions of FECA suffered a similar fate in the House of Representatives. On August 1, 1975 regulations requiring first filing of contribution and expenditure reports with the Commission itself were referred to both Houses. Discussion between the FEC chairman and the chairman of the Committee on House Administration ensued. On October 22, 1975 the House adopted its simple resolution, H.Res. 780, disapproving these document-filing regulations.

On November 10, 1975 Buckley v. Valeo was heard by the Supreme Court.

Second and third versions of the document-filing regulations were referred to both Houses on December 2, 1975. Additional proposed regulations were referred on December 3, 1975 and January 19, 1976.

Thus, unlike the situation before this court, when the Supreme Court decided Buckley on January 30, 1976, not only were there regulations lying before both Houses (those listed in the paragraph above) still subject to one-house veto, but also such veto had been twice exercised against regulations referred by the extant Commission. Nevertheless, the Court exercised discretion and limited its review in such a way as to avoid passing on the question of the propriety of the one-house veto contained in Question 8(d)'s challenge to Section 438(c):

Appellants make a separate attack on this qualification of the Commission's rulemaking authority, which is but the most recent episode in a long tug of war between the Executive and Legislative Branches of the Federal Government respecting the permissible extent of legislative involvement in rulemaking under statutes which have already been enacted. * * * Because of our holding that the manner of appointment of the members of the Commission precludes them from exercising the rulemaking powers in question, we have no occasion to address this separate challenge of appellants.

424 U.S. at 140 n.176, 96 S.Ct. at 692 n.176.

The Court even refrained from discussing the propriety of delegating this power to make rules (subject to lying-over and one-house veto) to the properly reconstituted Commission that its opinion implicitly called for:

Thus, on the assumption that all of the powers granted in the statute may be exercised by an agency whose members have been appointed in accordance with the Appointments Clause,¹⁷⁵ the ultimate question is which, if any, of those powers may be exercised by the present voting Commissioners, none of whom was appointed as provided by that Clause.

175. Since in future legislation that may be enacted in response to today's decision Congress might choose not to confer one or more of the powers under discussion to a properly appointed agency, our assumption is arguendo only. Considerations of ripeness prevent us from deciding, for example, (the question of candidate disqualification). With respect to this and other powers discussed infra, this page and 138-141, 96 S.Ct. 612, we need pass only upon their nature in relation to the Appointments Clause, and not upon their validity vel non.

Id. at 137 & n.175, 96 S.Ct. at 690 & n.175 (emphasis in original).

Either the Court decided, as a matter or prudence, to postpone review "of the validity vel non " of Section 438(c) until another day, where it would arise in the context of even more concrete facts than those obtaining in Buckley, or it was saying that there was then insufficient injury and "personal stake" to make that question reviewable under Section 437h. The Buckley Court was willing to address far-reaching separation of powers questions with respect to the Appointments Clause without touching the acknowledged separation of powers questions inherent in the legislative review provisions.

This court had determined that Question 8(d) was unripe for review, strongly suggesting that the constitutionality of Section 438(c) was indeed a proper question for adjudication under review provision Section 437h when presented in the context of sufficiently concrete and adverse claims. The Supreme Court, which considered Buckley after the Commission had referred several skeins of regulations under Section 438(a)(10), after there had been redrafting and resubmission following discussions between the Commission and Congress (the arguable or alleged taint of these regulations), and after both Houses had each rendered a unicameral veto under Section 438(c), nonetheless refused to answer Question 8(d). Given that posture then, and the facts of the instant case in which there was no exercise of the unicameral veto and now no live regulations subject to veto it seems fair to say that the separation of powers questions inherent in Section 438(c) were more starkly presented by the facts obtaining in Buckley when the Court considered it. If this question is now properly brought under Section 437h even in the absence of exercise of veto, why was it not so in Buckley, where the Supreme Court refused to adjudicate it?

The answer cannot lie wholly in the changed appointment of the Commission, for the Court's opinion actually permitted the regulations lying over when Buckley came down to be unicamerally vetoed, or promulgated after escaping veto. After determining that the admixture of the Commission's method of appointment and statutorily delegated powers violated the Constitution, the Court did not void all prior actions of the Federal Election Commission, but instead held "that the Commission's inability to exercise certain powers because of the method by which its members have been selected should not affect the validity of the Commission's administrative actions and determinations" through the date of the Court's opinion. 424 U.S. at 142, 96 S.Ct. at 693. "The past acts of the Commission are therefore accorded de facto validity * * *." Id.

Thus the regulations referred and lying over as of the date of the Court's opinion were properly referred. Further, the Court stayed "for a period not to exceed 30 days" and later extended for 20 days more "the Court's judgment insofar as it affects the authority of the Commission (prospectively) to exercise the duties and powers granted it under the Act." Id. at 143, 96 S.Ct. at 693. Therefore, Congress remained free after Buckley to veto the pending regulations unicamerally, and at the same time the Commission remained free (for the duration of the stay) to promulgate any regulations which survived the lying-over period. That the Court's Buckley decision left this power in the Commission during the pendency of the stay is recognized by Finding of Fact 45 in the instant case:

45. The Commission decided, after the decision in Buckley v. Valeo, that, even though the thirty legislative days had passed since the regulations were submitted to Congress and no resolution of disapproval had been passed, it would be inappropriate for the Commission to prescribe any regulations prior to Congressional action on bills then pending to reconstitute the Commission as an independent agency.

The Supreme Court's forbearance from deciding Question 8(d) in Buckley even on the facts then presented, should guide this court with respect to the concreteness of adversity required for decision. To suggest that the constitutionality of Section 438 must be determined now, simply because it has been raised under Section 437h by a person eligible to vote for President of the United States in any election, appears to fly in the face of the outcome in Buckley.

TAMM, Circuit Judge, with whom BAZELON, Chief Judge, and J. SKELLY WRIGHT, Circuit Judge, join, concurring.

Although I agree with the reasoning of the court's per curiam opinion ordering a dismissal of this case for lack of ripeness, I wish to add a few words concerning the claim of the United States to participate in this litigation as a party with independent standing. Nothing in our decision today should be taken as an approval of the sweeping claim of the United States that in the absence of both a statutory authorization to sue and an articulated injury to an interest of the federal government as a whole, it nonetheless can come into court and challenge the actions of one branch of the federal government as an unconstitutional invasion of the powers of another branch.

