Ralph J. Galliano, et al.,
United States Postal Service
UNITED STATES COURT OF APPEALS
267 U.S. App. D.C. 14; 836 F.2d 1362;
September 28, 1987, Argued
CORE TERMS: candidate, solicitation, disclaimer, mailing, mail, first amendment, postal, conciliation, political committee, amicus curiae, prescription, identification, solicit, Federal Election Campaign Act, judicial determination, false representation, expenditure, concurrent, campaign committee, unprotected, fundraising, postmaster, obtaining money, misrepresentational, unauthorized, advertising, sponsorship, contributed, construing, regulated
COUNSEL: MacKenzie Canter III, with whom Mark J. Diskin was on the brief, for Appellants.
Sandra C. McFeeley, Attorney, U.S. Postal Service, with whom Joseph E. diGenova, United States Attorney, Royce C. Lamberth, Michael J. Ryan and Bradley L. Kelly, Assistant United States Attorneys, were on the brief, for Appellee.
JUDGES: Ruth B. Ginsburg and Williams, Circuit Judges; Aubrey Robinson, * Chief Judge, U.S. District Court for the District of Columbia. Opinion for the Court filed by Circuit Judge Ruth B. Ginsburg.
*Sitting by designation pursuant to 28 U.S.C. @ 292(a).OPINIONBY: GINSBURG
OPINION: [*1363] GINSBURG, RUTH B., Circuit Judge: This case presents an issue of first impression concerning the regulation of solicitations for political contributions: Do the prescriptions of the Federal Election Campaign Act (FECA or Act)--in particular, those on name identifications and disclaimers contained in 2 U.S.C. @@ 432(e)(4) and 441d(a)--displace pro tanto application of the postal fraud proscriptions contained in 39 U.S.C. @ 3005 to mail solicitations for funds to support [**2] political action? Parties charged with violating the postal fraud proscriptions, and the Federal Election Commission (FEC or Commission), as amicus curiae, are ranged on one side of the question; the United States Postal Service stands on the other side. We hold that [*1364] FECA does qualify or control in part the operation of the postal fraud measure. Accordingly, we reverse the judgment of the district court, 669 F. Supp. 488 dismissing the action, and return the case to the district court with instructions to remand the matter to the Postal Service for reconsideration of its decision in light of this opinion.
I. The Congressional Majority Committee (CMC) is an independent political action committee; founded in 1980, the organization maintains its offices in Arlington, Virginia. CMC raises money through political appeals and independently decides how to spend the funds it solicits in furtherance of its projects; it contributes no money directly to the candidates it supports, or to their authorized campaign committee. Ralph J. Galliano is the chairman of CMC.
In September 1983, CMC decided to urge the election of then Representative Phil Gramm as United States Senator for Texas. CMC therefore set up, as [**3] its independent project, Americans for Phil Gramm in '84 (APG). Between November 1983 and April 1984, CMC mailed, in three batches, over 200,000 solicitations for contributions to APG.
The APG solicitations featured a six-page letter. The letterhead displayed in large print, "Americans for Phil Gramm in '84," followed in the next two lines by the statement, in small print, "an independent project of the Congressional Majority Committee" and, in the same small print, CMC's address and telephone number in Arlington. In the body of the letter, CMC was described as "an independent conservative political action committee." "Ralph J. Galliano, Chairman, Americans for Phil Gramm in '84," identified the letter signer. Flyers accompanying each mailing stated that in 1982 CMC had "raised and contributed well over one-half million dollars to candidates nationwide."
(J.A.) at 55-67 (first mailing); J.A. at 68-80 (second mailing); Administrative Record (A.R.) at 340-52 (third mailing). The second and third mailings, but not the first mailing, included, in small print at the bottom of the first page of the solicitation letter, this disclaimer: "Not authorized by any candidate or candidate's [**4] committee." J.A. at 68 (second mailing); A.R. at 340 (third mailing). All three mailings enclosed a pre-paid envelope addressed to APG, c/o CMC, in Arlington, Va. No mailing mentioned Gramm's official campaign committee, Friends of Phil Gramm (FPG).
