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88 OCTOBER TERM, 1994

Syllabus

FEDERAL ELECTION COMMISSION v. NRA

POLITICAL VICTORY FUND et al.

certiorari to the united states court of appeals for

the district of columbia circuit

No. 93–1151. Argued October 11, 1994—Decided December 6, 1994

Petitioner Federal Election Commission (FEC) brought this civil action

against respondents seeking to enforce a provision of the Federal Election Campaign Act of 1971 (FECA). The District Court ruled against

respondents. The Court of Appeals reversed and entered its judgment

on October 22, 1993. Without first seeking or obtaining the Solicitor

General’s authorization, the FEC filed in its own name a petition for a

writ of certiorari on January 18, 1994, two days before the expiration of

the 90-day filing period mandated by 28 U. S. C. § 2101(c). The United

States filed a brief contending that the FEC lacked statutory authority

to represent itself in this case in this Court, but that, pursuant to 28

U. S. C. § 518(a) and its implementing regulation, the Solicitor General

had authorized the FEC’s petition by letter dated May 26, 1994. This

authorization came more than 120 days after the § 2101(c) filing deadline

had passed. The FEC filed a brief in response asserting that it has

independent statutory authority to represent itself in this Court.

Held:

1. The FEC may not independently file a petition for certiorari in this

Court under 2 U. S. C. § 437d(a)(6). That statute empowers the FEC

“to . . . appeal any civil action . . . to enforce the provisions of [the

FECA],” but it omits any mention of authority to file a “petition for a

writ of certiorari” or otherwise conduct litigation before the Supreme

Court. By contrast, 26 U. S. C. §§ 9010(d) and 9040(d) explicitly authorize the FEC to “appeal from, and to petition the Supreme Court for

certiorari to review” (emphasis added), judgments in actions to enforce

the Presidential election fund laws, thereby indicating a congressional

intent to restrict the FEC’s independent litigating authority in this

Court to such actions. The contrasting language in §§ 9040(d) and

437d(a)(6) is particularly telling because these sections were originally

enacted as part of the same legislation. The mere existence of sound

policy reasons for providing the FEC with independent litigating authority in this Court for actions enforcing the FECA does not demonstrate a congressional intent to alter the Solicitor General’s prerogative

under § 518(a) to conduct and argue the Federal Government’s litigation
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Syllabus

here, since that statutory authority itself represents a policy choice by

Congress. Nor is it dispositive that the FEC has represented itself

before this Court in several FECA enforcement cases in the past, since

none of those cases involved a challenge to the Court’s jurisdiction.

Moreover, the provisions authorizing the FEC to litigate in the federal

courts are not the sort of substantive provisions which can be said to

be within the agency’s province to interpret. Pp. 90–97.

2. The Solicitor General’s “after-the-fact” authorization does not relate back to the date of the FEC’s unauthorized filing so as to make it

timely. Under governing agency law principles, particularly the doctrine of ratification, the authorization simply came too late in the day to

be effective: The Solicitor General attempted to ratify the FEC’s filing

on May 26, 1994, but he could not himself have filed a certiorari petition

on that date because the 90-day time period for filing a petition had

already expired. This result is entirely consistent with, and perhaps

required by, § 2101(c). If the Solicitor General were allowed to retroactively authorize untimely agency petitions, he would have the unilateral

power to extend the 90-day statutory period by days, weeks, or, as here,

even months. This would impermissibly blur § 2101(c)’s jurisdictional

deadline. Pp. 98–99.

Certiorari dismissed for want of jurisdiction. Reported below: 6 F. 3d

821.

Rehnquist, C. J., delivered the opinion of the Court, in which O’Connor, Scalia, Kennedy, Souter, Thomas, and Breyer, JJ., joined.

Stevens, J., filed a dissenting opinion, post, p. 100. Ginsburg, J., took

no part in the consideration or decision of the case.

Lawrence M. Noble argued the cause for petitioner. With

him on the briefs were Richard B. Bader and Vivien

Clair.

Deputy Solicitor General Bender argued the cause for the

United States as amicus curiae urging reversal. With him

on the brief were Solicitor General Days, Assistant Attorneys General Dellinger and Hunger, Malcolm L. Stewart,

and Douglas N. Letter.

