1 Opinion of WHITE, J. II I join the answers in Part IV of the Court's opinion, ante, at 141-142, n. 177, to the questions certified by the District Court relating to the composition and powers of the FEC, i. e., questions 8 (a), 8 (b), 8 (c), 8 (d) (with the qualifications stated infra, at 282-286), 8 (e), and 8 (f). I also agree with much of that part of the Court's opinion, including the conclusions that these questions are properly before us and ripe for decision, that the FEC's past acts are de facto valid, that the Court's judgment should be stayed, and that the FEC may function de facto while the stay is in effect. The answers to the questions turn on whether the FEC is illegally constituted because its members were not selected in the manner required by Art. II, § 2, cl. 2, the Appointments Clause. It is my view that with one exception Congress could endow a properly constituted commission with the powers and duties it has given. the FEC.1 Section 437c creates an eight-member FEC. Two members, the Secretary of the Senate and the Clerk of the House of Representatives, are ex officio members 1That is, if the FEC were properly constituted, I would answer questions 8 (b), 8 (c), 8 (d) (see infra, at 282-286), and 8 (f) in the negative. With respect to question 8 (e), I reserve judgment on the validity of 2 U. S. C. § 456 (1970 ed., Supp. IV) which empowers the FEC to disqualify a candidate for failure to file certain reports. Of course, to the extent that the Court invalidates the expenditure limitations of the FECA, Part I-C, ante, at 39-59, the FEC, however appointed, would be powerless to enforce those provisions. Unless otherwise indicated, all statutory citations in this part of the opinion are to the Federal Election Campaign Act of 1971, §§ 301-311, 86 Stat. 11, as amended by the Federal Election Campaign Act Amendments of 1974, §§ 201-407, 88 Stat. 1272, 2 U. S. C. § 431 et seq. (1970 ed., Supp. IV). without the right to vote or to hold an FEC office. Of the remaining six, two are appointed by the President pro tempore of the Senate upon the recommendation of the majority and minority leaders of that body; two are similarly appointed by the Speaker of the House; and two are appointed by the President of the United States. The appointment of each of these six members is subject to confirmation by a majority of both Houses of Congress. § 437c (a)(1). Each member is appointed for a term of years; none can be an elected or appointed officer or employee of any branch of the Government at the time of his appointment. §§ 437c (a) (2), (3). The FEC is empowered to elect its own officers, § 437c (a)(5), and to appoint a staff director and general counsel. § 437c (f). Decisions are by a majority vote. § 437c (c). It is apparent that none of the members of the FEC is selected in a manner Art. II specifies for the appointment of officers of the United States. The Appointments Clause provides: "[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” 3 Although two of the members of the FEC are initially selected by the President, his nominations are subject to confirmation by both Houses of Congress. Neither 2 References to the "Commissioners," the "FEC," or its "members" do not include these two ex officio members. 3 U. S. Const., Art. II, § 2, cl. 2. 1 Opinion of WHITE, J. he, the head of any department, nor the Judiciary has any voice in the selection of the remaining members of the FEC. The challenge to the FEC, therefore, is that its members are officers of the United States the mode of whose appointment was required to, but did not, conform to the Appointments Clause. That challenge is well taken. The Appointments Clause applies only to officers of the United States whose appointment is not "otherwise provided for" in the Constitution. Senators and Congressmen are officers of the United States, but the Constitution expressly provides the mode of their selection.* The Constitution also expressly provides that each House of Congress is to appoint its own officers. But it is not contended here that FEC members are officers of either House selected pursuant to these express provisions, if for no other reason, perhaps, than that none of the Commissioners was selected in the manner specified by these provisions-none of them was finally selected by either House acting alone as Art. I authorizes. The appointment power provided in Art. II also applies only to officers, as distinguished from employees, of the United States, but there is no claim the Commissioners are employees of the United States rather than officers. That the Commissioners are among those officers of the United States referred to in the Appointments Clause of Art. II is evident from the breadth of their * Id., Art. I, §§ 2, 3, and the Seventeenth Amendment. 5 "The House of Representatives shall chuse their Speaker and other Officers. . . ." U. S. Const., Art. I, § 2, cl. 5. "The Vice President of the United States shall be President of the Senate, but . . . [t]he Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States." §3, cls. 4, 5. assigned duties and the nature and importance of their assigned functions. The functions and duties of the FEC relate to three different aspects of the election laws: First, the provisions of the Criminal Code, 18 U. S. C. §§ 608-617 (1970 ed., Supp. IV), which establish major substantive limitations on political contributions and expenditures by individuals, political organizations, and candidates; second, the reporting and disclosure provisions contained in 2 U. S. C. §§ 431-437b (1970 ed., Supp. IV), these sections requiring the filing of detailed reports of political contributions and expenditures; and third, the provisions of 26 U. S. C. §§ 9001-9042 (1970 ed., Supp. IV) with respect to the public financing of Presidential primary and general election campaigns. From the "representative examples of [the FEC's] various powers" the Court describes, ante, at 109-113, it is plain that the FEC is the primary agency for the enforcement and administration of major parts of the election laws. It does not replace or control the executive agencies with respect to criminal prosecutions, but within the wide zone of its authority the FEC is independent of executive as well as congressional control except insofar as certain of its regulations must be laid before and not be disapproved by Congress. § 438 (c); 26 U. S. C. §§ 9009 (c), 9039 (c) (1970 ed., Supp. IV). With duties and functions such as these, members of the FEC are plainly "officers of the United States" as that term is used in Art. II, § 2, cl. 2. It is thus not surprising that the FEC, in defending the legality of its members' appointments, does not deny that they are "officers of the United States" as that term is used in the Appointments Clause of Art. II. Instead, 7 Indeed the FEC attacks as "erroneous" appellants' statement that the Court of Appeals ruled that "the FEC commissioners are 1 8 Opinion of WHITE, J. for reasons the Court outlines, ante, at 131-132, 133–134, its position appears to be that even if its members are officers of the United States, Congress may nevertheless appoint a majority of the FEC without participation by the President. This position that Congress may itself appoint the members of a body that is to administer a wide-ranging statute will not withstand examination in light of either the purpose and history of the Appointments Clause or of prior cases in this Court. The language of the Appointments Clause was not mere inadvertence. The matter of the appointment of officers of the new Federal Government was repeatedly debated by the Framers, and the final formulation of the Clause arrived at only after the most careful debate and consideration of its place in the overall design of government. The appointment power was a major building block fitted into the constitutional structure designed to avoid the accumulation or exercise of arbitrary power by the Federal Government. The basic approach was that official power should be divided among the Executive, Legislative, and Judicial Departments. The separationof-powers principle was implemented by a series of provisions, among which was the knowing decision that Congress was to have no power whatsoever to appoint federal officers, except for the power of each House to appoint its own officers serving in the strictly legislative not officers of the United States. Rather, it held that the grant of power to the President to appoint civil officers of the United States is not to be read as preclusive of Congressional authority to appoint such officers to aid in the discharge of Congressional responsibilities." Brief for Appellee Federal Election Commission 16 n. 19 (hereafter FEC Brief). 8 How Congress may both appoint officers itself and condition appointment of the President's nominees on confirmation by a majority of both Houses of Congress is not explained. |