Representative Gramm learned of the APG appeals and became concerned that those solicitations were misleading potential supporters and diverting contributions away from his campaign. FPG, Gramm's only authorized campaign committee, took legal action on three fronts. First, in November 1983, Gramm filed an administrative complaint with the FEC alleging that Galliano, CMC, and APG had violated 2 U.S.C. @@ 432(e)(4), 441d(a)(3) (1982) and 11 C.F.R. @ 110.11(a)(1)(iii) (1983). These provisions require a political committee not authorized by any candidate to refrain from including the name of any candidate in its name and to state clearly in its political communications both the name of the person or group who paid for the communication and the fact that the communication is not authorized by any candidate. n1 After [*1365] investigating Gramm's complaint, the FEC's General Counsel recommended only one adverse action; he proposed that the Commission [**5] find probable cause to believe a violation of section 441d(a)(3) had occurred because the first (November 1983) APG mailing had failed to state clearly that the solicitation was not authorized by any candidate or candidate's committee. The Commission approved its General Counsel's recommendation and entered into a conciliation agreement with CMC pursuant to 2 U.S.C. @ 437g (a)(4)(A) (1982). n2 See In re Congressional Majority Committee, M.U.R. (Matter Under Review) 1603 (July 8, 1985), reprinted in Brief for the FEC, Amicus Curiae, as Attachment 3.
Third, some time before filing the
diversity action in federal court, Gramm notified the
General Counsel of the U.S. Postal Service of APG's
solicitations. On March 15, 1984, the General Counsel,
pursuant to 39 C.F.R. @ 952.5 (1983), n3 filed an
administrative complaint against Galliano, APG, and CMC,
appellants here (hereafter referred [*1366] to
collectively as APG); the complaint charged that the APG
solicitations were unlawful under 39 U.S.C. @ 3005 (1982), a
measure initially enacted in 1872, which proscribes
"scheme[s] or device[s] for obtaining
through the mail by means of false
" n4 In particular, the Service charged
that APG's mailings had conveyed "directly or indirectly"
the following false representations:
Based principally on an assessment of the misrepresentational nature of APG's name and disclaimers, the Judicial Officer affirmed the ALJ's decision and issued two remedial orders standard under the statute: one order required the postmaster at Arlington, Va. to stop most mail addressed to APG, permit inspection of the stopped mail by APG, and return to the sender any mail containing responses to the APG solicitations; the other ordered APG to cease and desist [**10] from falsely representing that it was authorized by Gramm to solicit contributions, or that the contributions would go directly to the Gramm campaign, and from misrepresenting the nature of its past fundraising efforts. In re Galliano, P.S. Docket No. 19/15 (May 2, 1985) (Postal Service Decision), reprinted in J.A. at 24-42. No participant in these proceedings is aware of any prior case applying section 3005 to solicitations for political contributions. See Brief for the FEC, Amicus Curiae, [*1367] at 11. n5
On cross-motions for summary judgment, the district court ruled in favor of the Postal Service and dismissed the action. The court held that, without offense to the first amendment, the Postal Service could determine, in the first instance, whether a mail solicitation for political contributions made false representations in order to obtain money. Galliano v. United States Postal Service, 669 F. Supp. 488 (D.D.C. 1986).
Following the September 28, 1987 oral argument on APG's appeal to this court,we directed the parties and invited the FEC to submit briefs addressing the following question:
Bearing in mind the first amendment concerns implicated, should the prescriptions of the Federal Election Campaign Act, particularly those contained in 2 U.S.C. @@ 432(e)(4), 441d(a), be deemed to occupy the field and to displace pro tanto the application of 39 U.S.C. @ 3005 to mailings of the kind at issue in this case?
Order filed October 28, 1987. After considering the briefs [**12] filed in response by APG, the FEC, and the Postal Service, we hold that the Postal Service, in its enforcement of 39 U.S.C. @ 3005, may not impose constraints upon the names or disclaimers of organizations mailing solicitations for political contributions beyond those imposed by FECA.
