689 F.2d 1006 (11th Cir. 1982), 82-8102, Athens Lumber Co., Inc. v. Federal Election Com'n

Docket Nº:82-8102.
Citation:689 F.2d 1006
Party Name:ATHENS LUMBER COMPANY, INCORPORATED, John P. Bondurant, Plaintiffs-Appellants, v. FEDERAL ELECTION COMMISSION and William F. Smith, in his official capacity as Attorney General of the United States, Defendants-Appellees.
Case Date:October 22, 1982
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1006

689 F.2d 1006 (11th Cir. 1982)

ATHENS LUMBER COMPANY, INCORPORATED, John P. Bondurant,

Plaintiffs-Appellants,

v.

FEDERAL ELECTION COMMISSION and William F. Smith, in his

official capacity as Attorney General of the

United States, Defendants-Appellees.

No. 82-8102.

United States Court of Appeals, Eleventh Circuit

October 22, 1982

Opinion of Rehearing Feb. 7, 1983.

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Emmet J. Bondurant, Atlanta, Ga., for plaintiffs-appellants.

John B. Harris, Jr., William C. Harris, Macon, Ga., for amicus curiae common cause.

Bernard E. Namie, Asst. U. S. Atty., Macon, Ga., Charles N. Steele, Gen. Counsel, Richard B. Bader, Carolyn U. Oliphant, Jeffrey H. Bowman, Federal Election Com'n, Washington, D. C., Craig C. Donsanto, Dir., Election Crimes Branch, Public Integrity Sec., Crim. Div., Dept. of Justice, Washington, D. C., for defendants-appellees.

Appeal from the United States District Court for the Middle District of Georgia.

Before HILL and CLARK, Circuit Judges, and SCOTT [*], District Judge.

JAMES C. HILL, Circuit Judge:

Appellant Athens Lumber Co. and its President, John P. Bondurant, challenge the constitutionality of a 2 U.S.C. § 441b(a) 1 of the Federal Election Campaign Act (FECA) insofar as it prohibits a corporation from

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making direct political contributions and expenditures in a federal election. They ask that we certify the issues raised by their complaint to the United States Court of Appeals for the Eleventh Circuit en banc pursuant to the expedited procedures provided in 2 U.S.C. § 437h. The district court, 531 F.Supp. 756, refused such certification and dismissed appellants' claim for want of Article III jurisdiction. We reverse, and find that both Athens and Bondurant have presented justiciable claims. We hold further that, although Athens is not a proper plaintiff to invoke section 437h expedited review, Bondurant is a proper plaintiff, and also has standing to raise, vicariously, those issues relating to Athens. Thus, we certify certain constitutional challenges raised by appellants to the court of appeals en banc.

I

Athens Lumber Co. ("Athens") is a Georgia corporation engaged in the manufacture of architectural millwork and the sale of building materials. In July 1981, the company's six shareholders unanimously passed a resolution authorizing the President of Athens, John P. Bondurant, to spend $10,000 on federal election campaigns. The resolution provides that the money is to come directly from corporate assets and is to be used for contributions of no greater than $100 to candidates sympathetic to corporate interests. In addition, the shareholders authorized Bondurant to spend 50% of the allocated funds for politically oriented bill inserts as well as for newspaper, radio, and television advertisements supporting appropriate candidates. Recognizing that the proposed expenditures and contributions would violate 2 U.S.C. § 441b(a) of the FECA, the resolution provides further that no expenditure or contribution is to be made unless § 441b(a) either is repealed or declared invalid by a court of competent jurisdiction. Accordingly, Bondurant was authorized to retain a law firm for the purpose of initiating an appropriate action on behalf of the company. 2

Soon after passage of the shareholders' resolution, the company filed a complaint in

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the United States District Court for the Middle District of Georgia for a declaratory judgment determining the constitutionality of section 441b(a). The named plaintiffs included Athens and Bondurant, both in his capacity as president of the company and his individual capacity as a qualified voter. On behalf of Athens, the complaint alleged that section 441b(a) interferes with the company's rights under the first and fifth amendments. Not only is it asserted that section 441b(a) inhibits the company's freedom to speak politically and is overbroad in its prohibition of contributions and expenditures in federal elections, but it is also alleged that the statute arbitrarily discriminates between corporations, banks, and unions on the one hand, and natural persons and other organizations on the other. By virtue of this discrimination, Athens maintains that the statute dilutes its political voice. On behalf of Bondurant, the complaint asserts that the Act impinges upon his right as a voter to receive political information from corporate sources relating to the relative qualifications of candidates for federal office.

