Carter-Mondale Reelection Committee, Inc. v. Federal Election Commission

WALD, Circuit Judge,

concurring in the decision to affirm:

Because my own review of the administrative complaint filed by the petitioners in this case convinces me that the Federal Election Commission (FEC or Commission) had no obligation to conduct an investigation before certifying, I join in affirming the Commission’s certification.1 My reasoning, however, is sufficiently different to require a separate statement.

Underlying my concurrence are several conclusions that I have drawn from my study of the statutes here at issue and from the policies they are designed to serve. These conclusions, explained in more detail below, are as follows: First, when an administrative complaint has been filed before the FEC determines to certify a candidate as eligible for public funding and that complaint charges that the candidate has breached or is about to breach the funding eligibility criteria, the Commission has both the authority and the obligation to examine the face of the complaint and its accompanying materials before certifying the candidate’s eligibility. Second, the Commission has the authority and under circumstances not present here may have an obligation to conduct its own investigation of the candidate’s eligibility for public funding before it determines to certify. Third, any such investigation which it may decide to undertake, whether on the basis of information initially supplied through the medium of an administrative complaint or on the basis of information independently acquired, is not subject to . the elaborate statutory machinery and strict statutory timetable of 2 U.S.C. § 437g (1976) as amended by Federal Election Campaign Act Amendments of 1979, Pub. L. No. 96-187, § 108, 93 Stat. 1339, 1358-62 (1980).

1. Materials Properly Considered in Certification.

The Presidential Election Campaign Fund Act (the Fund Act), 26 U.S.C. §§ 9001-9013 (1976), obliges the Commission both to determine eligibility for public funding, 26 U.S.C. § 9005 (1976) and to ensure that the funds are put to eligible uses, id. § 9007; it also empowers the Commission “to conduct such examinations^] . . . audits ... [and] investigations ... as it deems necessary to carry out [its] functions and duties [under the Fund Act].” Id. § 9009(b). In my judgment this combination of statutory obligations and statutory authority confers on the Commission both the discretion and the duty to examine the face of an administrative complaint charging violations of the Fund Act’s eligibility requirements before certifying a candidate for public funding.

At the administrative level in this case the Commission adopted an ambiguous position which could have been read to preclude examination of anything outside the four corners of the candidate’s submissions under 26 U.S.C. § 9003 (1976).2 This position was clarified, however, at oral argument, when the Commission expressly reserved the question whether the Commission might examine into “overt acts” which indicated a candidate’s intention to defy the eligibility requirements for public funding. But if there are any circumstances under which such an investigation might be appropriate, then in all cases available materials in which eligibility is challenged must at least *144be examined to determine whether those circumstances exist. The Commission’s position would make little sense unless it were also obliged to examine available materials to determine whether they establish overt acts.

That the Commission has authority in determining eligibility for funding to venture outside the documents submitted expressly in support of the candidate’s eligibility is buttressed by this court’s decision in Committee to Elect Lyndon LaRouche v. FEC, 613 F.2d 834 (D.C. Cir. 1979), cert. denied, 444 U.S. 1074, 100 S.Ct. 1019, 62 L.Ed.2d 755 (1980), interpreting the Presidential Primary Matching Payment Account Act, 26 U.S.C. §§ 9031-9042 (1976). In that case the statute was interpreted to permit a pre-certification ' investigation when the “threshold submission (or the submission together with other reports on file with the Commission) contains patent irregularities suggesting the possibility of fraud,” id. at 842 n.14 (emphasis supplied).

The obligation to examine extrinsic materials which I believe the Act imposes is a limited one. As applied to the facts presented by the parties in this case, the FEC would be required merely to examine the face of the administrative complaint and its accompanying materials to determine whether an investigation should be undertaken before an eligibility determination is made. In this or other cases the thoroughness of the required examination would vary with the amount of time available. Thus, if a long complaint with hundreds of exhibits were filed hours before a certification of eligibility would otherwise be expected, see 26 U.S.C. § 9005 (1976), only a cursory examination would be required. In any case where such an examination were undertaken the record of the certification should reflect this fact and if a decision were made not to conduct a precertification investigation, a very brief statement of the reasons for this decision should be included.

I do not think these limited administrative obligations or judicial review of the certification in light of these obligations would unduly interfere with the Commission’s primary jurisdiction over administrative complaints under 2 U.S.C. § 437g or with its exclusive jurisdiction over civil enforcement- of the Fund Act under 2 U.S.C. § 437c(b)(l), or that they would thwart the intent of the enforcement mechanisms provided by these sections. To suggest that because of the doctrines of primary or exclusive jurisdiction the court may not inquire into the Commission’s examination of the face of an administrative complaint and its accompanying materials before certifying a candidate’s eligibility would to my mind be putting the cart before the horse.

