United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 16, 2013 Decided May 31, 2013

No. 12-5365

WENDY E. WAGNER, ET AL.,

APPELLANTS

v.

FEDERAL ELECTION COMMISSION,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:11-cv-01841)

Alan B. Morrison argued the cause for the appellants. 

Arthur B. Spitzer was on brief.

Harry J. Summers, Assistant General Counsel, Federal 

Election Commission, argued the cause for the appellee. 

Anthony Herman, General Counsel, David B. Kolker, 

Associate General Counsel, Kevin Deeley, Acting Associate 

General Counsel, and Holly J. Baker and Seth E. Nesin,

Attorneys, were on brief.

J. Gerald Hebert, Scott Nelson, Fred Wertheimer and 

Donald J. Simon were on brief for amici curiae Campaign 

Legal Center, et al. in support of the appellee.

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Before: HENDERSON and GRIFFITH, Circuit Judges, and 

GINSBURG, Senior Circuit Judge.

Opinion for the Court filed PER CURIAM.

PER CURIAM: The Federal Election Campaign Act 

(FECA) prohibits any “person” contracting with the federal 

government from contributing to “any political party, 

committee, or candidate for public office or to any person for 

any political purpose or use” in a federal election. 2 U.S.C. 

§ 441c(a)(1). Three federal contractors seek a declaration that 

section 441c abridges their freedom of speech guaranteed by 

the First Amendment to the United States Constitution and 

denies them the equal protection of the laws in violation of

the Fifth Amendment. Concluding that FECA’s judicial 

review provision, 2 U.S.C. § 437h, ousts both the district 

court and this panel of jurisdiction to consider the merits of 

the claims, we sua sponte vacate and remand to the district 

court to comply immediately with the procedures set forth in 

section 437h.

I

Appellants Wendy Wagner, Lawrence Brown and Jan 

Miller (collectively Appellants) hold consulting contracts with 

various agencies of the executive branch of the federal 

government and want to make political contributions for use 

in federal elections. In October 2011, Appellants sued the 

Federal Election Commission (FEC) seeking a declaration 

that section 441c violated both the First and the Fifth 

Amendments to the U.S. Constitution. They invoked the 

district court’s jurisdiction under FECA’s judicial review 

provision, 2 U.S.C. § 437h, as well as its federal question 

jurisdiction, 28 U.S.C. § 1331. 

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Under section 437h, a district court should perform three

functions. First, it must develop a record for appellate review 

by making findings of fact. See Bread Political Action Comm. 

v. FEC, 455 U.S. 577, 580 (1982) (Bread PAC); Buckley v. 

Valeo, 519 F.2d 817, 818–19 (D.C. Cir. 1975) (en banc) (per 

curiam). Second, the district court must determine whether 

the constitutional challenges are frivolous or involve settled 

legal questions. See Cal. Med. Ass’n v. FEC, 453 U.S. 182, 

192 n.14 (1981) (CalMed); Khachaturian v. FEC, 980 F.2d 

330, 331 (5th Cir. 1992) (en banc) (per curiam); Goland v. 

United States, 903 F.2d 1247, 1257 (9th Cir. 1990). Finally, 

the district court must immediately certify the record and all 

non-frivolous constitutional questions to the en banc court of 

appeals. See CalMed, 453 U.S. at 192 n.14; see also Mariani 

v. United States, 212 F.3d 761, 769 (3d Cir. 2000) (en banc). 

Shortly after filing their complaint, Appellants moved the 

district court to first find certain facts and then to certify the 

case to the en banc court of appeals. The FEC opposed the 

motion on the ground that certification was premature. 

Apparently solely for the purpose of avoiding the certification 

requirement of section 437h, Appellants subsequently 

amended their complaint to invoke only the district court’s 

federal question jurisdiction and also moved for a preliminary 

injunction. 

The district court denied Appellants’ preliminary 

injunction motion, concluding that they were unlikely to 

succeed on the merits of their constitutional claims. Wagner v. 

FEC, 854 F. Supp. 2d 83, 87 (D.D.C. 2012) (Wagner I). 

