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Federal Election Commission
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Federal Election Commission
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John O. Marsh Files (Ford Administration)
John Marsh's General Subject Files
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Federal Election Commission. Office of the Staff Directory. Office of the Commission Secretary. 1975-ca. 2005
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The original documents are located in Box 17, folder "Federal Election Commission" of the
John Marsh Files at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald R. Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Digitized from Box 17 of The John Marsh Files
at the Gerald R. Ford Presidential Library MAR 25 1975
THE WHITE HOUSE
WASHINGTON
Date: 3.26.75
TO:
Tack march
FROM:
Max L. Friedersdorf
For Your Information
FORD
Please Handle
LIBRARY
Please See Me
Comments, Please
Daug Benner apake
with more about
This + he in
reportedly happy.
President's mail - Mar 20, 1975
House
Joseph McDade
Urges the President to accept Secretary Simon's
recommendation and impose countervailing duties
on the importation of dairy products from Europe;
says that our dairy farmers have enough problems
without trying to compete with unfairly subsidized
products in the market.
Elliott Levitas
Asks that the President set up a commemorative
meeting at the White House on April 8 and invite
leaders from the Jewish and Christian communities
which would bring about an awareness of Yom
Ha-Shoah the Day of the Holocaust.
Gene Snyder
Encloses copies of six additional letters of recom-
mendation of Wm Bertelsman to be U.S. District
Judge for the Eastern District of Kentucky.
Manuel Lujan
Recommends that Cha rles Oliver, II, be appointed
as Administrator of the FAA.
Floyd Spence
Recommends that consideration be given to appointing
Dr. Nat Winston, Dr. John Routson and Mrs. Miriam
Putnam to the Federal Council on Aging.
Carroll Hubbard
Recommends that Carl Clewlow be appointed to the
U.S. Civil Service Commission.
W. Henson Moore
Explains why he voted against nomination of
Mr Neil Staebler when his name was submitted
to the House Administration Committee; since he
has not heard anything from the White House,
assumes it will now be necessary to openly oppose
Mr. Staebler on the Floor of Congress.
Spark Matsunaga
Recommends that S. Kenric Lessey be appointed
to the CAB.
Carl Perkins
Recommends that Henry Brooks be appointed to the
Board of Directors of the National Institute of
Building Science.
distribution 8/8/75-
NINETY-FOURTH CONGRESS
Commissioners, Cancel General
WAYNE L. HAYS, OHIO, CHAIRMAN
FRANK THOMPSON, JR., N.J.
WILLIAM L. DICKINSON, ALA.
JOHN H. DENT, PA.
SAMUEL L. DEVINE, OHIO
LUCIEN N. NEDZI. MICH,
JAMES c. CLEVELAND, N.H.
JOHN BRADEMAS, IND.
CHARLES E. WIGGINS, CALIF.
Congress of the United ECTION States
Jrd.
AUGUSTUS F. HAWKINS, CALIF.
J. HERBERT BURKE, FLA.
FRANK ANNUNZIO, ILL.
MARJORIE S. HOLT, MD.
JOSEPH M. GAYDOS, PA.
W. HENSON MOORE, LA.
ED JONES, TENN.
BILL FRENZEL, MINN.
Douse of Representatives
ROBERT H. MOLLOHAN, W. VA.
DAWSON MATHIS, GA.
COMMITTEE ON HOUSE ADMINISTRATION
LIONEL VAN DEERLIN. CALIF.
JOSEPH G. MINISH, N.J.
SUITE H-326, U.S. CAPITOL
MENDEL J. DAVIS, S.C.
CHARLES ROSE, N.C.
LINDY BOGGS, LA.
Mashington, D.C. 20515
JOHN L. BURTON, CALIF.
E. DOUGLAS FROST, STAFF DIRECTOR
PAUL WOHL, CHIEF COUNSEL
PAULA PEAK, DEPUTY STAFF DIRECTOR
LOUIS INGRAM, MINORITY COUNSEL
August 7, 1975
Honorable Thomas B. Curtis
Chairman
The Federal Election Commission
1325 K Street, N.W.
Washington, D.C. 20463
'75 AUG 8 AM II:
COMMISSION
FEDERAL ELECTION
03413034
Dear Mr. Chairman:
This refers to your letter dated July 17, 1975 and deliver ed to
the Speaker of the House of Representatives on August 1, 1975 transmitting
by the Federal Election Commission "a proposed regulation which pertains
to the filing of required statements and reports by Federal candidates and
political committees" in accordance with Section 316(c) of the Federal
Election Campaign Act of 1971, as amended, 2 U.S.C. 438(c). On August 1,
1975 the Speaker of the House referred this matter to the Committee on
House Administration.
It is noted that the Federal Election Commission published on
August 6, 1975 in the Federal Register its Notice of Proposed Rulemaking
(Notice 1975-21) on "Document Filing" which except for paragraph numbering
and titles is the same proposed regulation as was delivered to the Speaker
of the House on August 1, 1975. Notice 1975-21 cites 2 U.S.C. 437(d) as
its authority which provides that the Commission makes its rules pursuant
to the provisions of Chapter 5 of Title 5, United States Code. In addition,
Notice 1975-21 invites written comments from the general public including
interested candidates and political committees on its proposed rule on
document filing to be submitted to the Commission on or before September 5,
1975. This procedure gives the Commission the benefit of knowing the
competing views of the various special interests within the general public
prior to promulgation of its Rules. It was also contemplated that the
Commission would subsequently summarize and publish in the Federal Register
these competing views and to provide additional time to permit these special
interests to rebut in writing one another's comments. Needless to say, if
the comments of the general public in unanimity were adverse to a portion
of the proposed rule, the Commission in all probability would modify it
accordingly. Such a procedure gives the general public a full and fair
opportunity to participate in the rulemaking process and provides the
Commission with the maximum information prior to making a final judgment
on the Rule itself.
Honorable Thomas B. Curtis
-2-
August 7, 1975
Section 316(c) of the Act contemplates that the House of
Representatives would approve or disapprove within no more than 30 legislative
days the rule or regulation proposed by the Commission in its final form
prior to promulgation. Under the right set of circumstances, the House need
not wait the full 30 legislative days to approve a rule but could do so
sooner by enactment of a House Resolution specifically approving the rule
under review. The Act does not intend the House to review a rule still
subject to possible modification by the Commission as a result of the 2 U.S.C.
437(d) rulemaking process as is the case in this rule on document filing.
Surely the Commission does not expect the House to approve a proposed rule
prior to the time the general public has had a full and fair opportunity
to comment thereon. As a matter of general policy, this Committee has no
choice but to return a copy of your letter delivered on August 1, 1975
together with the proposed rule on filing election reports and statements
by Federal candidates and political committees as not meeting the require-
ments of Section 316(c) of the Act. Copies of future letters transmitting
proposed rules that are not in strict compliance with the Act will be similarly
returned. It is respectfully requested that upon completion of the rulemaking
process on "document filing" the final rule be transmitted to the Speaker
of the House as prescribed by Section 316(c) of the Act.
In addition, for the record, I must state that in the past I
have been keenly aware and will continue to be equally cognizant in the
future that time is of the essence in this matter. For example, I called
and scheduled hearings on March 10, 1975 before the Committee on House
Administration on the confirmation of your Commissioners before the President
named his nominees. Furthermore, the House was the first body to confirm
your Commissioners on March 19, 1975. In addition, the House passed H.R. 7950
on June 19, 1975 which authorized appropriations for your Commission and
amended S. 1434 that same date. The House has been awaiting action by the
other body on S. 1434 since that date. Further, all requests made by the
Commission to this Committee were accomplished in a timely manner. Notwith-
standing my concern for timeliness and the need for promulgated rules now
considered overdue, I fully intend to carry out my oversight responsibilities
of the Act both with regard to House candidates and political committees
supporting them, but also with regard to the Federal Election Commission
meticulously meeting its statutory obligations to all parties thereunder,
With kindest personal regards, I am
Very sincerely yours,
Wame
L.
WAYNE L. HAYS
CHAIRMAN
WLH:ckc
Attachment
3
FEDERAL ELECTION COMMISSION
WASHINGTON, DC 20463
August 22, 1975
MEMORANDUM TO: Chairman Curtis
FROM:
Jack Murphy More
Attached please find Carolyn Reed's memorandum
re Point of Entry in response to Congressman Brademas'
letter.