II. Regarding the tension between the general false representation provisions of 39 U.S.C. @ 3005 (1982) and the specific disclosure requirements of 2 U.S.C. @@ 432(e)(4), 441d(a)(3) (1982), the participants in this appeal invoke familiar principles of statutory interpretation. Appellants and their amicus, the FEC, emphasize that "a precisely drawn, detailed statute pre-empts more general remedies." Brown v. General Servs. Admin., 425 U.S. 820, 834, 96 S. Ct. 1961, 48 L. Ed. 2d 402 (1976). See also Radzanower v. Touche Ross & Co., 426 U.S. 148, 153, 48 L. Ed. 2d 540, 96 S. Ct. 1989 (1976), quoting Morton v. Mancari, 417 U.S. 535, 550-51, 41 L. Ed. 2d 290, 94 S. Ct. 2474 (1974) ("When there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment."). The Postal Service, on the other hand, stresses that "when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed [**13] congressional intention to the contrary, to regard each as effective." Morton v. Mancari, 417 U.S. at 551. See also Pennsylvania v. ICC, 182 U.S. App. D.C. 280, 561 F.2d 278, 292 (D.C. Cir. 1977) ("It is well established that when two regulatory systems are applicable to a certain subject matter, they are to be reconciled and, to the extent possible, both given effect."). We set out first each side's elaborations upon these basic themes, and then explain how we believe the statutes are best reconciled.
The overarching consideration, according to appellants and the FEC, is the context in which each statute came into being. Section 3005 originated well over a century ago; as the Postal Service itself observes, it is one of the oldest federal consumer protection statutes, and it is notable for the [*1368] breadth and generality of its language. See Brief for Appellee at 12. Nothing in the legislative history of section 3005 indicates that Congress ever adverted to the potential application of the measure to political solicitations of the kind involved here, and the special problems such applications might entail. By contrast, the name identification and disclaimer provisions of FECA, 2 U.S.C. @@ 432(e)(4), [**14] 441d(a)(3) (1982), were framed with the particular problems Congress identified in political solicitations in clear focus, and with first amendment concerns in plain view. See Brief for the FEC, Amicus Curiae, at 10-11.
FECA, appellants and the FEC emphasize, establishes a comprehensive regime of limitations on campaign contributions and expenditures and extensive disclosure requirements including sections 432(e)(4) and 441d(a)(3); it is thus precisely the kind of detailed statute whose specific provisions control matters that might otherwise fall under the total governance of a more broadly conceived and crafted statute. See, e.g., National Republican Congressional Committee v. Legi-Tech Corp., 254 U.S. App. D.C. 145, 795 F.2d 190, 192 (D.C. Cir. 1986)
("The provisions of the Copyright Act dealing with compilations generally, must be construed in a manner that will accommodate [FECA]."). Part of the design of FECA, appellants and the Commission strenuously urge, is to place responsibility for the civil enforcement of matters specifically covered by the Act exclusively in the hands of the FEC in the first instance. n6
This section, distinct from 2 U.S.C. @ 437d(e) (1982) which curtails private rights of action under FECA, "was enacted by Congress to make clear that only the FEC, and no other governmental authority, would have jurisdiction to enforce" the civil provisions of FECA. Democratic Party v. National Conservative Political Action Comm., 578 F. Supp. 797 (E.D. Pa. 1983) (3-judge panel) (emphasis in original; discussing legislative history), aff'd in part, rev'd in part sub nom. FEC v. National Conservative Political Action Comm., 470 U.S. 480, 84 L. Ed. 2d 455, 105 S. Ct. 1459 (1985). See also FEC v. National Conservative Political Action Comm., 470 U.S. at 489 ("We do not necessarily reject the District Court's conclusion that the legislative history of the successive amendments to @ 437c(b)(1) indicates an intention by the word 'exclusive' to centralize [**16] in one agency the civil enforcement responsibilities previously fragmented among various governmental agencies."); 470 U.S. at 505 (White, J., dissenting) ("The reference to 'exclusive' jurisdiction [in section 437c(b)(1)] was designed to centralize all governmental enforcement authority in the FEC.") (emphasis in original; citing H.R. REP. No. 917, 94th Cong., 2d Sess. 3-4, reprinted in
FEDERAL ELECTION COMMISSION, LEGISLATIVE HISTORY OF FEDERAL ELECTION CAMPAIGN ACT AMENDMENTS OF 1976, at 803-04 (1977)); McNamara v. Johnston, 522 F.2d 1157, 1162 n.5 (7th Cir. 1975), cert. denied, 425 U.S. 911, 47 L. Ed. 2d 761, 96 S. Ct. 1506 (1976), quoting 120 CONG. REC. 35,134 (1974) (FECA "provides that all civil complaints predicated upon or pertaining in any manner to titles I and III of the act shall be channeled to the Commission The delicately balanced scheme of procedures and remedies set out in the act is intended to be the exclusive means for vindicating the rights and declaring the duties stated therein.") (statement of Rep. Hays, Chairman of House conferees to 1974 FECA Amendments creating the FEC).
