Democratic Senatorial Campaign Committee v. Federal Election Commission, National Republican Senatorial Committee, Intervenor

660 F.2d 773, 212 U.S. App. D.C. 374, 1980 U.S. App. LEXIS 13249

Opinions

Opinion PER CURIAM.

Dissenting opinion filed by Circuit Judge WILKEY.

PER CURIAM:

This case calls for construction of the Federal Election Campaign Act of 1971 (FECA) and its 1974 and 1976 Amendments, 2 U.S.C. § 431 et seq.1 Under a provision of the Act that permits the State committees of the political parties to make expenditures on behalf of senatorial candidates,² a num ber of Republican State committees have executed agreements by which they purport to designate the National Republican Senatorial Committee (NRSC) as their agent for purposes of making expenditures up to the legal limits. The Democratic Senatorial Campaign Committee (DSCC) has challenged this practice as contrary to the letter and purpose of the applicable statutory provisions. The DSCC first sought relief by filing a complaint with the Federal Election Commission (FEC), which upheld the legality of the “agency” agreements.³ Assuming that it must sustain Commission decisions not shown to be arbitrary and capricious, the District Court granted the FEC’s motion for summary judgment.⁴ Because we believe that both the FEC and the District Court misconstrued the applicable law, we reverse.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Agency Agreements

The Federal Election Campaign Act, as amended, imposes limitations on campaign contributions and expenditures by individuals and by various kinds of political committees. Section 441a(d)(3), the provision centrally at issue in this case, provides for campaign spending by State and national committees of the political parties:

(3) The national committee of a political party, or a State committee of a political party, including any subordinate committee of a State committee, may not make any expenditure in connection with the general election campaign of a candidate * * * which exceeds—

******

(i) 2 cents multiplied by the voting age population of the State * * *.

Although phrased in restrictive terms, Section 441a(d)(3) is in fact a grant of permission: It permits the national and State committees to make expenditures that would otherwise be prohibited.⁵

As it has done in each campaign since 1976, the Republican National Committee has designated the NRSC as its agent, authorized to make the expenditures permitted to the national committee by Section 441a(d) in all senatorial elections.

Various State committees of the Republican Party have also designated the NRSC as their agent under Section 441a(d). As in the case of the national committee, their agency agreements purport to transfer to the NRSC spending authority conferred under Section 441a(d)(3).⁶ In the 1978 senato,rial elections, during which the State committees commissioned the NRSC as their agent for the first time, the NRSC spent a total of $2,770,995 under the combined spending authority of the national and State party committees.⁷ Most of the money went into 12 closely contested races, in which the NRSC spent $2,180,499. Of this sum, $1,106,286.60 was attributable to its expenditures as agent for the national committee, the remaining $1,074,213.40 to expenditures as agent of various State committees.

Agency agreements related to 1980 contests purport to authorize the NRSC to spend even larger sums. There are Senate races in 34 States, whose 34 Republican State committees have a composite spending ceiling of $3,487,020.80 under Section 441a(d)(3).⁸ A number of these State committees have designated the NRSC as their authorized spending agent. In California alone, the NRSC will be able to spend up to $485,024 as the agent of the State committee, and a total of $970,048 in its capacity as dual agent of the State and national committees. In New York the comparable figures are $379,717.12 and $759,434.24.

B. Proceedings Before the Federal Election Commission

On May 9 of this year the Democratic Senatorial Campaign Committee filed a complaint with the Federal Election Commission in which it challenged the legality of the agency agreements entered by the NRSC and the various Republican State committees.⁹ In its accompanying memorandum of law,¹⁰ the DSCC argued that the challenged arrangements violate the plain meaning of Section 441a(d)(3), which provides separate spending limits for State and national party committees and makes no reference to agency. The DSCC claimed that a clear purpose of the statutory scheme was to create an incentive to the development of vigorous State party organizations. The DSCC did not challenge the agency agreement between the NRSC and the Republican National Committee, since the FEC at that time interpreted a Commission regulation, 11 C.F.R. § 110.7, to authorize such agreements.¹¹ Moreover, the DSCC itself has made an agency agreement with the Democratic National Committee.

