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  • FEC Record: Litigation

Wagner ruling holds constitutional questions must be heard en banc

June 12, 2013

On May 31, 2013, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit concluded that the Federal Election Campaign Act (the Act) denied the district court and that panel jurisdiction to consider the constitutional questions in Wagner v. FEC. The court vacated the lower court’s judgment and remanded the case to the district court to comply with the Act’s judicial review provision at 2 U.S.C. § 437h.


The Act prohibits federal government contractors from making contributions, either directly or indirectly, to any political party, committee or candidate for public office, or to any person for any political purpose or use. 2 U.S.C. § 441c. In Wagner v. FEC, three federal contractors challenge § 441c as violating the First Amendment and the Equal Protection guarantee of the Fifth Amendment. On November 2, 2012, the U.S. District Court for the District of Columbia upheld the federal contractor ban and concluded that Congress had the authority to prohibit contributions from all federal contractors.


On appeal, the U.S. Court of Appeals for the District of Columbia Circuit noted a potential jurisdictional infirmity.  The amended complaint had invoked ordinary federal question jurisdiction, but the Court questioned whether 2 U.S.C. § 437h, one of the Act’s judicial review provisions, vests exclusive jurisdiction over constitutional claims such as those made by plaintiffs in the en banc court of appeals, thereby stripping the panel of jurisdiction.  Under § 437h, the FEC, national party committees and individual voters may institute an action in a federal district court to construe the constitutionality of any provision of the Act, and the district court must certify all questions of the Act’s constitutionality to the U.S. Court of Appeals, “which shall hear the matter sitting en banc.”

In the end, the court determined that the text of § 437h is a grant of exclusive jurisdiction to the en banc court of appeals for any constitutional challenge initiated by a party in one of the three categories enumerated in the statute. It concluded that § 437h, when read within the context of its underlying legislative purpose (the vindication of the public’s interest in the expeditious resolution of constitutional challenges to the Act), makes clear that the enumerated parties may bring actions challenging the Act’s constitutionality only under that section.

The Court therefore held that both the district court and the panel lacked jurisdiction to decide the constitutional questions and that the district court’s role was simply to find facts and certify any non-frivolous constitutional questions to the en banc court of appeals. It sua sponte vacated and remanded the case to the district court to comply with the judicial review procedures set forth in § 437h.

On June 5, 2013, the district court entered an order issuing its findings of fact and certifying constitutional questions to the en banc court of appeals.