Although Congress clearly intended that the Commission have primary and exclusive jurisdiction over the administrative complaint mechanism and over other investigations conducted under 2 U.S.C. § 437g,3 Congress also provided, in an earlier-enacted section of the Fund Act, 26 U.S.C. § 9011(a) (1976), for judicial review of FEC certifications. The possibility that a certification or refusal to certify would be chal*145lenged in this court on the basis of facts which are still the subject of an administrative complaint is thus implicit in the statutes.

If we would not rule out the possibility that a pre-certification investigation of extrinsic materials might ever be warranted, we surely should not preclude examination or investigation of such materials merely because they are the stuff of an administrative complaint. Without a clear statutory directive to do so, neither the Commission not this court should deliberately blind itself to materials available to the agency which address the candidate’s eligibility for public funding. That directive is lacking in this case.

First, of course, the doctrine of primary jurisdiction “governs only the question whether court or agency will initially decide a particular issue, not the question whether court or agency will finally decide the issue.” 4 Imposing an obligation of the Commission to determine initially whether the allegations of an administrative complaint warrant further investigation before certifying could not, therefore, violate the doctrine of primary jurisdiction. Second, insofar as a petition addresses the propriety of the Commission’s certification, application of any exhaustion doctrine is wholly inappropriate in light of the Fund Act’s provision for judicial review of certifications, 26 U.S.C. § 9011(a) (1976). Third, I do not think the imposition of this obligation, either through the kind of examination required to be undertaken or the type of record necessarily created in either forum will prejudge the question ultimately to be resolved through investigation of the administrative complaint and in this manner interfere with enforcement under section 437g or with 437c’s grant of “exclusive” jurisdiction with regard to the civil enforcement of the Fund Act, which Act of course, provides for judicial review of “any certification, determination, or other action by the Commission . .. pursuant to the provisions of this [Act].” 26 U.S.C. § 9011(a). Finally, I do not think that these limited obligations would frustrate the intent of section 437g’s confidentiality provision, 2 U.S.C. § 437g(12) (1976), whose express protection extends by statute to a “notification or investigation made under this section.”

When, as in this case, the record of decision transmitted by an administrative agency does not clearly indicate that consideration was given to relevant factors, the usual disposition is to remand the record for supplementation; but because of the strong public interest in prompt resolution of this matter, I believe this court would be warranted in conducting an independent examination to determine whether consideration of the relevant factors would, have obliged the agency to reach a different conclusion.5 Cf. LaRouche, 613 F.2d at 847. I thus reach the question of the circumstances under which the Commission’s certification, in the face of an administrative complaint charging violations of the Fund Act’s eligibility *146requirements, can be considered “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”6

2. Pre-Certification Investigations.

In my judgment a decision to certify without first investigating could be overturned on the merits by this court only when the materials available to the Commission present on their face an extremely clear and very substantial case of fraud or fraudulent intent.7

For the statement of this standard I rely on the one hand on a reading of the statute and of this court’s decision in LaRouche that would not preclude examination into a candidate’s state of mind with respect to the eligibility requirements for public funding and on the other hand on the obvious policy considerations underlying the statute which militate against the delay in certification which an investigation may entail.

As already noted, the Fund Act authorizes the Commission “to conduct ... such investigations ... as it deems necessary to carry out [its] functions and duties [under the Fund Act].” 26 U.S.C. § 9009(b) (1976). One of those duties is, of course, the determination of eligibility for public funding. Id. § 9005. Because the Fund Act’s eligibility requirements, 26 U.S.C. § 9003 (1976), look largely to the future and depend on their face on the candidate’s intention to abide by the Fund Act’s limitations and record-keeping requirements, a challenge to a candidate’s eligibility under this section would almost inevitably raise questions of a candidate’s state of mind. Inquiring into a candidate’s knowledge and intent is at best a distasteful prospect. But to hold that for this reason the Commission may never conduct an investigation before certifying under section 9005 would threaten to make a mockery of the Fund Act. If there were no circumstances under which a pre-certification investigation were permissible the public could conceivably witness the spectacle of millions of taxpayer dollars being channelled to a candidate who had, before certification, either flouted the eligibility requirements or stated his intention to defy the restrictions imposed by the Fund Act on publicly financed candidates. No reasonable interpretation of the Fund Act requires the statement of such a rule and the FEC, understandably, does not press such an interpretation upon us.

