Carter Mondale Reelection Committee, Inc., In re

• Decision Date: 12 September 1980
• Docket Number: Nos. 80-1841,CARTER-MONDALE,80-1842,s. 80-1841
• Citation: 642 F.2d 538
• Parties: In reREELECTION COMMITTEE, INC., Democratic National Committee, Petitioners,REELECTION COMMITTEE, INC., Democratic National Committee, Petitioners, v. FEDERAL ELECTION COMMISSION, Respondent, Ronald Reagan and Reagan for President General Election Committee, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 538

642 F.2d 538

206 U.S.App.D.C. 133

In re CARTER-MONDALE REELECTION COMMITTEE, INC., Democratic National Committee Petitioners, CARTER-MONDALE REELECTION COMMITTEE, INC Democratic National Committee, Petitioners, v. FEDERAL ELECTION COMMISSION, Respondent Ronald Reagan and Reagan for President General Election Committee, Intervenor.

Nos. 80-1841, 80-1842.

United States Court of Appeals District of Columbia Circuit.

Argued Aug. 12, 1980.

Decided Sept. 12, 1980.

Petition for Review of an Order of the Federal Election commission.

Joseph R. Sahid of the Bar of the Court of Appeals of New York, New York City, Pro hac vice by special leave of Court with whom Ralph L. McAfee, New York City, Timothy G. Smith, Washington, D.C., Thomas D. Barr and Ronald D. Eastman, New York City, were on reply brief in support of Petition for Review in Case Nos. 80-1841 & 80-1842.

Charles N. Steele, Atty., Gen. Counsel, Washington, D.C., with whom Kathleen Imig Perkins, Asst. Gen. Counsel, Washington, D.C., was on brief for respondent in Case Nos. 80-1841 & 80-1842.

Lawrence M. Noble and Marsha G. Gentner, Washington, D.C., also entered an appearance for appellee.

Patrick F. McCartan, Cleveland, Ohio, with whom James R. Johnson, Cleveland, Ohio, was on brief for intervenor.

Before MacKINNON, ROBB and WALD, Circuit Judges.

Opinion for the Court PER CURIAM.

Opinion filed by Circuit Judge WALD, concurring in the decision to affirm.

PER CURIAM.

A complaint herein filed on July 2, 1980 by the Carter-Mondale Reelection Committee ("Carter-Mondale") with the Federal Election Commission ("FEC") requested that said Commission "decline to certify Mr. Reagan and the Republican candidate for Vice President as eligible to receive payments under the (Federal Presidential Campaign) Fund Act." (I Pet.App. 41). In the "alternative" the complaint requested that the Commission "immediately commence such investigation as is necessary to determine the extent to which the (federal election campaign acts) are violated by respondents ...." Id.

When said complaint was filed neither Mr. Reagan nor Mr. Bush had been nominated for President or Vice President respectively. The ten allegations of the complaint, upon which the complainants based their demand for FEC action, were based almost completely on a collection of allegations gained from widespread newspaper accounts published over six to eight years. On the basis of said newspaper extracts, none of the first nine allegations stated unequivocally that the respondent political 4. Communications Among Respondents

committees, the Republican National Committee, or Mr. Reagan, had violated the law. ¹ Instead each allegation was made up of alternative charges, i. e., that the law has been or will be violated. Id. 37-40. Because Messrs. Reagan and Bush had not been nominated such alternative allegations were completely prospective. In addition to the obvious weakness of such alternative allegations, the Carter-Mondale complaint admitted that "we cannot establish" the facts that lay at the very basis for the complaint that there was an existing and future cooperation and coordination of communication between respondents and a great many Republicans of recognized stature who were supporting or were expected to support the Reagan-Bush ticket in the fall election:

Without the use of subpoenas, document production and cross-examination under oath, we cannot establish the extent to which respondents are to have been in communication and are or are not acting under common day-to-day control. The Commission has those tools of discovery available and can determine those facts if it should believe that necessary.

I Pet.App. 35. (Emphasis added)

Petitioners' Memorandum in support of its petitions makes the same admission:

We do not know whether they (Respondent Committees) all are in continuing day-to-day consultation. Such communication may or may not exist . . .

Pet.Memorandum of Law at 28.