Charles J. Cooper argued the cause for respondents.

With him on the brief were Michael A. Carvin and William

L. McGrath.
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90 FEDERAL ELECTION COMM’N v. NRA

POLITICAL VICTORY FUND

Opinion of the Court

Chief Justice Rehnquist delivered the opinion of the

Court.

We granted certiorari in this case to review a judgment of

the Court of Appeals for the District of Columbia Circuit

holding that the congressionally mandated composition of

petitioner Federal Election Commission (FEC), including as

it did representatives of the Senate and House as nonvoting

members, violated the separation-of-powers principle embodied in the Constitution. 512 U. S. 1218 (1994). We do

not reach the merits of the question, however, because we

conclude that the FEC is not authorized to petition for certiorari in this Court on its own, and that the effort of the

Solicitor General to authorize the FEC’s petition after the

time for filing it had expired did not breathe life into it.

The Court of Appeals entered judgment in this case on

October 22, 1993. 6 F. 3d 821. The FEC, in its own name,

filed a petition for a writ of certiorari on January 18, 1994.

The FEC neither sought nor obtained the authorization of

the Solicitor General before filing its petition. By order

dated March 21, 1994, 510 U. S. 1190, we invited the United

States to file a brief addressing the question “[w]hether the

[FEC] has statutory authority to represent itself in this case

in this Court.” The United States filed a brief on May 27,

1994, contending that the FEC lacks such statutory authority. The United States stated, however, that pursuant to 28

U. S. C. § 518(a) and its implementing regulation, the Solicitor General had authorized the FEC’s petition by letter

dated May 26, 1994. See Brief for United States as Amicus

Curiae 13. The FEC filed a brief in response on May 31,

1994, asserting that it has independent statutory authority

to represent itself before this Court in this case.

A petition for certiorari in a civil case must be filed within

90 days of the entry of the judgment below. 28 U. S. C.

§ 2101(c). This “90-day limit is mandatory and jurisdictional.” Missouri v. Jenkins, 495 U. S. 33, 45 (1990). Here,

the Court of Appeals entered judgment on October 22, 1993,
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Opinion of the Court

and the FEC filed its petition for certiorari on January 18,

1994, two days before the 90-day time period expired. The

FEC’s petition would appear to be timely. However, if the

FEC lacks statutory authority to represent itself in this case

before this Court, it cannot independently file a petition for

certiorari, but must receive the Solicitor General’s authorization. See 28 CFR § 0.20(a) (1994). The question then becomes whether the Solicitor General’s May 26, 1994, letter

authorizing the FEC’s petition relates back to the date of

the FEC’s unauthorized filing so as to make it timely. We

first examine the scope of the FEC’s independent litigating authority.

The FEC is an independent agency established by Congress to “administer, seek to obtain compliance with, and

formulate policy” with respect to the Federal Election

Campaign Act of 1971 (FECA) and chapters 95 and 96 of

Title 26. 86 Stat. 3, as amended, 2 U. S. C. § 437c(b)(1). The

FECA governs various aspects of all federal elections, see

2 U. S. C. § 431 et seq., whereas chapters 95 and 96 specifically

govern the administration of funds for Presidential election

campaigns and the payment of matching funds for Presidential primary campaigns, see 26 U. S. C. § 9001 et seq. (Presidential Election Campaign Fund Act), 26 U. S. C. § 9031 et

seq. (Presidential Primary Matching Payment Account Act).

The FEC has “exclusive jurisdiction with respect to the civil

enforcement of such provisions.” 2 U. S. C. § 437c(b)(1); see

Federal Election Comm’n v. National Conservative Political Action Comm., 470 U. S. 480, 485, 489 (1985).

Two separate statutory provisions provide the FEC with

independent litigating authority. The first provision, 2

U. S. C. § 437d(a)(6), applies to actions under both the FECA

and chapters 95 and 96 of Title 26. It gives the FEC power

“to initiate . . . , defend . . . or appeal any civil action . . . to

enforce the provisions of [the FECA] and chapter 95 and

chapter 96 of title 26, through its general counsel.” The second provision, which is contained in 26 U. S. C. §§ 9010(d) and
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9040(d), applies only to actions under chapters 95 and 96 of

Title 26. It authorizes the FEC “on behalf of the United

States to appeal from, and to petition the Supreme Court

for certiorari to review, judgments or decrees entered with

respect to actions in which it appears pursuant to the authority provided in this section.”

