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After the factual statement in that brief there is a general discussion on pages 23 to 39. Then it deals with the literacy and residency matters and finally it deals with voting age at pages 63 and 76. The general portion of that brief, our Arizona brief, and the final portion relating to age, are, in effect, our opening brief in this case.

Then the briefs filed by Oregon and Texas are, in effect, their answering briefs and the brief which we have filed for the defendant in this case is, in effect, our reply brief on the voting age. I have taken this time to explain that situation because I think it is a little confusing if one just picks up the papers.

Now, the chronology and the sides of the parties in the several cases and the varying issues made this, I think, inevitable.

There is another preliminary matter which I should lay before the Court before I proceed further. I appear in these cases for the defendant, John N. Mitchell, Attorney General of the United States. In the two following cases I appear for the plaintiff, the United States, and the matter about which I speak relates only to the voting age issue which was in all four cases. It does not relate at all to the literacy or residency matters which are involved only in the Arizona and Idaho cases, which will be heard after these cases are concluded.

The Voting Rights Amendment Act of 1970 originated in the House of Representatives simply as a proposal to extend the Voting Rights Act of 1965 which, by its terms, expired in 1970, and to add a provision making it, in effect, no longer as invidious as it had been, by extending the abolition of literacy requirements nationwide.

In the House provisions with respect to residency were added and before it was passed by the House it went to the Senate. In the Senate amendments were proposed to provide for 18 year olds voting; there was extensive consideration and debate in the Senate as to whether this should be done by Act of Congress, or whether it could be done by Act of Congress or whether it should be done by a Constitutional Amendment.

When it was pending before the Senate, officers of the Department of Justice appeared before the Congressional Committees. I may say there are three volumes of hearings with respect to this bill and one, the House hearings, deals only with the literacy and residency and then there are two volumes of Senate hearings before different subcommittees in the summer of 1969 and in February of 1970, where these matters were extensively considered. Deputy Attorney General Kleindienst appeared before one of the Senate Committees and presented the view of the President that the change should be made but that it should be done by constitutional amendment. And this appears at pages 78 to 80 of the Senate Committee Hearings for February 17, 1970.

And on March 10, 1970 Assistant Attorney General Rehnquist presented to the same committee a substantial statement against the constitutional validity of making the change by statute.

Now, this appears beginning at page 23 of the hearings and the Court will, of course, want to give consideration to these views.

Finally, when the legislation had been passed by Congress as a statutory provision and not a constitutional amendment and the President signed it on June 22, 1970, the President made a statement, of which I shall read the first two paragraphs. This is the President's statement:

"On Wednesday, Congress completed action on a bill extending and amending the Voting Rights Act of 1965, and sent it to me for signature. As passed the bill contained a rider which I believe to be unconstitutional: a provision lowering the voting age to 18 in Federal, State and local elections. Although I strongly favor the 18-year-old vote I believe, along with most of the nation's leading constitutional scholars, that Congress has no power to enact it by simple statute but rather requires a constitutional amendment.

"Despite my misgivings about the constitutionality of this one provision I have today signed the bill. I directed the Attorney General to cooperate fully

in expediting a swift court test of the constitutionality of the 18-year-old provision."

There is more in the statement, but that is the relevant portion. The Attorney General is the party defendant in the two cases now before the court. He signed the complaint for the United States in the two cases which are to follow, the Arizona and the Idaho cases. He has signed the briefs in all four cases. However, because of his relationship to the President, he felt that he should not present the argument in this case. So, I am here and I and my associates have endeavored to support the statutes as vigorously as we are able.

Exhibit 15

(Excerpts from Justice Department Motion to Dismiss in Buckley v. Valeo) United States District Court for the District of Columbia

(Civil Action No. 75-0001)

MOTION TO DISMISS

Defendants Francis R. Valeo, Secretary of the United States Senate; W. Pat Jennings, Clerk of the United States House of Representatives; and Elmer B. Staats, Comptroller General of the United States, as "supervisory officers" designated pursuant to the Federal Election Campaign Act of 1971 (P.L. 92-225, 86 Stat. 3, 2 U.S.C. §§ 431, et seq.), and William B. Saxbe, Attorney General of the United States, by their undersigned attorneys, hereby respectfully move the Court, pursuant to Rule 12 of the Federal Rules of Civil Procedure, to dismiss this action. The ground for this Motion is that the Court lacks jurisdiction over the subject matter of the action in that the issues presented are wholly premature and nonjusticable and an indispensable and necessary party cannot at this time be brought before the Court to participate in this litigation.

In support of this Motion, the Court is respectfully referred to the Points and Authorities filed herewith.

Respectfully submitted,

CARLA A. HILLS, Assistant Attorney General.

