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      UNITED STATES v. INTERNATIONAL UNION OF OPERATING ENGINEERS

UNITED STATES v. INTERNATIONAL UNION OF OPERATING ENGINEERS 
 UNITED STATES v. INTERNATIONAL UNION OF OPERATING ENGINEERS
 On October 1, 1979, the U.S. Court of Appeals for the Ninth Circuit issued     a decision in *United States v. International Union of Operating Engineers*.     Reversing the lower court, the appeals court concluded that "nothing in these     provisions [the Federal Election Campaign Act, as amended] suggests...that     action by the Department of Justice to prosecute a violation of the Act is     conditioned upon prior consideration of the alleged violation by the FEC."District Court DecisionOn August 13, 1976, the U.S. District Court for the District of Oregon dismissed     an indictment brought by the Department of Justice against the union. The     district court decided that the Attorney General was required to refer the     case to the FEC for an administrative remedy before seeking criminal penalties   against the defendant for violations of 2 U.S.C. §§431-455.The administrative remedy to which the district court was referring was provided     for in §437g of the FECA, which said that "any person who believes" a     violation of the election law has occurred "may file a complaint with the     Commission," and which prescribed a detailed process for the FEC to take action.     If the Commission found reason to believe that a violation had occurred, there     was a period during which the agency had to attempt to reach a conciliation     agreement with the respondent; the agreement could include a civil penalty.1     If the parties were unable to work out a conciliation agreement, the law allowed     the FEC to seek relief through the federal courts. The law also provided that     the FEC could refer cases of "knowing and willful violation" of the FECA to     the Justice Department for criminal prosecution. Furthermore, a completed     conciliation agreement with the FEC could be introduced by the respondent     as mitigating evidence in any criminal action brought by the Attorney General.The district court concluded that "the procedural scheme devised by Congress     to protect candidates from the adverse effects of groundless or insubstantial     charges will be frustrated if the Attorney General has the power to step in   and obtain an indictment in a case which was never referred to the FEC."The Attorney General appealed the district court's decision.Appeals Court DecisionOn October 1, 1976, the court of appeals issued an opinion reversing the   decision of the district court.The appeals court observed that the lower court had based its conclusion     not on legislative history but on inferences from the language of the Act.     Acknowledging that the statute does contain many restrictions designed to     minimize the risk that the administrative process might be used unfairly,     the appeals court concluded that the restrictions were aimed at complainants   and the FEC, but not the Attorney General.The court cited the legislative history of the FECA to corroborate this conclusion.     The Senate's version of the 1974 amendments to the FECA, the judges noted,     had included a provision which allowed the Justice Department to take action     on civil and criminal violations of the Act "only after the Commission [was]     consulted and consent[ed] to such a prosecution." The provision was dropped     from the bill by the conferees. The conference report made explicit that Congress     intended, in its final version of the 1974 amendments, to grant the FEC primary     powers of civil enforcement. The court further pointed out that the 1976 amendments     to the Act gave the FEC "exclusive responsibility" for civil enforcement while     it preserved the Justice Department's customary jurisdiction over criminal   violations.Finally, the court stated, the Act specifies that if the FEC finds probable     cause that a "knowing and willful violation" has occurred, the agency may     refer the case to the Justice Department without first attempting a conciliation   agreement.By the time the appeals court issued this decision, the Justice Department     and the FEC had entered into a memorandum of understanding which adopted similar     principles. The Commission retained exclusive primary authority for the prosecution     of civil violations of the Act, while the Justice Department retained independent   authority for the prosecution of criminal violations of the Act.FOOTNOTES:1 The phrase in 2 U.S.C. §437g(a)(2) to which     the court was referring, "if it [the Commission] has reason to believe that     any person has committed a violation," was deleted in the 1979 amendments     to the Act. The current enforcement procedures outlined in §437g would   not have altered the outcome of this decision.**Source:**  *United States v. International Union of Operating     Engineers, Local 701*, 638 F.2d 1161 (9th Cir. 1979), cert. denied, 444   U.S. 1077 (1980).


This information is not intended to replace the law or to change its meaning, nor does this information create or confer any rights for or on any person or bind the Federal Election Commission or the public. The reader is encouraged also to consult the Federal Election Campaign Act of 1971, as amended (52 U.S.C. 30101 et seq.), Commission regulations (Title 11 of the Code of Federal Regulations), Commission advisory opinions and applicable court decisions.


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