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parts of the District Court's order which the en banc court modified in its opinion and order of February 23, 1977, was the part dealing with protection of confidentiality of the information claimed by the companies. The en banc court concluded that until the FTC had a chance to review the documents and rule on specific requests of confidentiality the District Court's order was premature and improper. They continued:

Accordingly, we accept with some modifications, the FTC's proposed confidentiality protection, which would provide notice to the producers of any FTC decision. Specifically, we order that the FTC not disclose any of the documents produced which a company designates as confidential to any person [fn. 63] outside the employ of the FTC (other than an outside consultant retained by the FTC who has agreed not to disclose the documents) without first giving the company ten days' notice of its intention to do so. Such a procedure would, of course, provide an opportunity for judicial review at some later date, if the producers believe that a particular proposed disclosure is improper. (FTC v. Texaco, No. 74-1547 (D.C. Cir. Feb. 23, 1977); Slip Opinion

at 43-44.] Socialist Workers 1974 National Campaign Committee v. Henshaw

(formerly Jennings). Civil Action No. 74-1338 (D.D.C.)

On September 10, 1974, the Socialist Workers 1974 National Campaign Committee, other State and local Socialist Workers Party Organizations and individual members of the Socialist Workers Party filed suit in the U.S. District Court for the District of Columbia, asking the court to declare unconstitutional portions of the Federal Elections Campaign Act of 1971 (hereinafter "FECA").

Named as defendants in the case were the Clerk of the House, the Secretary of the Senate and the Comptroller General of the United States, each of whom is designated as a "supervisory officer" with whom statements and reports required under the FECA are to be filed.

The plaintiffs alleged, inter alia, that the provisions of the FECA requiring the disclosure of the identities of party members, contributors, and others who support “lawful, though controversial political activities," deprive them of their freedom of association rights under the First Amendment. Plaintiffs also assert that the reporting and disclosure requirements "deprive the plaintiffs and their supporters of the right to associational privacy and to political anonymity under the First, Fourth, and Ninth Amendments to the Constitution.

On October 2, 1974, Common Cause moved to intervene as a defendant. On October 10, 1974, the motion to intervene was granted and plaintiffs' motion for a three-judge Federal District Court to rule on the constitutionality of the law was denied. The denial was appealed, but on December 12, 1975, while the appeal was before the U.S. Court of Appeals for the District of Columbia Circuit, the District Court granted plaintiffs' motion for the three-judge court, so the appeal was dismissed.

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Plaintiffs sent interrogatories to and requested the production of documents from: W. Pat Jennings and his successor Edmund L. Henshaw as Clerks of the House of Representatives; Francis R. Valeo as Secretary of the Senate; and Elmer B. Staats as Comptroller General of the United States. The House passed H. Res. 863 on November 13, 1975, authorizing the Clerk to answer the interrogatories and to provide copies of notifications of noncompliance or apparent violations sent by the Clerk to campaign organizations affiliated with the Socialist Workers Party from January 1, 1975, to the date of the resolution, if the court determined that such documents were material and relevant. The court so determined on November 19, 1975.

A second set of interrogatories and requests for the production of documents relating to the Socialist Workers Party was received by each of the defendants on March 8, 1976. The House passed H. Res. 1122 on March 31, 1976, which had provisions similar to those of H. Res. 863, allowing the Clerk to provide the court with copies of all "nonpublic” records or documents maintained by his office relating to plaintiffs or to any previous Socialist Workers Party committee, candidate or official which were requested in the subpoena duces tecum and were found by the court to be material and relevant.

On July 23, 1976, plaintiffs filed a first supplemental and amended complaint for declaratory relief, adding several State Socialist Workers Parties as plaintiffs and adding the Federal Election Commission (hereinafter “FEC") and Attorney General Edward Levi as defendants. The FEC was added because it is charged by the 1976 amendments (hereinafter “Amendments") to the FECA with monitoring and enforcing the recordkeeping and disclosure provisions of the FECA and the Amendments, and Attorney General Levi was added because he is charged with enforcing the FECA's criminal sanctions. The amended complaint states that under the Amendments the plaintiffs must maintain records of all contributors of $100 or more and identify them to the FEC, and that plaintiffs have not identified them on unnamed constitutional grounds. It states that recent information concerning Government harassment and surveillance of persons associated with the Socialist Workers Party shows further proof that disclosure of these contributors would deter and intimidate persons from associating with, contributing to, and supporting the plaintiffs and their candidates. It asks the court to declare 2 U.S.C. $$ 432 (b), (c) and (d), and 438(a)(8) and 434(b)(1)-(8) unconstitutional on their face as applied to plaintiffs and to contributions and expenditures on behalf of their thenPresidential candidate Peter Camejo, and to preliminarily and permanently enjoin their enforcement as to plaintiffs and as to candidate Camejo.