The United States of course relies on In re Debs, 158 U.S. 564, 15 S.Ct. 900, 39 L.Ed. 1092 (1895) and its progeny. These cases are readily distinguishable from the case at hand. The broad language in Debs, referring to the right of the Government to seek assistance from its own courts in advancing the general welfare, was included to refute the argument that the Government had to show a pecuniary interest before it could bring suit. See In re Debs, supra, 158 U.S. at 584, 15 S.Ct. 900. Moreover, the Debs Court specifically noted that the duty on which the standing of the United States rested arose not simply from the constitutional grant of power to regulate commerce but from congressional action expressly assuming and implementing that power. Id. at 586, 599, 15 S.Ct. 900. In this case the Government does not refer us to any statutory scheme implementing a constitutional grant of power from which there arises, either expressly or impliedly, a duty of the United States to protect one branch of the federal government from another.

The only injury alleged by the Government here is a conflict of views between the Executive and Legislative branches of the federal government as to the constitutional prerogatives of the Executive. At oral argument the Government characterized this injury as an infringement of the Constitution which it has an interest in protecting arising from its constitutional duty to take care that the laws are faithfully executed. Not only does this argument assume a role for the Executive as the "protector of the Constitution", but it also presupposes a decision on the merits of this suit. Whether the statutory provisions the Government seeks to challenge do or do not infringe on the constitutional powers of the President remains a question for the courts to decide, not the Executive. The most the Government can allege in this case is that it seeks to defend the President's view of what the Constitution requires.1

In its brief the Government cites New York Times Co. v. United States, 403 U.S. 713, 741-42, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) (Marshall, J., concurring), United States v. ICC, 337 U.S. 426, 69 S.Ct. 1410, 93 L.Ed. 1451 (1949), and United States v. California, 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889 (1947), as additional support for its claim of standing. In New York Times the Government sought to enjoin the publication of a classified report about the conduct of the Vietnam war on the grounds that publication would damage the national security of the United States. Justice Marshall, in his concurring opinion, first noted the broad powers of the President by virtue of his constitutionally-delegated primary responsibility for the conduct of foreign affairs, 403 U.S. at 741, 91 S.Ct. 2140, and then commented that

in some situations it may be that under whatever inherent powers the Government may have, as well as the implicit authority derived from the President's mandate to conduct foreign affairs and to act as Commander in Chief, there is a basis for the invocation of the equity jurisdiction of this Court as an aid to prevent the publication of material damaging to "national security" . . . .

Id. at 742, 91 S.Ct. at 2155. The Constitution does not give the President any duty to protect the Constitution from allegedly unconstitutional legislation comparable to his self-executing mandate to conduct foreign affairs. Moreover, the alleged injury to "national security" in New York Times was clearly an injury to the United States as a whole, its government and its people.

In United States v. ICC, supra, the United States filed suit to challenge an order of the Interstate Commerce Commission which had denied the Government's claim for damages from allegedly unlawful railroad rates. The United States, however, was also made a defendant by statute in any action to set aside an order of the ICC. See United States v. ICC, supra, 337 U.S. at 429, 69 S.Ct. 1410. The Supreme Court reversed the dismissal of the Government's suit by a three judge district court, reasoning that the Government, like any other shipper, was free to litigate the legality of sums of money exacted from it by railroads, and that nothing in the statute which made the United States a defendant in actions challenging ICC orders indicated a congressional purpose to amend existing statutes empowering the Attorney General to seek judicial redress for the Government. Id. at 430-32, 69 S.Ct. 1410. Neither of the grounds for the United States' presence as a party in United States v. ICC supports its claim of standing in this case. Here there is no claim of "injury in fact" to the United States as a whole comparable to illegally exacted shipping charges, and there is no statute authorizing its participation as a party.

The Government's reliance on United States v. California, supra, is equally unavailing. In that case the United States filed suit to enjoin California and its lessees from trespassing on offshore lands over which the United States claimed fee simple ownership. 332 U.S. at 22-23, 67 S.Ct. 1658. Although the Court rejected the defendants' argument that the Attorney General had no authority to bring the suit, it did so on the basis that Congress had not restricted the existing statutory authority of the Attorney General to safeguard government rights and properties by instituting litigation. Id. at 27-29, 67 S.Ct. 1658. Moreover, the alleged infringement of property rights by California in that case was clearly an injury to the United States as a whole.

At oral argument the Government referred us to three other cases which it maintained also support its independent participation as a party in this case. United States v. San Jacinto Tin Co., 125 U.S. 273, 8 S.Ct. 850, 31 L.Ed. 747 (1888); Booth v. Fletcher, 69 U.S.App.D.C. 351, 101 F.2d 676 (1938); Brennan v. Buckeye Industries, Inc., 374 F.Supp. 1350 (S.D.Ga.1974). I cannot agree.

In San Jacinto the United States sued to set aside a land patent issued by the United States on the grounds that it was based on a fraudulent survey.2 San Jacinto, supra, 125 U.S. at 274-75, 8 S.Ct. 850. San Jacinto asserted that the Attorney General had no general authority to sue in the name of the United States to set aside a patent. The Court disagreed but treated the issue as a question of the authority of the Attorney General, rather than standing of the United States. See id. at 278-85, 8 S.Ct. 850. The Court's opinion clearly indicates, however, that the standing of the United States depended on a showing of injury in fact sufficient to give it a stake in the outcome of the litigation greater than a generalized interest in the success of a particular legal or constitutional argument.

But we are of opinion that since the right of the government of the United States to institute such a suit depends upon the same general principles which would authorize a private citizen to apply to a court of justice for relief against an instrument obtained from him by fraud or deceit, or any of those other practices which are admitted to justify a court in granting relief, the government must show that, like the private individual, it has such an interest in the relief sought as entitles it to move in the matter.

In all the decisions to which we have just referred it is either expressed or implied that this interest or duty of the United States must exist as the foundation of the right of action.

Id. at 285-86, 8 S.Ct. at 857. There is no injury alleged by the United States in this case which is comparable to the loss of mineral rights and other property interests which served as a basis for the United States action in San Jacinto. Moreover, there is nothing in the rationale of the San Jacinto opinion to justify the independent participation of the United States in a lawsuit as a "protector of the Constitution."

