The opinion of the court was delivered by: GREENE
This case involves the question of the power of the President to make a recess appointment of a member of an independent regulatory commission to replace a commissioner whose statutory term has expired and who claims entitlement to hold over pending the qualification of his successor by Senate confirmation. The matter is one of first impression in the federal courts.
The Federal Election Commission is charged with implementing and administering the Federal Election Campaign Act, 2 U.S.C. § 431 et seq.
It is composed of the Secretary of the Senate and the Clerk of the House of Representatives, Ex officio and without the right to vote, and six members appointed by the President subject to Senate confirmation for six-year terms. As originally established by the Federal Election Campaign Act of 1971, as amended in 1974 (P.L. 93-443, § 310, 88 Stat. 1263, 1280), the members of the Commission, other than the Ex officio members, were appointed as follows: two members by the President, two members by the President Pro tempore of the Senate upon recommendation of the Senate majority and minority leaders, and two members by the Speaker of the House of Representatives, again upon recommendation of the respective majority and minority leaders. Each of the members was to be confirmed by a majority of both Houses of Congress. This scheme was held unconstitutional by the Supreme Court in Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976). Thereafter, the statute was amended to provide for the present method of appointment. P.L. 94-283, § 101(a), May 11, 1976, 90 Stat. 475, 476.
Plaintiff Neil Staebler
was nominated by President Ford on May 17, 1976, to be a member of the Commission for a term expiring on April 30, 1977.
Upon his confirmation by the Senate, he was sworn in, on May 21, 1976, as a member of the Commission. After his term expired, Staebler continued to serve on the Commission in accordance with the holdover provision (2 U.S.C. § 437c(a) (2)(B)) discussed in detail below. On September 27, 1977, President Carter, who is a defendant herein,
nominated John McGarry to fill Staebler's seat and to serve for a term expiring April 30, 1983. The nomination was referred to the Senate Committee on Rules and Administration, and hearings on McGarry's nomination were held in November and December of 1977. The Senate adjourned on December 15, 1977, and the nomination lapsed without confirmation.
After the Senate reconvened for its next session, the President, on April 10, 1978, again nominated McGarry to the same position. Questions were thereafter submitted by the Committee on Rules and Administration to McGarry and to the Counsel to the President concerning McGarry's personal finances, answers were provided, and hearings on the nomination were held in July and August, 1978. On September 13, 1978, the Committee by a vote of 7-2 favorably reported the nomination to the full Senate (see Exec. Rept. No. 28, 95th Cong., 2d Sess. (1978)), where it was calendared and taken up on the floor one month later, by a vote of 50-25. The Chairman of the Committee, Senator Claiborne Pell, announcing the Committee action, stated that he had found McGarry to have "the requisite statutory qualifications of maturity, experience, and impartiality to carry out his responsibilities on the Commission" (124 Cong.Rec. S19051 (daily ed. Oct. 13, 1978)). The matter was debated on two successive days near the end of the congressional session, and a number of Senators engaged in what may loosely be characterized as a filibuster.
On October 15, 1978, the Senate adjourned Sine die without voting on the nomination, which thereupon again automatically lapsed.
On October 25, 1978, while Congress was in recess, President Carter, relying upon his recess appointment powers under Article II, Section 2, Clause 3 of the Constitution,
appointed McGarry to the Staebler seat. The nominee was sworn in and received his certificate of appointment from the Secretary of State on the same day. The following day this action was filed to enjoin McGarry's appointment as exceeding the President's powers under the Recess Appointments Clause and as violating Staebler's statutory right to retain his seat on the Commission until a successor is nominated by the President and confirmed by the Senate. The matter is now before the Court on cross motions for summary judgment.
