Wendy E. Wagner v. Federal Election Commission

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 16, 2013 Decided May 31, 2013
No. 12-5365
W ENDY E. W AGNER , ET AL.,
APPELLANTS
v.
FEDERAL E LECTION C OMMISSION ,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:11-cv-01841)
Alan B. Morrison argued the cause for the appellants.
Arthur B. Spitzer was on brief.
Harry J. Summers, Assistant General Counsel, Federal
Election Commission, argued the cause for the appellee.
Anthony Herman, General Counsel, David B. Kolker,
Associate General Counsel, Kevin Deeley, Acting Associate
General Counsel, and Holly J. Baker and Seth E. Nesin,
Attorneys, were on brief.
J. Gerald Hebert, Scott Nelson, Fred Wertheimer and
Donald J. Simon were on brief for amici curiae Campaign
Legal Center, et al. in support of the appellee.

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Before: HENDERSON and GRIFFITH, Circuit Judges, and
G INSBURG , Senior Circuit Judge.
Opinion for the Court filed P ER C URIAM.
P ER C URIAM: The Federal Election Campaign Act
(FECA) prohibits any “person” contracting with the federal
government from contributing to “any political party,
committee, or candidate for public office or to any person for
any political purpose or use” in a federal election. 2 U.S.C.
§ 441c(a)(1). Three federal contractors seek a declaration that
section 441c abridges their freedom of speech guaranteed by
the First Amendment to the United States Constitution and
denies them the equal protection of the laws in violation of
the Fifth Amendment. Concluding that FECA’s judicial
review provision, 2 U.S.C. § 437h, ousts both the district
court and this panel of jurisdiction to consider the merits of
the claims, we sua sponte vacate and remand to the district
court to comply immediately with the procedures set forth in
section 437h.
I
Appellants Wendy Wagner, Lawrence Brown and Jan
Miller (collectively Appellants) hold consulting contracts with
various agencies of the executive branch of the federal
government and want to make political contributions for use
in federal elections. In October 2011, Appellants sued the
Federal Election Commission (FEC) seeking a declaration
that section 441c violated both the First and the Fifth
Amendments to the U.S. Constitution. They invoked the
district court’s jurisdiction under FECA’s judicial review
provision, 2 U.S.C. § 437h, as well as its federal question
jurisdiction, 28 U.S.C. § 1331.

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Under section 437h, a district court should perform three
functions. First, it must develop a record for appellate review
by making findings of fact. See Bread Political Action Comm.
v. FEC, 455 U.S. 577, 580 (1982) (Bread PAC); Buckley v.
Valeo, 519 F.2d 817, 818–19 (D.C. Cir. 1975) (en banc) (per
curiam). Second, the district court must determine whether
the constitutional challenges are frivolous or involve settled
legal questions. See Cal. Med. Ass’n v. FEC, 453 U.S. 182,
192 n.14 (1981) (CalMed); Khachaturian v. FEC, 980 F.2d
330, 331 (5th Cir. 1992) (en banc) (per curiam); Goland v.
United States, 903 F.2d 1247, 1257 (9th Cir. 1990). Finally,
the district court must immediately certify the record and all
non-frivolous constitutional questions to the en banc court of
appeals. See CalMed, 453 U.S. at 192 n.14; see also Mariani
v. United States, 212 F.3d 761, 769 (3d Cir. 2000) (en banc).
Shortly after filing their complaint, Appellants moved the
district court to first find certain facts and then to certify the
case to the en banc court of appeals. The FEC opposed the
motion on the ground that certification was premature.
Apparently solely for the purpose of avoiding the certification
requirement of section 437h, Appellants subsequently
amended their complaint to invoke only the district court’s
federal question jurisdiction and also moved for a preliminary
injunction.
The district court denied Appellants’ preliminary
injunction motion, concluding that they were unlikely to
succeed on the merits of their constitutional claims. Wagner v.
FEC, 854 F. Supp. 2d 83, 87 (D.D.C. 2012) (Wagner I).
After additional discovery, the court granted summary
judgment to the FEC. Wagner v. FEC, 901 F. Supp. 2d 101,
2012 WL 5378224 (D.D.C. Nov. 2, 2012) (Wagner II).
Before addressing the merits, the district court noted:

