Federal Election Comm'n v. NRA Political Victory Fund, 513 U.S. 88 (1994)

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100

FEDERAL ELECTION COMM'N v. NRA

POLITICAL VICTORY FUND Stevens, J., dissenting

Justice Stevens, dissenting.

The Federal Election Commission (FEC) "is an independent administrative agency vested with exclusive jurisdiction over civil enforcement of the [Federal Election Campaign] Act." Federal Election Comm'n v. National Right to Work Comm., 459 U. S. 197, 198, n. 2 (1982). Both the plain language of the governing statute, § 311(a)(6), 88 Stat. 1282, as amended, 2 U. S. C. § 437d(a)(6), and the unfortunate chapter in our history that gave rise to the creation of the FEC, demonstrate that the FEC's exclusive jurisdiction includes the authority to litigate in this Court without the prior approval of the Solicitor General.

Section 437d(a)(6) expressly provides that the FEC has the power "to initiate . . . , defend . . . or appeal any civil action in the name of the Commission to enforce the provisions of this Act and chapter 95 and chapter 96 of title 26, through its general counsel." It is undisputed that when the statute was enacted, the FEC had the authority to invoke our mandatory jurisdiction by filing an appeal under § 437h of the Federal Election Campaign Act of 1971.1 Although the term "appeal" may be construed literally to encompass only mandatory review, a far more natural reading of the term as it is used in § 437d(a)(6) would embrace all appellate litigation whether prosecuted by writ of certiorari, writ of mandamus, or notice of appeal. Indeed, 28 U. S. C. § 518(a) (1988 ed., Supp. V), the statute that gives the Attorney

1 Under the original statutory scheme, certain constitutional challenges were to be certified to a court of appeals sitting en banc, with "appeal directly to the Supreme Court." 2 U. S. C. § 437h (1976 ed. and Supp. III). See generally California Medical Assn. v. Federal Election Comm'n, 453 U. S. 182, 188-189 (1981). Thus, even under the majority's interpretation of the word "appeal," the FEC would have had independent litigating authority, at least when proceeding under § 437h. It is incongruous, to say the least, to assume that Congress wanted the FEC to have independent authority to invoke our mandatory jurisdiction when proceeding under § 437h, but not to have the authority to invoke our discretionary jurisdiction when proceeding under other sections of the same statute.

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