The FEC brought this civil enforcement action seeking to

establish a violation of 2 U. S. C. § 441b(a), a provision of the

FECA. As noted above, 2 U. S. C. § 437d(a)(6) authorizes

the FEC to “initiate” and “appeal” an FECA enforcement

action such as the present one. Thus, no dispute exists as

to the FEC’s authority to litigate this case in the District

Court or the Court of Appeals; 1 the question here concerns

only the FEC’s independent litigating authority before this

Court when it proceeds under § 437d(a)(6).

Title 28 U. S. C. § 518(a) provides in pertinent part:

“Except when the Attorney General in a particular

case directs otherwise, the Attorney General and the

Solicitor General shall conduct and argue suits and

appeals in the Supreme Court . . . in which the United

States is interested.”

By regulation, the Attorney General has delegated authority

to the Solicitor General:

“The following-described matters are assigned to, and

shall be conducted, handled, or supervised by, the Solicitor General, in consultation with each agency or official

concerned:

“(a) Conducting, or assigning and supervising, all

Supreme Court cases, including appeals, petitions for

1 Under 28 U. S. C. §§ 516 and 519, the conduct of litigation on behalf of

the United States and its agencies is subject to control of the Attorney

General “[e]xcept as otherwise authorized by law.” The FEC’s “initiation” and “appeal” of this action fall within this “otherwise authorized by

law” exception.
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Opinion of the Court

and in opposition to certiorari, briefs and arguments,

and . . . settlement thereof.” 28 CFR § 0.20 (1994).

Thus, if a case is one “in which the United States is interested,” § 518(a), “it must be conducted and argued in this

Court by the Solicitor General or his designee.” United

States v. Providence Journal Co., 485 U. S. 693, 700 (1988);

cf. United States v. Winston, 170 U. S. 522, 524–525 (1898);

Confiscation Cases, 7 Wall. 454, 458 (1869).

It is undisputed that this is a case “in which the United

States is interested.” 28 U. S. C. § 518(a). We have recognized, however, that Congress may “exempt litigation from

the otherwise blanket coverage of [§ 518(a)].” Providence

Journal, 485 U. S., at 705, n. 9. According to the FEC, one

such exemption is found in 2 U. S. C. § 437d(a)(6). Bearing

in mind the Solicitor General’s traditional role in conducting

and controlling all Supreme Court litigation on behalf of the

United States and its agencies—a role that is critical to the

proper management of Government litigation brought before

this Court, see id., at 702, n. 7, 706; id., at 709, 713–714

(Stevens, J., dissenting)—we “must . . . scrutiniz[e] and subjec[t] [§ 437d(a)(6)] to the ordinary tools of statutory construction to determine whether Congress intended to supersede

§ 518(a).” Id., at 705, n. 9.

Title 2 U. S. C. § 437d(a)(6) gives the FEC power “to initiate . . . , defend . . . or appeal any civil action . . . to enforce

the provisions of [the FECA] and chapter 95 and chapter

96 of title 26.” The statute clearly authorizes the FEC to

“appeal,” but it omits any mention of authority to file a “petition for a writ of certiorari” or otherwise conduct litigation

before the Supreme Court. The FEC argues that the term

“appeal” is not defined in the FECA, and that in the absence

of such a definition in the statute the term is construed “in

accordance with its ordinary or natural meaning.” FDIC

v. Meyer, 510 U. S. 471, 476 (1994). It then refers to the

definition of “appeal” found in Black’s Law Dictionary 96

(6th ed. 1990), which includes, inter alia, the following:
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Opinion of the Court

“There are two stages of appeal in the federal and many

state court systems; to wit, appeal from trial court to

intermediate appellate court and then to Supreme

Court.”

