THE FEDERAL ELECTION COMMISSION 1325 K Street NW., Washington, D.C. 20463 Volume 7, Number 9 Septem ber 1981 ADVISORY OPINION REQUESTS FEC v, T. BERTRAM LANCE Advisory Opinion Requests (AORs) pose questions on On July 2, 1981, citing a lack of appellate jurisdiction, the application of the Act or Commission Regulations to the Supreme Court dismissed an appeal brought by T. specific factual situations described in the AOR. The Bertram Lance from the U.S. Court of Appeals for the following chart lists recent AORs with a brief description of Fifth Circuit, construed Lance's papers as a petition for a the subject matter, the date the requests were made public writ of certiorari and declined to hear the case. In FEe and the num ber of pages of each request. The full text of v. T. Bertram Lance (Civil Action No. 78·1859), the appeals each AOR Is available to the public in the Commission's court had affirmed an earlier decision by the U.S. District Office of Public Records. Court for the Northern District of Georgia, which ordered enforcement of a deposition the FEC had issued to Mr. AOR Subject Date Made No. of Lance. Motions by the appellant to stay the appeals court's Public Pages decision had been denied by the appeals court on February 19, 1981, and by the Supreme Court on March 11, 1981, 1981-31 Property made available 8/3/81 to ca ndi date for use FEC's Claim in fundraising raffle. The FEC had issued the subpoena to Mr, Lance as part 1981-32 Testing the waters for a 8/3/81 4 of an investigation into Mr, Lance's 1974 gubernatorial 1984 Presidential candidacy. campaign in Georgia, which involved possible violations of 2 U.S.C. §441b (formerly §610 of the Federal Corrupt 1981-33 Fundraising items donated 8/3/81 5 Practices Act). This provision prohibits national banks by federal savings and loan association to local from making - or candidates from accepting - contribu­ political clubs. tions in connection with any election to any political office. * The Commission's investigation began in Septem­ 1981·34 Funds transferred from 8/6/81 5 ber 1977. association's special legislative account to its separate segregated fund. District Court Ruling The district court ordered Mr. Lance to comply with 1981·35 Committee formed by 8/10/81 the subpoena. The court reasoned that the subpoena was California Con gressmen well within the Commission's "broad and inclusive" statu­ solely to influence Congres- sional reapportionment. tory authority to investigate violations of the Federal Election Campaign Act (the Act). Appeals Court: Panel A panel of the appeals court rejected the arguments made by Mr. Lance for quashing the subpoena and affirmed the district court order enforcing the subpoena. Specifi­ continued • Under the Act. a loan from a national bank becomes a prohibi­ ted contribution if it is not made according to applicable bank­ ing laws and in the ordinary course of business. 2 U,S.C. §431 • (8HBHviil. callv, Mr. Lance claimed that the FEC was investigating Appeals Court: En Bane matters outside its jurisdiction. He contended that both On January 16, 1981, the appeals court, sitting en bane, the Constitution and the Act barred any FEC investigation issued an opinion that adopted the earlier panel decision, of contributions made by national banks to his 1974 affirmed the district court's subpoena enforcement order campaign. The panel responded to this claim by affirming and rejected a claim, presented by Mr. Lance in his appeal, the FEC's argument that it was " ...specifically given that §441 b was unconstitutional on its face. The appeals authority over this provision." (P.L. 93-433, 88 Stat. 1281 court adopted three of the arguments given by the appeals (October 15, 1974).) "Moreover, the Supreme Court held court panel, but rejected the ex post facto argument, that any party seeking enforcement of §610 (now §441b) stating that it was not ripe for adjudication. The court after January 1, 1975, must seek redress with the Comm is­ concluded that the prohibition on unsound banki ng prac­ slon." Cort v. Ash, 422 U.S. 66(1974l. tices (extensions of credit to a campaign that are outside the ordinary course of business) did not violate the First Mr. Lance further claimed that the subpoena violated the Amendment because the transactions in question involved equal protection and ex post facto provisions of the "no speech elements at all," The bank drafts were trans­ Constitution by attempting to apply §441b to campaign acted privately and were " ...not the sort of public express­ activities that occurred before the enactment of the FECft ion or support for Lance and his views that would make in 1975. The panel, on the other hand, affirmed the FEC's them even 'symbolic speech:" argument that these provisions presented no impediment to the FEC's investigation: "The prohibition against the As to Mr. Lance's argument that §441 b was unconstitution­ making of campaign contributions