Except for such constitutional questions as may be involved (see pp. 593-601, Infra ), the issue before the Court is whether a vacancy existed on the Federal Election Commission when McGarry was appointed. Resolution of that issue, in turn, depends upon the construction to be given to the Federal Election Campaign Act, specifically 2 U.S.C. § 437c(a)(1) and (a)(2) which provide:
(a)(1) There is established a commission to be known as the Federal Election Commission. The Commission is composed of the Secretary of the Senate and the Clerk of the House of Representatives, ex officio and without the right to vote, and 6 members appointed by the President of the United States, by and with the advice and consent of the Senate. No more than 3 members of the Commission appointed under this paragraph may be affiliated with the same political party.
(2)(A) Members of the Commission shall serve for terms of 6 years, except that of the members first appointed
(i) two of the members, not affiliated with the same political party, shall be appointed for terms ending on April 30, 1977;
(ii) two of the members, not affiliated with the same political party, shall be appointed for terms ending on April 30, 1979; and
(iii) two of the members, not affiliated with the same political party, shall be appointed for terms ending on April 30, 1981.
(B) A member of the Commission may serve on the Commission after the expiration of his term until his successor has taken office as a member of the Commission.
(C) An individual appointed to fill a vacancy occurring other than by the expiration of a term of office shall be appointed only for the unexpired term of the member he succeeds.
(D) Any vacancy occurring in the membership of the Commission shall be filled in the same manner as in the case of the original appointment.
Plaintiff argues that these provisions entitle him to hold office as a member of the Commission until a successor has been nominated and confirmed by the Senate, while defendants contend that during the period when Congress is not in session a successor to Staebler may be appointed and may take office as a result of the exercise of the President's recess appointment powers. Both parties rely on the statutory language, legislative history, prior practice, state court decisions, and constitutional guides to construction. These matters will be examined Seriatim.
It might be observed initially that this argument contains elements of circularity. Plaintiff contends both that a vacancy on the Commission may be filled only by nomination and confirmation, and that no vacancy exists until a successor to a holdover commissioner has been nominated and confirmed. If that be a correct analysis, the creation of a vacancy and its extinction by the appointment of a successor always and inevitably occur at the same instant and by the same act (I. e., an affirmative vote on a nomination by the Senate). While in theory it is not impossible for the Congress to have devised this kind of a circular scheme, it certainly constitutes a somewhat implausible method for organizing governmental operations and for that reason should not be attributed to Congress in the absence of persuasive evidence that this is what was intended. One problem with the statute as so construed is that it would saddle the process of selecting officials with awkward and unnecessary tensions. On what basis, for example, would the President recruit an individual for an office and submit his nomination to the Senate at a time when, in theory, no vacancy yet exists? Moreover, not only would the dates when vacancies occur on the Commission be uncertain; so would the dates when the terms of office of future commissioners begin, for these terms would have to be adjusted constantly to take account of holdovers. Such uncertainties and ambiguities would at a minimum upset the carefully designed staggered six-year term plan embodied in clause (a)(2)(A). See note 40, Infra. In short, the interpretation proffered by plaintiff is burdened with the baggage of peculiar practical difficulties.
Substantively, plaintiff's argument rests on two principal premises: first, that a vacancy on the Federal Election Commission does not come into being when the statutory term
of a member comes to a close, but only when that person loses his right to that office at the expiration of the holdover term
by virtue of the lawful appointment of a successor; and second, that a successor may legally be appointed only through nomination by the President and confirmation by the Senate. In the Court's view, neither of these premises is supported by the statutory language.
In elaboration of his first premise, plaintiff argues that there cannot be a vacancy as long as someone is by law entitled to occupy an office, and that clause (a)(2)(B) provides him with such an entitlement, to be extinguished only by the lawful appointment of his successor. Critical to that analysis is the assumption that under the statute a vacancy comes into being only at the end of holdover terms created by clause (a)(2)(B), or, to put it another way, that "vacancy" relates to the status of the person occupying the office rather than to the statutory duration of the office itself. The difficulty with that assumption is that, to the extent that "vacancy" is defined in the statute, it is defined as occurring at the conclusion of the statutory six-year term of office, rather than as coming about by the termination of a clause (a)(2)(B) holdover entitlement.