This argument might carry considerable weight if it were

not for the cognate provision authorizing the FEC to enforce

chapters 95 and 96 of Title 26. There, Congress has explicitly provided that “[t]he [FEC] is authorized on behalf of the

United States to appeal from, and to petition the Supreme

Court for certiorari to review,” judgments or decrees. 26

U. S. C. §§ 9010(d), 9040(d) (emphasis added). It is difficult,

if not impossible, to place these sections alongside one another without concluding that Congress intended to restrict

the FEC’s independent litigating authority in this Court to

actions enforcing the provisions of the Presidential election

funds under chapters 95 and 96 of Title 26. Such a differentiation by Congress would be quite understandable, since

Presidential influence through the Solicitor General might be

thought more likely in cases involving Presidential election

fund controversies than in other litigation in which the FEC

is involved.2

The FEC argues that 26 U. S. C. §§ 9010(d) and 9040(d)

shed no light on the issue whether 2 U. S. C. § 437d(a)(6)

gives it independent litigating authority before this Court

because the provisions are found in different statutes, were

drafted by different Congresses in different years, and were

2 The dissent says it is incongruous “to assume that Congress wanted

the FEC to have independent authority to invoke our mandatory [appellate] jurisdiction when proceeding under § 437h, but not to have the authority to invoke our discretionary jurisdiction when proceeding under

other sections of the same statute.” Post, at 100, n. 1. But Congress

could have thought the Solicitor General would better represent the FEC’s

interests in cases involving our discretionary jurisdiction “because the traditional specialization of that office has led it to be keenly attuned to this

Court’s practice with respect to the granting or denying of petitions for

certiorari.” Infra, at 96.
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Opinion of the Court

originally written to apply to different agencies of the Government. Brief for Petitioner in Response to Solicitor General 21. The FEC is only partially correct. Section 9010(d)

was first enacted in 1971, and at that time it applied to the

Comptroller General. See Presidential Election Campaign

Fund Act, Pub. L. 92–178, 85 Stat. 497, 569–570. The Federal Election Campaign Act Amendments of 1974 established

the FEC, see Pub. L. 93–443, 88 Stat. 1263, 1280, and enacted

§ 437d(a)(6). See id., at 1282–1283. The 1974 statute transferred to the FEC the functions previously performed by the

Comptroller General under 26 U. S. C. § 9010, see id., at 1293,

but it also added § 9040 to Title 26. See id., at 1302. Thus,

§ 9040(d) was originally enacted in 1974 as part of the same

legislation that created § 437d(a)(6). Each of the two sections, with its contrasting language as to litigating authority,

was before the Conference Committee whose report was

ultimately adopted by both Houses. H. R. Conf. Rep. No.

93–1438, pp. 967, 989 (1974). Section 9040(d) may have

been modeled on § 9010(d), but because both §§ 9040(d) and

437d(a)(6) were designed to deal with the FEC’s authority

to represent itself in civil enforcement actions, we find the

contrasting language to be particularly telling. See United

States v. American Building Maintenance Industries, 422

U. S. 271, 277 (1975); cf. Keene Corp. v. United States, 508

U. S. 200, 208 (1993) (“Where Congress includes particular

language in one section of a statute but omits it in another

. . . , it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion”)

(internal quotation marks and citation omitted).

We recognize sound policy reasons may exist for providing

the FEC with independent litigating authority in this Court

for actions enforcing the FECA. Congress’ decision to create the FEC as an independent agency and to charge it with

the civil enforcement of the FECA was undoubtedly influenced by Congress’ belief that the Justice Department,

headed by a Presidential appointee, might choose to ignore
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Opinion of the Court

infractions committed by members of the President’s own

political party. See, e. g., Federal Election Reform, 1973:

Hearings before the Subcommittee on Priveleges [sic] and

Elections and the Senate Committee on Rules and Administration, 93d Cong., 1st Sess., 17, 177, 186 (1973); Federal

Election Campaign Act of 1973: Hearings before the Subcommittee on Communications of the Senate Committee on Commerce, 93d Cong., 1st Sess., 70–71 (1973). The fact that Congress had these policies in mind when giving the FEC

independent enforcement powers, however, does not demonstrate that it intended to alter the Solicitor General’s statutory prerogative to conduct and argue the Federal Government’s litigation in the Supreme Court. See 28 U. S. C.