After additional discovery, the court granted summary 

judgment to the FEC. Wagner v. FEC, 901 F. Supp. 2d 101, 

2012 WL 5378224 (D.D.C. Nov. 2, 2012) (Wagner II). 

Before addressing the merits, the district court noted:

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At first, Plaintiffs filed suit under 2 U.S.C. § 437h, 

which requires a district court to certify constitutional 

questions about FECA to its en banc appellate court. 

Plaintiffs changed their minds, however, and amended 

their complaint to follow the standard path of federal 

litigation. They are permitted to do so, and this Court 

has jurisdiction under 28 U.S.C. § 1331. See Bread 

PAC[, 455 U.S. at 585] (“plaintiffs meeting the usual 

standing requirements can challenge provisions of 

[FECA] under the federal-question jurisdiction 

granted the federal courts by 28 U.S.C. § 1331”).

Id. at *2 (citation omitted). 

On appeal, Appellants asserted—and the FEC did not 

contest—that this panel has jurisdiction under 28 U.S.C. 

§ 1291 to hear their constitutional challenges. Noting the 

potential jurisdictional infirmity, however, we ordered the 

parties to submit supplemental briefs addressing whether

section 437h vests exclusive jurisdiction over Appellants’

constitutional claims in the en banc court of appeals. Both 

parties argue in their supplemental briefs that section 437h 

does not confer exclusive jurisdiction on the en banc court of 

appeals, asserting instead that Appellants can elect to bring 

suit under either section 437h or section 1331. We must 

nonetheless assure ourselves of both the district court’s and

our own jurisdiction whether or not the parties challenge it. 

Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 

(1986); LoBue v. Christopher, 82 F.3d 1081, 1082 (D.C. Cir. 

1996). The question we must decide, then, is whether section 

437h gives exclusive jurisdiction to the en banc court to 

decide Appellants’ constitutional claims.

1

 

 1 “[T]wo things are necessary to create jurisdiction, whether 

original or appellate,” in the lower courts: “The Constitution must 

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II

A

In construing section 437h, “[w]e begin, as always, with 

the text of the statute.” Permanent Mission of India to the 

United Nations v. City of New York, 551 U.S. 193, 197 

(2007); see also Hughes Aircraft Co. v. Jacobson, 525 U.S. 

432, 438 (1999). Section 437h provides:

The Commission, the national committee of any 

political party, or any individual eligible to vote in any 

election for the office of President may institute such 

actions in the appropriate district court of the United 

States, including actions for declaratory judgment, as 

may be appropriate to construe the constitutionality of 

any provision of this Act. The district court 

immediately shall certify all questions of 

constitutionality of this Act to the United States court 

of appeals for the circuit involved, which shall hear 

the matter sitting en banc.

 

have given to the court the capacity to take it, and an act of 

Congress must have supplied it.” Mayor & Alderman of City of 

Nashville v. Cooper, 73 U.S. (6 Wall.) 247, 252 (1867). Our 

constitutional jurisdiction is clear. Because Appellants declare that 

they would make political contributions but for section 441c, they 

have Article III standing. Section 441c allegedly deprives them of

a legally protected interest (making a political contribution) that an 

order of this court declaring section 441c unenforceable would 

remedy. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 

(1992). And because they remain under contract with the federal 

government, Appellants retain a “legally cognizable interest” in 

seeing section 441c invalidated and the controversy remains live. 

See Already, LLC v. Nike, Inc., 133 S. Ct. 721, 726 (2013) 

(quotation marks omitted). Accordingly, we address only our 

statutory authority to hear the merits of this case. 

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2 U.S.C. § 437h. As originally enacted, section 437h 

contained two additional provisions. Subsection (b) provided 

for direct appeal to the Supreme Court. Federal Election 

Campaign Act Amendments of 1974, Pub. L. No. 93-443, 

§ 208(a), 88 Stat. 1263, 1285–86 (codified at 2 U.S.C. 

§ 437h(b) (1976)). Subsection (c) required both the courts of 

appeals and the Supreme Court “to advance on the docket and

to expedite to the greatest possible extent” any matter 

certified under section 437h. Id. (codified at 2 U.S.C. 

§ 437h(c) (1976)). The Congress repealed subsection 437h(c) 

in 1984, Pub. L. No. 98-620, § 402(1)(B), 98 Stat. 3335, 3357 

(1984), and subsection 437h(b) in 1988, Pub. L. No. 100-352, 

§ 6(a), 102 Stat. 662, 663 (1988).