Booth v. Fletcher, supra, is inapposite to the Government's position in this case on both its facts and reasoning. In Booth the plaintiff challenged the participation of the Attorney General as counsel for judicial officers and Department of Justice employees whom he sought to sue in their "individual capacity" for their role in his allegedly unlawful disbarment. The case did not involve any question of the United States as a party to the suit and certainly not as a party plaintiff. The Attorney General merely claimed the authority to act as defense counsel for United States officers and employees being sued for actions "clearly within the scope of their authority." Booth, supra, 69 U.S.App.D.C. at 356, 101 F.2d at 681. Admittedly the court based its holding on a statute which authorized the Attorney General to appear in any case in which "he deems it for the interest of the United States", id., and upon the finding that the United States has an interest in protecting its officers from retaliatory suits resulting from the proper performance of their duties. Even by analogy that reasoning is of no avail to the Government's claim of standing in this case, however. The interest of the United States is not having its agents deterred in the performance of their duties by the threat of personally defending costly court actions is clearly an interest shared by the United States as a whole and distinct from an interest in defending the theory of one particular branch of the federal government as to its constitutional prerogatives.

Like Booth, Brennan v. Buckeye Industries, Inc., supra, does not deal directly with the question of standing of the United States. In Brennan the defendant challenged neither the standing of the United States, which in any event was not a party to the suit, nor the standing of the Secretary of Labor, who was. The defendant's jurisdictional attack challenged the power of a federal court to entertain the proceeding brought by the Secretary, arguing that the specific provisions of the Occupational Safety and Health Act, 29 U.S.C. §§ 657(b), 662, 666(k) (1970) were exclusive and precluded reliance on the general grants of jurisdiction in sections 13373 and 13454 of title 28 of the United States Code. The district court found that "(n)othing in the Act under consideration limits or affects the applicability of § 1337 or § 1345." Id. at 1353. It then held that it did have jurisdiction because

(u)nless legislation should expressly provide that jurisdiction of a district court is limited by the special jurisdictional provisions of an Act, the right of the United States to sue under § 1337 and § 1345 is not affected.

Id.

The Government's citation of Brennan in support of its standing claim in this case apparently refers to that court's comment that

(t)he absence of specific statutory authority for an action by the United States in a particular instance is no obstacle to original jurisdiction under § 1345.

Id. at 1352-53. In fact Brennan was concerned only with the question of the statutory basis for federal court jurisdiction to which section 1345 is directly applicable. Section 1345 is not relevant to the separate question of standing of the United States. It is merely a statutory expression of the Congress' constitutional power to define the jurisdiction of federal courts without which a federal court cannot entertain a suit regardless of how solidly a litigant establishes his standing. If the United States has the capacity and standing to bring a suit, then section 1345 gives the federal courts jurisdiction over that suit.

Of course, standing is also a jurisdictional issue, but one conceptually distinct from the issue addressed by section 1345. The need for a statutory basis for federal court jurisdiction derives from the fact that the first sentence of Article III of the Constitution5 is not self-executing but rather depends on an affirmative congressional grant of jurisdiction. The question of standing is addressed to the constitutional and prudential concerns that a litigant show sufficient personal stake in the outcome of a suit to satisfy the case or controversy requirement of Article III.

In this action the Government has failed to allege any facts from which this court could find an injury in fact to the United States as a whole which would enable the United States to invoke the jurisdiction of a federal court. The court's per curiam states that it is unnecessary to decide the question of standing for the United States because the only claim presented by the United States is not ripe. I fully agree with the court's decision as to ripeness. I think that it is important to emphasize, however, that the court's silence on the issue of standing should not give rise to any inference that the United States could maintain this suit as an independent party.

LEVENTHAL, Circuit Judge, concurring:

I concur generally in the opinion of the court. As to the ruling on ripeness, on which I add some reflections, my joinder is based on the doctrine that ripeness or lack of ripeness may be rooted in prudential considerations analytically apart from, though often interrelated with, constitutional compulsions. I have serious doubts whether this action is ripe for adjudication in the constitutional sense, but should prefer not to voice a constitutional ruling. What seems to me plain is this, that on the record presented the court should exercise its discretion to withhold declaratory relief.

This case does not present the legal controversy with sufficient concreteness for a well-considered judicial decision.

The action was brought in July 1976 by Ramsey Clark, identified as an eligible voter and a candidate in the Democratic senatorial primary in New York. He sought judgment declaring the invalidity of sections of the Federal Election Campaign Act Amendments of 1974, 2 U.S.C. § 438(c) and 26 U.S.C. §§ 9009(c), 9039(c). These establish that regulations proposed by the Federal Election Commission will not become effective until they have lain before Congress for 30 legislative days, during which period a single house of Congress may disapprove the regulations. If the regulations have not been disapproved by the appropriate action within 30 legislative days, "then the Commission may prescribe such rule or regulation." Subsequent to Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), the statute was amended, inter alia, so as to specify that the voting members of the Commission shall be appointed by the President, subject to Senate confirmation. The newly constituted Commission proposed some regulations in the summer of 1976, but Congress adjourned prior to the expiration of the pertinent thirty-day period.

The central issue on the merits is whether it is consistent with our constitutional scheme to provide for disapproval of the Commission's regulations by an action short of a new statute, and specifically by resolution of one house of Congress.

The constitutional scheme, the Supreme Court has explained, reflects the framers' desires for both counteraction and cooperation between the major branches:

The men who met in Philadelphia in the summer of 1787 were practical statesmen, experienced in politics, who viewed the principle of separation of powers as a vital check against tyranny. But they likewise saw that a hermetic sealing off of the three branches of Government from one another would preclude the establishment of a Nation capable of governing itself effectively.

Buckley v. Valeo, 424 U.S. 1, 121, 96 S.Ct. 612, 683, 46 L.Ed.2d 659 (1976). Justice Jackson highlighted the inherent tension in the constitutional plan:

While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635, 72 S.Ct. 863, 870, 96 L.Ed. 1153 (1952). In light of the dual purposes of the constitutional framework, any procedural innovation must be examined with close attention to its actual operation: do the specific ways in which it knits the branches together into a working coalition operate to undercut their independence?