Attachment
JGM:jl
To:
Jack Murphy
FROM: Carolyn Reed
Re:
Point of Entry ch
Attached is the memorandum in response to the letter
of Congressman Brademas.
Congressman John Brademas has submitted a memorandum dated
July 30, 1975, to the Commission stating his views on the point
of entry of campaign finance reports filed by Congressional can-
didates and their supporting committees pursuant to the Federal
Election Campaign Act of 1971, as amended (the Act)
Congressman Brademas has raised two issues regarding the
point of entry filing requirement. These issues are:
1. Whether statements and reports of House and Senate
candidates and their principal campaign committees should be
filed initially with the Clerk of the House and the Secretary
of the Senate; and
2. Whether the Clerk of the House and the Secretary
of the Senate should perform "desk audits" of the statements
and reports filed with them.
The Commission is of the opinion that the language of the
statute requires candidates for the House and Senate and com-
mittees who support them to file the reports and statements
initially with the Commission. In addition, the Commission has
the duty under the Act to perform audits of all reports and
statements required to be filed under the Act. These two issues
are addressed separately in the following discussion.
-2-
A) Initial Point of Filing
The Commission has addressed this issue at length in its
previous memorandum. There are, however, a few points which the
Commission considers relevant to review at this time.
It is the position of the Commission that the clear language
of the Act requires candidates and their supporting committees.
to file reports and statements initially with the Commission. 2
U.S.C. $434 is the only section of the Act which requires candi-
dates and political committees to file reports of receipts and
expenditures. The one exception to Commission filing - filing
with the principal campaign committee - is clearly set forth in
2 U.S.C. $434(2). The section requiring candidates to file state-
ments of organization, 2 U.S.C. $433, clearly requires political
committees to file statements of organization with either the
Commission or the appropriate principal campaign committee.
Congressman Brademas has stated that these sections "speak
of the general duties of the Commission. The law, for the sake
of simplicity, speaks in the general sections of filing reports
and statements with the Commission just as it speaks of the other
general duties of the Commission." The Commission is of the
opinion, however, that 2 U.S.C. $433 and 2 U.S.C. $434 are not
simply general sections pertaining to the duty of the Commission.
Rather, these sections place a legal obligation upon certain can-
didates and political committees to register and report under the
Act. These sections clearly state that in order to comply with
-3-
these requirements, a candidate or political committee must file
a statement of organization and periodic reports with either the
Commission or the appropriate principal campaign committee.
The statutory section pertaining to the custodial duty of
the Clerk of the House and the Secretary of the Senate, 2 U.S.C.
$438 (d), does not require candidates and their supporting poli-
tical committees to file reports and statements with the Clerk
or the Secretary. Rather, this section requires the Commission
to prescribe regulations to insure that appropriate reports and
statements are transmitted to the Clerk and the Secretary in a
timely fashion. The custodial duties of the Clerk and the Secre-
tary with respect to the reports received by them are set forth
in 2 U.S.C. $438 (d) (1) (C).
In interpreting the meaning of 2 U.S.C. §§433, 434 and 438 (d),
the Commission cannot look at these sections in isolation from
the remaining provisions of the Act. The Supreme Court has stated:
When interpreting a statute, the court will
not look merely to a particular clause in
which general words may be used, but will
take in connection with it the whole statute
(or statutes on the same subject) and the
objects and policy of the law, as indicated
by its various provisions, and give to it
such a construction as will carry into the
execution the will of the Legislature.
(citations omitted) Kokoszkau. Belford,
417 U.S. 642 (1974)
The Commission is of the opinion that, when viewed in its
entirety, the Act requires Congressional candidates and their
supporting committees to file initially with the Commission.
-4-
Under the prior law, the Clerk and the Secretary were vested with
the supervisory responsibilities pertaining to candidates for
the House and Senate and their supporting political committees.
Under the present Act, the Commission, with minor exception, has
been vested with the supervisory responsibilities for all candi-
dates and political committees. Both the Commission and the Clerk
of the House are required to make the reports and statements of
candidates for the House and their supporting political commit-
tees available for public inspection and copying and to preserve
such reports and statements. 2 U.S.C. $438 (a) (4) and (5) ; 2 U.S.C.
$438 (d) (1) (C). Since both entities are charged with the respon-
sibility of making the reports and statements available for public
inspection, these sections do not assist in determining the initial
point of entry of the documents. The Commission and the Secretary
of the Senate have these responsibilities with regard to reports
and statements filed by Senatorial candidates and their supporting
committees.
The Commission, however, is vested with other supervisory
responsibilities. These responsibilities include the following
sections of 2 U.S.C. $438 (a) :
(6) Index of reports and statements; publica-
tion in Federal Register. To compile and main-
tain a cumulative index of reports and statements
filed with it, which shall be published in the
Federal Regsiter at regulat intervals and which
shall be available for purchase directly or by
mail for a reasonable price;
-5-
(7) Special reports; publication. To prepare
and publish from time to time special reports
listing those candidates for whom reports were
filed as required by this title and those can-
didates for whom such reports were not filed
as so required;
(8) Audits; investigations. To make from time
to time audits and field investigations with
respect to reports and statements filed under
the provisions of this chapter, and with respect
to alleged failures to file any reports or
statement required under the provisions of this
chapter;
Under the prior law, the supervisory officer with whom the
reports was filed had the responsibility to perform these duties
with respect to the reports filed with him. It is the position
of the Commission that, in order to perform these duties, the
original reports and statements must initially be filed with the
Commission. For example, 2 U.S.C. $438 (a) (6) requires the Com-
mission to compile and maintain a cumulative index of reports
and statements filed with it. Although the Secretary and the
Clerk previously compiled such indexes, it is now the Commission,
rather than the Clerk and the Secretary, which is charged with
the responsibility to compile such indexes. Therefore, if the
Commission does not receive the reports and statements of House
and Senate candidates and their supporting political committees
there will be no timely index with respect to those candidacies
and committees.
The obligation to compile an index is a function designed
to assure that the public will have effective access to all reports
-6-
and statements filed under the Act. Practically speaking, such
an index is essential since individual reports and statements
could not otherwise be found amidst the massive amounts of paper
submitted to the Commission. In order for the public to have
timely access, i.e., within 48-56 hours after the time of filing
under 2 U.S.C. $438 (a) (4), this index will have to be compiled
on a daily basis. Daily compilation to this end requires that
the original documents be filed with the Commission.
The Commission will also need the original filings to per-
form its responsibilities under 2 U.S.C. $438 (a) (7). This section
requires the Commission to "prepare and publish from time to time,
special reports listing those candidates for whom reports were
filed as required by this title and those candidates for whom
such reports were not filed as so required." The reports to be
issued cannot be assuredly accurate if filings arrive at different
methods and criteria for assessing the existence of violations
and for recommending amended or supplemental filings.
In addition, the Commission is vested with the sole respon-
sibility of making audits and investigations with respect to
reports and statements filed under the provisions of the Act and
with respect to alleged failures to file reports or statements.
This supervisory responsibility is discussed further in section
B of this memorandum. However, the Commission is of the opinion
that to perform this duty effectively, the reports and statements
must initially be filed with the Commission.
-7-
Congressman Brademas proposes that the available legisla-
tive history pertaining to 2 U.S.C. $438 (d) overrides the plain
meaning of the Act. He indicates that legislative history per-
taining to this section favors initial filing by Congressional
candidates and their supporting committees with the Clerk of
the House and the Secretary of the Senate.
In its duty to prescribe rules and regulations to carry out
the provisions of the Act, the Commission must follow general
principles of statutory interpretation. Although the primary
rule of statutory construction is to ascertain and declare the
intention of the legislature, the meaning of a statute and leg-
islative intent are not determined conclusively by legislative
history. The legislative history of a statute may not compel
construction at variance with its plain words. Where the language
of a statute is clear and unambiguous, consideration of legisla-
tive history has not been permitted by the courts. Fairport, P.
& E.R. Co. V. Meredith, 292 US 589 (1934).
The guidelines rendered by federal courts for treatment of
committee reports and explanatory comment by legislative members
in charge of the bill under debate must be particularly noted.