1

FECA provides “two routes” by which a party may 

obtain judicial review of the constitutionality of FECA.

CalMed, 453 U.S. at 188. In addition to section 437h, a party 

may also mount a constitutional defense to an FEC 

enforcement action brought under 2 U.S.C.§ 437g. Id. While

the section 437g route is available to any party subject to an 

FEC enforcement proceeding, only the parties specifically 

enumerated in section 437h—the FEC, the national 

committees of political parties and individual voters—may 

invoke its “extraordinary procedures.” Bread PAC, 455 U.S. 

at 585. Those plaintiffs not enumerated in section 437h “are 

remitted to the usual remedies” outside FECA, including the

federal question jurisdiction supplied by section 1331. Id. at 

584. The unanswered question is whether the enumerated 

parties may also avail themselves of the “usual remedies.” 

The district court concluded that they may but its 

rationale was flawed. The court premised its jurisdiction

solely on the Supreme Court’s dictum in Bread PAC: 

“ ‘[P]laintiffs meeting the usual standing requirements can 

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challenge provisions of [FECA] under the federal-question 

jurisdiction granted the federal courts by 28 U.S.C. § 1331.’ ” 

Wagner II, 2012 WL 5378224, at *2 (quoting Bread PAC, 

455 U.S. at 585). A reading of the paragraph from which the 

language is drawn reveals that this dictum is inapposite here. 

The Supreme Court in Bread PAC stated that plaintiffs not

enumerated in section 437h, and therefore ineligible to invoke 

its procedures, may challenge the constitutionality of FECA

under section 1331 only.

2

 It said nothing, however, about the 

availability of section 1331 jurisdiction to the parties 

enumerated in section 437h. 

The only other inferior tribunal to have addressed the 

question has answered it in the negative. In FEC v. Lance,

617 F.2d 365, 367–68 (5th Cir. 1980) (Lance I), Bert Lance, 

the target of an FEC investigation, fought an administrative 

subpoena by arguing, inter alia, that a provision of FECA 

violated the First Amendment. Id. at 368. On appeal, a panel 

of the Fifth Circuit rejected all of Lance’s non-constitutional 

arguments but held that both the district court and the panel

itself lacked jurisdiction to hear the constitutional challenge.

Id. at 374. It reasoned that “Congress’s obvious intent in 

enacting [section 437h] was to deprive district courts and 

panels of the circuit courts of appeals of jurisdiction to 

consider the constitutionality of the FECA” and referred the 

question to the en banc court of appeals.3 Id.

 2 As noted, any party may defend on constitutional grounds

under section 437g.

3 The parties argue that Lance I is no longer good law because 

the en banc Fifth Circuit rejected the panel’s jurisdictional holding 

in FEC v. Lance, 635 F.2d 1132 (5th Cir. 1981) (en banc) (Lance 

II). But the parties misconstrue Lance II. In that case, the en banc

Fifth Circuit described questions regarding the scope of section 

437h as “ ‘delicate’ ” and ones “ ‘to be decided only when 

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2

Construing the statute ourselves, we believe that the plain 

text of section 437h grants exclusive merits jurisdiction to the 

en banc court of appeals. “If . . . there exists a special 

statutory review procedure, it is ordinarily supposed that 

Congress intended that procedure to be the exclusive means of 

obtaining judicial review in those cases to which it applies.” 

City of Rochester v. Bond, 603 F.2d 927, 931 (D.C. Cir. 1979)

(emphasis added) (footnote omitted); see also Sun Enters., 

Ltd. v. Train, 532 F.2d 280, 287 (2d Cir. 1976) (Lumbard, J.) 

(“[T]here is a strong presumption against the availability of 

simultaneous review in both the district court and court of 

appeals.”). Section 437h is indeed a “special statutory review 

procedure.” We therefore presume that the Congress intended 

to deprive both the district court and panels of the court of 

appeals of authority to hear the merits of constitutional 

challenges to the provisions of FECA. 