To date, there has been no Congressional veto of regulations issued by the Executive-appointed Federal Elections Commission.1 We do not know whether there will ever be such a veto or, if there should be one, what reasons would be given for such a veto, in what manner it would be exercised, or what institutional consequences would flow from it. We know, in short, very little about the operation of the mechanism which is at the heart of the lawsuit.

In Buckley v. Valeo, Congress had exercised the claimed power to appoint the members of the former Commission, and the Commission had begun to carry out some of the functions that were held to be non-legislative. The Supreme Court had a set of facts on the exercise of powers by the Congress (appointments) and by the Commission (regulations). Here, we have no such specifics as to the exercise by Congress of the power claimed to be beyond its reach. In light of the relative novelty of the procedure questioned here, our need for facts would seem greater.2

A too-ready resolution of constitutional questions tends to put the discussion on an abstract level, and this in turn affects the result. One's view of the one-house veto issue may be affected, for example, if it should develop that Congress itself distinguished between regulations that are "interpretive," and therefore more aligned with the responsibility of the executive branch, and regulations that are "legislative," that implement or carry forward a statutory mandate in ways not specified by the statute, and with respect to which a more substantial congressional role might be proper.3 The issue is not addressed in the legislative history of the 1976 amendment specifying that a Commission rule or regulation subject to legislative disapproval is one "stating a . . . rule of law."4 Even for non-interpretive regulations, there may be a distinction in terms of the pertinent constitutional question between those that are merely ministerial, or fill in the working details of a reasonably specific standard in a statute, and those that reflect substantial policy choices. It may be relevant whether the house of Congress rejecting the proposed regulation states its reasons along with its disapproval, so that the "legislative" foundation of the basis of that rejection could be presented for court analysis.

Nor can we say, as the Supreme Court said with respect to some of the Commission's functions in Buckley, that the exercise of the veto power is virtually certain to occur. The fact that there were vetoes for a congressionally appointed commission is not conclusive (see note 1). Congress's post-Buckley awareness that this is an agency that must under the Constitution be executive-appointed may suggest to the legislature less accessibility of and scope for any veto. In any event we do not know the occasion, reasons or form of any congressional veto that may occur.

Plaintiffs argue that the possibility of a congressional veto is presently coercing the Commission to conform its proposals to congressional desires. But even in areas where there is no veto provision in a statute, there is congressional communication and influence not least through the impact on appropriations, and often through investigations and correspondence as well as formal hearings. Concededly, the Commission staff consulted with congressional staff members and accepted some of their suggestions concerning regulations. But the staff solicited and accepted ideas from other sources. And it rejected other congressional suggestions. The fact that the Commission amended its proposed regulations to incorporate congressional suggestions may reflect not the yoke of a veto but a genuine reconsideration by the Commission in light of more complete information and analysis.5

That this case is inappropriate for a major constitutional adjudication is clear from a cluster of prudential considerations, and in this context the term "prudential" includes jurisprudential, as distinguished from mere convenience in judicial administration.

First, there is a sound doctrinal basis for the exercise of discretion in a case where, as here, plaintiffs seek essentially declaratory relief.6 In Public Affairs Associates, Inc. v. Rickover, 369 U.S. 111, 112, 82 S.Ct. 580, 582, 7 L.Ed.2d 604 (1962), the Court stated:

The Declaratory Judgment Act was an authorization, not a command. It gave the federal courts competence to make a declaration of rights; it did not impose a duty to do so. (Citations omitted.) Of course a District Court cannot decline to entertain such an action as a matter of whim or personal declination. "A declaratory judgment, like other forms of equitable relief, should be granted only as a matter of judicial discretion, exercised in the public interest." Eccles v. Peoples Bank, 333 U.S. 426, 431, 68 S.Ct. 641, 644, 92 L.Ed. 784. We have cautioned against declaratory judgments on issues of public moment, even falling short of constitutionality, in speculative situations. Eccles v. Peoples Bank, supra, at 432, 68 S.Ct. (641) at 644.

Accord, Public Service Comm'n v. Wycoff Co., 344 U.S. 237, 241, 73 S.Ct. 236, 239, 97 L.Ed. 291 (1952) (Declaratory Judgment Act is "an enabling Act, which confers a discretion on the courts rather than an absolute right upon the litigant"). Decisions of this Circuit recognize the discretion available to the federal courts under the Declaratory Judgment Act. Lampkin v. Connor, 123 U.S.App.D.C. 371, 375, 360 F.2d 505, 509 (1966); Marcello v. Kennedy, 114 U.S.App.D.C. 147, 312 F.2d 874 (1962), cert. denied, 373 U.S. 933, 83 S.Ct. 1536, 10 L.Ed.2d 692 (1963).

In Lampkin v. Connor, supra, Judge McGowan pointed out: "The language of the Act is permissive: '(A)ny court of the United States * * * may declare the rights and other legal relations of any interested party seeking such declaration * * * (emphasis added).' " He concluded that "(I)t is appropriate, in the context of a declaratory judgment suit, to weigh a wider range of considerations than would be either necessary or appropriate if the only issue were one of standing."7 123 U.S.App.D.C. at 374, 360 F.2d at 509.

The discretion granted by the Declaratory Judgment Act has not been vacated by 2 U.S.C. § 437h. Senator Buckley proposed § 437h as a measure to provide for expeditious review of fundamental constitutional objections he had raised to the core of the law.8 Section 437h achieves this objective by designating certain individuals and organizations as having an adequate interest to bring a constitutional challenge, by dropping the time required for district court determination, and by expediting review in this court and in the Supreme Court. What § 437h contemplates is that whatever the Court's ruling, it be announced earlier rather than later. What was sought was expedition of a judicial ruling, not a change in ruling. If the "appropriate" disposition of a case under the Declaratory Judgment Act is prudential dismissal, rather than a ruling on the merits, that is still the appropriate disposition, with an expedited announcement. This approach is congruent with the history of § 437h (see note 8), and with its text.

Section 437h recognizes that traditional forms of action would not be affected by the new law. Subsection (a) provides:

The Commission, the national committee of any political party, or any individual eligible to vote in any election for the office of President of the United States may institute such actions in the appropriate district court of the United States, including actions for declaratory judgment, as may be appropriate to construe the constitutionality of any provision of this Act . . . (emphasis added).

