Transcript

IN THE SUPREME COURT OF THE UNITED STATES

FEDERAL ELECTIONS COMMISSION Petitioner, v. NRA POLITICAL VICTORY FUND, ET AL.

No. 93-1151

October 11, 1994

The above-captioned matter came on for oral argument before the Supreme Court of the United States at 10:03 a.m.

APPEARANCES:

LAWRENCE M. NOBLE, ESQ., General Counsel, Federal Election Commission, Washington, D.C.; on behalf of the Petitioner.

PAUL BENDER, ESQ., Deputy Solicitor General, Department of Justice, Washington, D.C.; on behalf of the United States, as amicus curiae.

CHARLES J. COOPER, ESQ., Washington, D.C.; on behalf of the Respondents.

PROCEEDINGS

10:03 a.m.

CHIEF JUSTICE REHNQUIST: We'll hear argument this morning in Number 93-1151, Federal Election Commission v. NRA Political Victory Fund, et al.

Mr. Noble.

ORAL ARGUMENT OF LAWRENCE M. NOBLE ON BEHALF OF THE PETITIONER

MR. NOBLE: Mr. Chief Justice, and may it please the Court:

This case presents two issues: first, whether Congress violated the Constitution's requirement of separation of powers when it appointed the Secretary of the Senate and the Clerk of the House as nonvoting ex officio members of the Federal Election Commission where all the decisions of the Commission are made by six voting members who are appointed by the President and confirmed by the Senate, pursuant to Article II.

The second issue is whether, if the FEC is unconstitutional, whether the actions taken prior to the Court's decision should be afforded the fact of validity as was done some 18 years ago in Buckley v. Valeo.

The United States Court of Appeals for the D.C. Circuit applied a bright line rule to the separation of powers analysis and effectively said that the mere presence of nonvoting, ex officio agents of Congress on an independent agency of the executive branch was a violation of the separation of powers.

After doing so, the court declined to apply the precedent of Buckley v. Valeo, and felt that because this was a defense to an enforcement action it must give the National Rifle Association some relief, and therefore reversed the district court's finding of a violation of the Federal Election Campaign Act.

We believe that the court of appeals erred on both issues. The court's --

QUESTION: Are you also going to address whether you have authority to represent the FEC here?

MR. NOBLE: If the Court wishes, I can address that issue.

The Federal Election Commission was created in the wake of Watergate to be independent of the Department of Justice. The statute itself talks in terms of the Federal Election Commission having independent authority to institute actions and to conduct appeals of cases under title II.

The Solicitor General's position on this relies on a narrow reading of the word appeal to not include petitions for writ of certiorari.

QUESTION: Well, I suppose you could read 28 U.S. Code 518(a), giving the Solicitor General authority, as not being inconsistent with the statute 437d that you rely on. In other words, the Commission can appeal every place except here, and when coming here, it has to be the Solicitor General. I suppose you could give effect to both those statutes.

MR. NOBLE: You could give effect to both those statutes, though I think that would not be giving full effect to the intent of Congress in establishing the Federal Election Commission.

First, I would note that 518(a) also talks about the Solicitor General's authority to appeal, and does not specifically mention petitions for writ of certiorari, and this Court has recognized that's a congressional grant of authority, and that Congress can limit that authority in specific instances. Here, where you have --

QUESTION: You don't think the word suits in that statute helps the Attorney, the S.G.?

MR. NOBLE: As a general proposition, absent some other declaration by Congress that litigation authority should reside in another agency, yes, I think that does cover it. But in our instance, we have a situation where Congress clearly intended the Federal Election Commission to be independent of the Department of Justice.

QUESTION: Well, you're saying that appeals in 518 indicates that it comprehends writs of certiorari. I thought that was your argument.

MR. NOBLE: The word appeal generally comprehends writs of certiorari. The word appeal is also used in our statute in title II authorizing the Commission to conduct appeals.

QUESTION: But in 518 it says, suits and appeals.

MR. NOBLE: Yes, but while that's a general grant of authority to the Solicitor General, we don't believe that it overrides the congressional -- the words of the statute and also the congressional intent to afford the Commission its own litigation authority.

QUESTION: Well, it doesn't override, it, but the point is, the mere fact that your statute says appeals is not contradicted by, or a limited reading of that statute is not contradicted by 518(a), which goes out of its way to say, not just appeals, but the Attorney General represents the United States in suits and appeals.

MR. NOBLE: Yes, Justice Scalia, but again I think if you look at the intent of Congress, the way the statute's constructed, also --

QUESTION: I'm looking at it. I'm reading 518(a), and I'm reading 9010, and what do you do about 9040, which was enacted at the same time as the statute you're relying upon, which does say the Commission is authorized on behalf of the United States to appeal from and to petition the Supreme Court for certiorari to review judgments or decrees entered with respect to actions in which it is presumed to be provided in this section, which is not the present section. There it goes out of its way to say, not only appeal, but to petition for certiorari.

MR. NOBLE: That provision was not enacted at the same time as the Federal Election Campaign Act. In fact, that provision came into being in 1971, prior to the Commission even being created, and then what happened in 1974 when the Commission was created, that statute was just modified to substitute the Commission for the Comptroller General, and we don't think that Congress had any intent in doing that.

QUESTION: It was not passed at that time? It was not reenacted?

MR. NOBLE: It was reenacted, but there was no --

QUESTION: I see. It was originally reenacted, just reenacted.

MR. NOBLE: And it was not -- it was not in any way substantially redrafted. They just substituted, effectively, the FEC for the Comptroller General, so in effect what you have is two statutes created at two different times, and they were originally created for two different agencies, and so we think that the looking at title 26 as a proscription on title 2 authority is inappropriate in this situation. Also, though --

QUESTION: How many other agencies have the authority to petition here without the S.G.?

MR. NOBLE: Excuse me, I'm --

QUESTION: How many other agencies, or how many agencies, perhaps I should say, have the authority to petition here without the S.G.?

MR. NOBLE: I'm aware of -- there -- I'm not specifically sure. I think there are a couple of other agencies, and there are situations where agencies have voluntarily given, or ceded authority to the S.G. to petition this Court.

QUESTION: Do you know what the other agencies are that you think have that authority?

MR. NOBLE: I think the International Trade Commission has that authority. Beyond that, I'm not sure.