Because the complaint raised several constitutional challenges to the FECA, appellants asked the district court to invoke the expedited procedures embodied in 2 U.S.C. § 437h and to certify the issues directly to the en banc court of appeals. The district court, however, refused to expedite the proceedings. Instead it dismissed the complaint on jurisdictional grounds, holding that neither the company nor Bondurant presented a justiciable case or controversy within the meaning of Article III of the Constitution. The court rejected Athens' claim of Article III jurisdiction because the challenged statute does not interfere with the company's business of manufacturing and selling architectural millwork and selling building materials. In support of its position the court noted that prior to the July 1981 resolution, Athens never expressed any desire to enter the political arena. In addition, Athens was found to be seeking an advisory opinion because the company had no intention of breaking the law. Under the terms of the shareholders' resolution, no contributions or expenditures may be made so long as section 441b(a) remains in effect. With respect to Bondurant's claim, the court found no justiciable case or controversy because Bondurant remains "free to independently expend his personal funds, including dividends from the corporate plaintiff without limitation." From this dismissal, appellants filed a timely notice of appeal.

II

When Congress enacted the FECA, it was wary of the constitutional ramifications of its action. As a result, certain procedures were incorporated into the Act that were designed to facilitate prompt review by the United States Supreme Court of any constitutional challenges to the legislation. 120 Cong.Rec. 10,562 (1974) (remarks of Sen. Buckley); 120 Cong.Rec. 35,140 (1974) (remarks of Rep. Frenzel). One of these procedures for expedited review appears in section 437h and provides in part:

The Commission, the national committee of any political party, or any individual eligible to vote in any election for the office of President 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.

2 U.S.C. § 437h(a). Section 437h provides further that any decision rendered by the court of appeals en banc is reviewable by direct appeal to the Supreme Court. Id. § 437h(b). Moreover, both the courts of appeals and the Supreme Court are directed to expedite the disposition of all issues certified pursuant to the statute. Id. § 437h(c).

In order to be eligible to invoke the expedited procedures of section 437h, a plaintiff must fall within one of the three

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classes of plaintiffs enumerated in the statute. Bread Political Action Committee v. FEC, 455 U.S. 577, 102 S.Ct. 1235, 71 L.Ed.2d 432 (1982). Thus, the only plaintiffs who may certify questions challenging the validity of the FECA to a court of appeals en banc are the FEC, the national committee of any political party, or an individual eligible to vote in a presidential election. Id.; 2 U.S.C. § 437h. As a corporation, Athens is unable to certify its constitutional challenges pursuant to the statute. Athens, however, may challenge section 441b of the FECA under the federal question jurisdiction granted federal courts in 28 U.S.C. § 1331 so long as the company satisfies the "usual" standing requirements. Bread, supra, 102 S.Ct. at 1240. Bondurant, on the other hand, is an individual voter, and as such is qualified to invoke expedited review under section 437h.

The Court's literal construction of section 437h(a) in Bread was buttressed by the clear language of the statute as well as the practical considerations involved in calling circuit judges away from their normal caseloads for expedited en banc hearings. 455 U.S. at 581; 102 S.Ct. at 1238. Similar practicalities also prompted the requirement that plaintiffs acting under section 437h satisfy the minimum standing requirements embodied in Article III of the Constitution. In California Medical Association v. FEC, 453 U.S. 182, 101 S.Ct. 2712, 69 L.Ed.2d 567 (1981), the Court rejected the view of the FEC that section 437h was subject to rampant abuse, arguing that "(t)he unusual procedures embodied in this section are, at the very least, circumscribed by the constitutional limitations on the jurisdiction of federal courts." 453 U.S. at 193 n. 14, 101 S.Ct. at 2719 n. 14. 3 The Court went on to conclude that one of the many Article III limitations imposed on a party acting under section 437h is the requirement of standing. Id. This requirement was restated again in Bread: "Thus, § 437h affords its unique system of expedited review to three carefully chosen classes of persons who might meet the minimum standing requirements of Article III." 455 U.S. at 581; 102 S.Ct. at 1238; e.g., International Association of Machinists & Aerospace Workers v. FEC, 678 F.2d 1092, 1097-99 (D.C.Cir.1982) (en banc) (per curiam). 4

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Accordingly, to invoke...

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