United States District Court for the District of Columbia

(Civil Action No. 75-0001)

POINTS AND AUTHORITIES IN SUPPORt of DefenDANTS' MOTION TO DISMISS AND IN OPPOSITION TO PLAINTIFFS' APPLICATION FOR A THREE-JUDGE COURT

STATEMENT

Plaintiffs in this action seek declaratory and injunctive relief regarding the constitutionality of the Federal Election Campaign Act of 1971 (P.L. 92-225, 86 Stat. 3, 2 U.S.C. §§ 431 et seq.) (hereinafter sometimes referred to as FECA), the Federal Election Campaign Act Amendments of 1974 (P.L. 93-443, 88 Stat. 1263) (sometimes hereinafter referred to as FECA Amendments); and Subtitle H of the Internal Revenue Code of 1954 (P.L. 92–178, 85 Stat. 562, 26 U.S.C. §§ 9001 et seq.) (hereinafter Subtitle H), as amended. After describing many of the statutes' terms in detail, the Complaint alleges that the provisions of FECA, the FECA Amendments, and Subtitle H infringe upon various constitutional rights. Plaintiffs generally attack (1) limitations on contributions to candidates for federal office, (2) limitations on expenditures by those candidates or by other persons on their behalf, (3) limitations

upon expenditures for presidential nominating conventions, (4) limitations upon expenditures by political party national committees, (5) public financing of presidential elections, (6) the establishment and functions of the Federal Election Commission, and (7) requirements concerning report and disclosure of certain contributions and receipts. Plaintiffs do not allege that the provisions which they challenge herein have been or are presently being applied to them, or that they are presently being subjected to the operation of the statutes in question.

Plaintiffs have filed with their Complaint an Application for a Three-Judge Court. Defendants Valeo, Jennings, Staats, and Saxbe oppose the convening of such a court, because the requirements of 28 U.S.C. §§ 2282, 2284 have not been met, and the Court lacks jurisdiction, in that the action is premature and in reality seeks an advisory opinion and a necessary and indispensable party cannot now participate in the litigation. Further, insofar as plaintiffs attack Titles I and III of the FECA as administered by the defendant supervisory officers, the constitutional challenges are insubstantial and without merit. Further, defendants Valeo, Jennings, Staats and Saxbe have moved to dismiss the action, due to the premature nature of the action and the lack of a necessary and indispensable party.

Not only are plaintiffs' allegations devoid of any factual basis upon which the asserted constitutional challenges may be predicated, but the Federal Election Commission-which is established by the Federal Election Campaign Act Amendments of 1974, supra, to administer and formulate policy regarding the statutes here in issue has by plaintiffs' own admission not yet been nominated or confirmed. Thus, an essential and indispensable party to this action, challenging the constitutionality of enactments under its administration and regulation, cannot now be brought before the Court. Also, no three-judge court is required, for the FECA Amendments provide that constitutional questions are to be resolved by the Court of Appeals en banc. As three-judge district courts are required only to enjoin statutes as unconstitutional, no such court is required prior to Court of Appeals resolution of the constitutional questions. Finally, insofar as plaintiffs may challenge the provisions of Titles I and III of the Federal Election Campaign Act of 1971 as administered by the defendant supervisory officers, it is clear that such constitutional questions are insubstantial and without merit. Therefore, this Court need not and should not request that a three-judge district court be convened in this action, but should dismiss the action.

ARGUMENT

*

B. The Federal Election Commission Is an Indispensable and Necessary Party to This Action, but Has Not Yet Been Confirmed and Therefore Cannot Participate in This Action

A further reason why this Court should not seek the convening of a threejudge district court is that the Federal Election Commission, a necessary and indispensable party to this action, cannot presently participate in this litigation. While the Commission is named a defendant, plaintiffs' Complaint also candidly admits (Complaint, para. 18) that the Federal Election Commission has not been constituted, nor have its members been confirmed."

As plaintiffs note, the Clerk of the House of Representatives and the Secretary of the Senate are ex officio members of the Commission. Section 310(a)(1) of FECA, as amended by Section 208 (a) of the FECA Amendments, provides that the Secretary and the Clerk are not working members of the Commission, nor do they administer the FECA Amendments until the Commission members have been confirmed, take office and appoint a general counsel and other staff members. Thus, defendants Valeo, Jennings and Staats appear herein solely as "supervisory officers" administering Titles I and III of the Federal Election Campaign Act of 1971 pursuant to Section 209 (b) of the FECA Amendments, and not as members or on behalf of the Federal Election Commission.