QUESTION: Doesn't the FTC have the same, a similar statute to yours?

MR. NOBLE: I don't know that it has the same exact language, and it clearly does not have the same legislative history with regard to the intent of the Federal Election Commission to be independent of the Department of Justice.

If I can address for a moment the question of title 26, and how -- the reading that title 26 gives the FEC authority while title 2 does not would result in what we consider a conflicting scheme, because under title 26 and under title 2, the Federal Election Commission can bring suits for injunctive relief for violations of the public financing statutes.

And under the Solicitor General's position, we would have a situation that if the FEC cited title 2, the Solicitor General would have authority in the Supreme Court, if the FEC cited title 26 as its authority, the FEC would have authority in the Supreme Court, and if the SEC -- if the FEC, as is probably most likely, would cite both statutory sections, then you would have conflicting authority in the Supreme Court, and we suggest that that is not the scheme that Congress intended.

The -- what runs throughout our statute, the creation of our statute, was the idea that the Federal Election Commission confined itself in litigation involved with a sitting President, or a sitting President's opponent, and that there should be independence from the Department of Justice, from the Attorney General.

QUESTION: Well, the statute in title 26 expressly gives the FEC authority. I suppose that all these statutes could be read so as to say the FEC does not have authority to petition this Court in this case today. If we were to say that, do you think that the subsequent permission given by the Solicitor General could possibly cure the jurisdictional problem?

MR. NOBLE: Yes.

QUESTION: Because the consent wasn't given until long after the petition was filed.

MR. NOBLE: Yes. The petition was clearly filed within time. There is nothing that we read in 518(a) that puts a time limit on when the Solicitor General can authorize a petition to be filed, and I think the Solicitor General would be in a better position to speak to that issue, but we don't see anything, and nothing's been cited that would limit the Solicitor General's authority to authorize the petition.

QUESTION: So 2 years can go by, and we really don't know whether the case is here or not until the Attorney General chooses to retroactively give life to the suit? That doesn't seem -- it's very strange to me.

MR. NOBLE: Well, I don't think you would have a situation, because the Court would rule on the petition, presumably, before that point, but I don't think that's a situation --

QUESTION: Oh, at least there's that in mind. After we've ruled on the petition, and we rule that the agency is not properly represented, the Attorney General at that point cannot give life to the suit, right, but any time up to then, we really don't know until he speaks whether the suit is properly here or not?

MR. NOBLE: I -- that is a possibility. That is not the situation you have in this case.

QUESTION: Well, maybe the Clerk should just refuse to accept the filing in the first instance, if it comes in here without the Solicitor General's participation, and that ends it.

MR. NOBLE: Well, I -- that would end it. I think one of the problems you have in this case is that for approximately 18 years the Federal Election Commission has exercised what I think many presumed was its own independent litigating authority, so there was no question in this case earlier on that -- whether we had the authority, and no previous Solicitor General has ever raised an objection, so I think everybody just assumed that the Federal Election Commission did, in fact, have the authority.

QUESTION: Sort of a de facto authority doctrine, you might say.

(Laughter.)

MR. NOBLE: Yes.

If I may move on to the first substantive issue in the case, the court's application of the bright line test is contrary to the functional analysis that this Court has used with regard to separation of powers cases, and that functional analysis requires the Court to look at whether or not there has been aggrandizement of power by one branch, or interference with the exercise of power by another branch.

In this case, we have a threshold question: do the ex officios exercise any power? The statute itself provides that the ex officio members of the Commission have no vote on the Commission. All decisions are made by the six voting members of the Commission, so as a threshold matter you have no direct exercise of power.

But moving on to see what else the ex officios can do, the statute provides that they can neither be Chair nor Vice Chair of the Commission and, moving beyond that, the Commission's rules of procedure provide that they cannot serve for purposes of a quorum, they cannot vote to adjourn, they cannot select the presiding officer --

QUESTION: Well, they can certainly sit in on all the discussions of the Commission, can't they?

MR. NOBLE: Yes.

QUESTION: And might not those discussions be less than full and frank in the presence of those two congressional representatives?

MR. NOBLE: Whatever influence they would have to chill the discussions would be very minimal, considering the fact that this agency, as all agencies, works under the Freedom of Information Act, the Sunshine Act, the Federal Advisory Committee Act, so the Commissioners do not sit at a meeting with an understanding that what they say will forever be secret.

QUESTION: You mean the Freedom of Information Act would authorize the release of the private deliberations of the Commission?

MR. NOBLE: Not until an enforcement action is over. By statute, within our statute, there is a provision that makes enforcement actions confidential during their pendency. That provision applies to the ex officio members as well as it applies to the Commissioners and the staff.

QUESTION: But do they keep transcripts of these deliberations that are later made public?

MR. NOBLE: Yes. They're taped.

QUESTION: Verbatim transcripts?

MR. NOBLE: They are taped. The tapes are then made public and are then released, with few exceptions dealing mainly with settlement discussions. They are then publicly released upon request.

QUESTION: These members do participate in the discussion, though, and they say -- I mean, they can say, well, you're making a good point but it seems to me that point is refuted by thus-and-such, don't they?

MR. NOBLE: Yes, Justice Scalia, they do participate in the discussion, but that's all they can do.

QUESTION: Yes, well, my -- you know, judges, when they are recused from a case, consider themselves recused not just from voting in the decision, but from participating in the discussion, because that is -- that is part of the action of any body, the discussion which leads to the decision, and when you're out of the case, you're out of it for the discussion, not only for the vote.

Why isn't a similar rule an appropriate one for deliberations of an executive agency? If you ought to be out, you ought to be out. You shouldn't influence the decision. Not just not vote on it, you shouldn't influence it.

MR. NOBLE: The rules regarding recusal are different rules, and the ex officio members may very well end up recusing themselves from specific cases, but here you're not dealing with a question of interest in the case that would require recusal. Rather, what you're dealing with is a question of, is it some leverage or some coercion of power that they're exercising on the Commission?

QUESTION: But if you're right, your opponent suggests that Congress could put ex officio members on this Court to sit in our conference, and under your theory, that's okay, because all they can do is discuss it with us. That's all right.

MR. NOBLE: No, Justice O'Connor, we think that that proposition is really based on an untenable proposition by the respondents, which is that what is good for an independent agency created by Congress and placed in the executive branch by necessity is good for this Court or the President.