On August 31, 1976, the Clerk of the House, the Secretary of the Senate, and the Comptroller General moved for dismissal. These defendants asserted that as a result of the FECA Amendments of 1974, the duties they originally had under the FECA had been transferred to the FEC which under the 1974 and 1976 Amendments has the responsibility to enforce and administer the disclosure provisions challenged by the plaintiffs.

On September 29, 1976, the FEC filed its motion to dismiss. In support of its motion the FEC noted that it, not the courts, has exclusive primary jurisdiction over enforcement of the FECA. Additionally, the FEC asserted that the issues raised by the plaintiffs’ complaint are all within its exclusive primary jurisdiction, and that the court “should remit the plaintiffs to the processes established by law for enforcement of the statutes." (Points and Authorities in Support of Defendant Federal Election Commission's Motion to Dismiss the Action for Lack of Jurisdiction, at 9.]

On October 21, 1976, Attorney General Levi filed a motion to dismiss, asserting that the plaintiffs' amended complaint failed to set forth a justiciable case or controversy between the plaintiffs and the Attorney General. The Attorney General noted that the plaintiffs had failed to allege that the Attorney General had either enforced or threatened to enforce against them the criminal provisions of the FECA and its amendments. The Attorney General also asserted that the causes of action alleged by the plaintiffs were directed at actions taken by officials other than the Attorney General.

On October 21, 1976 and November 4, 1976, Common Cause filed memoranda in opposition to the motions to dismiss made by the FEC and the Attorney General.

The court, on January 17, 1977, granted the motions to dismiss filed by the Clerk of the House, the Secretary of the Senate, the Comptroller General, and the Attorney General. As to the Federal Election Commission, the court denied its motion to dismiss. However, the action was remanded by the court to the FEC "to develop a full factual record and make specific findings of fact concerning the present nature and extent of any harassment suffered by plaintiffs as a result of the disclosure provisions, including economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility.'” [Order, Socialist Workers v. Jennings, Civil Action No. 74-1338 (D.Ò.C. 1977); Slip Opinion at 3.] The FEC was given 6 months to complete the factual record and make findings of fact, which then are to be reported to the court.

Additionally, the court ordered that as to the defendants who had been dismissed, plaintiffs were to be allowed to pursue and complete discovery against those individuals as if they had remained parties to the action.

On March 15, 1977, plaintiffs filed a motion for clarification of the order of January 17, 1977, which motion was granted on April 19, 1977. In the order granting the motion for clarification, the court reaffirmed in all respects its order of January 17, 1977, and ordered that pursuant thereto, the defendant FEC is not authorized to proceed pursuant to 2 U.S.C. § 437(g) nor to make any representation or determination that the FEC has “reason to believe” that plaintiffs have violated the challenged provision of the FECA, as amended.

On May 19, 1977, defendants filed a notice of appeal with the United States Court of Appeals for the District of Columbia Circuit.

On November 4, 1977, a Clerk's order was filed deferring, until a hearing on the merits, appellant's motion for a stay pending the outcome of the appeal.

The appeal was argued on December 6, 1977, and was dismissed on December 13, 1977, by a per curiam opinion of the Court of Appeals. In its opinion, the Appeals Court declared that the order

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of April 19, 1977 clarifying the order of January 18, 1977, was clearly not a preliminary injunction, in the context of the special circumstances and procedures of this particular suit, and therefore the court was without jurisdiction to review it. The court further noted that:

The District Court obviously was aware of the necessity in appropriate cases to provide anticipatory judicial relief against prosecutions threatening sensitive First Amendment Freedoms. The District Court's order of January 17th was in the nature of an instruction to a master to prepare a record and findings, which order is not appealable. Teamsters Local Unions 745, etc. v. Braswell Motor Freight Lines, Inc., 428 F.2d 1371, 1373 (5th Cir. 1970), cert. denied, 401 U.S. 937 (1971). We fail to see how a second order, clarifying which procedures the FEC should use, or not use, in complying with the order to prepare a record, could be any more of an appealable injunctive restraint than the

first order. [Slip Opinion at 3.) [Footnote omitted.]
On April 17, 1978, the FEC filed its findings of facts pursuant to
the January 17, 1977 order of the District Court.

