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POLITICAL VICTORY FUND Stevens, J., dissenting
437d(a)(6) reveal Congress' intent to give the FEC a more limited litigation authority under the latter statute.
The differences between §§ 437d(a)(6) and 9040(d) cannot support the weight that the majority wishes them to bear. The striking similarity between §§ 9010 and 9040 suggests that when Congress enacted § 9040, it did little more than copy the provisions of § 9010.6 No evidence whatsoever suggests that Congress considered the significance of the wording of those sections when it created § 437d(a)(6). The fact that the FEC's authority to file petitions for certiorari is expressed more explicitly in §§ 9010(d) and 9040(d) of Title 26 than in § 437d(a)(6) of Title 2 is thus not a sufficient reason for failing to give the latter provision its ordinary and well-accepted interpretation.7
Furthermore, the majority's reading of the statutes rests on the anomalous premise that Congress decided to give the FEC authority to litigate Fund Act cases in this Court while denying it similar authority in connection with its broader regulatory responsibilities under the FECA. The majority
6 As noted at n. 4, supra, §§ 9010(d) and 9040(d) are identical. The other provisions of those statutes, though not identical, are substantially similar. Compare, e. g., § 9010(b) ("The Commission is authorized through attorneys and counsel described in subsection (a) to appear in the district courts of the United States to seek recovery of any amounts determined to be payable to the Secretary of the Treasury as a result of examination and audit made pursuant to section 9007") with § 9040(b) ("The Commission is authorized, through attorneys and counsel described in subsection (a), to institute actions in the district courts of the United States to seek recovery of any amounts determined to be payable to the Secretary as a result of an examination and audit made pursuant to section 9038").
7 As an aside, I note that the majority's strict reading of §§ 9010(d) and 9040(d) creates its own oddities. For example, it seems to me that an open question under the Court's narrow reading of the statutes is whether the FEC has the right to file briefs in opposition to the certiorari petitions filed by its adversaries. Compare § 9010(d) (granting the FEC authority to "petition the Supreme Court for certiorari to review") with 28 CFR § 0.20 (1994) (delegating to the Solicitor General authority to file "petitions for and in opposition to certiorari") (emphasis added).
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