Gifford v. Congress

• Decision Date: 06 June 1978
• Docket Number: Civ. 5-78-249.
• Citation: 452 F. Supp. 802
• Court: U.S. District Court — Eastern District of California
• Parties: Howard L. GIFFORD, Plaintiff, v. The CONGRESS, Defendant.

452 F. Supp. 802

Howard L. GIFFORD, Plaintiff, v. The CONGRESS, Defendant.

Civ. 5-78-249.

United States District Court, E. D. California.

June 6, 1978.

Howard L. Gifford, in pro. per.

MacBRIDE, Chief Judge.

OPINION

This case, which is before the court on plaintiff's motion to proceed in forma pauperis, raises an interesting question of first impression concerning the proper scope of the unique judicial review procedure provided in 2 U.S.C. § 437h¹ for the consideration of constitutional attacks to the Federal Election Campaign Act.²

In a May 10, 1978 Memorandum,³ this court granted plaintiff leave to proceed in forma pauperis and thereafter dismissed his complaint as frivolous. On May 15, 1978, plaintiff filed a new motion to proceed in forma pauperis, together with a new complaint. Plaintiff's new complaint, although in many respects materially different than the prior complaint, is sufficiently related to it that this court, in the interests of clarity and simplicity, will consider this new complaint as an amended complaint.⁴

The current complaint centers around the same two provisions of the Federal Election Campaign Act involved in this court's prior ruling. Specifically, these two provisions are 2 U.S.C. §§ 437h, 431(b). Section 431(b) provides:

"candidate" means an individual who seeks nomination for election, or election, to Federal office, whether or not such individual is elected, and, for purposes of this paragraph, an individual shall be deemed to seek nomination for election, or election, if he has (1) taken the action necessary under the law of a State to qualify himself for nomination for election, or election, to Federal office, or (2) received contributions or made expenditures, or has given his consent for any other person to receive contributions or make expenditures, with a view to bringing about his nomination for election, or election, to such office.

Plaintiff contends that § 431(b)(2) is unconstitutional. Essentially plaintiff's argument proceeds as follows. In its prior opinion, this court rejected plaintiff's claim that a person could qualify as a candidate, for purposes of being placed on the ballot, by satisfying the requirements of § 431(b)(2) as an alternative to § 431(b)(1). Hence, plaintiff concludes that § 431(b)(2) is unconstitutional, reasoning that Congress does not have the authority to regulate a campaign of a "private citizen" who is not officially a candidate.⁵ Plaintiff seeks judicial review of the constitutionality of § 431(b)(2) pursuant to § 437h.

Because the current case is brought in forma pauperis, this court must consider the provisions of 28 U.S.C. § 1915(d) which provides:

The court . . . may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.

For the reasons that follow, this court determines that the plaintiff's complaint is frivolous and should be dismissed and that the constitutional question raised in the complaint need not be certified to the court of appeals sitting en banc pursuant to § 437h.

The term "frivolous" as used in § 1915(d) has been given various definitions by courts considering the question. In Serna v. O'Donnell, 70 F.R.D. 618 (W.D.Mo.1976), the court stated:

A determination as to frivolity is a legal determination as to whether there "exists substantiality as to such a claim, of justiciable basis and of impressing reality".

Id., at 621, quoting Carey v. Settle, 351 F.2d 483, 484-85 (8th Cir. 1965).

The court in Clark v. Zimmerman, 394 F.Supp. 1166, 1178 (M.D.Pa.1975), defined as frivolous "an action in which the plaintiff's realistic chances of success are slight." See also State of Louisiana ex rel. Purkey v. Ciolino, 393 F.Supp. 102 (E.D.La.1975); Keno v. Doe, 74 F.R.D. 587 (D.N.J.1977). The court in Daves v. Scranton, 66 F.R.D. 5, 7 (E.D.Pa.1975), held: "The judgment which I must make is whether the complaint states a claim which has a reasonable probability of succeeding on the merits . . .." Finally, in Cochran v. Sielaff, 405 F.Supp. 1126, 1128 (S.D.Ill.1976), the court determined: "The standard is whether any of the legal points made are fairly arguable on their merits." See also Anders v. California, 386 U.S. 738, 743, 87 S.Ct. 1396, 1399, 18 L.Ed.2d 493, 498 (1967).