QUESTION: Well, do you think it would be a violation of separation of powers if Congress were to send some ex officio members to this Court's conference?

MR. NOBLE: Yes. Yes, I think it would interfere -- it would also directly interfere with this Court's Article III powers. It is the same analysis, the same function --

QUESTION: Why? Why?

MR. NOBLE: Because --

QUESTION: Why does it interfere with us any more than the ex officios are interfering with the FEC?

MR. NOBLE: Because the same rights that attach to either the President or this Court do not necessarily attach to independent agencies. I think --

QUESTION: So it's the textual difference, it's the independent textually established constitutional status of this Court?

MR. NOBLE: Yes, in large part.

QUESTION: Then on that reasoning there could be ex officio listeners in the court of appeals.

MR. NOBLE: No. I would say all, it would apply to all --

QUESTION: Why not? They don't have any textual basis in the Constitution, apart from the provision for creation of all the Federal courts.

MR. NOBLE: But you would still have to look at whether or not it interfered with the courts' Article III powers.

QUESTION: In what sense would it interfere, any more than this interferes with the FEC?

MR. NOBLE: In the sense that the Constitution gives Article III courts strong protection against partisan or political influence. You have lifetime tenure, without diminution in pay -- those are not the same type --

QUESTION: But it seems to me you are arguing just the other way. We can tell them to go to the devil, but the people on the FEC do not have lifetime tenure.

MR. NOBLE: But still the -- it is not the -- the Court derives its power directly from Article III. We are a creature of Congress. We are an agency that was created by Congress for a specific purpose. The analysis that would say that --

QUESTION: Well, you keep telling me about textual bases or nontextual bases. You use the word interfere, which I think has a factual connotation. What is the interference in our case that does not exist, or would exist in our case that does not exist in the FEC?

MR. NOBLE: Clearly, the one mentioned before about the potential of a chill, because this Court's deliberations are not subject to the Freedom of Information Act, are not subject to the Sunshine --

QUESTION: Well, but a statute creating the listener simply subjects the listener to exactly the same confidentiality requirements that the Court imposes upon itself, so there's no -- we assume people will follow the law in good faith. There's no practical risk of our reading of the deliberations in the paper next week. Why wouldn't that satisfy your problem?

MR. NOBLE: Because I think it would still be considered a direct interference with the Court's Article III powers. It is not -- again, the Freedom of Information Act --

QUESTION: Well, I think -- I agree with you, but I don't see how you're drawing the line between the two cases.

MR. NOBLE: Well, I -- if you cannot draw the line, then I think there would also be a problem with the application of the Freedom of Information Act and the Sunshine Act to independent agencies, because clearly the courts have gone out of their way to not apply, for example, the Federal Advisory Committee Act to the Office of the President, saying that to do so would raise serious constitutional doubts about the Federal Advisory Committee Act, but when you get to applying it to independent agencies, there is little doubt that the act can be applied, because --

QUESTION: Well, now, wait a minute. Now you've confused me. You've been talking up to now about independent agencies. I thought you were using that to mean the fourth branch of Government, the headless fourth branch, just those agencies that are not subject to the President. Is that what you mean?

MR. NOBLE: Yes.

QUESTION: But now your example about the Advisory Committee Act, that applies to all agencies, not just independent agencies.

MR. NOBLE: Correct, but it would not apply to the Office of the President. All I'm suggesting there is that --

QUESTION: But that's a quite different line, the line between the Office of the President and the rest of the Government. Is that the line you're relying on?

MR. NOBLE: I'm -- I'm relying on several lines, yes. That is one clear line. The difference between the Office of the President and also with this Court, or Article III courts.

QUESTION: I think I agree with you. We wouldn't have to worry about Congress putting listeners into the Office of the President, but what about their putting listeners into all other agencies, including the Defense Department, Interior, whatever?

MR. NOBLE: Each one would have to be analyzed on a functional approach, and I would start with the proposition that there is a distinction with the Federal Election Commission that may not exist with other agencies, and that is that the Federal Election Commission deals in an area of law that directly interrelates with how Congress acts.

QUESTION: So we really wouldn't know until they try them one-by-one, agency-by-agency, right?

MR. NOBLE: Well, I think each one --

QUESTION: And then when they get here, you urge that we not apply the rule in the first case, anyway.

MR. NOBLE: I'm only urging it with regard to the Federal Election Commission. As you approach each case, I think you'd have to look at it with a functional analysis.

QUESTION: May I ask you two very brief questions? Do these Commissioners get paid?

MR. NOBLE: The ex officio members?

QUESTION: Yes.

MR. NOBLE: Yes.

QUESTION: For their duty, in addition to their salaries with Congress?

MR. NOBLE: No. My understanding is that they get paid by Congress, and that is what -- well, the -- what we have is designees.

QUESTION: Are they paid for their services on the Commission?

MR. NOBLE: Not that I'm aware of separately from their other services.

QUESTION: And what are their responsibilities, if any?

MR. NOBLE: The responsibilities do not appear in the statute, but pursuant to the legislative history the responsibilities were to act as an advisory and liaison function for the Commission.

I would also note that, even today, the Clerk of the House and the Secretary of the Senate have -- receive all reports for candidates for those bodies, and then have to submit those reports to the FEC, so there is a clear overlap between the authority of the FEC and, while the FEC has to independently exercise that authority, Congress believed that the FEC would be served by the advice of the ex officio members.

So I think that is -- also in partial response to Justice Scalia, I think that is a distinction that may very well exist. I think while the Court did not specifically reach the question of the Attorney General as ex officio member on the Sentencing Commission, I think the same type of analysis would apply there. There is no power, direct power, and the Attorney General brings a certain amount of expertise to the Sentencing Commission, so I think that you may very well have the same type of analysis in that situation.

If I may briefly turn to the --

QUESTION: You leave me defenseless when you talk about the Sentencing Commission.

(Laughter.)

QUESTION: I just wanted to get specific with the question that's been asked down there a couple of times. Forgetting the law for a second, just thinking totally practically, I can imagine how having a Congressman sitting up at the bench here might cause a little problem. I mean, you'd be a little nervous about it, and in the conference it would be tougher to carry out our job. I can understand that.