Decisions generally lend credence to the substance of committee
reports when the language of a statute is ambiguous or "not free
from doubt" as to its proper meaning. Wright V. Vinton Branch,
300 US 440 (1937) ; U.S. V. Missouri Pac. R. Co., 278 US 269 (1928).
-8-
But committee reports cannot be used "to construe a statute con-
trary to the natural import of its terms." U.S. V. Shreveport
Grain & Elevator Co., 287 US 77 (1932) The Supreme Court, in
one of the most celebrated of many opinions on this topic, has
held that it "is not at liberty to refer to committee reports"
in order to "construe language so plain as to need no construction. "
Federal courts have, in recent cases, faithfully abided by
the principle that committee reports cannot control, or even be
considered, when construction of the statute on its face does
not lead to absurd or impractical consequences or when, taken
as a whole, statutory language is clear. In National Life and
Accident Ins. Co. V. U.S., 381 F. Supp. 1034 (M.D. Tenn., 1974),
the court asserted: "When a Congressional statute is clear and
straight-forward, reference to legislative history is neither
necessary nor permitted. " [See also Brennan V. Taft Broadcasting
Co., F.2d 212 (5th Cir., 1974) ; Weidenfeller V. Kidulis, 380 F.
Supp. 445 (E.D. Wisc., 1974) .]
Similarly, courts have resorted to statements by members
of the legislature, generally committee members or chairmen in
charge of a bill, in construction of ambiguous statutes. Apparently,
these explanatory statements are regarded in the same category
as supplemental reports, and given just as much weight. Duplex
Printing Press Co. V. Deering, 254 US 443 (1920) Like commit-
tee reports, explanatory statements made in presenting the bill
-9-
for passage by representatives of the committee recommending it
cannot control nor be considered when the language of enactment
is clear or when, taken as a whole, the effect of the language
used is certain in its meaning. J. Peckham, in U.S. V. Trans-
Missouri Freight Assoc., 166 US 290 (1896), justified the prece-
dent for sparing use of comments from debates:
All that can be determined from debates and
reports is that various members had various
views
[I]t is impossible to determine with
certainty what construction was put upon an
act by the members of a legislative body
by resorting to the speeches of individual
members thereof. 166 US at 318.
The Supreme Court has consistently refused to consider explana-
tory statements when the effect of statutory language is clear,
as a whole, because "
such aids are only admissible to solve
doubt and not to create it." Railroad Commission of Wisconsin
V. Chicago, B. & Q.R. Co., 257 US 563 (1922). [See also U.S. V.
Missouri Pac. R. Co., 278 US 269 (1929) .]
Although Congressman Brademas' statement in floor debate
on the conference report is unequivocal regarding his interpre-
tation of "custodial duties", it is not, by force, indicative
of the entire Congress' understanding of the filing requirement
in the Act. As the Court of Appeals in the Eighth Circuit rec-
ognized, "the fact that no senator or representative expressed
a view (i.e., took issue with the explanatory comment), does not
necessarily compel a conclusion that Congress agreed
"
American
-10-
Smelting and Refining Co. V. Occupational Smelting and Health
Review Commission, 501 F.2d 504 (8th Cir. , 1974). It is the
opinion of the Commission that, under the well established prin-
ciples of statutory construction, the clear language of the Act
controls the point of entry question.
B) "Desk Audits"
The second issue raised by Congressman Brademas is whether
the Commission or the Clerk and the Secretary are under a duty
to perform "desk audits" of the statements and reports of House
and Senate candidates and their supporting committees. The Com-
mission is of the opinion that the clear language of the statute
requires the Commission to perform the audits of all reports and
statements required to be filed under the Act. The duties of
the Commission are set forth in subsection (a) of 2 U.S.C. $438.
2 U.S.C. $438 (a) (8) provides:
(8) To make from time to time audits and
field investigations with respect to reports
and statements filed under the provisions of
this chapter, and with respect to alleged
failures to file any report or statement
required under the provisions of this chapter;
(emphasis supplied)
Under this language, then, the Commission has the duty to audit
all of the reports and statements required to be filed under the
Act.
-11-
The duties of the Clerk and the Secretary are set forth in
2 U.S.C. $438 (d) (1) (c). In enumerating the duties of the Clerk
and the Secretary, the statute refers back to subsection (a) of
$438 and states that the Clerk and the Secretary have two specific
duties. They are making reports and statements received by them
available for public inspection, 2 U.S.C. $438 (a) (4), and pre-
serving such reports and statements in accordance with 2 U.S.C.
§438 (a) (5). This section does not provide that any other "super-
visory" duties enumerated in subsection (a) are to be required
of the Clerk and the Secretary. 2 U.S.C. $438, then, clearly
provides that the Commission, not the Clerk and the Secretary,
is under a duty to audit the reports of House and Senate candi-
dates and their supporting committees.
The fact that the Clerk and the Secretary are under a duty
to refer apparent violations of the Act to the Commission does
not imply that they, rather than the Commission, have the authority
to conduct desk audits. Under both the prior law and the present
Act, the authority to conduct audits and the duty to refer vio-
lations have been separate responsibilities and set forth in
different sections of the law. ($308 (a) (11) and $308 (a) (12)
under the prior law and presently 2 U.S.C. $438 (a) (8) and (9)
and $437g (a) (1) (B) ) Since the Commission has the duty to conduct
audits, the implication of $437g (a) (1) (B) is that the Clerk and
the Secretary are to perform backup checks on possible violations
-12-
which are apparent from the face of the reports and statements
which the Commission has transmitted to them. In addition, the
Clerk and the Secretary have a duty to refer apparent violations
of Title 18 which could not be uncovered by a desk audit. For
example, 2 U.S.C. $437g (a) (1) (B) places the Clerk and the Secre-
tary under an obligation to refer apparent violations of 18 U.S.C.
$617, a section which prohibits fraudulent misrepresentation of
campaign authority.
Congressman Brademas has raised the additional question of
whether the Clerk and the Secretary, if they are determined to
be the initial point of entry, need give the Commission copies
of all statements and reports or just copies of those reports
which include apparent violations. It is the position of the
Commission that, in order to perform its statutory duties, it
must receive all reports and statements required to be filed
under the Act. For example, 18 U.S.C. §608 (b) (3) establishes
a $25,000 limitation on individual contributions in any calendar
year. In order to enforce this individual contribution limita-
tion, one entity must have the reports of all candidates and
political committees to which a contribution would count against
an individual's contribution limitation. Since there is no
statutory language to indicate that the Clerk and the Secretary
are to receive reports of presidential candidates and their
supporting committees, the only entity which could discover
violations of this contribution limitation, then, is the Commission.
-13-
In addition, the Commission will be required to have all
reports in order to prepare an index of the reports and state-
ments and to publish lists of candidates who did not file reports.
Conclusion
It is the opinion of the Commission that the Act requires
candidates for the House and Senate and their supporting com-
mittees to file reports and statements initially with the Commission.
The Commission is required to prescribe regulations to insure
that the appropriate reports and statements are transmitted to
the Clerk and the Secretary. The proposed regulation establishes
a procedure which will enable both the Commission and the Clerk
and the Secretary to perform their respective duties under the
Act. The Commission has the duty to audit all of the reports and
statements required to be filed under the Act. Although the Clerk
and the Secretary have the responsibility to report apparent
violations of the Act to the Commission, they do not have the
express or implied power to conduct audits pertaining to the
reports and statements received by them.
MEMBRANDUM
TO:
BARRY SHILLITO
FROM:
ORLANDO B. POTTER
DATE:
June 16, 1975
RE:
THE LIBRARY OF CONGRESS REPORT ON THE QUESTION OF INITIAL
POINT OF ENTRY
For whatever it may be worth as the discussion on this matter unfolds,
here are a few recollections of the legislative history that led up to the
1974 Amendments.
In the spring of 1973, the Secretary of the Senate appeared before the
Senate Subcommittee on Privileges and Elections which was there hearing a
wide range of commentary on the experience gained under the Federal Election
Campaign Act of 1971, as related to a bill then pending before the Senate
which I think vas designated S. 372. That bill was never enacted although I
do believe it did pass the Senate and many of the provisions in it and
assumptions underlying it became part of the background for the Federal Election
Campaign Act Amendments of 1974.