Under any of the standards above stated, and despite viewing plaintiff's pro-per complaint in its most favorable light, this court concludes that the complaint is frivolous. As stated previously, plaintiff's constitutional claim is essentially that Congress has exceeded its authority when it extends its campaign regulations under the Federal Election Campaign Act to include unofficial candidates.

The power of Congress to regulate congressional elections is derived from Article I, § 4 of the United States Constitution:⁶

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

Moreover, the power of Congress to make election regulations governing national elections is augmented by the Necessary and Proper Clause, Art. I, § 8, cl. 18, which authorizes Congress "to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." This provision leaves to the Congress the choice of means by which its constitutional powers are to be carried into execution. United States v. Classic, 313 U.S. 299, 319, 61 S.Ct. 1031, 1039, 85 L.Ed. 1368, 1380 (1941). As Chief Justice Marshall stated in M'Culloch v. Maryland, 17 U.S. 316, 4 L.Ed. 579, 605 (1819):

Let the end be legitimate; let it be within the scope of the constitution, and all means which are appropriate which are plainly adapted to that end which are not prohibited but consist with the letter and spirit of the constitution, are constitutional.

See also, e. g., United States v. Classic, supra, 313 U.S. at 319, 61 S.Ct. at 1031, 85 L.Ed. at 1380; Oregon v. Mitchell, supra, 400 U.S. at 119, 91 S.Ct. at 262, 27 L.Ed.2d at 279.

The tremendously broad scope of the power of Congress to regulate congressional elections under Art. I, § 4, was further articulated by Chief Justice Hughes in Smiley v. Holm, 285 U.S. 355, 366, 52 S.Ct. 397, 399, 76 L.Ed. 795, 800 (1932). Writing for a unanimous court, he stated:

The subject-matter is the "times, places and manner of holding elections for senators and representatives." It cannot be doubted that these comprehensive words embrace authority to provide a complete code for congressional elections, not only as to times and places, but in relation to notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns; in short, to enact the numerous requirements as to procedure and safeguards which experience shows are necessary in order to enforce the fundamental right involved. . . .

This view is confirmed by the second clause of article I, section 4, which provides that "the Congress may at any time by law make or alter such regulations," with the single exception stated. The phrase "such regulations" plainly refers to regulations of the same general character that the legislature of the State is authorized to prescribe with respect to congressional elections. In exercising this power, the Congress may supplement these state regulations or may substitute its own. . . . It "has general supervisory power over the whole subject."

The Power of Congress to regulate the conduct of Presidential and Vice-Presidential elections, although not based on Article I, § 4, appears equally broad:

It is the prerogative of Congress to oversee the conduct of presidential and vice-presidential elections and to set the qualifications of voters for electors for those offices. It cannot be seriously contended that Congress has less power over the conduct of presidential elections than it has over congressional elections.

Oregon v. Mitchell, supra, 400 U.S. at 123, 91 S.Ct. at 264, 27 L.Ed.2d at 281; accord, Buckley v. Valeo, 424 U.S. 1, 13, 96 S.Ct. 612, 632, 46 L.Ed.2d 659, 684 n. 16 (1976); Burroughs v. United States, 290 U.S. 534, 543-546, 54 S.Ct. 287, 289-290, 78 L.Ed. 484, 488-90 (1934). But see Oregon v. Mitchell, 400 U.S. 112, 211, 91 S.Ct. 260, 308, 27 L.Ed.2d 272, 331 (Harlan, J., dissenting).

Given this broad sweeping power which has been granted to Congress by the Constitution as interpreted by the Supreme Court, plaintiff's sole constitutional claim that Congress does not have the authority to regulate the election campaigns of unofficial candidates, is substantially lacking in merit. The purpose of the Federal Election Campaign Act is clear. Congress sought to insure the integrity of the election process by regulating the critical aspects of campaigning and campaign funding, and by opening up the whole area to informed scrutiny by the electorate. To accept plaintiff's limited view of congressional authority would be to thwart the effectiveness of any election regulatory scheme. If the Act did not include unofficial candidates within its purview, an obvious and enormous loophole would exist.⁷ Extending the reach of campaign regulations to include unofficial candidates is an entirely appropriate use of congressional power in this area. Accordingly, this court finds that plaintiff's constitutional claim is frivolous.

In the instant case, merely determining that plaintiff's claim is frivolous does not entirely dispose of the issues raised by the complaint. This court faces the novel question of deciding the effect of 2 U.S.C. § 437h upon the case at bar. In the May 10 opinion, this court noted that plaintiff's...