The Commission dismissed the complaint. Although it gave no reasoned explanation of its decision, the FEC acted after receipt of a report from its General Counsel.¹² The “First General Counsel’s Report” stated that this was the third time that a complaint of this kind had come before the Commission. Although it recommended the same result that the FEC had reached in the prior cases,¹³ the report suggested that the General Counsel’s emphasis shifted over the course of the various proceedings.¹⁴ In the first proceeding the General Counsel had attributed importance to the absence of any express statutory prohibition of agency arrangements. In this case, however, the General Counsel placed greater reliance on an inference of congressional intent apparently drawn from a related section of the Federal Election Campaign Act, Section 441a(a)(4). That provision allows for unlimited transfers of money between and among political committees of the same party, as defined by the statute.¹⁵ Assuming that the NRSC was a committee of the Republican Party within the meaning of Section 441a(a)(4), the General Counsel reasoned that, because the NRSC could lawfully transfer money to the State committees, which the State committees could then spend up to a limit of 2 cents per resident of voting age, the statute must have intend ed that the NRSC could itself make expenditures up to that limit while acting as the agent of the State committees.¹⁶ The General Counsel also cited the more general argument that the provision permitting expenditures by the State and national party committees was intended to be “broad”— broad enough to permit the pooling of large numbers of small contributions made to the political parties and their various committees. After receiving the General Counsel’s report on July 8, the Commission rendered its judgment on July 10.¹⁷ By a vote of 6-0 it found “no reason to believe” that the NRSC’s agency agreements with the State committees violated Section 441a(d)(3). The FEC’s summary announcement of the decision did not explicitly adopt the report of the General Counsel.¹⁸

C. Proceedings Before the District Court

The DSCC sought District Court review of the FEC’s action.¹⁹ Its petition, filed July 30, 1980, requested a declaratory judgment that the FEC’s decision was “contrary to law,” on the theory that Section 441a(d)(3) precludes the State committees from assigning their spending limits to the NRSC. Ruling on cross-motions for summary judgment, the District Court decided in favor of the FEC on August 28. The court held that the FEC must prevail unless its action was “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.”²⁰ Judge June Green found no violation of that standard. The District Court construed the decision of the FEC as resting on the inference, advanced by the General Counsel, that the transfer of funds provision of Section 441a(a)(4), when read in conjunction with Section 441a(d)(3), revealed a congressional willingness to treat the funds and expenditures of various party committees, including the NRSC, as essentially interchangeable.²¹ The DSCC docketed an appeal in this court on September 4, 1980. The NRSC moved to intervene, on September 19, and the court agreed to the intervention.

II. STANDARD OF REVIEW

The District Court regarded the decision of the FEC as entitled to extreme deference. We approach the matter differently.

Although a court should undertake only “a very limited review of the exercise of the FEC’s discretionary decisions,” In re Carter-Mondale Reelection Committee, Inc., 642 F.2d 538, 545 (D.C.Cir.1980), we deal in this case, not with a discretionary exercise of Commission power, but with an interpretation of a federal statute. The Supreme Court has long recognized that “the courts are the final authorities on issues of statutory construction” and need not “rubber-stamp” administrative decisions that misinterpret a federal statute. SEC v. Sloan, 436 U.S. 103,118, 98 S.Ct. 1702,1711, 56 L.Ed.2d 148 (1978) (quoting Volkswagenwerk v. FMC, 390 U.S. 261, 272, 88 S.Ct. 929, 935, 19 L.Ed.2d 1090 (1968), and NLRB v. Brown, 380 U.S. 278, 291, 85 S.Ct. 980, 988, 13 L.Ed.2d 839 (1965)).

We recognize that special deference to an agency’s interpretation of its governing statute is often appropriate. Cf. Gel-man v. FEC, 631 F.2d 939, 943 (D.C.Cir., 1980). But the Supreme Court has established that an agency’s entitlement to deference depends upon the quality of its determinations.²² Factors to be considered include “ ‘tiie thoroughness evident in its consideration, the validity of its reasoning, [and] its consistency with earlier and later pronouncements.’ ” Adamo Wrecking Co. v. United States, 434 U.S. 275, 287 n.5, 98 S.Ct. 566, 574 n.5, 54 L.Ed.2d 538 (1978) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed. 124 (1944)). Measured against this standard, the Commission’s performance in the matter before us fails to merit the court’s substantial deference.