Thinking in those practical terms, what happens when the FEC makes the prosecutorial decision, we will prosecute X, or we won't. Is the congressional representative sitting in the room? Is, are there other members of the public in the room? Is the congressional representative formally or informally -- I mean, what happens?

Is he interfering in some way, as a practical matter, with the ability of the regular members to make up their own minds independently about whom to prosecute? Is he interfering in a way that's different from what the ordinary citizen might interfere? Does he only appear at public meetings? Are there private meetings where he appears but the others don't? That's what I'm trying to get a sense of.

MR. NOBLE: The ex officio members are able to appear to participate in the executive sessions where administrative investigations are discussed, and members of the public are not allowed to appear in those sessions.

However, as a practical matter, their influence is really limited to the ability to give advice. The statute puts no burden on the agency to follow that advice, to explain why it's not following that advice; it doesn't require the agency to delay a decision if the Commissioners, voting Commissioners disagree with the ex officio members.

Unlike some other statutes that the lower court have upheld, there is no leverage that the ex officios have, other than the leverage that exists with this agency and every agency, which is the leverage of oversight.

QUESTION: Is it correct to say they're part of the decisional process?

MR. NOBLE: They are part of the deliberative process. I would not say they're part of the decisional process in the same sense that when the time comes to make that decision, what is very, what is as a practical matter very clear to everybody is that they have no vote, because when the motion is called -- and they cannot make the motion. When the motion is called, they are silent at that point.

They cannot vote, and I would say whatever weight is carried by the ex officio members having the right to speak is overridden by the fact that they have absolutely no vote, and also the fact that we are subject, as the court of appeals below noted, to normal oversight, and the -- which can include hearings, can include private meetings with Commissioners, and all of that is much more -- has much more weight on an agency, on every agency, than just the sitting of the ex officio members.

QUESTION: Is there any rule of the Commission or any rule generally that would prohibit one of these members from speaking to one of the voting members on the way down the hall before the meeting starts?

MR. NOBLE: No.

QUESTION: So there wouldn't be anything that would prevent such a member from saying, you know, 37 Senators are going to be furious if you go after so-and-so, on the way into the meeting?

MR. NOBLE: No, but -- but that doesn't really -- is not necessarily a function of sitting at the table.

QUESTION: Well, but it's also a function that the general public doesn't get to perform, either. They don't walk down the hall from their offices to the meeting rooms with the Commissioners, so that there are opportunities, even within the technical rules there are opportunities to influence which members of the general public wouldn't have.

MR. NOBLE: Yes. There is that opportunity, but again, I think that opportunity pales in comparison to the opportunity, when the tapes are made public, for Congress in oversight functions to see what the agency has done.

As a practical matter, all they can do is say what they think, and that's where it stops.

What I'd like to just briefly say is that in terms of the remedy involved in this case, make two very quick points. One is that what we're asking for is the application of Buckley v. Valeo, and to find that the agency was, in fact -- all the actions of the agency were, in fact, de facto valid, and second, that we wanted to point out that contrary to the NRA's position, there is a remedy in this case.

QUESTION: Thank you, Mr. Noble.

Mr. Bender, we'll hear now from you. Perhaps you might touch briefly on the de facto matter which you, I believe you argue in your brief.

ORAL ARGUMENT OF PAUL BENDER ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE

MR. BENDER: Yes. Thank you, Mr. Chief Justice, and may it please the Court:

First of all, with regard to the question of the Commission's independent litigating authority, we take the position, as you know from the brief we filed in response to the Court's invitation, that the Commission does not have independent litigating authority.

The right procedure, I think, would be for the Clerk to reject the brief or petition filed by an agency without such authority, and ask the Solicitor General whether the Solicitor General in fact authorizes the petition.

In this case, we did, in response to the Court's question, authorize the petition. I think that authorization is valid.

QUESTION: I guess we have accepted petitions from the FEC in the past that weren't authorized.

MR. BENDER: Yeah, and I think that's --

QUESTION: There seems to be kind of a practice of it, so it's quite understandable that the Clerk accepted this one, I suppose.

MR. BENDER: Right, and I think it's also understandable that the FEC did not ask us for authority before filing its petition. They notified us, I believe, the day before they filed it as a matter of courtesy.

QUESTION: Well, how would the subsequent consent or authorization relate back? I mean, if the thing isn't properly filed, isn't that the end of the matter?

MR. BENDER: It -- no, I don't think so. It's similar to the practice that's followed throughout the appellate courts of the United States with regard to notices of appeal.

Agencies of the United States often file protective notices of appeal without first getting the Solicitor General's authorization because time does not permit that, and after the notice of appeal is filed, the Solicitor General often authorizes the appeal and it goes ahead.

QUESTION: But now, is that the same sort of statutory situation that you have in petitions to this Court?2

MR. BENDER: I think it is. The Solicitor General has the same authority to authorize appeals by the United States as it does to authorize participation in this Court.

QUESTION: So a U.S. Attorney filing a notice of appeal from the district court to the court of appeals, you say that notice of appeal would be, not be any good so far as the court was concerned, unless the S.G. approved it?

MR. BENDER: I think the appeal would not be any good, unless the Solicitor General approved, authorized the going forward with the appeal, but I think the approval does not have to be given before the time for the notice of appeal to be filed, because of the time pressure.

QUESTION: In the courts of appeals you're saying that they are invalid?

MR. BENDER: No, no. I'm saying that they are valid, even though the authorization comes after the filing of the notice of appeal.

QUESTION: They are valid because the U.S. Attorneys have authorization to proceed immediately, without the prior consent of the Solicitor General, so they have authorization. You're saying the practice of the Justice Department is to give them authorization to file appeals.

MR. BENDER: Right. It's an acquiescence practice.

QUESTION: Now, have you given the FEC authorization to file petitions for certiorari?2

MR. BENDER: I think no.

QUESTION: Then it's not a parallel situation.

MR. BENDER: In light -- I agree it's not an entirely parallel situation, but in light of what Justice O'Connor mentioned, that is the general understanding that they were reasonable in having that they could file this petition without our authorization, the petition should not be deemed to be out of time because they did that and we only authorize it after --

QUESTION: Is it the case that --

MR. BENDER: -- the petition is filed.

QUESTION: -- when a person reasonably believes he is an agent, he is an agent?