The parties nevertheless argue that one word in the text

demonstrates that the statute is an optional route to judicial 

review of FECA. Their argument is simple: section 437h

provides that certain parties “may institute . . . actions in the 

appropriate district court of the United States”; the word 

“may” typically denotes discretion; therefore, the parties 

enumerated in section 437h may elect between section 437h

and section 1331 to challenge the constitutionality of FECA’s 

provisions. But the discretion conferred by the word “may” is 

the discretion to “institute . . . actions.” Were the Congress to 

 

necessary.’ ” Id. at 1137 (quoting Cal. Med. Ass’n v. FEC, 641 F.2d 

619, 632 (9th Cir. 1980) (en banc), aff’d, CalMed, 453 U.S. 182). 

Because the Lance II court had authority to consider the case en 

banc under Federal Rule of Appellate Procedure 35 irrespective of 

section 437h, it declined to address the jurisdictional issue and left 

the panel’s interpretation of section 437h undisturbed. Id.

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replace the word “may” with “shall,” the statute would read as 

though a potential plaintiff bore a ministerial obligation to 

bring suit. Whatever discretion is provided by “may,” it is not 

the discretion to use section 437h vel non.

More importantly, the parties’ interpretation disregards

both how the Congress writes jurisdictional statutes and how 

the courts interpret them. Appellants suggest that alternative 

language would more clearly express the Congress’s intent to 

make section 437h exclusive as to the enumerated parties, 

including simply using the word “exclusive.” But there are 

many ways to skin a cat and we must decide whether the 

Congress has done so with this language. Appellants are 

correct that the Congress sometimes includes the word 

“exclusive” to make clear that a particular statute confers 

exclusive jurisdiction.4

 But the Congress also deploys “may” 

as a verbal auxiliary in many statutes the courts have

interpreted to confer exclusive jurisdiction.5 Section 437h

 4 See, e.g., 15 U.S.C. § 717r(d)(2) (section 19(d(2) of Natural 

Gas Act provides “[t]he United States Court of Appeals for the 

District of Columbia shall have original and exclusive jurisdiction 

over any civil action” seeking review of denial of permit); 26 

U.S.C. § 7482(a)(1) (Internal Revenue Code provides that courts of 

appeals “shall have exclusive jurisdiction to review the decisions of 

the Tax Court”); 28 U.S.C. § 2342 (Hobbs Act provides that “[t]he 

court of appeals . . . has exclusive jurisdiction” to review 

enumerated agency actions); 42 U.S.C. § 7607 (section 307(b)(1) of 

Clean Air Act provides that petition for review of certain actions of 

EPA Administrator “may be filed only in the United States Court of 

Appeals for the District of Columbia”).

5 See, e.g., John Doe, Inc. v. DEA, 484 F.3d 561, 568 (D.C. Cir. 

2007) (interpreting judicial review provision of the Controlled 

Substances Act, which provides that “any person aggrieved . . . may 

obtain review of the [Attorney General’s] decision in the” courts of 

appeals, 21 U.S.C. § 877, to confer exclusive jurisdiction on those 

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comports with this established linguistic norm by which the 

Congress confers exclusive jurisdiction on specific courts. See 

Holland v. Williams Mountain Coal Co., 256 F.3d 819, 824 

(D.C. Cir. 2001) (“[S]tatutory interpretation proceeds on the 

assumption that Congress’s choice of words reflects a 

familiarity with judicial treatment of comparable language . . . 

.”); see also Bragdon v. Abbott, 524 U.S. 624, 645 (1998) 

(“When . . . judicial interpretations have settled the meaning 

 

courts); Battle v. FAA, 393 F.3d 1330, 1334–35 (D.C. Cir. 2005) 

(interpreting judicial review provision of Federal Aviation Act, 

which provides that “a person disclosing a substantial interest in an 

order [issued under the Act] . . . may apply for review of the order” 

in the courts of appeals, 49 U.S.C. § 46110(a), to confer exclusive 

jurisdiction on courts of appeals); Am. Fed’n of Gov’t Emps. v. Loy, 

367 F.3d 932, 936 (D.C. Cir. 2004) (interpreting judicial review 

provision of the Civil Service Reform Act, which provides that 

“person aggrieved by any final order of the [agency] . . . may . . . 

institute an action for judicial review” in courts of appeals, 5 U.S.C. 