First, the Commission has presented no reasoned explanation of its decision. It merely pronounced that it found “no reason to believe” that the NRSC violated the. Act in making expenditures as agent of the national and State committees.²³ We are not even certain whether the Commission endorsed the reasoning of its General Counsel, since the Commission’s decision did not explicitly adopt the General Counsel’s report and the Commission’s own newsletter, the FEC Record, has avowed that Commission actions “are not necessarily based on, or in agreement with, the General Counsel’s analysis.” ²⁴

Second, even if we were to accept the analysis of the General Counsel as that of the Commission, we would still encounter a troubling absence of consistent reasoning. On two prior occasions, the first January 19, 1979 and the second June 17, 1979, the FEC upheld the legality of NRSC-State committee agency agreements. In those cases, as in the case at bar, the FEC file apparently included a General Counsel’s report recommending approval of the challenged agreements.²⁵ From report to report, Counsel’s grounds for his recommendation shifted perceptibly.

In the first case, the General Counsel rested on the absence from the text of Section 441a(d)(3) of an explicit prohibition of agency agreements and on a reading of Section 441a(a)(4) that would permit unlimited transfers of funds from NRSC to the State committees. See First General Counsel’s Report, supra, at 4, JA 49.

In the second proceeding he added a new justification, arguing that a recently promulgated regulation, 11 C.F.R. § 110.7, permitted the national committee of a political party to designate any agent for the purpose of making Section 441a(d)(3) expenditures. Because the goal of that regulation was to promote coordination among party committees, the Counsel reasoned that the State committees should also be permitted to designate spending agents under Section 441a(d)(3). See First General Counsel’s Report, supra, at 5, JA 50.

The present litigation has evidenced three more changes in the position of either the General Counsel or the Commission. First, and most important, the Commission brief in this court disavowed the heavy reliance that the General Counsel once placed on a provision of 11 C.F.R. § 110.7. See brief for appellee at 9-12. Because the section relied upon, Section 110.7(a)(4), authorizes agents only in connection with presidential campaigns, not congressional contests, the FEC has now conceded that prior citations to the section to sustain the designation of agents in Senate races seriously misconstrued the regulation. Nonetheless, the misconstruction appeared in the First General Counsel’s Report made public at the time of the Commission’s decision in this case.

In a second significant change, the General Counsel retreated from any substantial reliance on the absence of an express agency prohibition in the text of Section 441a(d)(3). First General Counsel’s Report, supra, at 4, JA 49. Third, and finally, the General Counsel’s report presented a new argument to justify the legality of agency agreements. Once again relying primarily on Section 441a(a)(4), the Counsel appended the corollary claim that congressional failure to amend that section to prohibit transfers of funds by the NRSC constitutes implicit ratification of the Commission’s position. Id. at 8 — 11, JA 53-56.

These alterations in grounds for the agency’s decision do not warrant our rejection of any individual argument proffered by the General Counsel or the Commission. We are prepared to consider each, in its turn. But the Counsel’s shifting positions offer no adequate support for a claim that the Commission’s position here is a product of thorough consideration, careful deliberation, and secure judgment. We must decide for ourselves whether the action of the Commission was “contrary to law.” ²⁶

III. EXPENDITURE LIMITATIONS UNDER SECTION 441a(d)(3)

The agency agreements executed by the Republican State committees and the NRSC purport to transfer spending authority conferred by Section 441a(dX3). Our inquiry into the permissibility of such agreements begins with examination of the statute itself.²⁷ Accepted principles of construction establish the presumption that the terms of statutes are ordinarily intended to carry their plain meaning. See SEC v. Sloan, supra; Caminetti v. United States, 242 U.S. 470, 37 S.Ct. 192, 61 L.Ed. 442 (1917); March v. United States, 506 F.2d 1306 (D.C.Cir.1974).

The relevant language of Section 441a(d)(3) authorizes “the national committee of a political party, or a State committee of a political party, including any subordinate State committee,” to make “any expenditure” of up to 2 cents per voting-age resident on behalf of the party’s senatorial candidate. The operative terms are plain and precise. There is no suggestion that Congress chose its language loosely. Section 441a(d)(3) not only designates spending limits with mathematical rigor; it also confers authority to reach those limits on two named committees, both clearly identified by statutory definitions. Section 431(14) defines the “national committee” as “the organization which, by virtue of the by-laws of a political party, is responsible for the day-to-day operation of such political party at the national level.” Section 431(15) defines a “State committee” as “the organization which, by virtue of the by-laws of a political party, is responsible for the day-today operation of such political party at the State level.”