One of the Secretary's basic recommendations at that time was that there should
be some acknowledgment of as well as correction of the fact that the 1971 law
provided three separate and co-equal supervisory officers but made no provision
for collaboration or cooperation between them. As a remedy, the Secretary
proposed that the three existing supervisors namely, the Secretary of the Senate,
the Clerk of the House, and the Comptroller General be constituted as a joint
board of supervisors with authority to collaborate and cooperate in promulgating
rules, regulations, and forms and in jointly enforcing the statute, While many
persons and groups were already favoring the establishment of a Commission, and
I believe S. 372 in fact provided for one, the Secretary's proposal for a joint
board of the existing supervisors was a palatable alternative for those who
opposed the Commission or were apprehensive of its independence. Accordingly, the
concept of the joint board became embedded in the language of many of the
subsequent versions of the reform legislation as it made its way through the
House of Representetives. As I recall it, the concept of the joint board went
through several modifications and mutations in the process, all tending eventually
towards nore independence from Congress but still retaining until the last stages
the designation of board or joint board out of deference to those who opposed the
concept of the Commission. At one point the Comptroller General was dropped from
participation but the concept of the board was still preserved and as I recall it
in one intermediary stage, the idea was advanced that Members of Congress night sit
on the board with the two Congressional officers. Finally in the last stages both
the concept and the actual designation of the "Commission" was adopted and the two
Congressional Officers were relegated to non-voting and ex officio status.
Page Two
The point of all of this, and I think that the legislative history will bear
it out, that at any stage in the legislative history at which the term "board"
or "joint board" is used the concept of the Commission had not yet fully ripened,
and the role at that point envisioned for the Clerk and the Secretary was more
substantial than that which finally emerged in the statute as enacted. I therafore
tend to think that the references to the Conference Report which appear on page
CRS-4 of the Library study are somewhat anachronistic in content at least in the
minds of the people who drafted the language and perhaps in the mind of
1/2
Congressman Brademas himself.
jrd
OBP.
- Per kim
DUTIES OF THE CLERK OF THE HOUSE OF REPRESENTATIVES UNDER THE FEDERAL
ELECTION CAMPAIGN ACT AMENDMENTS OF 1974 (PUBLIC LAW 93-443)
This report discusses the following two questions: (1) under
current law, where must candidates and others file their reports and
statements; and (2) under the Federal Election Campaign Act Amendments
of 1974 (Pub. L. 93-443), what are the duties of the Clerk of the House
of Representatives.
(1) Place for filing reports and statements.
Various statutory provisions require reports or statements
to be filed "with the Commission" (for example, see 2 U.S.C. § 433(a),
relating to statements of organization filed by political committees,
and 2 U.S.C. § 434(a) (1), relating to reports of receipts and expendi-
tures by candidates and principal campaign committees). Furthermore,
2 U.S.C. § 436(d) provides that, if certain, specified reports or
statements are "delivered by registered or certified mail, to the Com-
mission or principal campaign committee with which [they are] required
to be filed" [emphasis added], then such reports or statements are
deemed filed on the dates specified in the postmarks on the envelopes.
Thus, the foregoing statutory language suggests that such reports and
statements are to be sent to the Commission and not directly to the
Distribution Limited
CRS-2
Clerk of the House of Representatives, in the case of candidates for
Representative, Delegate, or Resident Commissioner.
Nevertheless, in the course of the House debate on the
Conference Report on S. 3044, Congressman Brademas, in briefly sum-
marizing the major provisions of the bill, stated:
"Under the bill, candidates for the House and
Senate would continue to file disclosure reports
with the Clerk of the House and the Secretary of
the Senate" (Cong. Record, Daily Ed., P. H. 10328,
October 10, 1974).
Apparently, Congressman Brademas, a member of the Committee on House
Administration, had in mind one or both of the following statutory
provisions: (1) 2 U.S.C. § 437g (a) (1) (B); or (2) 2 U.S.C. § 438 (d).
The first of such provisions, 2 U.S.C. $ 437g (a) (1) (B), requires "the
Clerk of the House of Representatives or the Secretary of the Senate
(who receive reports and statements as custodian for the Commission)"
[emphasis added] to refer any apparent violations discovered with
respect to such reports and statements to the Commission. The latter
provision, 2 U.S.C. § 438 (d), requires the Commission to promulgate
rules and regulations to require, inter alia, that required reports
or statements from candidates for Representative, Delegate, or Resident
Commissioner and from political committees supporting such candidates'
"shall be received by the Clerk of the House of Representatives as
custodian for the Commission" [emphasis added].
CRS-3
Hence, the question is whether the requirement that the
Clerk "receive" certain reports and statements means that such re-
ports and statements must be sent directly to the Clerk or that they
must be sent to the Commission and subsequently transmitted, by the
Commission, into the custody of the Clerk, after the Commission has
completed its review of them.
The legislative history on this point is inconclusive.
Subsection (d) of 2 U.S.C. § 438 (the latter provision discussed
earlier) was added to H.R. 16090 by a committee amendment offered
during the course of the House debate. In explaining the amendment,
Congressman Brademas, who offered it on behalf of the Committee on
House Administration, stated:
"Most of the supervisory responsibilities
of the Clerk of the House and Secretary of
the Senate would be vested in the Board
[i.e. - the proposed "Board of Supervisory
Officers"] except that the Secretary and
Clerk would act as custodians for the Board
with respect to reports filed by candidates
to the House and Senate (Cong. Record,
Daily Ed., p. H. 7905, August 8, 1974).
The phrase "act as custodians" does not clarify the problem. However,
the debate concerning this amendment (see Cong. Record, Daily Ed., PP.
H. 7905 through H. 7908, August 8, 1974) strongly emphasized the in-
dependence of the proposed Board from either executive or congressional
control. Thus, there is at least some suggestion of a legislative in-
tent to impose only ministerial functions on the Clerk and to insulate
CRS-4.
the review and investigatory functions of the Commission. Such a
suggestion comports with a finding that reports and statements would
be sent to the Commission and, after examination, be transmitted into
the custody of the Clerk, or the Secretary, as the case may be.
The strongest argument that reports and statements are to
be filed directly with the Clerk (in appropriate cases) is derived
from the Conference Report (see S. Rept. 93-1237, at P. 81), wherein
the following statement appears:
"F. CUSTODIAL RECEIPT OF REPORTS
Senate bill
No provision.
House amendment
Section 205(b) of the House amendment amended
section 308 of the Act by inserting a new subsection
(c). Such subsection provided that the supervisory
officer shall prescribe rules to carry out title III
of the Act, including rules to require that (1) re-
ports required to be filed by candidates for the
office of Representative, Delegate, or Resident
Commissioner, shall be filed with the Clerk of the
House of Representatives as custodian for the Board
of Supervisory Officers (hereinafter in this state- -
ment referred to 2S the "Board"); (2) reports. re
quired to be filed by candidates for the office of
Senator shall be filed with the Secretary of the
Senate as custodian for the Board; and (3) the Clerk
of the House of Representatives and the Secretary of
the Senate shall be required to (A) make such reports
available for public inspection; and (B) preserve
such reports.
Subsection (c) also required the Clerk of the
House of Representatives and the Secretary of the
Senate to cooperate with the Board in carrying out
its duties under the Act.
Conference substitute
The conference substitute is the same as the
House amendment."
CRS-5
Despite the language in the Conference Report explanation requiring
appropriate reports and statements to be "filed with" the Clerk, no
supportive statements have been discovered in the debates in either
the House or the Senate anteceding the Conference Report. The only
statement supporting such an interpretation discovered in any of the
debates leading to the enactment of Public Law 93-443 is the state-
ment by Congressman Brademas (quoted above), made after the Conference
Report had been written. Thus, the legislative history is incon-
clusive.
It may be possible to draw certain inferences from the
language of other statutory provisions. But, in some instances, such
inferences conflict and, hence, leave the ambiguity unresolved. For
instance, 2 U.S.C. § 4378, relating to "enforcement", illustrates such
conflicting inferences. Subsection (a) (1) (B) requires, inter alia,
that the Clerk, receiving reports and statements as a custodian, must
refer any apparent violations discovered to the Commission. This
requirement could be taken to imply that pertinent reports and state-
ments should be filed directly with the Clerk and the Clerk should
examine the same for apparent violations and refer any such violations
to the Commission. But, subsection (a) (2) of the same section requires
the Commission to take specified action upon receiving a complaint or
a referral from the Clerk (or the Secretary) or upon discovering any
apparent violations on its own. This requirement could be taken to
imply that reports and statements should be filed initially with the
CRS-6
Commission and then transmitted to the Clerk and, if the Clerk dis-
covers any apparent violations not already discovered by the Com-
mission, he should refer them to the Commission. Thus, while this
section apparently imposes a duty to review reports and statements
on both the Commission and the Clerk (or the Secretary), it does
not resolve the question as to the proper place for initial filing.