The statute contains a positive direction as to standing, which is precedent to the permission that certain plaintiffs "may institute" actions, cf. Gray v. Greyhound Lines, 178 U.S.App.D.C. 91, 545 F.2d 169 (1976). But the statute leaves it to the court whether the actions instituted are "appropriate."

On such matters as adjudication and relief, Congressional directions to a court will not be taken as mandatory unless that conclusion is inescapable. See Hecht v. Bowles, 321 U.S. 321, 64 S.Ct. 587, 88 L.Ed. 754 (1944), where a provision that compliance orders "shall be granted" was denied a mandatory reading that would establish "an absolute duty to do so under any and all circumstances. We cannot but think that if Congress had intended to make such a drastic departure from the traditions of equity practice, an unequivocal statement of its purpose would have been made." 321 U.S. at 329, 64 S.Ct. at 591.

Application of section 437h requires a conscientious effort to ascertain what Justice Frankfurter called the "mood" of the statute. The fair Congressional intention that I discern from this provision, adopted in 1974 on the briefest of presentation and virtually without discussion (see note 8), is a machinery for expedition but not a direction as to result. Thus, although the statutory provision reads like a direction to the appellate court to render a decision after a hearing on the questions as certified by the district court, the court has discretion to remand to the district court for a fact-finding proceeding. Buckley v. Valeo, 171 U.S.App.D.C. 168, 519 F.2d 817 (1975); see 424 U.S. 1 at 9, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (reciting the remand procedure). The court will respect Congress's intent for expedition,9 but its course in proceeding toward disposition vel non calls for judicial discretion. The public interest in expedition is material, but § 437h does not terminate the court's discretion.10

In the exercise of discretion under the Declaratory Judgment Act, several factors are appropriately considered: the nature of the legal issues raised, whether there is a question of ripeness, the quality of the record presented, and the hardship that the plaintiff would suffer in the absence of an adjudication on the merits. See National Student Association v. Hershey, 134 U.S.App.D.C. 56, 68, 412 F.2d 1103, 1115 (1969).

As to the character of the record, the Supreme Court has cautioned against granting declaratory relief on issues of public moment in the absence of a fully concrete record, a "full-bodied record." Public Affairs Associates, Inc. v. Rickover, supra, 369 U.S. at 112-113, 82 S.Ct. 580 (1962); Eccles v. Peoples Bank, 333 U.S. 426, 434, 68 S.Ct. 641, 92 L.Ed. 784 (1948); Public Serv. Comm'n v. Wycoff Co., 344 U.S. 237, 73 S.Ct. 236, 97 L.Ed. 291 (1952).

The principle is illustrated in Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965). After holding that a citizen seeking to travel to Cuba was entitled to a declaratory judgment whether a passport could lawfully be withheld (with the court ruling it could), the Court declined to entertain plaintiff's further prayer for a declaratory judgment on the issue of whether a criminal prosecution would be constitutionally permissible in the event he went to Cuba without a passport. Chief Justice Warren's opinion explained that the Declaratory Judgment Act provided a range of discretion, and in the sound exercise of its discretion the Court declined the second action in the absence of a concrete factual situation. 381 U.S. at 18-20, 85 S.Ct. 1271.

For reasons explained in Part I, I do not believe we have the "full-bodied record" called for by the pertinent doctrine.

The need for a concrete record is especially significant in light of the nature of the issues raised here. If there is one point on which all parties agree, it is that this litigation seeks resolution of a constitutional question of grave import. Sound doctrine calls for judicial restraint in dealing with constitutional issues, Rescue Army v. Municipal Court of Los Angeles, 331 U.S. 549, 67 S.Ct. 1409, 91 L.Ed. 1666 (1947), and we should be particularly mindful of that policy when we are asked to delineate, as we are in this case, the respective powers and duties of the major branches of government. That kind of broad issue enhances the general temptation of a record lacking concrete detail, toward abstractness in analysis and broad pronouncements unsuited to the subtle workings of our constitutional system.

As to the hardship factor, the hardship that plaintiff will suffer in the absence of an adjudication on the merits is material in considering whether to entertain a controversy, Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967); see National Student Association v. Hershey, 134 U.S.App.D.C. 56, 68, 412 F.2d 1103, 1115 (1969). A plaintiff faced with irreparable injury may have a claim in equity that has to be decided one way or the other. Lack of irreparable injury is no bar to declaratory judgment, but the corollary is that the court has more latitude to decline the controversy. See Samuels v. Mackall, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971). In this case, the hardship factor is minimal.

Plaintiff Ramsey Clark asserted an interest as a candidate for the Democratic nomination to be senator from New York. He alleged that one member of Congress opposed him in the primary election, and that if he were nominated, he would be likely to face Senator Buckley as nominee. In the event, he did not win the primary, nor did his Congressional contestant. Neither a judge nor Mr. Clark can assert whether it is likely that his interest as a candidate will recur. If he should decide to run again, and by that time the one-house veto provision has yielded concrete results, an action promptly begun and vigorously prosecuted can provide a timely decision.

Clark also asserts an interest as a voter, to vote in elections governed by the regulations of a fully independent Commission. Assuming this interest is sufficient to give him standing,11 it is not the kind of personal hardship that would compel this court to decide this case at this time. Clark is not asserting that his personal First Amendment or other constitutional rights have been unfairly restricted. He alleges a structural defect in the rulemaking process, and an indirect and generalized harm. It does not impel a rush to judgment.

These considerations are not repeat not to be taken as restraint grounded in mootness. The doctrine of mootness is in flux, to say the least, but in any event Clark's interest as a voter is clearly not moot. The point is that Clark's injury or threatened injury is not so substantial as to override prudential considerations for more perspective in disposition. Compare Craig v. Boren.¹²

Nor is injury made out by Clark's complaint of the delay in promulgating regulations. There is no doubt of the constitutionality of the provision, 2 U.S.C. § 438c, for a waiting period of 30 legislative days before regulations become effective. Sibbach v. Wilson, 312 U.S. 1, 61 S.Ct. 422, 85 L.Ed. 479 (1941). Although regulations issued by the Commission lapsed when Congress adjourned October 2, 1976, before the waiting period had expired, the Commission's Statement, dated Oct. 5, 1976, announced that although its proposed regulations had not technically become effective, they represented the "formally adopted views of the Commission" and should be taken as an "authoritative guide" as to the application of the election laws. Without determining the legal effect of these interpretative rules, or this adoptive announcement a matter not before us it reasonably appears that both candidates and voters have already received and will have in the future Commission guidance as to the meaning of the federal election law.