§ 518(a).

That statutory authority, too, represents a policy choice by

Congress to vest the conduct of litigation before this Court

in the Attorney General, an authority which has by rule and

tradition been delegated to the Solicitor General. See 28

CFR § 0.20(a) (1994). This Court, of course, is well served

by such a practice, because the traditional specialization of

that office has led it to be keenly attuned to this Court’s

practice with respect to the granting or denying of petitions

for certiorari. But the practice also serves the Government

well; an individual Government agency necessarily has a

more parochial view of the interest of the Government in

litigation than does the Solicitor General’s office, with its

broader view of litigation in which the Government is involved throughout the state and federal court systems.

Whether review of a decision adverse to the Government in

a court of appeals should be sought depends on a number of

factors which do not lend themselves to easy categorization.

The Government as a whole is apt to fare better if these

decisions are concentrated in a single official. See Providence Journal, 485 U. S., at 706.

Congress could obviously choose, if it sought to do so,

to sacrifice the policy favoring concentration of litigating
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Opinion of the Court

authority before this Court in the Solicitor General in favor

of allowing the FEC to petition here on its own. See

26 U. S. C. §§ 9010(d), 9040(d). But we do not think that

§ 437d(a)(6) bespeaks such a choice. Nor are we impressed

by the FEC’s argument that it has represented itself before

this Court on several occasions in the past without any question having been raised regarding its authority to do so

under § 437d(a)(6). See, e. g., Federal Election Comm’n v.

Massachusetts Citizens for Life, Inc., 479 U. S. 238 (1986)

(finding 2 U. S. C. § 441b unconstitutional as applied); Federal

Election Comm’n v. National Right to Work Comm., 459

U. S. 197 (1982) (involving interpretation of 2 U. S. C.

§ 441b(b)(4)(C)); Bread Political Action Comm. v. Federal

Election Comm’n, 455 U. S. 577 (1982) (involving application

of 2 U. S. C. § 437h(a)); Federal Election Comm’n v. Democratic Senatorial Campaign Comm., 454 U. S. 27 (1981) (involving application of 2 U. S. C. § 441a(d)(3)); California

Medical Assn. v. Federal Election Comm’n, 453 U. S. 182

(1981) (upholding constitutionality of certain campaign expenditure limitations imposed by 2 U. S. C. § 431 et seq.).

The jurisdiction of this Court was challenged in none of these

actions, and therefore the question is an open one before us.

See, e. g., Will v. Michigan Dept. of State Police, 491 U. S.

58, 63, n. 4 (1989) (“[T]his Court has never considered itself

bound [by prior sub silentio holdings] when a subsequent

case finally brings the jurisdictional issue before us”) (citation and internal quotation marks omitted); United States v.

L. A. Tucker Truck Lines, Inc., 344 U. S. 33, 38 (1952) (same).

And we do not think that the provisions discussed above,

authorizing the FEC to litigate in the federal courts, are the

sort of provisions that can be said to be within the province

of the agency to interpret. Federal Election Comm’n v.

Democratic Senatorial Campaign Comm., supra, at 37, relied upon by the FEC, dealt with the FEC’s interpretation of

a substantive provision of the FECA, not with the provisions

authorizing independent litigation.
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Opinion of the Court

Because the FEC lacks statutory authority to litigate this

case in this Court, it necessarily follows that the FEC cannot

independently file a petition for certiorari, but must receive

the Solicitor General’s authorization. See 28 CFR § 0.20(a)

(1994). By letter dated May 26, 1994, the Solicitor General

authorized the petition filed by the FEC. The Solicitor General’s authorization, however, did not come until more than

120 days after the deadline for filing a petition had passed.

See 28 U. S. C. § 2101(c). We must determine whether this

“after-the-fact” authorization relates back to the date of the

FEC’s unauthorized filing so as to make it timely. We conclude that it does not.

