Opinion
No. 75-1061.
April 23, 1976.
Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKINNON and WILKEY, Circuit Judges.
ORDER
Upon consideration of plaintiffs' motion for amendment of judgment and remand to the District Court, the response of the Federal Election Commission thereto, and the response of the Attorney General of the United States thereto; and after consideration of the lengthy opinion of the Supreme Court of the United States in this matter, Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), it is
ORDERED by the court en banc that plaintiffs' motion be granted to the extent indicated below.
The order of this court answering the constitutional questions certified by the District Court entered on August 15, 1975, as amended, and appearing as Appendix A to this court's opinion of that date, 171 U.S.App.D.C. 172, 519 F.2d 821, 898-901, is hereby further modified as follows:
In the answer to Certified Question 2, delete all after the word "YES."
In the answer to Certified Question 3(a), strike "NO" and insert "YES" in lieu thereof.
In the answer to Certified Question 3(d), strike "NO" and insert "YES" in lieu thereof.
In the answer to Certified Questions 3(e) and 3(f), add after the word "NO" the phrase ", as to the Fifth Amendment challenge advanced by plaintiffs."
In the answer to Certified Question 4(a), strike "NO" and insert "YES" in lieu thereof.
In the answer to Certified Question 7(a), strike "UNRIPE FOR RESOLUTION" and insert "NO" in lieu thereof.
In the answer to Certified Question 8(a), strike "NO" and insert in lieu thereof "With respect to the powers referred to in Questions 8(b)-8(f), the method of appointment violates Art. II, § 2, cl. 2 of the Constitution."
Strike the answers to Certified Questions 8(b)-8(f), and insert in lieu thereof at the foot of Question 8(f) "The Federal Election Commission as presently constituted may not under Art. II, § 2, cl. 2 of the Constitution exercise the powers referred to in Questions 8(b)-8(f)."
Further, this court, obedient to the decision of the Supreme Court, follows in toto footnote 178 to that Court's per curiam opinion, which states: "We have not set forth specific answers to some of the certified questions. Question 9, dealing with alleged vagueness in several provisions, 519 F.2d at 901, is resolved in the opinion to the extent urged by the parties. We need not respond to questions 3(g), 3(i), 4(b), and 7(f), 519 F.2d at 899-900, to resolve the issues presented." Enforcement necessitates further modification of the order of August 15, 1975 as follows:
In the answer to Certified Question 9, delete all after "YES as to 2 U.S.C. § 437a" and insert in lieu thereof ". See note below."
Insert beneath a line drawn below the answer to Certified Question 9 "NOTE: On remand from the Supreme Court of the United States this court declines to set forth specific answers to some of the certified questions. The branches of Certified Question 9 other than the voidness of 2 U.S.C. § 437a (which was not appealed) are answered in the opinion of the Supreme Court to the extent urged by the parties. The Court also said, `We need not respond to questions 3(g), 3(i), 4(b), and 7(f), * * * to resolve the issues presented.'"
Strike the answers to Certified Questions 3(g), 3(i), 4(b), and 7(f), and insert in lieu thereof "See note below answer to Certified Question 9."
The branch of plaintiffs' motion requesting remand to the United States District Court for the District of Columbia with instructions to enter a declaratory judgment adopting the answers to the certified questions given by this court as conformed to the opinion of the Supreme Court, and to retain jurisdiction to provide further relief as needed, is denied.