§ 7123(a), to confer exclusive jurisdiction on courts of appeals); 

AT&T Corp. v. FCC, 220 F.3d 607, 615 (D.C. Cir. 2000) 

(interpreting judicial review provision of Federal Communications 

Act, which provides, for certain agency actions, “[a]ppeals may be 

taken” to this court, 47 U.S.C. § 402(b), to confer exclusive 

jurisdiction to review those actions on this court); Johnson v. U.S.

R.R. Ret. Bd., 969 F.2d 1082, 1085–86 (D.C. Cir. 1992) 

(interpreting judicial review provision of Railroad Retirement Act 

of 1974, which provides that any party aggrieved by final decision 

of Railway Retirement Board “may . . . obtain a review” in courts

of appeals, 45 U.S.C. § 355(f), to confer jurisdiction to review 

exclusively on courts of appeals); Indep. Broker-Dealers’ Trade 

Ass’n v. SEC, 442 F.2d 132, 142 (D.C. Cir. 1971) (interpreting 

judicial review provision of the Securities Exchange Act, which 

provides that “person aggrieved by a final order of the [Securities 

Exchange Commission] . . . may obtain judicial review of the 

order” in courts of appeals, 15 U.S.C. § 78y(a)(1), to confer 

exclusive jurisdiction on those courts). 

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of an existing statutory provision, repetition of the same 

language in new statutes indicates, as a general matter, the 

intent to incorporate its . . . judicial interpretations as well.”). 

Accordingly, we are convinced that the language of section 

437h manifests the Congress’s intent to confer exclusive 

original jurisdiction of Appellants’ constitutional claims on 

the en banc court of appeals.

The legislative purpose underlying section 437h confirms 

our interpretation of the statute. See Chapman v. Houston 

Welfare Rights Org., 441 U.S. 600, 608 (1979) (“As in all 

cases of statutory construction, our task is to interpret the 

words of . . . statutes in light of the purposes Congress sought 

to serve.”). The Congress is understood to have enacted 

section 437h to further the public’s interest in having 

questions of FECA’s constitutionality speedily resolved.

6 See 

Bread PAC, 455 U.S. at 583 (it is “obvious fact that Congress 

wanted a broad class of questions to be speedily resolved”); 

CalMed, 453 U.S. at 188 (Congress enacted section 437h as

“method for obtaining expedited review of constitutional 

challenges to the [FECA].”); Bread Political Action Comm. v. 

FEC, 591 F.2d 29, 31 (7th Cir. 1979) (noting “apparent 

Congressional intent to provide expedited review to attack

‘any provision’ of” FECA); Buckley, 519 F.2d at 819 (noting 

“intention of Congress for expedition in appellate 

disposition”); Buckley v. Valeo, 387 F. Supp. 135, 138 

(D.D.C. 1975) (“The very essence of [section 437h] . . . is 

speedy judicial review.”). The legislative history confirms 

 6 Appellants are correct that interpreting section 437h to be 

exclusive does not centralize review in a single court with a 

particular expertise. This observation is of no moment, however, 

because expertise was not the Congress’s objective when it enacted 

section 437h. Its objective was, and is, speed. 

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this understanding. Senator James Buckley,7 the author and

Senate sponsor of the amendment which became section 

437h, informed his colleagues on the Senate floor that it

merely provides for the expeditious review of the 

constitutional questions I have raised. I am sure we 

will agree that if, in fact, there is a serious question as 

to the constitutionality of this legislation, it is in the 

interest of everyone to have the question determined 

by the Supreme Court at the earliest possible time.

120 CONG. REC. 10,562 (Apr. 10, 1974) (statement of Sen. 

James Buckley) (emphasis added). Similarly, the 

amendment’s House sponsor stated that section 437h 

provided a “direct method” for “any individual” to “raise 

[constitutional] questions and to have those considered as 

quickly as possible by the Supreme Court.” Id. at 35,140 (Oct. 

10, 1975) (statement of Rep. William Frenzel).

This interest remains salient today. Challenges to FECA

have predictably declined since its enactment. See CalMed, 

453 U.S. at 192 n.13 (“[T]he Federal Election Campaign Act 

is not an unlimited fountain of constitutional questions, and it 

is thus reasonable to assume that resort to § 437h will 

decrease in the future.”). But federal elections are repeat

events, as they were when section 437h was enacted. With 

elections come political campaigns and political campaigns

lie “at the heart of American constitutional democracy.” 