The question is at least presumptively governed by principles of agency law, and in particular the doctrine of ratification. “If an act to be effective in creating a right against

another or to deprive him of a right must be performed before a specific time, an affirmance is not effective against the

other unless made before such time.” Restatement (Second) of Agency § 90 (1958); see also id., Comment a (“The

bringing of an action, or of an appeal, by a purported agent

can not be ratified after the cause of action or right to appeal

has been terminated by lapse of time”). Though in a different context, we have recognized the rationale behind this

rule: “The intervening rights of third persons cannot be defeated by the ratification. In other words, it is essential that

the party ratifying should be able not merely to do the act

ratified at the time the act was done, but also at the time the

ratification was made.” Cook v. Tullis, 18 Wall. 332, 338

(1874) (emphasis added). Here, the Solicitor General attempted to ratify the FEC’s filing on May 26, 1994, but he

could not himself have filed a petition for certiorari on that

date because the 90-day time period for filing a petition had

expired on January 20, 1994. His authorization simply came

too late in the day to be effective. See, e. g., Nasewaupee v.

Sturgeon Bay, 77 Wis. 2d 110, 116–119, 251 N. W. 2d 845,
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848–849 (1977) (refusing to uphold town board’s ratification

of private attorney’s unauthorized commencement of lawsuit

where ratification came after the statute of limitations had

run); Wagner v. Globe, 150 Ariz. 82, 87, 722 P. 2d 250, 255

(1986) (holding invalid city council’s attempt to ratify police

chief’s dismissal of police officer after police officer commenced a wrongful discharge action). But see Trenton v.

Fowler-Thorne Co., 57 N. J. Super. 196, 154 A. 2d 369 (1959)

(upholding city’s ratification of unauthorized lawsuit filed on

its behalf even though ratification occurred after limitations

period had expired).

The application of these principles of agency law here produces a result entirely consistent with, and perhaps required

by, 28 U. S. C. § 2101(c), the statute governing the time for

filing petitions for certiorari. “We have no authority to extend the period for filing except as Congress permits.” Jenkins, 495 U. S., at 45. If the Solicitor General were allowed

to retroactively authorize otherwise unauthorized agency

petitions after the deadline had expired, he would have the

unilateral power to extend the 90-day statutory period for

filing certiorari petitions by days, weeks, or, as in this case,

even months. Such a practice would result in the blurring

of the jurisdictional deadline. But “[t]he time of appealability, having jurisdictional consequences, should above all be

clear.” Budinich v. Becton Dickinson & Co., 486 U. S. 196,

202 (1988).

We hold that the FEC may not independently file a petition for certiorari in this Court under 2 U. S. C. § 437d(a)(6),

and that the Solicitor General’s “after-the-fact” authorization

does not relate back to the date of the FEC’s unauthorized

filing so as to make it timely. We therefore dismiss the petition for certiorari for want of jurisdiction.

It is so ordered.

Justice Ginsburg took no part in the consideration or

decision of this case.
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Stevens, J., dissenting

Justice Stevens, dissenting.

The Federal Election Commission (FEC) “is an independent administrative agency vested with exclusive jurisdiction

over civil enforcement of the [Federal Election Campaign]

Act.” Federal Election Comm’n v. National Right to Work

Comm., 459 U. S. 197, 198, n. 2 (1982). Both the plain language of the governing statute, § 311(a)(6), 88 Stat. 1282, as

amended, 2 U. S. C. § 437d(a)(6), and the unfortunate chapter

in our history that gave rise to the creation of the FEC,

demonstrate that the FEC’s exclusive jurisdiction includes

the authority to litigate in this Court without the prior approval of the Solicitor General.

Section 437d(a)(6) expressly provides that the FEC has

the power “to initiate . . . , defend . . . or appeal any civil

action in the name of the Commission to enforce the provisions of this Act and chapter 95 and chapter 96 of title 26,

through its general counsel.” It is undisputed that when the

statute was enacted, the FEC had the authority to invoke

our mandatory jurisdiction by filing an appeal under § 437h

of the Federal Election Campaign Act of 1971.1 Although

the term “appeal” may be construed literally to encompass

only mandatory review, a far more natural reading of the

term as it is used in § 437d(a)(6) would embrace all appellate

litigation whether prosecuted by writ of certiorari, writ of

mandamus, or notice of appeal. Indeed, 28 U. S. C. § 518(a)

(1988 ed., Supp. V), the statute that gives the Attorney

1 Under the original statutory scheme, certain constitutional challenges

were to be certified to a court of appeals sitting en banc, with “appeal

directly to the Supreme Court.” 2 U. S. C. § 437h (1976 ed. and Supp. III).