As to the claim of the "United States," it suffices to say that the expedited review of 437h was not made available to the United States. The Department of Justice asserts an interest in the separation of powers and in the presidential veto power, but that cannot ride piggyback in this special proceeding if the action brought by a plaintiff specified by Congress is dismissed in the sound discretion of the court.

In prudential analysis the clear-cutness of the issue on the merits is pertinent. In the present case, we have an issue that merits reflection and development. That a judge as deliberate as Justice White believed such a provision to be constitutional,¹³ and that other justices on the Supreme Court refrained from comment, bespeak need for care in decisionmaking on the issue.

Because I conclude that the court should decline to hear this case on prudential grounds, I do not reach the issues of standing raised here. I am satisfied that the majority opinion reserves the question as to whether a voter might have standing pursuant to statutory authorization to challenge the congressional veto provision. See Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972).¹⁴ Similarly, I am satisfied that the majority opinion does not decide whether or in what circumstances the President might bring an action challenging the veto provision.¹⁵ These questions remain open for consideration in an appropriate case.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge, dissenting:

Were this an ordinary case amenable to orthodox principles of standing and ripeness, I might have been comfortable in sharing the position advocated by the majority of my colleagues. Perhaps with equal confidence I could also have joined in Judge Leventhal's separate opinion and its exposition of principles that normally might lead judges to a discretionary withholding of any declaration on the far-reaching issues tendered for decision. But this is not nearly the usual case; indeed, it is extraordinary in the sense that it arises under a statute summoning the court's adjudicative powers to the constitutional maximum. Because the majority denies the case that measure of consideration, I must respectfully dissent.

Ramsey Clark, a registered voter then a candidate for the United States Senate, brought this constitutional challenge to the unicameral veto provisions of the Federal Election Campaign Act.1 These provisions require every prospective action of any substance by the Federal Election Commission to lie before Congress for 30 legislative days, during which either House by majority vote may unilaterally forestall it.2 Clark asserted that this procedure visited harm upon him qua candidate,3 and caused him as well "to suffer unconstitutional impairment of his rights to vote, (and) to participate effectively in the political process. . . ."4

In the District Court proceedings leading to certification of constitutional questions to this court,5 defendants raised a flurry of objections to our power, under statute6 and Article III of the Constitution, to entertain this suit. Their briefs and oral arguments here, discussing questions of justiciability alone, at once declined to illuminate the issues on the merits and complained that too little light had been shed upon them. While I disagree with the majority's determination that this case is not presently cognizable because unripe, I do agree with defendants in their insistence that the merits deserve additional elucidation. Thus, unlike Judge MacKinnon, I do not think it mete to proceed immediately to the substance of Clark's claims. Instead, I would defer consideration of the merits until defendants have generated the light they have previously elected not to provide.

* Four days after oral argument in this court, Clark failed of the Democratic nomination for the senatorial seat he sought. That happenstance moots his case insofar as it depends on his status as a candidate.7 But, as noted above,8 Clark also alleges impairment of his rights as a voter and participant in the political process, and those injuries the majority deems not yet ripe for judicial redress. That judgment seems9 to hinge solely on the fact that Congress has yet to exercise its prerogative to disapprove regulations of the Commission as reconstituted.10 This is the upshot of a double misconception, first as to the import of Clark's allegations of injury,11 and additionally as to the standard for determining "ripeness" under Article III.12

While Clark's injuries have not been given detailed exposition, one may glean from a fair reading of the complaint that his is a challenge not to the statute as applied to any particular situation but to the inevitable effects of its operation in any context. He notes that by July, 1976, the reconstituted Commission had agreed on certain regulations representing its "present thinking," but did not even propose them to Congress until it had allowed key legislative aides additional time to make substantial revisions.13 Then, in early August, the regulations as approved by the Commission were submitted to Congress for its blessing,14 but by the time Congress adjourned sine die on October 2 only 28 legislative days had elapsed. Consequently, as we know, our recent national elections had to be conducted without the benefit of regulations promulgated by the Commission. These facts are cited not as evidence of constitutional transgression but to illustrate the defects inhering in the statutory scheme. The presence of the congressional oversight provision, by pretermitting all prospective Commission action, has deprived Clark of the value he would have derived from regulations formulated by a truly independent Commission. As a second and distinct type of injury, Clark alleges that "(b)ecause of the necessity of avoiding a vote of disapproval by a body of Congress, the COMMISSION has and will continue to modify proposed rules and regulations to correspond with what its members perceived to be the desires and wishes of Congress . . .,"15 thereby creating an imbalance otherwise avoidable in the regulations submitted to Congress.¹⁶

The majority's approach, keyed as it is to actual recourse to the veto provision by Congress, neglects the inevitable two-edged effect attributed to it by Clark. It can hardly be gainsaid that delays of the sort heretofore encountered, no less than actual vetoes, deprive voters pro tanto of the protections of the Act. And it could be, as Clark asserts, that any regulations emerging from Congress will be "tainted" by the influence that body has on the Commission's decision-making processes. One or the other claimed injury is visited on voters whether Congress approves, disapproves, or owing to circumstances takes no action at all.

That is the nature of the harm that Clark charges. To repeat, it is not dependent upon exercise of the congressional veto. On the contrary, it allegedly is inflicted irrespective of the veto. In sum, by Clark's estimate, it is suffered as much now as it will be later. In addressing the question whether this case is ripe for judicial consideration, we should take the litigant's claim as he advances it. That, I fear, my colleagues in the majority have failed to do, and resultantly have decided a case that is not before us.