It is obvious that the NRSC is neither the “national” nor a “State” committee of the Republican Party within the contemplation of Section 441a(d)(3). Nor do we understand either the FEC or the NRSC to contend that the NRSC qualifies as a “subordinate committee of a State committee,” the third kind of committee to which Section 441a(d)(3) refers. Nor, finally, does the statute make reference to any other kind of permissible arrangement by which the State party organizations might convey their spending authority to any other organization. The plain language of the statute thus seems to preclude any arrangement by which the special authority of a named entity is transferred to another.²⁸

In its brief as an intervenor in this court, NRSC urges the contrary inference. In so doing, it rehearses an argument invoked by the Commission’s General Counsel in an earlier case, the same one on which the General Counsel no longer places substantial reliance. See First General Counsel’s Report, supra, at 4, JA 49. According to the NRSC, this court should infer that agency agreements are permissible under Section 441a(d)(3) because the statutory text includes no express prohibition of agency relationships. The NRSC’s argument depends for its plausibility on its use of “agency” terminology. The language of Section 441a(d)(3) presumably does not prohibit a State political committee’s employment of an agent in the standard legal sense; the failure of the statute to mention agency does not, for example, mean that the State committees may not hire staff authorized to act in their behalf. Against this background of familiar usage, however, it is somewhat misleading to characterize the challenged relationships between the State committees and the NRSC as ones of “agency.” The State committees do not, in the role of principal, raise and transfer funds to the NRSC as agent; nor do they give any direction as to how “their” funds ought to be spent. Rather, the NRSC raises and spends money as it sees fit; the State committees interact with the NRSC only in the initial agreement to the arrangement. Thereafter the State committees serve as legal shells. We cannot believe that Congress intended the language of Section 441a(d)(3) to authorize artificial relationships of this kind.

We are buttressed in our reliance on the clear language of Section 441a(d)(3) both by the provision’s statutory context and by legislative history. The NRSC and its parallel congressional campaign committees were familiar to the Congress that adopted Section 441a(d)(3). Indeed, Congress specifically provided for such committees in Section 441a(h), which permits “the Republican or Democratic Senatorial Campaign Committee, or the national committee of a political party, or any combination of such committees” to make direct contributions of up to $17,500 to senatorial candidates, “notwithstanding any other provision of this Act.” ²⁹ If Congress had similarly intended for the NRSC to share in the spending permissions of Section 441a(d)(3), it is not unreasonable to think that Congress would have said so explicitly, or at least signalled its intention in the course of its deliberations.

Yet the legislative history gives no hint that Congress ever foresaw, much less intended, that delegations of spending authority under Section 441a(d)(3) might be attempted. On the contrary, during the 1974 legislative debates Senator Brock noted with concern that the Act and its proposed Amendments failed to provide more permissive treatment to the congressional campaign committees.³⁰ Though he was fully aware of the proposed Section 441a(d)(3) permission for expenditures by the national and State committees — and in fact mentioned it during his remarks — Senator Brock proposed a further amendment that would have exempted congressional campaign committees like the NRSC from the Act’s expenditure limits. “I offer this amendment,” he said, “because I do not believe that as the bill is written [the congressional campaign committees] could literally operate in support of our candidates under the existing language.”³¹

The Senate initially adopted the amendment offered by Senator Brock, but reversed itself five days later.³² The record of the Senate debate leading to repeal of the Brock amendment is equally revealing. With the attention of the Senate again riveted on the status of the congressional campaign committees under the Federal Election Campaign Act, not a single Senator ever suggested that the NRSC or any similar committee might be able to assume the spending authority of the State committees. Moreover, the 1974 debates evidence a congressional distinction between the political parties, whose role in the political process Congress sought to strengthen, and the campaign committees of the House and Senate. Senator Clark, who led the fight to repeal the Brock amendment, spoke to this point explicitly. “No one,” he said, “should confuse national political parties, supported as they are by thousands of people giving in $5 and $10 amounts, with the Senate and House Campaign Committees." ³³

Thus, no more in the legislative history than in the language of Section 441a(d)(3) do we find support for the kind of transfer of statutory authority at issue in this case.³⁴

IV. RELEVANCE OF THE TRANSFER PROVISION

The FEC argues that since Section 441a(a)(4) permits the NRSC to transfer unlimited funds to the State committees, it would be “placing form over substance” to forbid the State committees to designate NRSC as their agent. Brief for appellee at 17. We do not address the question whether NRSC may freely transfer funds to State committees under Section 441a(a)(4), because that issue was not joined before this court. While not conceding the validity of such transfers,³⁵ DSCC does not now challenge transfers of funds from NRSC to the State committees, apparently because no such transfers have ever been made.