by national banks has ally vague, the court noted, "The vagueness doctrine been in effect since 1907. Tillman Act, 34 Stat. 864. The has been developed in the context of, and it is applicable mere recodification of 18 U.S.C. §610 as 2 U.S.C. §441b to, penal statutes." The court concluded that the vagueness cannot absolve the respondent ...from liability for substan­ issue was not ripe for adjudication because the court was tive violations which were not changed by the incorporation " ...unwilling to assume that the present investigation of of §441 b into Title 2." Lance will result in his criminal prosecution." As to the defendant's claim that the statute of limitations The court also rejected Mr. Lance's claim that §441b barred the investigation, the panel found that there was no abridged Fifth Amendment rights by imposing greater statute of limitations applicable to a civil proceeding restrictions on national banks in connection with elections undertaken to enforce the Act. 2 U.S.C. 5437g. The panel than on other entities. The court held that since ", , .the upheld the FEC's argument that the statute of limitations Banks' contributions contain no cognizable elements of applied only to criminal prosecutions. "Even assuming speech .. ,we think the statute must be upheld if there arguendo that the three year statute of limitations was is a rational relationship between the prohibition...and the applicable to a future civil action brought by the Commis­ purpose that proh ibition serves....Since we have no sion," the FEC argued, "the Commission has information difficulty in concluding that a proh lbition against banks suggesting that violations have occurred within the three engaging in unsound banking practices is rational, we reject years. Moreover, as noted, the existence of violations Lance's equal protection claim." outside the statutory period themselves provide reason to investigate to ascer tai n whether further violations occurred within the three year period." FEC v, PHILLIPS PUBLISHING, INC. On July 16, 1981, the U.S. District Court for the District Finally, the defendant contended that, since the FEC of Columbia denied an FEC petition for court enforcement already had information available to it from other govern­ of two subpoenas the Commission had issued to Phillips ment agencies, enforcement of the subpoena should be Publishing, tnc. (FEC v. Phillips Publishing, lnc., Civil denied on grounds of undue burden and harassment. The Action No. 81-0079). The court granted the respondent's panel rejected this claim, confirming the FEC's argument motion to enjoin any further FEC investigation of either that "the existence of prior investigations by other agencies Phillips Publishi ng, Inc. or its biweekly newsletter, The touching on similar issues does not preclude an agency from Pink Sheet on the Left (The Pink Sheer). investigating matters within its jurisdiction." FEC v. Texaco, 555 F. 2d at 878-79. The appeals court panel determined, FEC's Claim however, that the constitutional challenges asserted by Mr. The FEC had issued the subpoenas to the staff of Lance should be heard by the court sitting en bane. Phillips Publishing, Inc. as part of an investigation into a complaint filed by the Kennedy for President Committee on March 18, 1980. The Kennedy Committee claimed that continued The RECORD is published by the Federal Election Commission, 1325 K Street, N.W., Washington, D.C. 20463. Com­ missioners are: John Warren McGarry, Chairman,' Frank P. Reiche, Vice Chairman; Joan D. Aikens, Thomas E. Harris; Vernon W. Thomson; Robert O. Tiernan; William F. Hildenbrand, Secretary of the senate, Ex Officio; Edmund L. Henshaw, Jr., Clerk of tne House of Representatives, Ex Officio. For more information, call 202/523-4068 or toll-free 800/424·9530. • 2 the publishing company hap distributed a promotional INT ERNATIONAL ASSOCIATION mailing for The Pink Sheet that expressly advocated the OF MACHINISTS AND defeat of Senator Edward Kennedy (D·Mass.) in his bid for AEROSPACE WORKERS v. FEC the 1980 Presidential nomination. The Kennedy Committee On December 16, 1980, the U.S. District Cou rt for the alleged that, in making expenditures for the rnaili ng, the District of Columbia dismissed International Association of respondent had violated the following provisions of the Machinists and Aerospace Workers (lAM) v, FEC (Civil Act: Action No. 8Q.0354). The court's decision upheld an FEC determination dism issing an administrative complaint that §433, by fai ling to register <IS a political comm ittee; lAM and six other parties had filed with the Commission. §434(cl(l), by failing to report independent expendi· The court granted, however, plaintiffs' motion to have the tures for the mailing in excess of $250; court certify constitutional challenges raised in the suit to §435(b),· by failing to include a notice on the mailing an en bane appeals court, pursuant to 2 U .S.C.