Perhaps the strongest inference that the proper place for
initial filing is the Commission is derived from the statutory lan-
guage appearing in the two provisions cited at the outset in this
report, 2 U.S.C. § 433 (relating to statements of organization) and
2 U.S.C. § 434 (relating to reports of receipts and expenditures)
and in a third provision, 2 U.S.C. § 432 (relating to the organiza-
tion of political committees). Under 2 U.S.C. § 433, subsection (e)
expressly provides, as follows:
"In the case of a political committee which
is not a principal campaign comittee, reports
and notifications required under this section
to be filed with the Commission shall be filed
instead with the appropriate principal cam-
paign committee" [emphasis added].
Under 2 U.S.C. § 434, subsection (a) (1) provides that, "except as
provided by paragraph (2)" [emphasis added], reports of receipts and
expenditures must be filed by candidates and treasurers of political
committees with the Commission" and then subsection (a) (2) expressly
provides, as follows:
CRS-7-
"Each treasurer of a political committee which
is not a principal campaign committee shall file
the reports required under this section with the
appropriate principal campaign committee."
Finally, under 2 U.S.C. § 432, subsection (E) (2) expressly provides,
as follows:
"Notwithstanding any other provision of this
title, each report or statement of contribu- -
tions received or expenditures made by a
political committee (other than a principal
campaign committee) which is required to be
filed with the Commission under this title
shall be filed instead with the principal
campaign committee for the candidate on
whose behalf such contributions are accepted
or such expenditures are made" [emphasis
added].
If, in fact, the legislative intent was to require certain reports and
statements to be filed directly with the Clerk, it would seem somewhat
incongruous that such intent was expressed so anbiguously, especially
in contrast to the foregoing clear exclusionary provisions.
Thus, on balance, not withstanding the language in the
Conference Report and Congressman Brademas' statement during the debate
on that Report, it would appear from the statutory language itself that
reports and statements are to be filed with the Commission and pertinent
ones are to be subsequently transmitted to the Clerk or the Secretary
for preservation and public accessibility.
(2) Duties of the Clerk.
Under the Federal Election Campaign Act Amendments of 1974
(Pub. L. 93-443), the following duties are expressly imposed on the
Clerk of the House of Representatives:
CRS-8
(1) in "receiving" reports and statements as
custodian for the Commission, if the Clerk
discovers an apparent violation of some
specified statutory provision, he must re-
fer the same to the Commission [2 U.S.C.
§ 437g (a) (1) (B) ];
(2) under a rule or regulation to be promulgated
by the Commission, the Clerk must "receive",
as custodian for the Commission, reports and
statements required to be filed by candidates
for Representative, Delegate, or Resident
Commissioner and by political committees
supporting such candidates [2 U.S.C. § 438
(d) (1) (A)
(3) under 2 rule or regulation to be promulgated
by the Commission, the Clerk, as custodian for
the Commission, must make statements and re--
ports "received" by him available for public
inspection and copying in accordance with
2 U.S.C. § 438 (a) (4) [2 U.S.C. § 438 (d) (1)
(C) ];
(4) under a rule or regulation to be promulgated
by the Commission, the Clerk, as custodian for
CRS-9
the Commission, must preserve statements and
reports "received" by him in accordance with
2 U.S.C. § 438 (a) (5) [2 U.S.C. § 438 (d) (1)
(c) ]; and
(5) the Clerk must cooperate with the Commission
in carrying out its duties and must furnish
such services and facilities as may be re- -
quired in accordance with 2 U.S.C. § 438
[2 U.S.C. § 438 (d) (2)].
In addition to the foregoing express duties, there may be an implied
duty to review reports and statements "received" for apparent viola-
tions (see 2 U.S.C. § 437g (a) (1) (B)).
FEDERAL ELECTION COMMISSION
WASHINGTON, DC 20463
August 26, 1975
The Honorable John Brademas
U. S. House of Representatives
Washington, D. C. 20515
Dear John:
Thank you for your letter of July 30 and the memorandum
outlining in some detail your thinking on the subject of the
single point of entry as set forth in the Commission's proposed
Regulation #1 which it has since forwarded to the Speaker of the
House and the President Pro Tempore of the Senate on August 1,
1975.
I appreciate your statement that the discussion we had
along with Neil Staebler and your staff somewhat in depth was
of help. Your offer to prepare and send the memorandum was very
welcome. It enables the Commission to respond with an answering
memorandum, which I am enclosing with this letter, and so move
the dialogue forward on a high plane. Perhaps when you have had
a chance to review it, you will wish to make further response.
I would welcome the opportunity to have a further personal
discussion with you and any other of your colleagues concerned
with this matter, particularly Chairman Hays and other members
of the House Administration Committee.
I want to clear up one point of possible misunderstanding.
I was instructed by the Commission to hand deliver the proposed
Regulation and the accompanying letters and materials to the
Speaker of the House and President Pro Tempore of the Senate on
Monday, July 21. I had forwarded a copy to Chairman Hays the
previous Thursday and had an appointment to discuss the matter
with him on Monday, July 25; before making the deliveries. At
Chairman Hays' request, I did not make the delivery, but reported
back to the Commission his deep concern about the proposed
Regulation and his opposition to it. In my discussion with him
and his Chief of Staff, yours and Congressman Frenzel's roles and
deep interest in the matter were emphasized. This led to my
communication with you and our meeting. I told you we wanted to
file the Regulation before Congress recessed, which would give
the additional time to the Congress to consider the proposed
Regulation inasmuch as none of the thirty legislative days
required for the Regulation to be before the Congress before
the Commission could "prescribe" it would be used up.
The Honorable John Brademas
August 26, 1975
Page Two
I am very hopeful that this difference of opinion can be
worked out, but if it cannot, then let the House work its will
after listening to the arguments presented by all sides. Our
exchanges and discussions, and those with Chairman Hays and
others, will certainly help to sharpen the issue and enable the
House to reach a better judgment.
There is one matter about which I am personally very
sensitive, as I stated to you during our discussion. In no way
do I believe the Commission is seeking to go against "the intent
of Congress." As a Member of Congress for 18 years, I became
very critical of the agencies of government writing regulations
based upon a statute which I felt did go beyond the legislative
intent, and even contrary to it, as expressed in the statute.
Anyone caring to do the research could undoubtedly find words
of mine in the Congressional Record expressing this strong point
of view.
With this in mind, I asked our legislative counsel to be
particularly careful and as exhaustive in their research as
possible on the point of congressional intent and legislative
history, both in general and in respect to the specific matter
at hand.
I believe the accompanying memorandum read in context of
our previous memorandum is one of fine scholarship. A scholarly
brief was also prepared independently by the Legislative Reference
Service of the Library of Congress (actually this brief was
available at the time of our discussion, but I was unaware of it)
which I believe goes a long way to establishing the point that
the Commission's Regulation expresses the intent of Congress as
derived from the statute. I am enclosing a copy of this brief
for your consideration.
The matter of legislative intent and legislative history in
developing the intent in a written statute has been the subject
of many Supreme Court decisions over the years. An excellent
chapter in Sutherland's "Statutory Construction" (1968 ), Chapter
48, "Extrinsic Aids - Legislative History," presents the matter
in considerable depth. It is notable that even though the U. S.
Courts have taken a more liberal view than the British Courts in
respect to parlimentarian intent, the strong prevailing position
of the U. S. Supreme Court is that the words of the statute are
preeminent, as the memorandum prepared by our legal staff
demonstrates.
The Honorable John Brademas
August 26, 1975
Page Three
Indeed it would make somewhat a mockery of those of us who
have been trying to raise the level of legislative drafting to
that of the profession it is, at least in the legislative drafting
service of the U. S. Congress, if we were to pay too much attention
to "extrinsic aids" in interpreting the language that the drafters
have carefully worked up under the direction of the Congressional
Members. This is exactly the reason I believe the British Courts
have taken a very stern view of going outside the language of
the statute itself. It also has great dangers to the integrity
of the legislative process itself, Supreme Court Justice Robert
Jackson said in support of his preference for making decisions,
"by analysis of the statute instead of by psychoanalysis of Congress.