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At first, Plaintiffs filed suit under 2 U.S.C. § 437h,
which requires a district court to certify constitutional
questions about FECA to its en banc appellate court.
Plaintiffs changed their minds, however, and amended
their complaint to follow the standard path of federal
litigation. They are permitted to do so, and this Court
has jurisdiction under 28 U.S.C. § 1331. See Bread
PAC[, 455 U.S. at 585] (“plaintiffs meeting the usual
standing requirements can challenge provisions of
[FECA] under the federal-question jurisdiction
granted the federal courts by 28 U.S.C. § 1331”).
Id. at *2 (citation omitted).
On appeal, Appellants asserted—and the FEC did not
contest—that this panel has jurisdiction under 28 U.S.C.
§ 1291 to hear their constitutional challenges. Noting the
potential jurisdictional infirmity, however, we ordered the
parties to submit supplemental briefs addressing whether
section 437h vests exclusive jurisdiction over Appellants’
constitutional claims in the en banc court of appeals. Both
parties argue in their supplemental briefs that section 437h
does not confer exclusive jurisdiction on the en banc court of
appeals, asserting instead that Appellants can elect to bring
suit under either section 437h or section 1331. We must
nonetheless assure ourselves of both the district court’s and
our own jurisdiction whether or not the parties challenge it.
Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541
(1986); LoBue v. Christopher, 82 F.3d 1081, 1082 (D.C. Cir.
1996). The question we must decide, then, is whether section
437h gives exclusive jurisdiction to the en banc court to
decide Appellants’ constitutional claims.1
1 “[T]wo things are necessary to create jurisdiction, whether
original or appellate,” in the lower courts: “The Constitution must

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II
A
In construing section 437h, “[w]e begin, as always, with
the text of the statute.” Permanent Mission of India to the
United Nations v. City of New York, 551 U.S. 193, 197
(2007); see also Hughes Aircraft Co. v. Jacobson, 525 U.S.
432, 438 (1999). Section 437h provides:
The Commission, the national committee of any
political party, or any individual eligible to vote in any
election for the office of President may institute such
actions in the appropriate district court of the United
States, including actions for declaratory judgment, as
may be appropriate to construe the constitutionality of
any provision of this Act. The district court
immediately shall certify all questions of
constitutionality of this Act to the United States court
of appeals for the circuit involved, which shall hear
the matter sitting en banc.
have given to the court the capacity to take it, and an act of
Congress must have supplied it.” Mayor & Alderman of City of
Nashville v. Cooper, 73 U.S. (6 Wall.) 247, 252 (1867). Our
constitutional jurisdiction is clear. Because Appellants declare that
they would make political contributions but for section 441c, they
have Article III standing. Section 441c allegedly deprives them of
a legally protected interest (making a political contribution) that an
order of this court declaring section 441c unenforceable would
remedy. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61
(1992). And because they remain under contract with the federal
government, Appellants retain a “legally cognizable interest” in
seeing section 441c invalidated and the controversy remains live.
See Already, LLC v. Nike, Inc., 133 S. Ct. 721, 726 (2013)
(quotation marks omitted). Accordingly, we address only our
statutory authority to hear the merits of this case.