[*1369] In sum, appellants and the FEC reach this conclusion from the context, structure, specificity, [**17] and legislative history of FECA: where FECA sets specific requirements for the content of political communications, as it does in the case of the names and disclaimers of unauthorized political committees, no other agency may proceed against such a committee on the basis of that agency's assessment of the misrepresentational nature of those names or disclaimers.
In opposition to any FECA-inspired shrinkage of its domain, the Postal Service cites a string of cases holding that "the same issues and parties may be proceeded against simultaneously by more than one agency." Warner-Lambert Co. v. FTC, 361 F. Supp. 948 (D.D.C. 1973). The cases featured by the Postal Service, although they differ significantly from the instant case as to the facts and the agencies involved, illustrate a reality of which we are fully cognizant. As this court has remarked: "This is an era of overlapping agency jurisdiction under different statutory mandates." FTC v. Texaco, Inc., 180 U.S. App. D.C. 390, 555 F.2d 862, 881 (D.C. Cir.) (en banc), cert. denied, 431 U.S. 974, 97 S. Ct. 2939, 53 L. Ed. 2d 1072 (1977). In such an era "a court should approach gingerly a claim that one agency has conclusively determined an issue later analyzed from another perspective [**18] by an agency with different substantive jurisdiction." Id. See, e.g., FTC v. Cement Inst., 333 U.S. 683, 689-93, 68 S. Ct. 793, 92 L. Ed. 1010 (1948) (concurrent Federal Trade Commission/Department of Justice jurisdiction approved); Thompson Medical Co. v. FTC, 253 U.S. App. D.C. 18, 791 F.2d 189, 192-93 (D.C. Cir. 1986) (concurrent Federal Trade Commission/Food and Drug Administration jurisdiction approved), cert. denied, 479 U.S. 1086, 107 S. Ct. 1289, 94 L. Ed. 2d 146 (1987); Bristol-Meyers Co. v. FTC, 738 F.2d 554, 559 (2d Cir. 1984) (same); Pennsylvania v. ICC, 182 U.S. App. D.C. 280, 561 F.2d 278, 292 (D.C. Cir. 1977) (concurrent Interstate Commerce Commission/Federal Maritime Commission jurisdiction approved); Friedlander v. United States Postal Service, 658 F. Supp. 95, 103 (D.D.C. 1987) (concurrent FDA/FTC/U.S. Postal Service jurisdiction approved).
Based on this array of authority, the Postal Service maintains that it may find a solicitation for political contributions to be a false representation under 39 U.S.C. @ 3005 (1982) even if the FEC finds the solicitation to have met the requirements of 2 U.S.C. @@ 432(c)(4), 441d(a)(3) (1982). The Postal Service takes this position without qualification. The Service sees no need to accommodate or adjust to any FECA [**19] prescription or FEC ruling. It may proceed under section 3005, the Service believes, totally on the basis of its own assessment of a mailing like APG's, and may find fraudulent name identifications and disclaimers that meet FECA standards. Any other approach, the Postal Service concludes, would constitute a partial repeal of section 3005 by implication. Because repeals by implication are strongly disfavored, see Radzanower v. Touche Ross & Co., 426 U.S. 148, 154, 48 L. Ed. 2d 540, 96 S. Ct. 1989 (1976), the Postal Service asserts that appellants' and the FEC's position cannot be credited.