We are not convinced, however, that an outright transfer of funds from NRSC to a State committee would be equivalent to an “agency” relationship in which the agent, NRSC, controls the funds from start to finish — from raising to spending. In the latter situation the State committee may have no voice in the way funds are spent. Nor is this a difference that is obviously without consequence. When the NRSC pays the piper, it will call the tune. The candidate may have little incentive to communicate with the State committee, preferring to deal with a committee of his colleagues that directs the flow of funds.

If funds were actually transferred to the State committees, on the other hand, the committees would be more likely to maintain an active role throughout the campaign. Even if NRSC attempted to direct how transferred funds were to be spent, the State committees would actually make the day-to-day campaign expenditures and might be able to persuade NRSC that funds should be spent differently than the congressional committee envisioned. As State committees assumed responsibility for campaign disbursements, moreover, candidates might confer more closely with those committees and remain more closely in touch with their local party constituents. Since the structure of the Act suggests that Congress intended to increase the role of State and national committees, not of congressional committees, we find these possible differences to be potentially meaningful.³⁶

It would be inappropriate for this court to speculate further about the ways in which transfers of funds might differ from agency agreements. The parties have not argued the validity of funds transfers, but only of agency agreements. Since we find that the plain language of Section 441a(d)(3) precludes the latter,³⁷ we must reverse the District Court, declare the Commission’s failure to act contrary to law, and direct the Commission to conform with this decision forthwith. See 2 U.S.C. § 437g(aX8)(C).

So ordered.

Footnotes

1

. The Federal Election Campaign Act (FECA) of 1971, Pub.L.No.92-225, 86 Stat. 3, was amended by the FECA Amendments of 1974, Pub.L.No.93 — 443, 88 Stat. 1263, by the FECA Amendments of 1976, Pub.L.No.94 — 283, 90 Stat. 475, and by the FECA Amendments of 1979, Pub.L. No.96-187, 93 Stat. 1339. The relevant provisions of the Act are hereinafter cited to the United States Code only; section references are all to Title 2.

2

. 2 U.S.C. § 441a(d)(3). The section also authorizes expenditures on behalf of House candidates.

3

. The Commission decision in this case, which it designated as Matter Under Review (MUR) 1234, issued on July 10, 1980.

4

. The decision of the District Court, rendered August 28, 1980, is printed in the Joint Appendix (JA) at 157.

5

. See brief for appellee at 10 n.5 (“Absent § 441a(d), party committees could make no expenditures whatsoever in connection with the Congressional campaigns of their party’s candidates.”).

6

. A sample “agency” agreement, pursuant to which the Alabama Republican Executive Committee designated the National Republican Senatorial Committee (NRSC) as its agent for making the senatorial campaign expenditures authorized by § 441a(d)(3), appears as Appendix B to the brief for intervenor NRSC.

7

. JA 105.

8

. JA 106.

9

. The complaint is reprinted at JA 1-9.

10

. Reprinted at JA 19-28.

11

. In fact, the regulation authorizes agency agreements only in presidential campaigns. The FEC has since conceded its interpretive error. See infra.

12

. First General Counsel’s Report, July 8, 1980, reprinted at JA 46-57.

13

. The FEC had decided the prior cases, designated MUR 780 and MUR 820, in response to complaints about NRSC spending pursuant to “agency” agreements during the 1978 campaigns. The decision in MUR 780 came in response to a complaint by the National Committee for an Effective Congress concerning expenditures during the Montana senatorial campaign of Larry Williams; the FEC apparently acted sua sponte in initiating the MUR 820 inquiry into the financing of the senatorial campaign of James Martin of Alabama. The Commission did not come to a decision on either MUR 780 or MUR 820 until after the election. See also infra.

14

. First General Counsel’s Report, supra note 12, at 4-5, JA 49-50.

15

. Section 441a(a)(4) provides in pertinent part:

The limitations on contributions contained in paragraphs (1) and (2) do not apply to transfers between and among political committees which are national, State, district, or local committees (including any subordinate committee thereof) of the same political par-£y * * *

16

. See First General Counsel’s Report, supra note 12, at 5, JA 50 (quoting MUR 820) and 8, JA 53.