When we decide from legislative history, including statements of
witnesses at hearings, what Congress probably had in mind, we must
put ourselves in the place of a majority of Congressmen and act
according to the impression we think this history should have made
on them. That process seems to me to be not interpretation of a
statute but creation of a statute." I think those of us who are
dedicated to reestablishing the power and strength of the Congress
should eschew Court interpretation of what Congress meant as much
as possible, and instead rely on perfecting our legislative
drafting skills to say better and more clearly what we mean in the
statutory language, and then if after all that care we find we
have been unclear, come back and clarify it, rather than ask the
Courts to do it. In the present instance, if it is not clear that
the Commission was meant to centralize federal election reporting,
enforcement, and dissemination of information in the reports, then
let Congress make it clear. Or if it is Congress' judgment on
reflection that it does not wish the Commission to provide this
centralization, make it clear the other way.
The substantive matter at issue, I believe, is very critical
for the Commission and for the general public's approval of the
Commission's existence. I do not believe it is a matter of real
substance for those in the House who were reluctant to see an
independent Election Commission established and carried on the
battle against it. The Commission, not a Board of Supervisory
Officers, was established. It is largely independent and the
public views it this way. I think the statute, reading it in
toto, as we must, is clear.
The issue on point of entry is primarily a matter of efficiency
and centralization which even those arguing for a Board of
Supervisory Officers agreed to. The remnant of the Clerk of the
House and the Secretary of the Senate receiving the reports for
The Honorable John Brademas
August 26, 1975
Page Four
the candidates for House and Senate respectively has no
substantive value to anyone, whatever position they might hold
on the philosophical issue. If the word "receive" were to be
enlarged beyond its ordinary meaning to mean "filed" we would
have a serious decentralization which would achieve no useful
purpose, but would create substantial added cost, prevent the
Election Commission from doing an efficient job, and be a matter
of confusion to those in the public who must deal with the
federal election laws. In essence, the public will receive a
very poor impression of the efficacy of the Federal Election
Commission if the House were to adopt this line of thinking.
The U. S. Senate notably agrees with the proposed Regulation.
I look forward to your further comments on this matter. I
am assuming that it meets with your approval to send copies of
this letter and the enclosed briefs to Chairman Hays and others
interested in this problem, just as I circulated your brief to
the other members of the Commission, our legal staff, and others,
which I know you contemplated.
With best personal regards,
Sincerely,
This B Curter
Thomas B. Curtis
Chairman
TBC/cmk
Enclosures (2)
CC: Wayne L. Hays
Bill Frenzel
FEDERAL ELECTION COMMISSION
WASHINGTON, DC 20463
29 AUG 1975
Honorable Wayne L. Hays
Chairman, Committee on House
Administration
U. S. House of Representatives
Washington, D.C. 20515
Dear Mr. Chairman:
This is in response to your letters of August 7 and 8,
1975 wherein you stated that this Commission's proposed
regulations on document filing, and franking and office accounts,
were improperly submitted to the Congress, inasmuch as Section
316 (c) of the Federal Election Campaign Act of 1971, as
amended, 2 U.S.C. $438 (c), had not been complied with, and
further that certain procedures contemplated by the Administra-
tive Procedure Act, 5 U.S.C. $553, had not been followed. The
Commission is of the opinion that these proposed regulations
were properly submitted to the House of Representatives and
that all other procedural requirements with regard thereto
have been met.
Submission to the House of Representatives
Section 316 (c) of the Act requires the Commission to
transmit to the Senate or the House of Representatives, as
the case may be, a statement which "shall set forth the
proposed rule or regulation and shall contain a detailed
explanation and justification of such rule or regulation." "
The Commission duly complied with that requirement on July 31,
1975 and August 1, 1975 respectfully by transmitting the
required statement to the Senate and House of Representatives
with each of the proposed regulations. The constitutional
record of the House of Representatives, the House Journal,
reflects that the Commission's proposed regulations were laid
down before the House as Communication No. 1515 and Communica-
tion No. 1525 of the 94th Congress, the respective entries
being dated July 31 and August 1, 1975. No later entry in the
journal of the House refers to these Communications.
GERALD R. LIBRARY FORD
- 2 -
You correctly point out in your letters that the proposed
regulations were also published in the Federal Register on
August 6, 1975 (document filing) and on August 5, 1975
(franking and office accounts) pursuant to 2 U.S.C. S437 (d)
Nothing in the Act or its legislative history, however,
specifies the order in which proposed regulations are to be
submitted either to the Federal Register or the respective
House of Congress. Furthermore, the 30-calendar day period
during which public comment may be received on a proposed
regulation published in the Federal Register serves neither
to toll the 30-legislative day period for Congressional
consideration of the regulation under 2 U.S.C. §438 (c) (2),
nor to invalidate or suspend an otherwise properly submitted
proposed regulation.
In that regard, the Commission would like clarified the
procedure whereby the Committee on House Administration
purported to reject our submission of these proposed regula-
tions. It is our understanding of 2 U.S.C. $438 (c) (2) that
only the appropriate body of Congress, that is, either the
House of Representatives or the Senate, can disapprove a
proposed regulation within 30 legislative days, and that the
power of disapproval does not rest with the Committee on House
Administration. If in fact there was a procedural defect in
the submission of the proposed regulations, and we would
respectfully submit that there was none, it appears to the
Commission that under normal House practice a resolution to
that effect would be introduced and at some point be acted
upon by the full House. According to the Congressional Record
of July 31, 1975, at page H8046, and of August 1, 1975, at
pages H8184-85, the proposed regulations were properly referred
to your Committee by the Speaker of the House under the
authority of Clause 2 of Rule XXIV of the Rules of the House
of Representatives. It appears to the Commission that the
obligation of the Committee thereafter was and remains to
treat the Commission's communications in the normal course.
This could involve the introduction by any member of the
resolution to approve or disapprove the proposed regulation,
which would be referred to your Committee by the Speaker.
Then under Rule 12 of your Committee's Rules the resolution
"referred to the Committee shall be referred by the Chairman
to the Subcommittee on appropriate jurisdiction within two
weeks unless by majority vote of the majority members of the
full Committee, consideration is to be otherwise effective."
FORD is LIBRARY GERALD
- 3 -
The Commission is accordingly of the view that even if,
arguendo, the proposed regulations were improperly submitted, the
Committee on House Administration is obliged to follow both
its own and the House of Representatives' usual procedures.
Hopefully, in doing so, the Committee or the appropriate
Subcommittee thereof would hold hearings on this matter, in
which the Commission would be pleased to participate. There-
after, if the Committee acts on the resolution, the full
House would have an opportunity in the normal course to
affirm or reject the Committee's measure.
The foregoing represents the Commission's understanding
of the manner in which the House of Representatives will
proceed to consider regulations submitted by the Commission
pursuant to 2 U.S.C. Sec. 438. We see no basis either in
relevant House and Committee rules or in other precedents
for the return by a Committee Chairman to the submitting
Federal authority of a proposed regulation earlier submitted in
the ordinary course to the House. Accordingly it is the
view of the Commission that the two proposed regulations here
under discussion remain pending business before the House
of Representatives.
Administrative Procedures Act Compliance
Your views expressing a preference for the Commission
to defer the submission of a proposed regulation to Congress
until expiration of the time period for public comment are
well taken. However, for compelling reasons, the Commission
has chosen to transmit these proposed regulations to Congress
before their publication in the Federal Register. First,
the proposed regulation on document filing which was published
in the Federal Register on August 6, 1975, need not have been
published at all, inasmuch as the subject matter of the
regulation is a combination of an interpretive rule and a rule
of agency procedure and is, therefore, exempted under 5 U.S.C.
$553 (b) (A) from the publication requirement. The publication
in that case was thus intended to serve more as a public
notice of what the Commission proposed to do in this area
rather than as an attempt to elicit meaningful comment, since
those who would be affected by the regulation, namely the
Clerk of the House, the Secretary of the Senate, and interested
Members of Congress, will have an opportunity to present their
views on the regulation during the 30-legislative day period.