In arriving at our disposition of this case in light of the initial and supplemental briefing, see supra slip op. at p. 10, we are mindful that the Postal Service's application of section 3005 to solicitations for political contributions poses genuine constitutional questions. See Blount v. Rizzi, 400 U.S. 410, 27 L. Ed. 2d 498, 91 S. Ct. 423 (1971) (need for judicial determination whether allegedly obscene mailing was unprotected expression); Lebron v. WMATA, 242 U.S. App. D.C. 215, 749 F.2d 893 (D.C. Cir. 1984) (need for judicial determination whether distinctively political message was false, unprotected expression). Our resolution reconciles the two statutes in a manner that reduces [**20] constitutional doubt. See NLRB v. Catholic Bishop, 440 U.S. 490, 500-01, 59 L. Ed. 2d 533, 99 S. Ct. 1313 (1979) (construing National Labor Relations Act to avoid first amendment questions); Crowell v. Benson, 285 U.S. 22, 62, 76 L. Ed. 598, 52 S. Ct. 285 (1932) (construing Longshoremen's and Harbor Workers' Compensation Act to avoid fifth amendment questions); EEOC v. Pacific Press Publishing Assoc., 676 F.2d 1272, 1276 (9th Cir. 1982) (construing Title VII to [*1370] avoid first amendment questions). We hold that the FEC is the exclusive administrative arbiter of questions concerning the name identifications and disclaimers of organizations soliciting political contributions. As to representations not specifically regulated by FECA, however--for example, CMC's allegedly false statement that in 1982 it raised and contributed over half a million dollars to candidates nationwide--nothing in or about the Act limits the 39 U.S.C. @ 3005 enforcement authority of the Postal Service. n7
FECA's first-amendment-sensitive regime includes a procedural as well as asubstantive component. When a candidate or political organization is alleged to have violated the name or disclaimer provisions of FECA, the allegations will be assessed according to FECA procedures. Those procedures require that informal conciliation efforts between an alleged FECA violator and the FEC occur before any formal civil enforcement action is taken. 2 U.S.C. @ 437g (a)(4) (1982). If conciliation fails, the FEC may not itself impose sanctions; it must institute a civil action in a federal district court in order to obtain relief. 2 U.S.C. @ 437g (a)(6) (1982). Thus, even if the Postal Service were to apply the substantive standards of FECA in determining whether the name or disclaimers of an organization soliciting political contributions constituted a false representation for purposes of section 3005, there would be a gap. The Postal Service's procedures, which include neither conciliation nor judicial imposition of sanctions, would not measure [**23] up to the first-amendment-prompted arrangements Congress devised for FECA enforcement actions.
We thus conclude that the Postal Service's no-repeal-by-implication argument, see supra slip op. at p. 14-15, is properly turned around. Assume that a political action committee employs name identifications [*1371] and disclaimers lawful under FECA. Were the Postal Service to find the representations false under section 3005 based on its own assessment of the public's perception, the Service's adjudication -- both substantively and procedurally -- would effectively countermand the "precisely drawn, detailed" prescriptions of FECA.
Nevertheless, we do not hold that solicitations for political contributions are entirely immune from Postal Service scrutiny under section 3005. n8 Apart from the name of a political organization and the presence or absence of a sponsorship disclaimer, much may appear in a solicitation for political contributions that could materially deceive readers and thereby constitute a false representation under section 3005. An organization's false claims regarding its past fundraising success conceivably could fit that bill. No provisions of FECA set standards for such representations and there [**24] is no reason to believe that the silence of that legislation was meant to exempt uncovered statements from all regulation. Congress' intent, expressed in section 3005, was broadly to protect the public from fraud. We cannot conclude that Congress meant to leave unregulated misrepresentations that it may constitutionally regulate merely because the false statements are made in an endeavor to extract political contributions.
Reversed and remanded.