17

. JA 58.

18

. See id. The failure to incorporate the First General Counsel’s Report was in accord with usual FEC procedure. See infra.

19

. Jurisdiction for review in the District Court is provided by 2 U.S.C. § 437g(a)(8). The District Court summarily denied a motion to intervene filed by the NRSC.

20

. Democratic Senatorial Campaign Committee v. FEC, D.D.C. Civil Action No. 80-1903, Aug. 28, 1980, memorandum opinion at 3, JA 159.

21

. Id.

22

. Compare Griggs v. Duke Power Co., 401 U.S. 424, 433 — 434, 91 S.Ct. 849, 854-855, 28 L.Ed.2d 158 (1971), with Espinoza v. Farah Manufacturing Co., 414 U.S. 86, 92-96, 94 S.Ct. 334, 338-340, 38 L.Ed.2d 287 (1973), and General Electric Co. v. Gilbert, 429 U.S. 125, 140-MS, 97 S.Ct. 401, 410 — 411, 50 L.Ed.2d 343 (1976).

23

. This bare pronouncement reflects consistent Commission practice. After concluding a case the FEC places the relevant documents, including staff reports and recommendations, in a public file. The Commission does not endorse the reasoning of its staff, nor does it offer reasons of its own. See Note, The Federal Election Commission: The First Amendment and Due Process, 89 Yale L.J. 1199, 1211-1212 (1980).

Failure to adhere to accepted standards of reasoned decisionmaking not only undermines public confidence but may actually impair the substantive quality of the Commission’s performance. See id. at 1211. It also deprives a reviewing court of any Commission record on which to base a deferential consideration.

24

. FEC Record, Oct. 1979, at 4.

25

. The FEC has not supplied copies of those reports. The First General Counsel’s Report in the present case, however, refers back to the earlier reports.

26

. The dissent makes two distinct points concerning the respect the Commission’s decision should command. First, the Commission is entitled to deference in construing its own statute. See dissenting op. at 782. Second, the court should refrain from upsetting an arrangement supported by “precedent established over the lifetime of the practice.” Id. at 786. The dissent does not weight, indeed it does not mention, the failure of the FEC to provide a consistent, reasoned explanation of the position it has taken. Moreover, the dissent’s reliance on “established” precedent hangs by a slender thread. Commission decisions relevant to this case are of recent vintage. Judge Wilkey recites Commission precedent in four numbered paragraphs. See dissenting op. at 786-787. Only one of the recitations is squarely in point. The first three paragraphs relate to Commission expressions on delegations by the national rather than the State committees. The fourth paragraph invokes the FEC decisions in MURs 780 and 820, the only precedents directly on target. But neither of these matters was decided until 1979. Prior to the District Court opinion in this case, no judicial precedent existed.

When Congress expressly provides litigants with a right of judicial review, it is not open to the court to shirk its responsibility by invoking an intervenor’s reliance on a short course of unreviewed agency actions.

27

. Intervenor NRSC appears to believe that we are not entitled to reach this question, being bound instead to hold for the FEC under principles of res judicata and collateral estoppel which NRSC contends forbid our hearing the case. See brief for intervenor at 10. We are of the view that claim and issue preclusion principles are inapplicable to the present case. Where, as here, the statute provides for judicial review, an agency’s decision on a question of law does not control the judgment of an Article III court. See RESTATEMENT (SECOND) OF JUDGMENTS § 131, comments a and d, at 32-33, 39 (Tent. Draft No. 7 1980) (“[An] agency determination is no more res judicata in [a judicial] review proceeding than is a trial court judgment res judicata in an appellate court in which it is under appeal.”).

28

. The dissent, like intervenor NRSC but unlike the FEC, argues that First Amendment rights of speech and association would be violated if § 441a(d)(3) were construed to deny the capacity of State committees to assign their statutory authority to the NRSC. Reliance for this argument is placed on Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). That decision held unconstitutional limitations on independent expenditures by individuals and non-party associations in election campaigns. The Court addressed and upheld expense ceilings on national and State party committees only in the context of the Fifth Amendment challenge there made. 424 U.S. at 58-59 nn.66, 67, 96 S.Ct. at 653, 654 nn.66, 67. But as the FEC notes, brief for appellee at 10 n.5, independent expenditures are not at issue here: “Party cornmittees * * * are deemed incapable of making independent expenditures in connection with the campaigns of their party’s candidates.” Cf. 2 U.S.C. § 441a(a)(7)(B)(i) (any expenditure made “in cooperation, consultation, or concert with, or at the request or suggestion of, a candidate, his authorized political committees, or their agents, shall be considered to be a contribution to such candidate.”).