Plaintiffs moved for summary judgment on June 26, 1978.
The FEC moved for summary judgment on August 31, 1978.

On December 29, 1978, plaintiffs, defendants, and intervenordefendant jointly filed a stipulation of settlement along with a proposed order, judgment, and decree, whereby the Socialist Workers Party and its candidates, for a period up to and including the FEC's reporting period for 1984, would be required to keep records regarding campaign contributors but would not be required to disclose the information to defendant FEC.

On January 3, 1979, the three-judge panel in the District Court filed an order, judgment and decree in accordance with the stipulation of settlement agreed to by the parties. Jurisdiction was retained by the court until further order for the purpose of enabling any party to apply for any orders which may be necessary and appropriate for the implementation, enforcement, or extension of the decree.

Noting that the record disclosed that the Socialist Workers Party and persons connected with it, including contributors and recipients of expenditures, had been subjected to systematic harassment, the three-judge panel stated that plaintiffs could not constitutionally be compelled to comply with the reporting requirements of the FECA to the extent that the FECA requires the reporting of any identifying information relevant to any contributor, lender, guarantor, endorser, or recipient of any expenditure by plaintiffs, their candidates or political committees.

The decree established specific mechanisms to implement the provisions of the stipulated settlement. The decree preserved the authority of the FEC to conduct investigations of piaintiffs other than those prohibited by the decree and to the court for orders requiring the production of information if the FEC finds reason to believe that any of the plaintiffs have violated statutory provisions of FECA other than those permitted by the decree. The three-judge panel also set out a framework by which the court would retain jurisdiction and would finally resolve the case by ruling on a motion

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for summary judgment if the parties did not eventually come to an agreement regarding extension of the exemption established by the decree. The duration of the decree as set by the court was to include the closing date of the FEC's reporting period for 1984.

Status.-No further action has been taken.

The complete order judgment, and decree of the District Court is printed in the "Decisions' section of Court Proceedings and Actions of Vital Interest to the Congress, March 3, 1977.

The complete opinion of the Court of Appeals is printed in the “Decisions” section of Court Proceedings and Actions of Vital Interest to the Congress, Part 3, December 31, 1977.

The complete order of the District Court is printed in the "Decisions” section of Court Proceedings and Actions of Vital Interest to the Congress, Part 1, April 15, 1977.

Goldwater v. Carter

Civil Action No. 78-2412 (D.D.C.)

Plaintiffs, Members of the Senate and House of Representatives, filed suit on December 22, 1978, in the United States District Court for the District of Columbia, against President Carter and Secretary of State Cyrus Vance. Plaintiffs include Senator Barry Goldwater, Senator Strom Thurmond, Senator Carl Curtis, Senator Jake Garn, Senator Jesse A. Helms, Senator-elect Gordon Humphrey, Congressman Robert Bauman, Congressman Steve Symms, Congressman Larry McDonald, Congressman Robert Daniel, Jr., Congressman Bob Štump, Congressman Eldon Rudd, Congressman John Ashbrook and Congressman George Hansen.

The plaintiffs seek to have the court declare unconstitutional and illegal, and to enjoin, set aside, annul, suspend, or otherwise declare invalid and of no effect, the purported notice by President Carter to the Republic of China of the termination of the 1954 Mutual Defense Treaty (hereinafter “Defense Treaty'), TIAS 3178, 6 UST 433 (1955), between the United States and the Republic of China. Plaintiffs further seek to have the court declare that the termination of the 1954 Treaty cannot be legally accomplished, nor can notice be given of the intended termination of such treaty, without the advice and consent of the United States Senate, or the approval of both Houses of Congress.

The Congressional plaintiffs first assert that the Defense Treaty itself stipulates the only method for its abrogation. Article X of the Defense Treaty states in its entirety:

This Treaty shall remain in force indefinitely. Either
Party may terminate it one year after notice has been

given to the other Party. They then assert that Article 2 of the Vienna convention on the Law of Treaties defines the term “party” as “a State which has consented to be bound by the treaty and for which the treaty is in force." The plaintiffs conclude that under the United States Constitution and as historically interpreted by the United States, the term “party”, as used in Article X of the Defense Treaty, means the President acting together with the Senate or both Houses of Congress.

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