On July 18, 1980 the Honorable Ronald Reagan and the Honorable George Bush, having been nominated by the National Convention of the Republican Party on July 16, 1980 as its candidates for President and Vice President, respectively, filed with the Federal Election Commission the required certificate and agreement to make them eligible to receive payments under the Federal Election Campaign Fund Act, 26 U.S.C. § 9001 et seq. ² Thereafter, on July 23 Petitioner, which expects to support the Democratic Party's candidates in the upcoming presidential election, ³ alleges that Mr. Reagan has violated or will violate various provisions of the Federal Election Campaign Act, 2 U.S.C. § 431 et seq., (the "Act") which requires candidates who accept federal campaign funding to limit their spending to the federal funds received. The claim is basically prospective. Accepting federal financing effectively acts as a ceiling on campaign spending by presidential nominees.

while its administrative complaint of July 2 was pending before the Federal Election Committee, and before the Commission had finally acted on said complaint, Carter-Mondale filed the instant petitions in an attempt to have this court prevent the Reagan campaign from receiving its federal funding. Carter-Mondale petitioned under the All Writs Act, 28 U.S.C. § 1651(a) for a writ of mandamus, prohibition or injunction requiring the FEC to deny or delay its certification that Messrs. Reagan and Bush were entitled to federal campaign funds. Accompanying the petition was a motion for a stay of any FEC action on certification until this court had considered the Carter-Mondale petition. Carter-Mondale also petitioned in the alternative under the judicial review provision of the Fund Act, 26 U.S.C. § 9011(a), for review of the actions of the FEC concerning certification of Reagan-Bush as eligible to receive federal funding under the Act.

Expedition of consideration by this court of said petitions was requested on the allegation that the Federal Election Commission had stated its intention to certify "tomorrow morning, July 24, 1980" the eligibility of Messrs. Reagan and Bush to receive said funds. Likewise on July 23 Mr. Reagan and his General Election Committee moved to intervene and requested immediate oral argument. On July 24, 1980 this court denied the Carter-Mondale motion for a stay, "ORDERED that a special panel be drawn by lot to hear this case on the merits at the earliest possible time," and granted the motion of Mr. Reagan to intervene; on the same day the Federal Election Commission certified the eligibility of said nominees for said offices to receive said money, ⁴ and said funds were promptly delivered.

On July 30 oral argument was set for August 12.

Prior to certification and delivery of the federal funds, the complaint and petitions of Carter-Mondale aimed to stop the certification of Messrs. Reagan and Bush for campaign funds, or, alternatively, to force an immediate investigation and consideration of the allegations set forth in the complaint in support of Carter-Mondale's contention that Messrs. Reagan and Bush were not entitled to said funds. (I Pet.App. 41)

At oral argument, the request for relief was modified from a direction to the FEC to withhold certification, which had been mooted by the certification, to a request that the certification be set aside, ⁵ and the request was repeated that the FEC be directed to conduct an immediate investigation of the charges contained in the Carter-Mondale complaint.

The past or future violations of the Act as alleged by Carter-Mondale are premised on the existence of campaign committees which are expected to support the Reagan candidacy. Mr. Reagan contends those committees are independent of his campaign-and his control-but Carter-Mondale allege they are illegally supplementing his campaign, or will do so, in violation of the spending limits placed on candidates who have received federal funds and agreed to be bound by the Act's financial restrictions on candidates under such circumstances.

We conclude that the entire matter at this time is within the exclusive jurisdiction of the Federal Election Commission. Its counsel stated at oral argument that it is conducting an investigation and that it has not issued any final order on the administrative complaint. At oral argument, all parties agreed that the standard of review was whether the FEC has acted arbitrarily, capriciously, or contrary to law. We find the petitions to be premature and for that reason they must be dismissed. We also affirm the FEC's action in certifying the nominees' applications for funds.

I

In the context of this appeal, the exclusive jurisdiction of the FEC extends to assure that the Commission's initial investigation is completed, or the statutory time limit allowed for an investigation has expired, before any judicial review is invoked. This is required not only to allow development of the record, but also because the FEC's resolution of this matter may be satisfactory to all concerned and thereby preclude the need for any appellate consideration.

A major demand of the Carter-Mondale complaint and the petitions is that the Commission expedite its investigation and meanwhile rescind its declaration of Reagan's eligibility for federal funding. Such action at this time by the court or the FEC, however, would fly directly into the face of the statutory scheme that Congress provided in the applicable statutes. The Act contains a detailed time schedule within which actions are to be taken by the Commission upon complaints filed with it. Since this case is based upon a complaint filed with the Commission any discussion of the authority and duty of the FEC in other circumstances is not called for and would constitute pure dictum.

Within five days of receiving a complaint, the FEC is required to notify, in writing, any person alleged to have committed a violation, 2 U.S.C. § 437g(a) (1), and that person is given 15 days...