MR. BENDER: I think it's -- I wouldn't analyze it as a technical question of the law of agency. I would analyze it as a question of whether the jurisdictional limits on the filing of the petition were met in this case, and I think that since an agency of the United States did file a petition and signify their intention to go forward with the case, and since we relatively promptly authorized that petition after the Court noticed the problem, it should be deemed to relate back, and you shouldn't apply technical concepts of the law of agency to the question.

There's no unfairness here to the respondents. They had notice that the petition was being filed at the time.

QUESTION: You can say that about any agency coming here without the approval, that there was no unfairness because the respondent knew that the agency was filing a petition for certiorari, but that doesn't get you over the hurdle.

MR. BENDER: I think, Chief Justice Rehnquist, in a case where it was clear that the agency did not have the authority, a case might be made that the petition should be deemed out of time, but I think it's important to take into account here the reality that this Court had in the past --

QUESTION: Well, but I --

MR. BENDER: -- accepted those petitions. Excuse me.

QUESTION: I thought it was clear here, according to your brief, that the agency does not have that authority.

MR. BENDER: It was -- it is clear to us that they do not, but the agency might very reasonably have thought that they did, because in the past they have filed petitions without authorizations from the Solicitor General and the Court has gone ahead and granted the petitions and heard the cases on the merits.

QUESTION: So is there an agency theory that if you reasonably think you have authority you're more likely to have it than if you don't, is that the --

MR. BENDER: I don't think you should analyze this as a matter of agency theory. I think you should analyze it as the correct interpretation of the Court's jurisdictional limits on the time of filing a petition, and I think if it is unclear whether the agency has the authority, and the agency reasonably believes it has the authority, and the Solicitor General's authorization is given relatively promptly afterwards, that there's nothing that prevents you from having that authorization relate back.

QUESTION: Mr. Bender, you agree -- you disagree with FEC on the merits and say that this is a violation of separation of powers.

MR. BENDER: Yes.

QUESTION: Do these members have to be appointed by the President? Are they officers of the United States?

MR. BENDER: I think all members of the Commission would have to be appointed by the President. I think they are officers.

QUESTION: So you think they're covered by the Appointments Clause --

MR. BENDER: Yes. I think --

QUESTION: -- and that ends it as far as you're concerned.

MR. BENDER: -- the Appointments Clause is a simple way to decide this case on the merits, and for the reason the Court has given in its questions, we think that the fact that they don't have the vote is not determinative. They can participate in discussions, they can put items on the agenda, they can make motions as far as we know, they can supervise the staff, they can participate in private discussions between petitioners, they are colleagues of the other commissioners.

I would like to spend the rest of my time on the question of remedy, which the FEC did not have a chance to explore at length in its argument. Our view is similar to theirs. We agree with the FEC with regard to the remedy, that the Court should follow the same practice it followed in Buckley and Valeo.

In Buckley and Valeo the Court went out of its way, even though it held that the structure of the Commission was unconstitutional, to delay its mandate for 30 days in order not to interrupt enforcement of the provisions, the substantive provisions that the Court sustains.

QUESTION: Of course, in Buckley, the thing was just a declaratory judgment, so the mandate was really meaningless anyway.

MR. BENDER: Right, and this challenge should also have been a declaratory judgment, and if it had been a declaratory judgment, then I think Buckley would be directly on point, and you would follow that procedure.

I don't think you ought to change --

QUESTION: Why should this have been a declaratory judgment? I thought -- I thought that this respondent was prosecuted for a violation.

MR. BENDER: Right, but the structural defect that the respondent points to was never alleged by the respondent to be prejudicial at all to the respondent, and in fact the respondent did not make the claim, as it could have before the Federal Election Commission when they were considering the bringing of the enforcement action against them.

And so a structural challenge like this, especially in light of Buckley, which says that enforcement can go forward even though the structure is unconstitutional, I think Buckley holds that that kind of challenge should be made not in an enforcement proceeding but in a declaratory judgment proceeding.

QUESTION: Buckley holds that if it's made in a declaratory judgment proceeding you don't issue an immediate -- but it -- I don't know that Buckley holds that it should be brought, it must be brought in a declaratory judgment proceeding.

MR. BENDER: No, but -- although Buckley holds that if made in a declaratory judgment proceeding, it operates only prospectively.

Buckley further holds that pending enforcement proceedings, indeed, enforcement proceedings that weren't even pending at the time but that might be initiated within 30 days after the decision in Buckley, should not be interfered with. That's a holding of Buckley, also, and I think if you read that in connection with this case, the conclusion is inevitable that you cannot raise this as a defense in the pending enforcement proceeding.

Now, one technical difficulty with that, I should point out, is that there is a declaratory judgment proceeding in the FEC statute, section 437h, and it is -- the procedures are very similar to the procedures that happened in this case, but there is a technical difference.

Under the declaratory judgment procedure in the statute, the district court is not to decide the constitutional question. It is to refer it immediately to the court of appeals en banc. That didn't happen here.

QUESTION: Why do you refer to it as a technical difference?

MR. BENDER: It's a difference in the -- it's a difference in the procedures that take place. I don't think it affects the ability of this Court to consider the issues. In this case, it's true that the court of appeals did not consider the question en banc, but the court of appeals did consider the questions extensively. The questions are being argued to you here. I think that it would have been --

QUESTION: Well, are you saying that this is not a proper defense to an enforcement action?

MR. BENDER: Yes, right. I think Buckley holds that, that this is not a proper defense in an enforcement action, because Buckley holds that --

QUESTION: So if there's a constitutionally defective structure, constitutionally defective entity that brings an enforcement action against you, that constitutional defect is not a defense?

MR. BENDER: Right. I think that's the holding of Buckley, and also the holding of Northern Pipeline with regard to similar-type structural defects in the bankruptcy courts.

QUESTION: Well, that really seems quite a weird result, that you can be proceeded against by an agency that is totally improperly constituted but you can't raise that as a defense to the proceeding.

MR. BENDER: I think that's what Buckley holds, and I don't think it's that weird, because -- I think that should not apply in a case where there is demonstrated prejudice from the structural defect, but I think the basis for Buckley's holding that, and I think it is sensible, is that when there isn't any prejudice from it, it makes sense not to disrupt, cancel, invalidate hundreds of pending proceedings, throwing the whole scheme of the Federal statute into disruption.