It is true that this court in LaRouche expressed a preference for the application of objective standards in determining eligibility, 613 F.2d at 844, rejecting a subjective focus, which as argued to the court, appeared both unduly restrictive of the FEC’s role in ensuring funding for only eligible candidates and, paradoxically, overly vague, providing only inexact standards, id., which would not have sufficiently circumscribed the FEC’s discretion or have permitted meaningful judicial review, id., and which raised the spectre of “lengthy investigations into what a candidate knew, or should have known, about his campaign contributions at the time he applied for ... funds.” Id. However, the question whether the Commission could have conducted a pre-certification investigation if the candidate had met all the “objective” criteria for eligibility stated by that panel was a question not posed by the court’s analysis of the facts in LaRouche. Accordingly, I do not read LaRouche to have completely ruled out a precertification investigation when submitted materials suggest on their face that the candidate intends to violate or has knowingly violated the eligibility requirements for public funding.

This is not to suggest that the public interest in prompt certification of major-*147party candidates is not great. One would scarcely contest the importance of preventing the Commission’s administrative complaint procedures from becoming a tool for the partisan obstruction of legitimate campaign activities. One of the underlying purposes of public funding-to permit the candidate to avoid a diversion of energy from important campaign issues to the raising of funds 8-would be frustrated if the candidate were left for more than a brief period on tenterhooks while an administrative investigation progressed.

For this reason, if the lengthy enforcement mechanism provided by section 437g were the only investigatory option available to the Commission, the strong policy considerations in favor of prompt certification would perhaps require a conclusion that certification must proceed even in the face of clear and substantial allegations of fraud or fraudulent intent. But, as explained below, I do not think the FEC is tied under the Fund Act to the administrative investigation authorized by section 437g. Because the Fund Act independently authorizes investigations, there is room in the statute for a very brief investigation of the charges before a certification is made.

Having thoroughly reviewed the petitioners’ administrative complaint and its accompanying materials, I conclude that the standard which must be met before the Commission’s certification can be overturned on the merits was not met in this case. The complaint raises difficult and unresolved legal questions9 and alleges many “facts” of questionable materiality, given the uncertainty of the law. Taken either as a whole or piecemeal, however, the complaint does not present an extremely clear and very substantial case of fraud or fraudulent intent and for this reason the Commission’s decision can be affirmed.

3. The Relationship of Fund Act Investigations to 2 U.S.C. § 437g.

Although the Commission may conduct an investigation of Fund Act violations pursuant to an administrative complaint or on its own initiative under 2 U.S.C. § 437g, I find no indication in the legislative'history of this provision that section 437g was intended to be the exclusive route for Fund Act investigations.10 At the time section 437g was first enacted, the Fund Act was also amended to substitute the newly created Federal Election Commission for the Comptroller General as the party responsible for administering that Act,11 but the authority to conduct “investigations”-already conferred by section 9009 of the Fund Act-was retained without change. In the absence of any express indication to the contrary I must conclude that investigations under section 9009 are not subject to the elaborate statutory machinery and strict statutory timetable of section 437g.12

*1484. Conclusion.

In considering eligibility for public funding in this case the Commission should have examined the administrative complaint and its accompanying materials, but such an examination would not have required the Commission to delay certification pending an investigation. I therefore join in affirming the Commission’s certification.

. For the same reason I would dismiss the petition for a writ of mandamus or prohibition, which I view as addressing the Commission’s obligations with respect to the administrative complaint only insofar as they bear on the FEC’s determination of initial eligibility for public funding. See note 3, infra.

. Responding to a letter from counsel to the petitioners, the FEC’s general counsel stated:

The Commission, as it has previously notified you, will not resolve the many factual and other issues alleged in your complaint prior to determining whether it will certify Mr. Reagan and Mr. Bush. The commission considers that its role under the Presidential Election Campaign Fund Act with regard to the certification of eligibility of candidates to receive public funds for the general election is mandatory if the statements and certifications submitted by applicant candidates meet the requirements of 26 U.S.C. § 9003.

Letter from Charles N. Steele, FEC General Counsel to Thomas D. Barr, counsel for Carter-Mondale Reelection Committee (Jul. 22, 1980), Petitioners’ Appendix B, Tab 9.

. See H.R. Rep. No. 917, 94th Cong., 2d Sess. 4 (1976), reprinted in FEC, Legislative History of Federal Election Campaign Amendments of 1976, at 797, 804 (1977); H.R. Rep. No. 1438, 93d Cong., 2d Sess. 94 (1974), reprinted in FEC, Legislative History of Federal Election Campaign Amendments of 1974, at 945, 1038 (1977). However, to state that the FEC has primary jurisdiction over administrative complaints and exclusive jurisdiction over the civil enforcement of the Fund Act does not and cannot answer the question-over which we have specific jurisdiction under 26 U.S.C. § 9011(a)-whether a given certification is proper. Once certification has occurred, neither a petition for review under section 9011(a) nor an application for an extraordinary writ addressed to the Commission’s certification is properly dismissed on the grounds of the agency’s primary or exclusive jurisdiction, although a determination of the propriety of the certification or of the need for extraordinary relief and consideration of the remedies available in this context may well be informed by those doctrines. See text following this note. I therefore do not join in the majority’s dismissal of these petitions on the ground of the agency’s primary or exclusive jurisdiction. It is true, of course, that the petitions in this case were actually filed before the Commission’s certification, but I do not read the majority’s conclusion that the petitions are premature to rest on this ground.

