with whom GARZA, TATE and THOMAS A. CLARK, Circuit Judges, join, dissenting:
It seems obvious that Congress did not intend to authorize or empower THE FEDERAL ELECTION COMMISSION to regulate or investigate state elections. As to elections per se, the very name of the Commission delineates the scope of its jurisdiction. The Act names no offices except elective federal offices. Except for enforcing applicable federal constitutional amendments governing the franchise, Congress may not usurp the regulation and supervision of state elections. That would be a blatant rupture of the federal system ordained by the Constitution.
The Commission offers no claim to the contrary. It says that it is only investigating what may have been illegal loans by national banks for the purpose of influencing the outcome of an election.
Here, the election took place in 1974. The statute was not then in effect. Some of it became effective on January 1, 1975 and other parts were not enacted until 1976. Prior to January 1, 1975 there was no authority for civil enforcement of the prohibition against loans of the type here in question, Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 2086, 45 L.Ed.2d 26 (1975).
The statute, non-existent in 1974, subjects Lance to a “civil” penalty of from $5,000 to $600,000, depending on the existence or non-existence of wilfulness. The majority opinion says that the ex post facto features of this situation are not ripe for adjudication because the Commission might not seek such a fine. This reads the ex post facto prohibition too restrictively. I believe that the prohibition applies to the hazard as well as the fact. I cannot agree that one may be made to run the gauntlet on the argument that, after all, he may not get hurt.
The simply stated, easily understood, demand of Article I, section 9, clause 3 of the Constitution is that Congress may not alter the existing situation of an individual to his disadvantage, Thompson v. Utah, 170 U.S. 343, 18 S.Ct. 620, 42 L.Ed. 1061 (1898); Burgess v. Salmon, 97 U.S. 381, 24 L.Ed. 1104 (1878).
In any event, to subject a person to a deposition and the production of documents while he is kept in the dark as to what the government is actually driving at in the way of consequences would be, I think, an impermissible denial of due process.
Taking judicial notice of the records of the U. S. District Court for the Northern District of Georgia, in this Circuit, and the applicable statutes of limitations in federal criminal prosecutions, we need not close our eyes to the known fact that criminal prosecution is no longer a possibility in this case. The only hope of punishing Lance and his associates in this matter, or otherwise putting them to a disadvantage by the necessity for employing attorneys, etc., is to use the procedure which the Commission now seeks to invoke and which it would have this Court to enforce.
I see no point in abstractions or a lot of judicial dancing around. Going straight to the point, I would hold that Lance may not now be required to respond to these subpoenas. I would certainly extend the denial to anything which took place after election day, August 13, 1974, because it would not have been done for the purpose of influencing the election, which is the sine qua non of the legislation.
The majority opinion concedes that the matter in question has been exhaustively investigated by other agencies of the Government-not once but twice. There is no suggestion that the product of these investigations is unavailable to the Federal Election Commission. Therefore, I would deny enforcement on the additional ground that the subpoena amounts to nothing more than unnecessary harassment.
My view of the case, if correct, makes it unnecessary to reach or decide the constitutionality of the Act as to conduct taking place after its effective date.
I respectfully dissent.