QUESTION: Well, I can see how you'd say that, some sort of de facto theory that these six people who are concededly present and functioning, and properly so, would have done exactly the same thing, but it seems to me when you say the -- you can't even make the argument in an enforcement proceeding, that that's rather extreme.

MR. BENDER: I think you can make it if you can show prejudice.

Thank you, Mr. Chief Justice.

QUESTION: Thank you, Mr. Bender.

Mr. Cooper, we'll hear now from you.

ORAL ARGUMENT OF CHARLES J. COOPER ON BEHALF OF THE RESPONDENTS

MR. COOPER: Mr. Chief Justice, and may it please the Court:

I should like to speak only for a moment on the jurisdictional question that the Court has discussed.

Our position is this case is JOT and, Mr. Justice Scalia, I think your point regarding this issue going away if the Court rules on the cert petition is not the case, because in this case the Court ruled on the cert petition and granted it, and obviously the issue is still here.

The issue is a jurisdictional one. The Solicitor General says that he can retroactively approve a cert petition filed by the Federal Election Commission, says that is like a protective notice of appeal. I think, Justice Scalia, your points were right on target in that regard. My own experience is there's never been a protective notice of appeal filed without the Solicitor General's approval. The point, Your Honor, again is this case is jurisdictionally out of time.

QUESTION: Was it -- it was filed within 90 days by the FEC, and then there's, I gather a justice for good cause can extend it for 60 days in addition under the statute, at least as I read that. Is that right, and if that is right, was the approval given by the S.G. within that 60 days or outside of that 60 days, too?

MR. COOPER: Justice Breyer, it was given outside of the 60-day period of time, so there's no understanding of the time limits of this Court, of which I am aware anyway, that would bring the authorized petition within the time limits of this Court, so if it is -- if the Court has jurisdiction, it must be because the Solicitor General is empowered after the fact to authorize the petition.

And of course if -- in this case it would mean that the Solicitor General has the power to decide not to authorize it and to pull this case from this Court's docket by his own unilateral action. We don't think that is within the Solicitor General's authority.

Moving now to the merits of the ex officio point, Your Honor, I think that counsel for the Commission's concession that ex officio members on this Court disposes of this case, the --

QUESTION: There is a difference, Mr. Cooper. I suppose that ex officio members on this Court would invade our independent authority, but your theory is a little different, I think. Your theory is one of aggrandizement, that the Congress is aggrandizing itself or enhancing its own powers by putting its people on another branch. It seems to me the theory is different in the two cases.

MR. COOPER: Well, Your Honor, I think actually our theory is both that Congress is invading the executive's domain, and it is doing so in a way that aggrandizes its own, so I believe we have the benefit of all of this Court's separation of powers jurisprudence.

QUESTION: As to the invasion point, it seems to me rather clear that we would react rather promptly if somebody said somebody's going to sit on our conferences, and it's interesting to me that for some 20 years or so, the FEC doesn't seem to have been bothered at all by the presence of these members. Nobody ever complained about it, did they?

MR. COOPER: Well, Your Honor, they were certainly forewarned by the Ford administration that, were the ex officio's retained in the statute, that that would be an unconstitutional invasion of the executive branch.

QUESTION: Well, they're not really the executive branch, is the reason for that, isn't it? I mean, they are the fourth branch.

MR. COOPER: Your Honor --

QUESTION: It isn't as though, if the President objected to it they would stand up and assert the Chief Executive's prerogatives, would they?

MR. COOPER: Excuse me?

QUESTION: It is not as though, if the President objected to it, the members of the Federal Election Commission would stand up and assert the President's prerogatives on his behalf.

MR. COOPER: Your Honor, it is not at all like that, and in fact that brings this ex officio issue into a very sharp focus. This -- placing ex officio members on an independent agency, so-called, is doubly unconstitutional. It goes beyond just placing them, for example, at the President's Cabinet table.

Counsel for the Election Commission throughout their briefs have made clear that not only is the Commission statutorily independent from the control of the President, but the Commission is even free from its so-called partisan influence, the President's partisan influence.

In the next breath, they quite frankly admit that the congressional agents are on the Commission for the purpose of representing the Congress, and for the purpose of influencing the Commission through their sound advice, so not only has the Congress stripped the President of a purely Article II function, enforcement of law, and placed it in a Commission, if the Commission is right, that is free from the President's control, but it has also installed on that agency two agents of its own for the purpose of influencing the Commission in its Article II functions. This is more unconstitutional, Your Honor, than if Congress had simply said, we'll place an ex officio tenth justice on this Court.

QUESTION: But the members of the -- the voting members of the Commission are appointed by the President, aren't they?

MR. COOPER: Yes, Your Honor, they are, as a result of Buckley, so --

QUESTION: So why would one say this is out of the control of the President?

MR. COOPER: Your Honor, the President has got influence to the extent that the appoints the members. He has no influence beyond that, according to the Commission, and I think according to a fair reading of everything we know about Congress' intentions for this Commission.

He has no -- our position is he has no removal authority at all, let alone the at-will removal authority that it is our submission the President must have if this Commission is to exercise the purely executive function of law enforcement.

QUESTION: What about the FTC? I mean, there you have to have removal for cause --

MR. COOPER: Yes, Your Honor.

QUESTION: -- as I recall, and yet surely the FTC enforces -- is a law enforcement agency.

MR. COOPER: Yes, it is, Your Honor, and it is our submission that if Congress is going to place authority in the FTC or the FEC to, as the exclusive civil enforcement authority over an entire regulatory statute, then it must ensure that that authority is subject to the at-will removal control of the President.

QUESTION: Well, what about Humphrey's Executor, the case that held that FDR could not remove a member of the FTC at will?

MR. COOPER: Well, Your Honor, the FTC at the time the Court made that ruling, according to the Court, did not participate at all in the executive authority. Its powers were judicial. Its powers were legislative. It did not at that time have civil enforcement authority such as the Commission here has, and in fact the Commission's authority --

QUESTION: You don't have to go this -- you're not fighting the lost battle of the headless fourth branch. I gather your point just is that it's worse to have Congress install some of its agents in an independent agency than it is to have Congress install some of its agents in an agency that the President at least has control over. That's the only point you're making --

MR. COOPER: I think it's doubly unconstitutional for that reason, yes, Your Honor. I'm making three separation of powers arguments: the presence of the ex officios as participating members on the Commission, with full rights to advise and in fact to influence through their sound advice the Commission, is an unconstitutional invasion of the executive's powers because the Commission itself exercises exclusively Article II powers.