II

This analysis of Clark's claims leads naturally to an examination of the standard by which the propriety of judicial consideration must be measured. The starting point, of course, is the provision governing judicial resolution of constitutional challenges to the Act, 2 U.S.C. § 437h.¹⁷ The section is explicit: designated parties may institute district court actions appropriate for the purpose, whereupon the constitutional questions must be certified to the court of appeals for the circuit, which "shall hear the matter sitting en banc."¹⁸ A prominent feature of Section 437h is the specification of expedited procedures,¹⁹ effectuating the congressional view that "if, in fact, there is a serious question as to the constitutionality of this legislation, it is in the interest of everyone to have the question determined by the Supreme Court at the earliest possible time."²⁰

The first occasion to construe Section 437h arose in Buckley v. Valeo.²¹ When that case was here, we acknowledged that Congress envisioned full compliance with the requirements of Article III,²² and noted that actions under Section 437h

are not to be decided unless the inhibitory effects of the challenged provisions are "definite and concrete," "touching the legal relations of parties having adverse legal interests," and "admitting of specific relief through a decree of a conclusive character."²³

Nonetheless, we felt that more was necessary to decision of the question whether, in light of the methodology by which members of the Commission were then appointed,²⁴ it could constitutionally exercise the powers that Congress had conferred upon it. We concluded that while the efficacy of two powers of the Commission was ripe for decision, the validity of others was not because "(i)n its present stance, this litigation does not present the court with the concrete facts that are necessary to an informed decision."²⁵ We thus refrained as well from any decision on the constitutional questions with which we are presented today.²⁶

On review of our decision in Buckley, the Supreme Court likewise found no blinking the constitutional need for a case or controversy,²⁷ but the Court discovered in the contentions grounded on the Appointments Clause a broader controversy than we had perceived.²⁸ Central to its finding on that score was the "distinction between jurisdictional limitations imposed by Art. III and '(p)roblems of prematurity and abstractness' " that invoke the conventional judicial doctrine of ripeness.²⁹ The Court pointed out that by adoption of Section 437h Congress had manifested that it "was . . . most concerned with obtaining a final adjudication of as many issues as possible litigated pursuant to (its) provisions . . . ."³⁰ The congressional directives incorporated into Section 437h were seen as imposing constraints on judicial recourse to the ripeness doctrine so long as there was a case or controversy within the meaning of Article III.³¹

To some extent, then, the Supreme Court's decision in Buckley was consistent with our own views. Where the Court parted company was in the test it applied to determine whether the temporal dimension of Article III was present. "Where the inevitability of the operation of a statute against certain individuals is patent," the Court said, "it is irrelevant to the existence of the justiciable controversy that there will be a time delay before the disputed provisions will come into effect."³² And since "ripeness is peculiarly a question of timing,"³³ the Court held that where parties "raise constitutional questions of separation of powers with respect to an agency designated to adjudicate their rights," the fact that the "claim is of impending future rulings and determinations by the Commission . . . (poses) a question of ripeness, rather than lack of case or controversy under Art. III," and as such is judicially cognizable.³⁴

Thus the important inquiry in terms of Section 437h is not whether the impact of the challenged statutory provisions is imminent or has already occurred but whether sooner or later it necessarily will, as the Court's Buckley treatment so vividly demonstrates. By the time the Court reached its decision, the Commission had exerted another of its theretofore unused powers but "many of its other functions remain(ed) as yet unexercised."³⁵ Their "all but certain exercise", however, was held to warrant consideration, on the constitutionality of the appointive scheme, of "all of those aspects of the Commission's authority which have been presented by the certified questions."³⁶

This exploration into the purpose and potency of Section 437h, as I believe the Supreme Court ascertained them in Buckley, guides me to a dispositional premise I find inescapable. Section 437h is both an endowment of exceptional judicial power and a command to use it in litigation attacking the constitutionality of any provision of the Act. The grant is coextensive with the constitutional maximum of adjudicative authority, observing no limit save the existence of a case or controversy. The mandate to the judiciary is equally apparent: constitutional questions emerging are to be decided if only their determination is possible in the constitutional sense. Prudential considerations, so viable in ordinary cases, have no role in disputes cognizable under Section 437h. That is because Congress deemed those disputes extraordinary in terms of need for prompt resolution, and deserving of extraordinary treatment by the courts.

With all due respect, I submit that my colleagues in the majority, while acknowledging that the proper test is that required by Article III,³⁷ have not applied the Article III standard enunciated by the Supreme Court in Buckley. Here, as there, we have an "agency" this time the combination of the Commission and Congress with a statutory duty³⁸ to adopt rules and regulations implementing the Act.³⁹ If and when that duty is discharged and, as noted earlier, even for as long as it is not⁴⁰ the consequences of an allegedly impermissible commingling of legislative and executive functions will operate on Clark in the manner charged.⁴¹ To be sure, the time at which regulations may be forthcoming is uncertain, but I cannot believe that it will never arrive. And even if perchance that day never comes, the inevitability of the harm Clark complains of is not affected in the least. By its very nature, his injury arose on passage of the Act and will subsist as long as congressional approval of Commission rulemaking remains a legislative feature.⁴² The future will not alter Clark's dilemma as a voter; for him the future is now.

The majority opinion notes that the question before us today was not resolved by the Supreme Court in Buckley,⁴³ although the constitutionality of the unicameral veto was a certified question.⁴⁴ From this it is sought to be inferred that the Court found the question unripe.⁴⁵ I cannot accept this inference, for it is plain to me that the Court declined to decide the veto question because its disposition eliminated, for the time being at least, the possibility of any such veto.⁴⁶ As the Court carefully explained, "(b) ecause of our holding that the manner of appointment of the members of the Commission precludes them from exercising the rulemaking powers in question, we have no occasion to address"⁴⁷ the veto issue. Since the Court held that the Commission as originally constituted could not, consistently with the Constitution, promulgate regulations, there was nothing upon which Congress might then exercise the veto. And the Court's consideration of that issue was truncated not only by the evanescence of the Commission's power, but by its realization that in response to its decision Congress "might choose not to confer" rulemaking powers on a hypothetical successor Commission.⁴⁸ Therefore the Court merely adhered to ancient but wholesome policy in avoiding constitutional questions unnecessary to its decision. Seen in this light, I cannot endorse the majority's theory that the Court either deferred review of the veto questions on prudential grounds or implicitly decided that the Buckley plaintiffs lacked an Article III case or controversy as to that question.⁴⁹