. 3 K. Davis, Administrative Law Treatise § 19.01 at 3 (1958).

. Nothing in the record indicates that the Commission would have withheld certification pending an investigation if it had expressly considered the allegations of the administrative complaint in determining eligibility for funding. That Commission members were at least aware of the administrative complaint and of the filing of the petitions now before us is clear. Letter from Charles N. Steele, FEC General Counsel, to Thomas D. Barr, counsel for Carter-Mondale Reelection Committee (Jul. 9, 1980), Petitioners’ Appendix B, Tab 3 (Commission voted to deny complainant’s request for expedited investigation but also voted to institute district court action under section 9011(b) (see note 12, infra)); Partial Transcript of the Proceedings of the Federal Election Commission, Regular Meeting, Thursday, July 24, 1980, Respondent’s Appendix 62a, 64a-66a (indicating awareness of pending petitions). To the extent the Commission’s position in this court can be imputed to the Commission acting in its eligibility determination capacity, the indications are that the Commission, had it expressly considered the complaint and its materials, would have determined not to conduct an investigation before certifying. Counsel for the Commission, reserving the question whether overt acts might warrant a pre-certification investigation, here argued that the administrative complaint and its accompanying materials do not present the kind of circumstances under which such an investigation would have been justified.

. 5 U.S.C. § 706(2)(A) (1976). See 117 Cong. Rec. 41936 (1971) (remarks of Sen. Pastore) (suggesting arbitrary or capricious standard). Cf. LaRouche, 613 F.2d at 845-46.

. At oral arguments petitioners conceded that given the public interest in prompt certification the Commission may properly exercise its discretion to certify even in the face of a “substantial” administrative complaint, suggesting that the standard applicable to a Commission determination in such circumstances would be “the same standard perhaps as this court can apply when it considers whether to grant a temporary restraining order.”

. S.Rep. No. 689, 93d Cong., 2d Sess. 6 (1974), reprinted in FEC, Legislative History of Federal Election Campaign Act Amendments of 1974 at 93, 102 (1977).

. For example, the extent to which the Federal Election Campaign Act’s contribution attribution provisions, see, e. g., 2 U.S.C. § 441a(7),(8) (1976), or criteria for determining “independent expenditures,” see 2 U.S.C. § 431(17) (1976), apply to the determination of “contributions” for purposes of eligibility for public funding, 26 U.S.C. § 9003(b)(2) (1976), is unclear. At oral argument counsel for the petitioners stated that the question “whether the contribution provision of the FECA applie[s] to the certification provision of the Fund Act” is “a terribly important and interesting question, going to the heart of our allegation and our complaint.”

. As intervenors here have noted there is much legislative history indicating both that the FEC has primary jurisdiction under section 437g and that the Commission is the exclusive agency in which civil enforcement responsibility resides, Brief for Intervenors at 33-35 & n.26; but, especially in view of the Fund Act’s provision for administrative investigations, 26 U.S.C. § 9009(b) (1976), neither the grant of primary jurisdiction nor the conferral of exclusive jurisdiction mandates the agency’s use of a single, cumbersome administrative mechanism in carrying out all the responsibilities with which it is charged under that Act.

. Federal Election Campaign Act Amendments of 1974, Pub.L.No. 93-143, § 404(c)(13), 88 Stat. 1263, 1293 (1974).

. Indeed, these two investigatory options may not appear to exhaust the panoply of methods available to the Commission to fulfill its obligations under the Fund Act. It is a matter of *148public record that the Commission has in fact already employed another weapon in its enforcement arsenal by bringing in the district court here an action for declaratory relief asserting that the activities of three groups organized to promote the Reagan presidency-groups which were also named as respondents in the petitioners’ administrative complaint-will violate 26 U.S.C. § 9012(f)(1) (1976) (prohibiting unauthorized expenditures of more than $1000 on behalf of a publicly funded candidate). FEC v. Americans for Change, Civ. No. 80-1754 (D.D.C., filed Jul. 14, 1980). By order issued August 28, 1980 (with opinion to follow) the three-judge court convened in that case has resolved cross-motions for summary judgment in favor of the defendant groups. Id. (Aug. 28, 1980). The order does not indicate on what basis summary judgment was granted and as of this writing the three-judge court has not issued its opinion. At the very least, however, the bringing of the action illustrates the Commission’s view that the administrative complaint mechanism is not the sole route to enforcement of the Fund Act.