Secondly, we believe that in fact the removal, the lack of removal power is a constitutional dimension problem, and not Humphrey's Executor, not Morrison v. Olson, none of this Court's cases dealing with the headless fourth branch, Justice Scalia, have ever foreclosed the proposition we advance here, which is that when you have principal officers who control a Commission charged with purely Article II powers, the civil enforcement of a Federal regulatory statute, including the ability to get penalties as the Commission did in this very case, and you cannot divorce the President from the control of that activity, and none of this Court's cases have held otherwise.

Finally, we think that the -- I'm sorry, Justice Stevens.

QUESTION: I was going to ask you if you would take the same view if the two individuals were not actually agents of Congress but rather the statute in effect had designated a public member to sit in on all meetings for information purposes and periodically report to Congress. Would that be subject to the same attack?

MR. COOPER: Your Honor, I think that would be a tougher case for me to win, largely for the point you mentioned earlier, the aggrandizement --

QUESTION: Right. That would --

MR. COOPER: -- of Congress, but I don't -- I think that if -- if Mr. Bender is correct, and I think he probably is, that the exercise of this authority, this participatory authority as a member of the Commission, is an authority that only an officer of the United States can hold, then --

QUESTION: So you'd say that would violate the Appointments Clause.

MR. COOPER: It would.

QUESTION: But supposing you let the President appoint that public member, a member to be appointed by the President to perform this function of advising Congress and passing messages from Congress to the Commission.

MR. COOPER: Oh, well, under those circumstances I think the objectionable features would be drawn out very thin.

QUESTION: So it's the fact that the two individuals are actual officials of Congress that are critical to your case.

MR. COOPER: I don't think it's necessarily -- I don't think I would lose your first hypothetical, necessarily. I think my case would be weaker. I think the fact that Congress has installed two plainly congressional agents makes my case very strong, Your Honor.

QUESTION: Isn't part of your argument, too, that Congress has selected A and B and said you're going to do this, rather than speaking for a general class, say, a public member, and saying the President may appoint a member of the public? That would be better for the constitutionality, I take it, of your -- than for the Congress to say XY is going to be the public member?

MR. COOPER: Yes, Mr. Chief Justice. The President gets to appoint six members from the public, so long as they are three Democrats and three Republicans, a feature which we also think is an invasion of his nomination authority.

QUESTION: A case that runs through my mind is the problem Congress might have, say, with the CIA, some agency that doesn't make its deliberations public, but nevertheless Congress wants to know what goes on. Does Congress have the power to appoint either a public member, or maybe one of its agents, to sit in on all policy discussions of the CIA as a method of keeping itself informed about sensitive national security matters?

MR. COOPER: Your Honor, I think that would fall afoul of the very points we're making here. It seems to me that the CIA is engaged in an executive function, probably a purely executive function. The Congress has at its disposal a range of constitutional means to keep itself informed. It can subpoena the CIA, and except for executive privilege matters it can learn whatever it needs to learn about what is going on at the CIA. What it can't do is invade the CIA with an agent there for the purpose of influencing --

QUESTION: Say it's just for the purpose of informing. Of course, they could perform some influence.

One of the things that puzzles me about this case is, I don't know what these two people really do that has that much significance to it.

MR. COOPER: Well, Your Honor, they do everything --

QUESTION: Nobody seems to have complained for 20 years. That's the puzzling thing. I would think somebody would have been unhappy with them if it was a serious problem.

MR. COOPER: Well, Your Honor, I think they do everything that the other members, the other six members do, except vote, and in fact --

QUESTION: And except paid, I guess, to.

MR. COOPER: Well, no, they just don't get paid --

QUESTION: For what they do.

MR. COOPER: Well, I'm not --

QUESTION: They get paid for being agents of Congress, which is what they are in this capacity.

MR. COOPER: What they are in this capacity --

QUESTION: Mr. Cooper --

MR. COOPER: Yes, sir.

QUESTION: -- are you going to address retroactivity?

MR. COOPER: Yes, Your Honor, I would like to do that.

QUESTION: Mr. Cooper, before you go into retroactivity, just explain to me, if you would, how it is that the Attorney General can be a member of the Sentencing Commission, and that's not a problem.

MR. COOPER: Your Honor, the Sentencing Commission -- it may well be a problem, Your Honor. I'm not sure it isn't a problem, but I think the case against the Attorney General's ex officio membership on the Sentencing Commission is probably weaker, because the activities that the Sentencing Commission performs are themselves not activities that the executive branch can't perform.

They are executive, quasi judicial, quasi legislative, the kind of activities that the Justice Department performs, so the fact that the Attorney General is a part of that ex officio is not necessarily the investing in the Attorney General powers that the Constitution doesn't allow him to have.

These ex officio congressional agents have powers of an executive nature, the enforcement of a regulatory statute, the participation in the decision-making for that enforcement. That is a power they cannot have.

Now, if Mr. Bender is right, however, and that is also a power that requires an officer appointed under the Appointments Clause, then the Attorney General is clearly unconstitutional as far as the Sentencing Commission is concerned.

QUESTION: On the retroactivity point, would we have held that if there are certain deficiencies in the grand jury's structure, if the case proceeds and there's a conviction, the grand jury deficiency is essentially harmless error in some contexts. Why isn't that true here?

Wasn't there an enforcement proceeding that went ahead in the district court? There was an adjudication of liability? Why doesn't that cure any defect that occurred in the investigative stage of the case?

MR. COOPER: As opposed to the actions that took place from the filing of the complaint in our --

QUESTION: Yes.

MR. COOPER: Well, Your Honor, I think the case against the presence of the ex officios with respect to investigation is weaker in the sense that this Court in Buckley recognized that Congress itself can perform investigatory powers, and that the Federal Election Commission, even with members, voting members appointed by the Speaker of the House, for example, can have those powers.

QUESTION: Was the case prosecuted in the district court by attorneys for the Commission, or by the Justice Department?

MR. COOPER: By attorneys for the Commission.