Brown v. Hartlage, 456 U.S. 45, 53 (1982). FECA, and its 

many amendments, comprehensively regulate those 

campaigns. See Buckley v. Valeo, 424 U.S. 1, 7 (1976) (per 

curiam). A constitutional challenge to FECA’s provisions 

clouds the rights and obligations of all Americans in the area

 7 Senator Buckley later served as a distinguished member of 

this Court from 1985 until his retirement in 2000.

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of utmost constitutional protection. See Eu v. San Francisco 

Cnty. Democratic Cent. Comm., 489 U.S. 214, 223 (1989) 

(“Indeed, the First Amendment ‘has its fullest and most 

urgent application’ to speech uttered during a campaign for 

political office.” (quoting Monitor Patriot Co. v. Roy, 401 

U.S. 265, 272 (1971))). The uncertainty was precisely what 

the Congress sought to remove by commanding expedited

resolution of challenges to FECA.

Nor have amendments to section 437h altered the 

Congress’s purpose. The repeal of subsections (b) and (c) 

may have altered how the Congress has addressed the public’s

interest in quick resolution. But those repeals changed only 

section 437h’s volume, not its tune. Section 437h continues 

to pretermit review by district courts and panels of courts of 

appeals and that pretermission undoubtedly serves the 

Congress’s goal of expedition. See Harrison v. PPG Indus., 

Inc., 446 U.S. 578, 593 (1980) (“The most obvious advantage 

of direct review by a court of appeals is the time saved 

compared to review by a district court, followed by a second 

review on appeal.”).

Because the purpose underlying section 437h is the 

vindication of the public’s interest in the expeditious 

resolution of constitutional challenges to FECA, we reject the 

parties’ interpretation of the statute. Their reading threatens 

to make that interest illusory by leaving its effectuation

entirely up to individual plaintiffs’ litigation strategies. See

N.Y. Dep’t of Soc. Servs. v. Dublino, 413 U.S. 405, 419–20

(1973) (Courts “cannot interpret federal statutes to negate 

their own stated purposes.”); Motor Vehicles Mfrs. Ass’n of 

U.S., Inc. v. Ruckelshaus, 719 F.2d 1159, 1165 (D.C. Cir. 

1983) (“A statute should ordinarily be read to effectuate its 

purposes rather than to frustrate them.”); United States v. Pub. 

Utils. Comm’n of D.C., 151 F.2d 609, 613 (D.C. Cir. 1945) 

(“[A]n interpretation should be chosen as will effect [the 

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statute’]s purpose, rather than one which defeats it . . . .”). 

Legislative purpose therefore confirms the mandate of the 

statutory text: section 437h vests exclusive jurisdiction in the 

en banc courts of appeals to resolve constitutional challenges

brought by the three parties enumerated in that section.

Our interpretation is further bolstered by the Supreme 

Court’s own language. In McConnell v. FEC, 540 U.S. 93 

(2003), overruled on other grounds by Citizens United v. 

FEC, 558 U.S. 3010 (2010), the Supreme Court considered a 

challenge to the 2002 overhaul of FECA effected by the

Bipartisan Campaign Reform Act of 2002 (BCRA), Pub. L.

No. 107–155, 116 Stat. 81. BCRA required the convening of 

a three-judge district court to hear constitutional challenges to 

its provisions. BCRA § 403(a), 116 Stat. at 113–14 (codified 

at 2 U.S.C. § 437h note). Two of the plaintiffs challenged a 

provision of FECA unaffected by BCRA. The Supreme Court 

noted:

This Court has no power to adjudicate a challenge to 

the FECA limits in this litigation because challenges 

to the constitutionality of FECA provisions are subject 

to direct review before an appropriate en banc court of 

appeals, as provided in 2 U.S.C. § 437h, not in the 

three-judge District Court convened pursuant to 

BCRA § 403(a).

McConnell, 540 U.S. at 229. In other words, plaintiffs 

challenging provisions of FECA must bring those challenges 

under section 437h. And even dictum is accorded substantial

weight. See Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399 

(1821) (Marshall, C.J.); United States v. Dorcely, 454 F.3d 

366, 375 (D.C. Cir. 2006) (“[C]arefully considered language 

of the Supreme Court, even if technically dictum, generally 

must be treated as authoritative.” (quotation marks omitted)). 