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2 U.S.C. § 437h. As originally enacted, section 437h
contained two additional provisions. Subsection (b) provided
for direct appeal to the Supreme Court. Federal Election
Campaign Act Amendments of 1974, Pub. L. No. 93-443,
§ 208(a), 88 Stat. 1263, 1285–86 (codified at 2 U.S.C.
§ 437h(b) (1976)). Subsection (c) required both the courts of
appeals and the Supreme Court “to advance on the docket and
to expedite to the greatest possible extent” any matter
certified under section 437h. Id. (codified at 2 U.S.C.
§ 437h(c) (1976)). The Congress repealed subsection 437h(c)
in 1984, Pub. L. No. 98-620, § 402(1)(B), 98 Stat. 3335, 3357
(1984), and subsection 437h(b) in 1988, Pub. L. No. 100-352,
§ 6(a), 102 Stat. 662, 663 (1988).
1
FECA provides “two routes” by which a party may
obtain judicial review of the constitutionality of FECA.
CalMed, 453 U.S. at 188. In addition to section 437h, a party
may also mount a constitutional defense to an FEC
enforcement action brought under 2 U.S.C.§ 437g. Id. While
the section 437g route is available to any party subject to an
FEC enforcement proceeding, only the parties specifically
enumerated in section 437h—the FEC, the national
committees of political parties and individual voters—may
invoke its “extraordinary procedures.” Bread PAC, 455 U.S.
at 585. Those plaintiffs not enumerated in section 437h “are
remitted to the usual remedies” outside FECA, including the
federal question jurisdiction supplied by section 1331. Id. at
584. The unanswered question is whether the enumerated
parties may also avail themselves of the “usual remedies.”
The district court concluded that they may but its
rationale was flawed. The court premised its jurisdiction
solely on the Supreme Court’s dictum in Bread PAC:
“ ‘[P]laintiffs meeting the usual standing requirements can

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challenge provisions of [FECA] under the federal-question
jurisdiction granted the federal courts by 28 U.S.C. § 1331.’ ”
Wagner II, 2012 WL 5378224, at *2 (quoting Bread PAC,
455 U.S. at 585). A reading of the paragraph from which the
language is drawn reveals that this dictum is inapposite here.
The Supreme Court in Bread PAC stated that plaintiffs not
enumerated in section 437h, and therefore ineligible to invoke
its procedures, may challenge the constitutionality of FECA
under section 1331 only.2 It said nothing, however, about the
availability of section 1331 jurisdiction to the parties
enumerated in section 437h.
The only other inferior tribunal to have addressed the
question has answered it in the negative. In FEC v. Lance,
617 F.2d 365, 367–68 (5th Cir. 1980) (Lance I), Bert Lance,
the target of an FEC investigation, fought an administrative
subpoena by arguing, inter alia, that a provision of FECA
violated the First Amendment. Id. at 368. On appeal, a panel
of the Fifth Circuit rejected all of Lance’s non-constitutional
arguments but held that both the district court and the panel
itself lacked jurisdiction to hear the constitutional challenge.
Id. at 374. It reasoned that “Congress’s obvious intent in
enacting [section 437h] was to deprive district courts and
panels of the circuit courts of appeals of jurisdiction to
consider the constitutionality of the FECA” and referred the
question to the en banc court of appeals.3 Id.
2 As noted, any party may defend on constitutional grounds
under section 437g.
3 The parties argue that Lance I is no longer good law because
the en banc Fifth Circuit rejected the panel’s jurisdictional holding
in FEC v. Lance, 635 F.2d 1132 (5th Cir. 1981) (en banc) (Lance
II). But the parties misconstrue Lance II. In that case, the en banc
Fifth Circuit described questions regarding the scope of section
437h as “ ‘delicate’ ” and ones “ ‘to be decided only when

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2
Construing the statute ourselves, we believe that the plain
text of section 437h grants exclusive merits jurisdiction to the
en banc court of appeals. “If . . . there exists a special
statutory review procedure, it is ordinarily supposed that
Congress intended that procedure to be the exclusive means of
obtaining judicial review in those cases to which it applies.”
City of Rochester v. Bond, 603 F.2d 927, 931 (D.C. Cir. 1979)
(emphasis added) (footnote omitted); see also Sun Enters.,
Ltd. v. Train, 532 F.2d 280, 287 (2d Cir. 1976) (Lumbard, J.)
(“[T]here is a strong presumption against the availability of
simultaneous review in both the district court and court of
appeals.”). Section 437h is indeed a “special statutory review
procedure.” We therefore presume that the Congress intended
to deprive both the district court and panels of the court of
appeals of authority to hear the merits of constitutional
challenges to the provisions of FECA.
The parties nevertheless argue that one word in the text
demonstrates that the statute is an optional route to judicial
review of FECA. Their argument is simple: section 437h
provides that certain parties “may institute . . . actions in the
appropriate district court of the United States”; the word
“may” typically denotes discretion; therefore, the parties
enumerated in section 437h may elect between section 437h
and section 1331 to challenge the constitutionality of FECA’s
provisions. But the discretion conferred by the word “may” is
the discretion to “institute . . . actions.” Were the Congress to
necessary.’ ” Id. at 1137 (quoting Cal. Med. Ass’n v. FEC, 641 F.2d
619, 632 (9th Cir. 1980) (en banc), aff’d, CalMed, 453 U.S. 182).
Because the Lance II court had authority to consider the case en
banc under Federal Rule of Appellate Procedure 35 irrespective of
section 437h, it declined to address the jurisdictional issue and left
the panel’s interpretation of section 437h undisturbed. Id.

