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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 Decision

On 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 Decision

On 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.


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).