See generally California Medical Assn. v. Federal Election Comm’n, 453

U. S. 182, 188–189 (1981). Thus, even under the majority’s interpretation

of the word “appeal,” the FEC would have had independent litigating

authority, at least when proceeding under § 437h. It is incongruous, to

say the least, to assume that Congress wanted the FEC to have independent authority to invoke our mandatory jurisdiction when proceeding under

§ 437h, but not to have the authority to invoke our discretionary jurisdiction when proceeding under other sections of the same statute.
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Stevens, J., dissenting

General authority to conduct litigation in this Court, refers

simply to “suits and appeals.” Because the term “suits”

apparently refers to our original jurisdiction, it appears

that the term “appeals” is intended to refer to a broad range

of appellate litigation, including both mandatory appeals

and petitions for certiorari.

The ambiguity in the word “appeal” is apparent even in

§§ 9010(d) and 9040(d), the sections on which the majority

relies to cabin the authority granted in § 437d(a)(6). In

those sections, Congress uses the word “appeal” to describe

two different categories of appellate litigation. In the text

of those sections, “appeal” is used in contradistinction to

“writ of certiorari” to indicate mandatory appeals. But

Congress also uses “appeal” as the title to both §§ 9010(d)

and 9040(d). See n. 4, infra. As thus used, “appeal” describes an entire category of appellate litigation that includes

mandatory appeals and writs of certiorari. I see no reason

for assuming that “appeal” in § 437d(a)(6) was intended to

incorporate the narrow, rather than the broad, understanding of “appeal.”

The historical context in which Congress adopted

§ 437d(a)(6) demonstrates that the interpretation that the

Court adopts today is unfaithful to the intent of Congress.

Section 437d(a)(6) was passed as part of the Federal Election

Campaign Act Amendments of 1974 (FECA). The 1974

amendments represented a response by Congress to perceived abuses arising out of the 1972 Presidential election

campaign and culminating in the resignation of President

Nixon. Indeed, the legislative history reveals Congress’ belief that “[p]robably the most significant reform that could

emerge from the Watergate scandal is the creation of an independent nonpartisan agency to supervise the enforcement

of the laws relating to the conduct of elections.” 2

2 See Final Report of the Select Committee on Presidential Campaign

Activities, S. Rep. No. 93–981, 93d Cong., 2d Sess., 564 (1974).
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Stevens, J., dissenting

One of the most dramatic events of the entire Watergate

scandal was the firing of special prosecutor Archibald Cox

in October 1973. When Cox threatened to secure a judicial

determination that the President was violating a court order

to deliver certain Presidential tapes, President Nixon ordered the Attorney General to fire Cox. Both the Attorney

General and the Deputy Attorney General refused, and instead resigned. The President’s order to fire Cox was then

carried out by the Solicitor General, in his capacity as Acting

Attorney General. See generally In re Olson, 818 F. 2d 34,

41–42 (CADC 1987) (per curiam). This incident, which

came to be known as the “Saturday Night Massacre,”

sparked tremendous public outrage, of which Congress was

surely aware. Against this background, Congress would not

have been likely, less than one year later, to have made the

FEC dependent for its Supreme Court litigation on the approval of the Solicitor General.

In short, the legislative history of the 1974 amendments

shows that Congress intended the FEC to have ample authority to oversee Presidential campaigns free of Executive

influence. The FEC’s authority to conduct civil litigation,

including appellate litigation, must be construed in the light

of Congress’ intent.

