Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 77-C-947, Prentice H. Marshall, Judge .
Before Fairchild, Chief Judge, and Swygert and Tone, Circuit Judges.
This interlocutory appeal requires us to construe the extraordinary provision for expedited judicial review of the Federal Election Campaign Act, as amended, 2 U.S.C. §§ 431 Et seq. Plaintiffs-appellants are a number of trade associations and their political action committees. The defendants are the Federal Election Commission, the Secretary of the Senate, the Clerk of the House, the members of the Commission, and the Attorney General. The plaintiffs seek to challenge the constitutionality of various provisions of the Act which they say restrict their financial activities in the political arena. The issue on this appeal is whether these plaintiffs may invoke the expedited review provision, § 437h,*fn1 and have their constitutional challenges certified for initial review by this court sitting en banc.
After filing their complaint in the district court, plaintiffs moved, under § 437h, for immediate certification to this court of the constitutional questions presented. The district court held a hearing and rendered an oral decision denying the motion to certify. The court construed § 437h to restrict the availability of expedited review to the three types of plaintiffs listed in the first sentence of § 437h(a): "(t)he (Federal Election) Commission, the national committee of any political party, or any individual eligible to vote (in a Presidential election)." The court held that since "the plaintiffs in this action do not fall within the group specified in § 437h, . . . they are not entitled to . . . expedited review . . .." The district court did not dismiss the action, however, holding that it did have jurisdiction over appellants' claims under its ordinary federal question jurisdiction, 28 U.S.C. § 1331.
Plaintiffs then moved for the district court to certify the question of whether appellants were plaintiffs entitled to invoke § 437h for interlocutory appeal under 28 U.S.C. § 1292(b). The district court granted that motion and this court granted appellants' subsequent motion for leave to take this appeal.
Construction of § 437h must begin with the language of the statute itself. Subsection (a) of § 437h is the provision for instituting actions for review of the Act and for certifying constitutional questions to the court of appeals sitting en banc. Subsection (a) provides:
(a) 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. The district court immediately shall certify all questions of constitutionality of this Act to the United States court of appeals for the circuit involved, which shall hear the matter sitting en banc.
It is clear that the plaintiffs here do not fall within any of the three types of plaintiffs described in the first sentence of subsection (a). The question is, therefore, whether Congress intended to exclude all other plaintiffs from invoking the provisions of § 437h by naming the three types found in the statute. The district court so held and the defendants support that position on this appeal. The plaintiffs, on the other hand, contend that the purpose of § 437h is to provide expedited review of all challenges to any of the provisions of the Act and that Congress intended to expand notions of standing to achieve that purpose. They conclude that the purpose for naming the three types of plaintiffs specified was not to exclude other plaintiffs, but to remove any doubt that the specified plaintiffs would have standing.
The language of subsection (a) supports the plaintiffs' construction. The first sentence itself, after specifying three types of eligible plaintiffs, authorizes suits "to construe the constitutionality of Any provision of this Act" (emphasis added). This language indicates that Congress intended that constitutional challenges could be brought in the federal courts under § 437h against every part of the Act. On the other hand, if the specification of the three types of plaintiffs limits the use of § 437h to those plaintiffs, it is unlikely that every provision of the Act could be challenged under § 437h. This case illustrates the point.
The plaintiffs in this case seek to challenge provisions of the Act which regulate the activities of trade associations. If these plaintiffs cannot invoke § 437h to challenge these provisions, it is doubtful that anyone could do so. This is so because in enacting subsection (a), Congress could not grant the specified plaintiffs standing beyond the limits of Article III. Thus, even the specified plaintiffs would have to show a sufficient "personal stake" in the outcome of such a suit to satisfy constitutional "case or controversy" requirements. Buckley v. Valeo, 424 U.S. 1, 11-12, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976). In a suit like this one challenging provisions regulating trade associations and their political action committees it is unlikely that any of the specified plaintiffs could show any "personal stake" in the outcome. If not, under the district court's construction, § 437h would be unavailable to challenge the provisions challenged here and the apparent Congressional intent to provide expedited review to attack "any provision" of the Act would be subverted.
The second sentence in subsection (a) contains additional support for the plaintiffs' position. That sentence requires the district court to "certify All questions of constitutionality of this Act" (emphasis added) to the court of appeals sitting en banc. This language further focuses Congress' intent on the questions presented in a suit such as this, rather than on the identity of the plaintiffs. The direction to certify all constitutional questions indicates again that Congress intended the expedited review procedure to apply broadly to challenges to the Act.
Reading the two sentences together, we find an expressed Congressional intent that § 437h apply to all questions of the constitutionality of any provision of the Act. As noted above, this purpose would be severely restricted if the first sentence is read as an exclusive grant of standing to the three specified plaintiffs to obtain expedited review.
Further support for the plaintiffs' position is found in the overall structure provided in the Act for judicial determination of questions arising under the act. Section 437h provides for actions brought specifically to decide the constitutionality of the Act. Section 437g contains procedures for enforcement of the Act.*fn2 A comparison of the schemes for review ...