Chamber of Commerce of U.S. v. Federal Election Com'n, 94-5339
| Decision Date | 01 March 1996 |
| Docket Number | No. 94-5339,94-5339 |
| Parties | CHAMBER OF COMMERCE OF the UNITED STATES of America, et al., Appellants, v. FEDERAL ELECTION COMMISSION, Appellee. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Lawrence M. Noble, General Counsel, Federal Election Commission, Stephen E. Hershkowitz, Assistant General Counsel, and Richard B. Bader, Associate General Counsel, Washington, DC, filed a Petition for Rehearing and Suggestion for Rehearing En Banc, on behalf of Appellee.
Carter G. Phillips, Michael A. Nemeroff, Washington, DC, Jack R. Bierig, Chicago, IL, Stephen A. Bokat, and Judith K. Richmond, Washington, DC, filed a Response to Petition for Rehearing and Suggestion for Rehearing En Banc, on behalf of Appellants.
Before: SILBERMAN, SENTELLE, and HENDERSON, Circuit Judges.
Addendum to the Opinion for the Court filed by Circuit Judge SILBERMAN.
The Commission's primary contention in its petition for rehearing is that we erroneously declined to defer to the Commission's interpretation of the statutory term "member" under Chevron. We did not do so because we perceived serious constitutional problems with the Commission's interpretation and we thought its interpretation was inconsistent with the Supreme Court's reading of the statute in NRWC. FEC v. National Right to Work Comm., 459 U.S. 197, 103 S.Ct. 552, 74 L.Ed.2d 364 (1982). Although, as we noted, the Commission still has a good deal of latitude in interpreting that term, it is by no means clear--even without the constitutional problems--that it is entitled to full Chevron deference after the Supreme Court put its gloss on the statutory language in a pre-Chevron case. See, e.g., Maislin Indus., U.S., Inc. v. Primary Steel, Inc., 497 U.S. 116, 110 S.Ct. 2759, 111 L.Ed.2d 94 (1990). But, in any event, we are unpersuaded by the Commission's argument.
We also said that we "would" hold the Commission's rule arbitrary and capricious--if we determined it was authorized by the statute--because it inexplicably excluded certain labor unions and farm and rural electric cooperatives from its membership requirements. We did not expressly determine the issue because petitioners had not squarely raised that argument. Upon review of the briefs, however, we see that although petitioners did not use the phrase "arbitrary and capricious," they argued that if we reached the second step of Chevron, we should hold that the Commission's construction of the statute was unreasonable, in part because...
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