QUESTION: So that you say that -- would you say that there's an ongoing violation of the structural nature because those attorneys are under the supervision of the Commission which has these ex officio members on it? Is that your theory?

MR. COOPER: Oh, yes. Yes, Your Honor. I think that however murky it may be regarding the ex officio, the participation of the ex officios in investigatory activities, it's not murky at all that a complaint filed for the purpose -- by a Government agency for the purpose of effecting a civil penalty for a violation of the Federal regulatory statute is an executive action, and so that is what this Commission was disqualified by the Constitution from doing, because --

QUESTION: Why would this disqualify it? I mean, you've got six people, and they were the only six people who could vote, and they're clearly all right.

MR. COOPER: They are, Your Honor, but this Court's decisions have always recognized that the -- that in raising a defense to a regulatory action of this kind the defendant doesn't have to show that a different decision would have been made. That's an impossible burden on a defendant raising a constitutional challenge to the structure, to the composition of the enforcement authority, and that would be an impossible burden to place on the respondent.

QUESTION: What case are you relying on for that proposition?

MR. COOPER: Well, Buckley, for example, I think Morrison v. Olson. If -- and this really gets into this retroactivity point.

QUESTION: May I ask you another question before you get to retroactivity?

Why isn't the proper way to characterize the case something like this. There's an automatic severance provision in effect in the statute for this agency. Therefore, the clear unconstitutionality is the activity, the presence of the ex officio members. The way to cure that unconstitutionality is, in fact, to declare it and, if there were need, to enjoin any further participation by them.

The only remaining question is whether those who were properly constituted, the six voting members, were influenced either in the instigation of the prosecution or its continuance by the two who had a potential for improper influence. Therefore, the question is, find out whether in fact that happened and, if it didn't happen, or perhaps in the alternative if the six now wish to proceed, period, that is enough remedy for you. The constitutionality is cured, the remedy is prospective, and that's the end of the case.

MR. COOPER: Your Honor, it wouldn't because, at least it is our submission that the Commission was constituted such that it was disqualified from enforcing this statute. It was disqualified from bringing this --

QUESTION: You'd have a stronger argument if you didn't have a severance provision, wouldn't you?

MR. COOPER: Your Honor, I don't think so. I think that the severance provision allows for the correction of this statute and it to go forward without further involvement of the Congress, but it does seem to me that those acts it has taken which were invalid, which were void, can't just be somehow deemed valid, and that --

QUESTION: That's a way of characterizing the case.

MR. COOPER: Yes.

QUESTION: But it's clear from the severance provision that the acts of the six are not, per se, facially unconstitutional merely from the -- because of the presence of the two.

MR. COOPER: Your Honor --

QUESTION: That's one distinction from a -- a non -- a statutory severance case from a nonstatutory severance case, isn't it?

MR. COOPER: Their acts were not invalid, but the acts of the Commission itself were invalid because of the presence --

QUESTION: Does it have anything to do with whether their acts are invalid? I thought it simply had to do with whether the statute continues to subsist as an operational statute.

MR. COOPER: That's what the severance point I think has to do with it, Your Honor, but --

QUESTION: So you can cut out a piece of the statute and let the rest continue to operate, as opposed to saying the whole statute's null and void.

MR. COOPER: Well, that's true, but you can't --

QUESTION: It doesn't speak to operational -- operations at all.

MR. COOPER: You're right, Your Honor, and my point on the operation, Justice Souter, is that if this, if these ex officios had had voting power, but only two out of eight, they couldn't have coerced or compelled the Commission, and it may well have been that they voted against this action, but in my opinion, that would clearly make it, the Commission itself, void.

QUESTION: Well, it would make it, because your argument would still be an influence argument, just as it is here.

MR. COOPER: Your Honor, my argument is a facial challenge.

QUESTION: You can't compel with -- two out of six does not compel, nonvoting two out of six does not compel, but your argument would be essentially the same, wouldn't it?

MR. COOPER: My argument is not an as-applied argument, it is a facial challenge based upon the membership of the ex officios, not upon whether or not they actually influenced this case in a way against my clients.

If the statute had said all of the Federal Election Commission members will be white, then that would be an invalid Commission, and the acts taken against me, even if they would have been taken by a perfectly constitutional Commission, would be void, in my opinion, and I would have a valid defense. If in --

QUESTION: Well, you think of a facial attack as being associated with the First Amendment. Other than that, to talk about something being void or invalid and something like that, it's not always that clear that it's totally across the board.

MR. COOPER: Well, Your Honor, if -- let's take the Morrison case, for example. If this Court had thrown out the independent counsel instead of upholding it, then surely it would follow, I would submit, that the criminal prosecution of the defendants in that case would have had to be dismissed. It couldn't have just been continued by that void independent counsel, or even by an independent counsel at that point somehow constitutionally repaired to go forward.

The same would be true in the Buckley case. Mr. Bender suggested that Buckley held that we can't raise a separation of powers defense in response to an enforcement action against us. Well, Buckley wasn't -- did not arise in the context of a defense for an enforcement action. It was, as the Chief Justice pointed out, a declaratory judgment seeking only one thing, prospective relief. That's what they got.

But if the Buckley case had indeed arisen in the same context that this one is, with Mr. Buckley and others suffering under not only what we submit is unconstitutional prosecution in a civil enforcement action, but the actual imposition of civil penalties against them, then surely this Court's invalidation of the Commission for the constitutional violations in that case would mean that those civil penalties in that prosecution under the Federal Election Campaign Act go away.

And that's what our submission is here, that the Court really, if we are correct on the merits, and the Commission itself is an unconstitutionally constituted body and therefore disqualified, we would submit, from enforcing a Federal regulatory statute in court, then the court can't just, I think in the words of the Harper case, disregard current law and allow the Commission to just go forward without interruption as the Commission would suggest.

QUESTION: If you prevail on the merits, can Congress act quickly and ratify all existing enforcement actions?

MR. COOPER: Your Honor, I don't believe that it can. My time is up.

QUESTION: No, you can answer the question, Mr. --

(Laughter.)

MR. COOPER: Your Honor, I don't think Congress has any greater authority to validate, or somehow deem valid, an unconstitutional civil prosecution than I believe this Court has.

Thank you very much.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Cooper.

The case is submitted.

(Whereupon, at 11:04 a.m., the case in the above-entitled matter was submitted.)