The Federal Election Commission (hereinafter Commission) was created by the FECA Amendments (Section 208 (a)), and invested by Congress with numerous powers and responsibilities regarding the administration of the statutes here in issue. Section 310(b) of FECA, as amended by Section 208 (a) of the FECA Amendments provides the following:

"The Commission shall administer, seek to obtain compliance with, and formulate policy with respect to this Act and sections 608, 610, 611, 613, 614, 615, 616, and 617 of Title 18, United States Code. The Commission has primary jurisdiction with respect to the civil enforcement of such provisions."

Section 311(a) enumerates the powers of the Commission, concluding the power to initiate, defend, or appeal any civil action in the name of the Commission for the purpose of enforcing the provisions of this Act, through its general counsel, to render advisory opinions under Section 313 (discussed supra), to formulate general policy regarding the FECA Amendments and sections 608, 610, 611, 613, 614, 615, 616, and 617 of Title 18 and to make rules and regulations to carry out the statutory provisions which it administers. The Commission is charged by Section 314 of FECA, as amended, with the enforcement of the statutes, including institution of civil actions against persons it believes has engaged or is about to engage in violations of the Act. Section 315 (a) of FECA is amended by the FECA Amendments also provides that "[t]he Commission . . . may institute such action . . . as may be appropriate to construe the constitutionality" of the FECA Amendments and 18 U.S.C. §§ 608, 610, 611, 613-617.

Thus, it can readily be seen that the Commission is an indispensable party to this action, and has many interests closely related to the subject matter of this suit. Adjudication of this action without the active participation of the Commission certainly may impair or impede its ability to protect and execute ts numerous responsibilities and interests. See Rule 19, Federal Rules of Civil Procedure; Hill & Range Songs, Inc. v. Fred Rose Music, Inc., 58 F.R.D. 185, 190 (S.D. N.Y. 1972); Jones v. Board of Education, 474 F.2d 1232, 1234 (6th Cir. 1973).

The Commission admittedly has not yet been confirmed and therefore cannot presently be a viable party to this action. Indeed, Section 208(b) of the FECA Amendments, effective on January 1, 1975, provide that the three supervisory officers "continue to carry out their responsibilities under Title I and Title III of the Federal Election Campaign Act of 1971 as such titles existed on the day before the date of enactment of this Act." (Emphasis added). Section 208(b) further provides that "[u]pon the appointment of all the members of the Commission and its general counsel, the Comptroller General, the Secretary of the Senate, and the Clerk of the House of Representatives shall meet with the Commission and arrange for the transfer, within thirty days after the date on which all such members of the general counsel are appointed, copies of all appropriate records, documents, memorandums, and other papers associated with carrying out the responsibilities under Title I and Title III of the Federal Elective Campaign Act of 1971 and Chapter 95 of the Internal Revenue Code of 1954." Thus, no three-judge court should be convened or this action continue in litigation until the Federal Election Commission is confirmed and able to fully participate as a party.

3 As defendants Valeo, Jennings, Staats, and Saxbe are not charged with the administration of the FECA Amendments or Subtitle H here in question, they take no position at this time regarding the merits of the constitutional questions presented regarding those statutes. Even plaintiffs' Complaint (paras. 13-15) notes that the supervisory officers' function is to "continue to enforce Title I and Title III of the FECA until the appointments and qualfication of all members and general counsel of the Federal Election Commission.

EXHIBIT 19

(Buckley v. Valeo: Brief for the Attorney General as Appellee and for the United States as Amicus Curiae, October 1975, Section 5 and Conclusion, pages 103-121.)

V. THE SCOPE OF THE COMMISSION'S POWER.65

The Federal Election Commission is composed of six voting members (2 U.S.C. 437c). Two members are appointed by the President, two by the Speaker of the House (upon recommendations of the Majority Leader and Minority Leader), and two by the President Pro Tempore of the Senate (upon recommendations of the Majority Leader and Minority Leader). All six voting members, who serve staggered six-year terms, must be confirmed by majority vote of both Houses of Congress.

The Commission has been given broad powers to administer the provisions of FECA. It has the power to conduct investigations and make findings of fact; it can subpoena information it deems necessary for that purpose (2 U.S.C. 437d (a) (1) through (5), (11)). The Commission has the power to formulate and promulgate rules, pursuant to the provisions of the Administrative Procedure Act (2 U.S.C. 437d (a) (8) and (9); 2 U.S.C. 438). It can render advisory opinions, and any person who acts in accordance therewith "shall be presumed to be in compliance with" the provisions of FECA (2 U.S.C. 437d (a) (7), 437f). It has discretion to audit the records. of candidates or political committees in order to detect violations of FECA or simply to gather informa

65 The Attorney General joins in this section of this brief as a party. See out Statement of Interest at page 2, supra.

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