I note that with regard to the Commission's proposed regulation
on franking and office accounts, which was submitted to the
Congress first but which you purported to return to the
Commission the day after purporting to return the
FORD is LIBRARY OERALD
- 4 -
later-submitted regulation on document filing, the publishing
requirement was satisfied by the August 5, 1975 publication
in the Federal Register (Notice 1975-18, 40 Federal Register
32951). it is important to note further in this regard that
on June 2, 1975 the Commission had requested comment on
precisely this subject, in a Notice of Proposed Rulemaking,
Notice 1975-2 (published at 40 Federal Register 23833, para-
graph I.F.). Public comments with regard thereto were duly
received.
As a matter of clarification, there is no further
requirement, contrary to the views expressed in your letter,
either under the Administrative Procedure Act or the Federal
Election Campaign Act Amendments of 1974, that the Commission
further publish any version of comments received on a proposed
regulation in the Federal Register, nor is there any require-
ment that the Commission give additional time for the
submission of rebutting comments. In fact, Title 44 of the
United States Code, chapter 15, relating to public printing
and documents, expressly provides in section 1505 (b) that
"comments of any character may not be published in
the Federal Register.'
Finally, the Commission assumed a calculated risk that
any forthcoming comments from the public at large might
suggest the desirability of modifying the substance of the
proposed regulations. In that event, the Commission could
withdraw either regulation from Congressional consideration
and substitute a regulation so modified. However, considering
that time is of the essence for the promulgation of the
proposed regulation on document filing in view of the October 10,
1975 deadline for filing reports under 2 U.S.C. $434 (a) (1) (c),
and considering the urgency with which many members of Congress
expressed themselves with respect to the need for guidance
regarding the use of office accounts, the Commission felt
justified in exercising its discretion in the manner in which
it did.
CONCLUSION
For the foregoing reasons, the Commission is of the view
that the submission of the proposed regulations on document
filing and franking and office accounts was proper under
2 U.S.C. §438 (c), and that the regulations remain as pending
business before the House of Representatives.
GERALD FORD LIBRARY
- 5 -
The Commission would like to thank you for reiterating
in your letters your previously stated view that the Congress
need not wait the full 30 legislative days to approve a
regulation but could do so sooner by enactment of a resolution
specifically approving the regulation under review.
Sincerely yours,
This B Culi
Thomas B. Curtis
Chairman
CC: Honorable Carl Albert, Speaker
Honorable Thomas P. O'Neill, Jr., Majority Leader
Honorable John J. Rhodes, Minority Leader
UNITED STATES HOUSE OF REPRESENTATIVES
WASHINGTON, D.C. 20515
FORD & LIBRARY GERALD
September 4, 1975
MEMORANDUM FOR:
JIM CONNOR
FROM:
JACK MARSH
SUBJECT:
Federal Election Commission
I have some suggestions on the proposed letter to the Federal
Election Commission.
Mainly, I would try and have a shorter response. Although it
should deal with the Committee's questionsin a direct way,
nevertheless, I feel it should be more general rather than as
specific as this particular letter is. I think we run the risk
of setting forth a number of representations that could become
rules by which we will be bound later on as we move further
into the campaign.
For example, I notice informal, unpublicized meetings with
local politicians. This is an example that raises questions
of interpretation. What if a local politicians' meeting is
publicised? What if the meeting is attended by not local
politicians, but state and regional politicians.
This is the general thrust of what 1 have in mind. It may be
that we have to be specific in this letter, but I would be inclined
to try and avoid it if we possibly can.
JOM/dl
FORD is LIBRARY
SEP 5 1975
MEMORANDUM
THE WHITE HOUSE
WASHINGTON
September 4, 1975
MEMORANDUM FOR: BOB HARTMANN
JACK MARSH
DONALD RUMSFELD
DICK CHENEY
MAX FRIEDERSDORF
BILL SEIDMAN
FROM:
JIM CONNOR
The attached letter on the issue of proposed Presidential travel
requirements was transmitted to the Federal Elections
Commission. This copy is for your information. If you have
questions on specific aspects of it, please contact either me
or Barry Roth in the Counsel's office.
Attachment
FORD is LIBRARY 9ERALD
THE WHITE HOUSE
WASHINGTON
September 3, 1975
Dear Mr. Curtis:
This is in response to Notice 1975-38 (F. R. 40202) in which
the Federal Election Commission has sought comments concern-
ing a request from the campaign manager for Mr. Louis Wyman
for an opinion of the FEC General Counsel on several questions
relating to possible travel by "President Ford and former
Governor Reagan" to New Hampshire for the purpose of endorsing
Mr. Wyman in the September 16, 1975, special Senatorial election.
The General Counsel has proposed for Commission review an
opinion responding to this request which states, in part, as follows:
"Presidential expenditures in connection
with such a visit provide unique problems of
attribution. It would be illogical, and un-
necessarily restrictive, to require the attribution
of the actual cost of a presidential campaign
foray. Hence, only the equivalent commercial
rates will be chargeable against an incumbent
President's individual contribution limitations
and against the candidate's overall expenditure
limitation. Expenses for accompanying staff
personnel will be charged against the foregoing
limitations only if such staff personnel serve
primarily as advance persons or other campaign
staff members and do not provide support services
to the Office of the President. Additionally, special
costs attendant upon Ford's office as President,
such as the Secret Service, police and medical
attention, are not to be included within this
amount. These costs are relatively fixed and
are related to Ford's position as President and
not to his political function as head of his
party. "
-
In the form of comment on this one provision, we wish to bring
to your attention the manner in which we intend to apportion
the various costs incurred to operate government-owned aircraft
on which the President and accompanying government personnel
travel to and from localities where the President appears for
other than official purposes. As the General Counsel's proposed
opinion indicates, expenditures for such travel by the President
present problems that are unique to his Federal office, in that
the President must continue to perform in his official capacity
at the same time he undertakes political activities.
For this reason, whenever the President travels, regardless of
the purpose of the particular trip, he is accompanied by a number
of persons who are present to support him in his official role.
For example, certain members of the White House staff, military
aides, medical aides, Secret Service and communications personnel
are present not for any political purpose, but solely to provide the
President with support which in many cases they are required by
law to perform. The Secret Service, in particular, is required
by P. L. 90-331 to provide protection to "major Presidential and
Vice Presidential" candidates at the direction of the Secretary of
the Treasury and on the basis of consultation with an advisory
committee of bipartisan congressional membership.
(1) Costs of Operating Government-Owned Aircraft
on Political Trips
When the President travels on a trip which entails
only political stops, the cost of operating the Government-owned
aircraft that are used to transport the President can be readily
determined from the enclosed hourly rate schedule, used by the
Department of Defense to recover its costs from other government
agencies that use military aircraft. In our view, the costs of
transporting any persons aboard the aircraft who are traveling for
political purposes should be borne by the appropriate political
committee. On the other hand, the costs of transporting those
persons who are traveling for the purpose of supporting the Office
of the President should not be attributed to a political committee.
For the purpose of the President's future travels, we will identify
those individuals who could be considered to be present for a
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political purpose. We plan to treat as political travelers the
President and First Family, political committee officials, certain
White House and other officials, who may perform some political
activities, and any other persons whose activities could be viewed
as political. Although White House officials are present for official
support activities, and generally spend a substantial majority, if
not all, of their time on official business, we intend to consider
the following categories of officials to be political for the purpose
of such travel: White House officials who may advise on political
matters (e.g., Donald Rumsfeld, Robert Hartmann, John Marsh,
Ron Nessen, Richard Cheney, etc.), speechwriters, advancemen,
and a White House photographer.
The remainder of the White House personnel is present for the
purpose of supporting the President in his official capacity, e.g.,
a civilian aide or personal secretary, along with non-White House
support personnel, e.g., the Secret Service, military aides,
medical and communications personnel, etc. They are not
present for any political purpose, and the costs of their travel
should not be attributed to a political committee. In this regard,
it is our understanding that in 1972 the Secret Service paid up to
the cost of comparable first-class airfare for its agents traveling
on board chartered aircraft of non-incumbent Presidential candidates.
Therefore, on future Presidential travel the appropriate political
committee will be charged by DOD for its pro rata share of the
hourly costs of using government-owned aircraft, based on the
percentage of the passengers on board who are present mainly
or in part for a political purpose.
