BUCKLEY v. VALEO
Opinion of WHITE, J.
II
I join the answers in Part IV of the Court's opinion,
ante, at 141-142, n. 177, to the questions certified by the
District Court relating to the composition and powers of
the FEC, i. e., questions 8 (a), 8 (b), 8 (c), 8 (d) (with
the qualifications stated infra, at 282-286), 8 (e), and
8 (f). I also agree with much of that part of the Court's
opinion, including the conclusions that these questions are
properly before us and ripe for decision, that the FEC's
past acts are de facto valid, that the Court's judgment
should be stayed, and that the FEC may function de
facto while the stay is in effect.
The answers to the questions turn on whether the FEC
is illegally constituted because its members were not
selected in the manner required by Art. II, § 2, cl. 2, the
Appointments Clause. It is my view that with one
exception Congress could endow a properly constituted commission with the powers and duties it has given
the FEC.1
Section 437c creates an eight-member FEC. Two
members, the Secretary of the Senate and the Clerk
of the House of Representatives, are ex officio members
IThat is, if the FEC were properly constituted, I would answer
questions 8 (b), 8 (c), 8 (d) (see inIra, at 282-286), and 8 (f) in the
negative. With respect to question 8 (e), I reserve judgment on
the validity of 2 U. S. C. § 456 (1970 ed., Supp. IV) which empowers
the FEC to disqualify a candidate for failure to file certain reports.
Of course, to the extent that the Court invalidates the expenditure
limitations of the FECA, Part I-C, ante, at 39-59, the FEC, however
appointed, would be powerless to enforce those provisions.
Unless otherwise indicated, all statutory citations in this part
of the opinion are to the Federal Election Campaign Act of 1971,
§§ 301-311, 86 Stat. 11, as amended by the Federal Election Campaign Act Amendments of 1974, §§ 201-407, 88 Stat. 1272, 2 U. S. C.
§ 431 et seq. (1970 ed., Supp. IV).
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