Nor do we understand NRSC to suggest in this case that it has made independent expenditures on behalf of candidates, expenditures of the kind the Buckley Court found to be constitutionally protected. And surely no frontal attack has been made by NRSC on the constitutionality vel non of expenditure limitations imposed on party organs.

29

. Appellant Democratic Senatorial Campaign Committee argues that the language of § 441a(h) by its own force prohibits any “agency” agreements that lead to NRSC expenditures of more than $17,500 in any single Senate race. See brief for appellant at 18-20. In its view, § 441a(h) exhibits clear congressional intent to limit NRSC expenditures to this amount. Because we rest our holding on the plain language of § 441a(d)(3) itself, we need not decide whether § 441a(h) implies a limitation on § 441a(d)(3) or any other provision of the Act.

30

. 120 Cong.Rec. S5189-S5191 (daily ed. Apr. 3, 1974).

31

. Id. at S5189.

32

. Id. at S5411-S5415 (daily ed. Apr. 8, 1974).

33

. Id. at S5411.

34

. Appellee purports to find evidence of congressional support for its construction of § 441a(d)(3) in the failure of Congress to enact legislation that would have prohibited explicitly any “movement of funds” between State political committees and congressional campaign committees such as the NRSC. See brief for appellee at 14 — 15. The evidence is entirely unpersuasive. First, post-enactment legislative history has very limited utility in statutory construction, see SEC v. Sloan, 436 U.S. 103, 120-122, 98 S.Ct. 1702, 1712-1713, 56 L.Ed.2d 148 (1978), and in no case could it change the intent of the Congress that passed the statute. See Regional Rail Reorganization Cases, 419 U.S. 102, 152, 95 S.Ct. 335, 363, 42 L.Ed.2d 320 (1974). Second, the House never actually rejected the bill on which appellee relies, but instead refused to consider the measure on its merits. See 124 Cong.Rec. H2261-H2269 (daily ed. Mar. 21, 1978). Third, even within the bill the transfer provision was relatively minor; it is at best unclear that the vote to deny legislative consideration on the merits was motivated by opposition to any particular section. Fourth, the House debate and vote occurred before any FEC decision upholding the legality of agency agreements between State committees and the NRSC under § 441a(d)(3). Fifth, and most important, the proposed ban on the transfer of funds, even had it been adopted, would not speak directly to the issue in this case. Our question involves the legality of an arrangement by which a State committee purports to assign its statutory spending rights to the NRSC, not the legality of a fund transfer.

35

. We have some doubt about whether § 441a(a)(4) encompasses the congressional committees at all. In order to fall within that section the congressional committees would have to be either “national * * * committees * * * of [a] political party” or subordinate to such a committee. Section 431(14) defines “national committee” in a manner that the parties agree excludes congressional committees. We do not know whether the congressional committees could establish that they are subordinate to the national committees of their parties.

36

. The dissent argues that the same number of dollars will be raised by the NRSC and spent in the same State senatorial campaigns, regardless of whether the NRSC is permitted to act as the agent of the State committees, dissenting op. at 785-786, and that this factor is all that matters in terms of “substance.” The dissent thus fails to consider the possible importance of State committee control of finances in strengthening the influence of the State committees and encouraging candidates to communicate more closely with their State party constituencies. Nor is the dissent even consistent in its claim that the court’s decision exalts form over substance. Having argued at length that our opinion will not alter the “substance” of campaign finance, the dissent then proceeds to claim that the result will be more sweeping than even the plaintiffs had “bargained for.” Id. at 785. The court, the dissent argues, should not upset a method of campaign financing that the NRSC has found to have “some functional advantage.” Id. at 786. Yet the location of such a “functional advantage” in a senatorial campaign committee, rather than in the national or State committees, is a result that Congress showed no desire to achieve.

37

. Like the Commission, the dissent fails to come to grips with the only real issue in this case: may party organizations effectively rewrite § 441a(d)(3) of the Act to displace State committees and substitute congressional campaign committees in their stead? For the reasons stated in our opinion, the clear answer to this question is “no.”