Although McConnell does not settle the question, it confirms 

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the conclusion we independently reach: section 437h is a 

grant of exclusive jurisdiction to the en banc court of appeals. 

B

Convinced that the statutory text, read in light of its 

purpose, manifests that Appellants must comply with section 

437h’s expedited review procedures, we quickly dispense 

with the parties’ remaining arguments. First, the parties

contend that the Congress’s decision not to permit all 

potential plaintiffs to use section 437h’s procedures suggests 

that section 437h is not exclusive. But the specific 

enumeration in section 437h is simply a form of “statutory 

standing.” Int’l Ass’n of Machinists & Aerospace Workers v. 

FEC, 678 F.2d 1093, 1098 (D.C. Cir. 1982) (per curiam) (en 

banc). Statutory standing requirements—particularly that the 

party seeking judicial review be “aggrieved” by the 

challenged agency action—are commonplace in statutes 

conferring exclusive jurisdiction on a particular court. See,

e.g., Boston & Me. Corp. v. Surface Transp. Bd., 364 F.3d 

318, 320 (D.C. Cir. 2004) (exclusive judicial review provision 

of Hobbs Act, 28 U.S.C. §§ 2342, 2344); Grand Council of 

Crees (of Quebec) v. FERC, 198 F.3d 950, 954–55, 959–60 

(D.C. Cir. 2000) (exclusive judicial review provision of

Federal Power Act, 16 U.S.C. § 825l(a)); see also cases cited 

supra note 5. The only distinction between section 437h’s

statutory standing requirement and the more traditional “party 

aggrieved” language is that the latter requires the judiciary to 

flesh out which parties have statutory standing whereas, in the 

former, the Congress has made that determination. Just as the

“party aggrieved” language does not make an otherwise 

exclusive jurisdiction-conferring statute elective, we will not 

interpret section 437h’s specific enumeration of parties with 

statutory standing to make that provision optional.

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Second, the parties argue that the section 437h procedure

is ill-suited to its task because it results in a less-focused 

record than ordinary litigation and is burdensome to both the

en banc court and to litigants. They claim that the Congress 

could not have intended to make such an onerous procedure 

mandatory. But an argument based on section 437h’s burdens

is an argument against its enactment, not against interpreting 

it as a grant of exclusive jurisdiction. The parties may be 

correct that section 437h’s procedure might not achieve the 

Congress’s desired end. See CalMed, 453 U.S. at 208 

(Stewart, J., dissenting) (section 437h procedure “places 

uncommonly heavy burdens on the federal court system” and 

may prove “cumbersome”); Lance II, 635 F.2d at 1137 (“[I]f 

mandatory en banc hearings were multiplied, the effect on the 

calendars of this court as to such matters and as to all other 

business might be severe and disruptive.” (quotation marks 

omitted)); see also Harold Leventhal, Courts and Political 

Thickets, 77 COLUM. L. REV. 345, 384–87 (1977). But these 

arguments are unavailing because “this court simply is not at 

liberty to displace, or to improve upon, the jurisdictional 

choices of Congress.” Five Flags Pipe Line Co. v. Dep’t of 

Transp., 854 F.2d 1438, 1441 (D.C. Cir. 1988). They belong 

in a legislative hearing room, not a brief. 

Finally, the FEC cites several cases decided by district 

courts and panels of the courts of appeals which it contends 

show that courts “have implicitly rejected [our interpretation 

of section 437h] by considering challenges to FECA outside 

the 437h context.” FEC Supp. Br. 8. All but one of these 

cases, however, arose in the section 437g context. The 

district courts and panels of the courts of appeals of course 

have jurisdiction to consider constitutional questions raised as 

defenses to section 437g actions. See Bread PAC, 455 U.S. at 

584–85; CalMed, 453 U.S. at 187. But jurisdiction to 

consider a constitutional defense does not include jurisdiction 

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to hear a constitutional challenge brought by a party 