Given the language and historical context of § 437d(a)(6),

it is unsurprising that the FEC has had a long and uninterrupted history of independent litigation before this Court.3

Though, as the majority notes, ante, at 97, that history does

not preclude us from reexamining the FEC’s authority, the

contemporaneous practice of independent litigation, uninterrupted in subsequent years, provides confirmation of Con3 The FEC has represented itself in cases resulting in decisions on the

merits, see ante, at 97, and as amicus curiae, see, e. g., First Nat. Bank

of Boston v. Bellotti, 435 U. S. 765 (1978); Austin v. Michigan Chamber of

Commerce, 494 U. S. 652 (1990). Cf. R. Stern, E. Gressman, S. Shapiro, &

K. Geller, Supreme Court Practice 68, n. 56 (7th ed. 1993) (noting FEC’s

authority to litigate on its own behalf pursuant to § 437d(a)(6)).
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Cite as: 513 U. S. 88 (1994) 103

Stevens, J., dissenting

gress’ original intent. See BankAmerica Corp. v. United

States, 462 U. S. 122, 131 (1983). Moreover, during the administrations of Presidents Ford, Carter, Reagan, and Bush,

the Attorneys General and Solicitors General of the United

States did not object to the FEC’s exercise of authority to

litigate in this Court without the prior approval of the Solicitor General. As this Court has noted:

“ ‘[J]ust as established practice may shed light on the

extent of power conveyed by general statutory language, so the want of assertion of power by those who

presumably would be alert to exercise it, is equally significant in determining whether such power was actually

conferred.’ ” Ibid., quoting FTC v. Bunte Brothers,

Inc., 312 U. S. 349, 352 (1941).

See also FPC v. Panhandle Eastern Pipe Line Co., 337 U. S.

498, 513 (1949) (“Failure to use such an important power for

[over 10 years] indicates to us that the Commission did not

believe the power existed”).

In rejecting the result dictated by language, history, and

longstanding practice, the majority relies primarily on the

differences between § 437d(a)(6) and 26 U. S. C. §§ 9010(d),

9040(d).4 The relevant language in § 9010, which originally

conferred additional and unusual responsibilities on the

Comptroller General of the United States, was enacted in

1971 as part of the Presidential Election Campaign Fund Act

(Fund Act), which authorized public funding of Presidential

campaigns.5 As the majority notes, ante, at 95, § 9040(d)

was enacted at the same time as § 437d(a)(6), in 1974. The

majority suggests that the differences between §§ 9040(d) and

4 Sections 9010(d) and 9040(d) are identical. They read:

“(d) Appeal. The Commission is authorized on behalf of the United

States to appeal from, and to petition the Supreme Court for certiorari to

review, judgments or decrees entered with respect to actions in which it

appears pursuant to the authority provided in this section.” 5 The 1974 amendment transferred those responsibilities to the FEC.
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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 wellaccepted 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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Cite as: 513 U. S. 88 (1994) 105

Stevens, J., dissenting

explains this anomaly by hypothesizing that “Presidential influence through the Solicitor General might be thought more

likely in cases involving Presidential election fund controversies than in other litigation in which the FEC is involved.”

Ante, at 94. This hypothesis is untenable. Indeed, the

Court has previously noted:

“[B]oth the Fund Act and FECA play a part in regulating Presidential campaigns. The Fund Act comes into

play only if a candidate chooses to accept public funding

of his general election campaign, and it covers only the

period between the nominating convention and 30 days

after the general election. In contrast, FECA applies

to all Presidential campaigns, as well as other federal

elections, regardless of whether publicly or privately

funded.” Federal Election Comm’n v. National Conservative Political Action Comm., 470 U. S. 480, 491

(1985).

Finally, though admittedly important, the 1971 Act was

a relatively undramatic piece of legislation, enacted before

Watergate seized the national (and congressional) attention.

The notion that Congress was motivated by a concern about

improper Presidential influence in 1971 when it enacted

the Fund Act, but ignored such concerns in 1974 when it

enacted FECA, is simply belied by “a page of history.” See

New York Trust Co. v. Eisner, 256 U. S. 345, 349 (1921)

(Holmes, J.).

During two decades of FEC litigation we have repeatedly

recognized that the FEC’s express statutory authority to initiate, defend, or “appeal any civil action” to enforce FECA

“through its general counsel” encompasses discretionary appellate review as well as the now almost extinct mandatory

appellate review in this Court. Because I remain persuaded

that this settled practice was faithful to both the plain language and the underlying purpose of § 437d(a)(6), I respectfully dissent.