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June 30, 1980

STEWART RAWLINGS MOTT, et al., Plaintiffs,

The opinion of the court was delivered by: PARKER


Barrington D. Parker, District Judge:

Plaintiffs Stewart Mott, Patricia Stahlman, and the National Conservative Political Action Committee (NCPAC) has brought this suit for declaratory and injunctive relief against the Federal Election Commission (FEC) and its members.They allege that certain provisions of the Federal Election Campaign Act of 1971, as amended, (FECA), FEC regulations, and FEC advisory opinions and opinions letters are, unconstitutionally overbroad and vague both on their face and as applied because they interfere with plaintiffs' ability to make certain contributions and independent expenditures. *fn1" / Defendants have moved to dismiss on the grounds that some of the claims are not ripe for adjudication while others fail to state a claim upon which relief can be granted. *fn2" / Common Cause, appearing as amicus curiae, *fn3" / has also filed a brief urging dismissal. After weighing the arguments presented by the parties and amicus, the Court concludes that the complaint should be dismissed.


 Plaintiffs' claims flow from two types of contemplated activity. First, plaintiff Mott states that he wishes "to join with other like-minded individuals in purchasing... advertising space" in the New York Times "in order to publicize his views," but that he fears the FEC will consider this joint endeavor to be a "political committee" under FECA and require it to register as such. In addition, Mott Claims that the FEC will apply the amount spent in the joint purchase against the various dollar limits FECA imposes on contributions to political committees by an individual.

 Plaintiff Stahlman alleges that she wishes to contribute more than the section 441a(a)(1)(C) limit of $5000 to NCPAC to enable that organization to make independent expenditures. She claims she has not done so because the FEC will interpret this to be a contribution in excess of the statutory limits, even though it is "earmarked for the purpose of NCPAC's making of independent expenditures"--the type of expenditure which under Buckley v. Valeo, 424 U.S. 1 (1976), cannot constitutionally be limited. In addition, Stahlman objects that these contributions to NCPAC would be counted against the $25,000 annual limit on contributions in section 441a(a)(3). Mott expresses a similar desire to contribute to a "single-issue" organization, but specifies neither the amount nor the recipient of his contemplated donation. Plaintiffs charge that the FECA provisions and FEC regulations proscribing these activities are unconstitutionally vague and overbroad, both as applied to these plaintiffs, and on their face, and ask that these challenges be certified to the en banc Court of Appeals pursuant to 2 U.S.C. ยง 437h. *fn4"


 Despite the mandatory phrasing of the certification provision, district courts presented with complaints brought under section 437h need not automatically certify every constitutional question raised to the en banc court of appeals. See Martin Tractor Company v. FEC, No. 78-2080, National Chamber Alliance for Politics v. FEC, No. 79-1027 (D.C. Cir. May 8, 1980) (consolidated appeals hereinafter referred to as Martin Tractor) (unripe constitutional questions may be dismissed and need not be certified); Gifford v. Congress, 452 F. Supp. 802, 806 (E.D.Cal. 1978) (frivolous constitutional questions may be dismissed without certification). The district court's role in a 437h case has been compared to that of a single judge presented with a motion to seek the convening of a three judge court to hear constitutional challenges. See Clark v. Valeo, 559 F.2d 642, 645-46 (D.C. Cir.) (en banc), aff'd 431 U.S. 950 (1977). Under the three judge court statutes, a single judge could dismiss constitutional claims which had already been decided, without convening the special panel. Bailey v. Patterson, 369 U.S. 31, 33 (1962).

 At least one district court has believed that a complaint must state "substantial" constitutional questions in order to invoke the certification process. The first court to be presented with a section 437h request observed that the case should be expedited "provided only that a substantial constitutional question is raised by a complaint and that complaint is filed by a party having standing to lodge it." Buckley v. Valeo, 387 F. Supp. 135, 138 (D.D.C.) remanded, 519 F.2d 817 (D.C. Cir. 1975) (en banc). In remanding the Court of Appeals did not disturb the district court's express finding that "the plaintiffs raise substantial constitutional questions." 387 F. Supp. at 138. The Court of Appeals directed only that the district court specifically identify the questions presented and take whatever evidence was necessary to make findings of fact to augment the record before certifying the identified questions. 519 F.2d at 818.

 Judicial interpretation of the section 437h procedure thus suggests that this court may initially review a complaint to determine if it presents a ripe and substantial constitutional controversy before certifying questions to the en banc court of appeals. *fn5"

 The legislative history of the certification provision is not at odds with this interpretation. Section 437h was inserted into the Federal Election Campaign Act by an amendment offered by Senator Buckley to the Federal Election Campaign Act Amendments of 1974.

 Senator Buckley believed major portions of the 1974 legislation to be unconstitutional. See 120 Cong. Rec. 10557-62 (1974).Although unsuccessful in his efforts to have the offending provisions dropped from the bill, he managed to persuade his colleagues to include the expedited review procedure now embodied in section 437h. In explaining the purpose of his amendment he stated:

 It merely provides for the expeditious review of the constitutional questions I have raised. I am sure we will all agree that if, in fact, there is a serious question as to the constitutionality of this legislation, it is in the interest of everyone to have the question determined by the Supreme Court at the earliest possible time.

 120 Cong. Rec. 10562. The amendment was accepted without debate and without prejudice. Id. at 10563. Arguably, Senator Buckley was concerned only with the expedited review of the sweeping changes contained in the 1974 Amendments. *fn6" / In any event, it is apparent that he felt that the expedited procedure should be available only where a "serious" constitutional question was presented. Presumably other claims were to be screened out and dismissed by the district court. See Gifford, 452 F. Supp. at 807, 810. *fn7 ...

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