enumerated in section 437h. And the lone case the FEC cites

that was not a section 437g proceeding is plainly 

distinguishable. In FEC v. Beaumont, 539 U.S. 146, 149–50 

(2003), a corporation, its officers and a single eligible voter 

sought a declaration that FECA’s prohibition on corporate 

contributions violated the First Amendment. While not all of 

the plaintiffs were eligible to invoke section 437h, at least the 

individual voter was. But the Supreme Court never addressed 

jurisdiction and we can thus infer nothing therefrom regarding

the jurisdictional issue. See Lewis v. Casey, 518 U.S. 343, 352 

n.2 (1996) (“[W]e have repeatedly held that the existence of 

unaddressed jurisdictional defects has no precedential 

effect.”); In re Navy Chaplaincy, 534 F.3d 756, 764 (D.C. Cir. 

2008) (“It is a well-established rule that cases in which 

jurisdiction is assumed sub silentio are not binding authority 

for the proposition that jurisdiction exists.” (quotation marks 

omitted)).8

 After all, “sometimes even excellent Homer 

nods.” Consol. Rail Corp. v. United States, 896 F.2d 574, 579 

(D.C. Cir. 1990) (quotation marks omitted). 

The text of section 437h, read in the context of its 

underlying legislative purpose, makes clear that the parties 

therein enumerated may bring actions challenging FECA’s 

 8 The FEC notes that section 437h “has resulted in only about a 

dozen en banc decisions in the almost 40 years since the law was 

passed.” FEC Supp. Br. 9; see also id. n.4 (citing thirteen 

decisions). Unclear to us is what the FEC intends to prove with this 

information. As discussed supra, the FEC cites only Beaumont for 

the proposition that one party eligible to invoke section 437h 

obtained judicial review by invoking section 1331. And we accord 

Beaumont no weight on the jurisdictional question because the 

Supreme Court did not consider it. To the extent, if any, the

thirteen cases provide guidance, they confirm our interpretation in 

light of the scarcity of section 1331 challenges to FECA. 

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constitutionality only under that section. Neither Appellants 

nor the FEC provide any reason for us to disregard section 

437h’s text and purpose. We therefore conclude that both the 

district court and this panel lack jurisdiction to decide the 

constitutional questions pressed by Appellants.

III

We recognize that by remanding for the district court to 

comply with the expedited review provision, we risk further 

prolonging this litigation. But even if we believed that the 

American citizenry’s interest in expedient resolution of 

constitutional challenges to FECA were best served by 

addressing the merits, we are without authority to do so. 

Inferior federal courts have only the jurisdiction the Congress 

confers upon them. Bath County v. Amy, 80 U.S. (13 Wall.) 

244, 247–48 (1871); Sierra Club v. Thomas, 828 F.2d 783, 

792 (D.C. Cir. 1987). The Congress decided that challenges 

to FECA’s constitutionality belong in the en banc courts of 

appeals to the exclusion of all other tribunals. Although we 

may review the district court’s error in failing to certify the

constitutional questions to the en banc court, see Judd v. FEC, 

304 Fed. App’x 874, 875 (D.C. Cir. 2008); Goland, 903 F.2d 

at 1252, 1256–58; Gifford v. Tiernan, 670 F.2d 882, 883–85

(9th Cir. 1982), the merits of Appellants’ constitutional 

challenges are beyond our reach. We therefore must vacate 

the district court’s judgment and remand the case. In re 

Lorazepam & Clorazepate Antitrust Litig., 631 F.3d 537, 542 

(D.C. Cir. 2011) (“Ordinarily a finding that the district court 

lacked jurisdiction . . . lead[s] us to vacate the court’s 

judgment and remand . . . .”).9

 9 Because Appellants appeal only the denial of summary 

judgment, the district court’s denial of preliminary injunctive relief 

is not before us. We therefore do not decide whether section 437h 

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For the foregoing reasons, it is ORDERED sua sponte

that the judgment of the district court be vacated and the case 

remanded to the district court to make appropriate findings of 

fact, as necessary, and to certify those facts and the

constitutional questions to the en banc court of appeals within 

five days of the date of this opinion.

So ordered.

 

deprives the district court of authority to grant such relief based on 

a constitutional challenge to FECA. We hold only that the district 

court is without authority to enter final judgment on the merits of 

any constitutional challenge to the provisions of FECA brought by 

a party enumerated in section 437h. 

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