Nor, unlike the majority, can I attach significance to the wording of the Supreme Court's time-limited stay of its mandate in Buckley "insofar as it affects the authority of the (improperly constituted) Commission to exercise the duties and powers granted it under the Act."⁵⁰ The argument is that the mere existence of the stay⁵¹ indicates that the Supreme Court felt that the challenge to the unicameral veto provisions was unripe at the time of that decision since, according to the majority, it allowed the Commission to continue to utilize powers it had no constitutional ability to exercise.⁵² That this is an erroneous reading of the stay is sufficiently demonstrated by the next sentence in the Court's Buckley opinion, which explains that the purpose of the stay was to "afford Congress an opportunity to reconstitute the Commission . . . without interrupting enforcement of the provisions the Court sustains . . . ."⁵³ In relation to the Appointments Clause question, the rulemaking powers of the Commission were invalidated, not sustained; and only a peculiar reading of the stay could have given the Commission a period within which it might unconstitutionally promulgate all the regulations it could manage to process. This reading, moreover, is fundamentally at odds with everything the Court had to say on the subject of ripeness in Section 437h cases.⁵⁴ The more reasonable interpretation is that during the stay period the Commission, although de jure unconstitutional, could continue to exert such powers as it would be constitutional for it to exercise, while Congress decided whether it wanted to resurrect the Commission at all.

III

The majority's treatment of the timeliness question, barren as it is of precedential authority, neglects also the significant body of case law supporting cognizance of litigation similar to Clark's. Perhaps the closest example is that of the Regional Rail Reorganization Act Cases,⁵⁵ upon which the Supreme Court's justiciability decision in Buckley chiefly relied.⁵⁶ A question there was whether unconstitutional deficiencies in compensation for a statutory taking of rail properties might, if necessary, be redressed by a suit under the Tucker Act.⁵⁷ No plan for conveyance of the properties had been finally formulated, nor had any plan been proposed for judicial approval, a prerequisite to adoption.⁵⁸ Whether an unconstitutional taking would or would not result was unknowable, because it was dependent on a huge number of variables; only one thing was certain: that plans were to be submitted until ultimately one was approved.⁵⁹ The ineluctable operation of that statutory scheme was deemed sufficient to imbue the remedies question with sufficient timeliness to satisfy Article III.⁶⁰

Other cases support a similar test for determining whether at the time of adjudication there is an Article III "case or controversy." In Times Film Corporation v. Chicago,⁶¹ for instance, at issue was the ripeness of a challenge to a city ordinance establishing a licensing procedure for motion picture exhibitions, and requiring distributors to submit films for "approval" before they could be licensed. One distributor's challenge, not to a censor's decision, but to the prescribed procedure to the "censor's basic authority"⁶² was held ripe for resolution before he had submitted to the ordinance in any way, because so long as he desired to exhibit his films within the city it would inexorably operate on him.⁶³

Such a test of justiciability is wholly consistent with the concerns inherent in the ripeness doctrine as enunciated by the Supreme Court and by us. The "basic rationale" of that doctrine is

to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way. . . .⁶⁴

There is, in the instant case, no unavoidable danger of the courts "entangling themselves in abstract disagreements";⁶⁵ there is to be decided only a "purely legal issue."⁶⁶ And I, for one, cannot imagine any facts which would place "judicial appraisal" in this case "on a much surer footing."⁶⁷ It may be that we would have more factual "stuff" for decision⁶⁸ if and when Congress either votes to disapprove Commission-proposed regulations or allows them to become law, but deferring judicial resolution of Clark's claim to that point would raise as many problems as it would solve. If Congress lets the regulations go into effect, it will not have exercised the power of which Clark complains, and the result will be much the same as that obtaining in the absence of the lie-over provision. The "taint" of this Damoclean congressional purview will inhere in the regulations, however, and that taint will form the nub of any injury suffered by the voter at large. If such a taint would render Clark's case justiciable then, and if as no one can doubt the facts establishing that taint are all present at this moment,⁶⁹ why is the case unripe now?⁷⁰ If, on the other hand, Congress should vote to disapprove, no tainted regulations will pass into effect, but such injury as devolves upon the voter by recourse to the veto will obtain, just as it does now, for from the date of its establishment to the date Congress reconvenes the Commission will have been prevented by Congress from promulgating binding regulations.

Thus the impact on voters like Clark, such as it is, emanating from the claimed constitutional defects in the statute is inevitable. That impact will not become any more or less susceptible to judicial disposition by congressional allowance or non-allowance of any particular regulation. If Clark's allegations are correct a matter upon which I intimate no view Congress will continue to look at proposed regulations with an eye to favoring its own incumbency, and the Commission will continue to yield to congressional pressure in proposing action for approval. So, "because of the structure of the Act there is no better time to decide"⁷¹ Clark's case. That there may be others whose contentions may later be more easily adjudicated is beside the point.

Beyond these considerations, we would not, by entertaining this action, interpose ourselves in any agency decision-making process. Ours is not a question as to whether agency proposals would, if they became the predicate for agency action, transgress legal limits on such action. We have before us nothing which by administrative interpretation might elide the constitutional controversies presented,⁷² and no policy decisions remain to be formalized. In sum, the questions stand in stark relief.

Lastly, to the extent that the timing of our decision affects the activity of the parties, an early decision would be salutary as to each. At present, neither Congress nor the Commission stands in jeopardy of any disruption by our cognizance of Clark's case. Indeed, the sooner we decide the constitutional questions he tenders the sooner all can know whether the Act must be recast to withstand scrutiny. The hardship to Clark may pale in significance to that found in other ripeness cases involving millions of dollars or the prospect of criminal sanctions,⁷³ but that does not make it vanish.⁷⁴

IV

The majority opinion purports not to address the question of Clark's standing to maintain this action.⁷⁵ The fact is, however, that its discussion of ripeness is largely cast in language traditionally employed to test standing.⁷⁶ So deeply is standing thus implicated that I feel compelled briefly to indicate my views on that score.

Clark's standing now rests on his status as a voter. Section 437h, our jurisdictional grant, expressly purports to confer voter-standing to litigate constitutional attacks on provisions of the Act. As, on standing, the Supreme Court said in Buckley, "Congress, in enacting 2 U.S.C. § 437h, intended to provide judicial review to the extent permitted by Art. III."⁷⁷

All agree that Article III requires that the plaintiff have a "personal stake"⁷⁸ in the determination of the questions he brings into court. It is clear also that the Supreme Court has recently applied prudential considerations⁷⁹ which have substantially limited the scope of some prior decisions⁸⁰ that might be viewed as more generously allowing access to the courts.