(2) Costs of Operating Government-Owned Aircraft
on Mixed Official-Political Trips
In most cases, it is not possible to schedule the
President's travel in a manner that will allow trips to be solely
official or solely political. We believe that the best formula for
apportioning the transportation costs on mixed official-political
purpose trips is one which may be referred to as the "round trip
airfare formula. " Under this formula, the political stops are
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isolated from the official stops in order to establish the political
trip that would have been made if the President did not have the
responsibilities of his office. For this purpose, where a particular
stop includes both official and political events, it will be treated as
a political stop. A stop will be regarded as official when that is
its main purpose, even though the President may meet, incidental
to the official event, with political figures in an informal and
unpublicized meeting, e.g., a private breakfast with a local
political figure or greeting a small group of local politicians.
Once the political stops of such a trip have been determined, DOD
calculates the cost of that "political" trip and charges the appro-
priate political committee for its share, as described above, of
the costs of the trip, based on the round trip flying time between
the initial point of departure, generally, Washington, D. C., and
the political stops made. An example might help to clarify this
approach. Suppose the President makes a trip from Washington
to San Francisco for official purposes, then to Los Angeles for
political purposes, and returns to Washington via St. Louis where
a stop is made for official purposes. Under this formula, the
appropriate political committee is charged for its pro rata share
of the hourly costs of a trip from Washington to Los Angeles and
return to Washington, even though there was no direct Washington
to Los Angeles leg of the flight.
(3) Other Travel Costs
In order to assure that all costs related to the political
portion of a trip are treated as political costs, the appropriate
political committee will be charged the expenses for each political
stop of any member of the Presidential party who is present
mainly or in part for a political purpose, as determined above.
Thus, political funds will pay the expenses of the President and
these other officials, but not the expenses of those persons who
are present to support the President entirely in his official capacity.
Such items as communications arrangements, motorcades,
automobile rentals, and other miscellaneous items are readily
identifiable as to their purpose, and are to be paid by the appro-
priate political committee when they are for political purposes.
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Where an item, such as the cost of a bus for a motorcade involves
a mixed purpose, e.g., transporting the members of the Presidential
party who are considered to be present for a political purpose, and
also those serving the President in his official capacity, the appro-
priate political committee will bear the full cost of that item.
In every case where a candidate for Federal office is an incumbent,
either in an office to which he seeks re-election or in another
office, his campaign activities may become intermingled with
his offici activities, and similar problems will arise in ascertain-
ing which costs he incurs are campaign-related. The proposals
herein made provide a reasonable method for resolving such
problems.
(4) Services of Government Personnel
For the purpose of identifying the costs of travel to be
borne by the appropriate political committee, we understand that
it is not necessary to apportion the salaries of those members of
the personal staffs of incumbent candidates for Federal office
within either the Executive or Legislative Branches who, in
addition to their official duties, also participate in some limited
political activities. For example, employees "paid from the
appropriation for the office of the President "are exempted by
5 U.S. C. 7324(d)(1) from the general prohibition contained in
5 U.S.C. 7324(a)(2) against Executive Branch employees participat-
ing in "political management or in political campaigns. " This
section effectively places the White House staff in a position
comparable to that of the personal staffs of members of Congress.
No precise dividing line now exists, nor is one likely to be drawn,
which clearly indicates when such employees are performing
official duties and when those duties are political. So long as
these employees expend a substantial majority (an average in excess of
forty hours per week) of their time on official duties, there is
no need to attribute any portion of the salaries of such employees
to a political committee.
The reason for this letter is to bring to the Commission's attention
the means by which we intend to attribute to a political committee
the costs of the President's travel for purposes of support of the
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Republican Party, support of specific candidates, or support of
his own candidacy. To the extent this treatment may be different
from that proposed by the General Counsel, we do not imply that
a change need be made in the proposed opinion of such counsel.
Rather we believe that the proposed opinion is consistent with the
requirements of the applicable law and that if a more liberal
attribution of expenses is made to a political committee such is
within a candidate's discretion.
We intend to now implement with respect to future travel by the
President, this treatment for attribution of such travel costs.
We would appreciate very much any comments or suggestions
the Commission may think are appropriate to make with respect
to our treatment of the President's travel costs.
Sincerely,
Counsel to the President
The Honorable Thomas B. Curtis
Chairman
Federal Election Commission
Washington, D.C. 20463
27000 (Air Force One) (VC-137C)
Cost per hour:
$2,206.00
Passengers:
Approximately 50
26000 (Air Force One backup) VC-137C)
Cost per hour:
$2,206.00
Passengers:
Approximately 50
Jet Star (VC-140)
Cost per hour:
$ 889.00
Passengers:
8
White Top Helicopter (VH-3A)
Cost per hour:
$ 723.00
Passengers:
12
Huey Helicopter (VH-IN)
Cost per hour:
$ 262.00
Passengers:
8
OCT 17 1975
ELECTION
FROM
COMMISSION
FEDERAL ELECTION COMMISSION
1325 K STREET N.W.
LINE
AMERICA
WASHINGTON,D.C. 20463
October 17, 1975
STATES
OF
Honorable Carl Albert, Speaker
House of Representatives
Washington, D. C. 20515
Dear Mr. Speaker:
I want to register a strong objection to the
procedures under which the House of Representatives is
about to consider H. Res. 780 to disapprove Proposed
Regulation 1 of the Federal Election Commission to require
a single place of filing reports under the federal elec-
tion laws.
As I discussed with you, and you agreed, the
previous procedure the Chairman of the House Administration
Committee, to which Committee you, as Speaker, properly
referred FEC Proposed Regulation 1, sought to pursue by
sending back to the FEC the Proposed Regulation on his own
initiative without any action having been taken by the
House Administration Committee or the House, was improper.
Now we are presented with different procedures
which, although improved, are still improper and not con-
ducive to a rational disposition of proposed regulations
from the FEC.
I respectfully suggest that the proper procedure
for the House to follow in carrying out its statutory
authority to disapprove a proposed regulation of the FEC
is for a member to introduce a resolution disapproving (or
approving as we discussed) the proposed regulation. This
resolution would be referred by the Speaker to the House
Administration Committee to consider and report back to the
House its recommendations for action so the House may work
its will. The Committee then should have a public hearing
on the proposed regulation and the supporting material ac-
companying it with the FEC testifying under cross examina-
tion. After the hearings have been held, then the Committee
should consider and vote. If it desires to refer the matter
to the House, its report to the House should set out the
issues and the conclusions.
REVOLUTION
AMERICAN
BICENTENNIAL
1776-1976
Honorable Carl Albert
#2 -- October 17, 1975
None of this latter procedure has been followed.
The FEC asked for a public hearing and asked to testify.
I thought I had an assurance from Chairman Hays that this
would be done.
The federal election laws prescribe a new experi-
ment in political science. They require the FEC to send
its proposed regulations to the Congress to await 30 legis-
lative days for a possible disapproval before they become
effective. The laws require that the FEC send a brief and
explanatory material along with its proposed regulation.
This has been done in respect to its Proposed Regulation 1.
However, the report of the House Administration Committee
accompanying H. Res. 780 contains none of this material.
The House members have no opportunity to consider the reason-
ing of the FEC.
The Senate Rules Committee, in considering S. Res.
275, to disapprove FEC Proposed Regulation 2 last week, did
hold public hearings. The FEC did testify. In its report
to the Senate accompanying S. Res. 275, the Committee set
out the Proposed Regulation and the accompanying FEC material.
The Senate debate proceeded on the basis of this material.
If the Chairman of the House Administration Committee
had sought a rule from the House Rules Committee, these
serious procedural flaws could have been pointed up and
corrected. Instead, the Chairman sought to place the matter
on the Suspension of Rules Calendar which requires the
Speaker's acquiescence.
In light of the fact that the FEC has not been
given an opportunity to present its views and the House
Administration Committee report does not set forth the
reasons behind Proposed Regulation 1, I strongly urge you,
Mr. Speaker, to withdraw H. Res. 780 from the Suspension of
Rules Calendar and let the House Administration Committee go
to the Rules Committee for a rule. This will enable the
Rules Committee to help develop orderly procedures for the
handling of FEC proposed regulations in the future and, in
Honorable Carl Albert
#3 -- October 17, 1975
the specific instance, result in the FEC being permitted
to testify in public hearings conducted by the House
Administration Committee. In this way, the House may
have the benefit of as many points of view as possible
in working its will.
Respectfully,
To Culume me
Thomas B. Curtis
Chairman
TBC:me
CC to:
Honorable John Rhodes
Honorable Wayne L. Hays
Honorable William L. Dickinson
Honorable John H. Dent
Honorable Charles E. Wiggins