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replace the word “may” with “shall,” the statute would read as
though a potential plaintiff bore a ministerial obligation to
bring suit. Whatever discretion is provided by “may,” it is not
the discretion to use section 437h vel non.
More importantly, the parties’ interpretation disregards
both how the Congress writes jurisdictional statutes and how
the courts interpret them. Appellants suggest that alternative
language would more clearly express the Congress’s intent to
make section 437h exclusive as to the enumerated parties,
including simply using the word “exclusive.” But there are
many ways to skin a cat and we must decide whether the
Congress has done so with this language. Appellants are
correct that the Congress sometimes includes the word
“exclusive” to make clear that a particular statute confers
exclusive jurisdiction.4 But the Congress also deploys “may”
as a verbal auxiliary in many statutes the courts have
interpreted to confer exclusive jurisdiction.5 Section 437h
4 See, e.g., 15 U.S.C. § 717r(d)(2) (section 19(d(2) of Natural
Gas Act provides “[t]he United States Court of Appeals for the
District of Columbia shall have original and exclusive jurisdiction
over any civil action” seeking review of denial of permit); 26
U.S.C. § 7482(a)(1) (Internal Revenue Code provides that courts of
appeals “shall have exclusive jurisdiction to review the decisions of
the Tax Court”); 28 U.S.C. § 2342 (Hobbs Act provides that “[t]he
court of appeals . . . has exclusive jurisdiction” to review
enumerated agency actions); 42 U.S.C. § 7607 (section 307(b)(1) of
Clean Air Act provides that petition for review of certain actions of
EPA Administrator “may be filed only in the United States Court of
Appeals for the District of Columbia”).
5 See, e.g., John Doe, Inc. v. DEA, 484 F.3d 561, 568 (D.C. Cir.
2007) (interpreting judicial review provision of the Controlled
Substances Act, which provides that “any person aggrieved . . . may
obtain review of the [Attorney General’s] decision in the” courts of
appeals, 21 U.S.C. § 877, to confer exclusive jurisdiction on those

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comports with this established linguistic norm by which the
Congress confers exclusive jurisdiction on specific courts. See
Holland v. Williams Mountain Coal Co., 256 F.3d 819, 824
(D.C. Cir. 2001) (“[S]tatutory interpretation proceeds on the
assumption that Congress’s choice of words reflects a
familiarity with judicial treatment of comparable language . . .
.”); see also Bragdon v. Abbott, 524 U.S. 624, 645 (1998)
(“When . . . judicial interpretations have settled the meaning
courts); Battle v. FAA, 393 F.3d 1330, 1334–35 (D.C. Cir. 2005)
(interpreting judicial review provision of Federal Aviation Act,
which provides that “a person disclosing a substantial interest in an
order [issued under the Act] . . . may apply for review of the order”
in the courts of appeals, 49 U.S.C. § 46110(a), to confer exclusive
jurisdiction on courts of appeals); Am. Fed’n of Gov’t Emps. v. Loy,
367 F.3d 932, 936 (D.C. Cir. 2004) (interpreting judicial review
provision of the Civil Service Reform Act, which provides that
“person aggrieved by any final order of the [agency] . . . may . . .
institute an action for judicial review” in courts of appeals, 5 U.S.C.
§ 7123(a), to confer exclusive jurisdiction on courts of appeals);
AT&T Corp. v. FCC, 220 F.3d 607, 615 (D.C. Cir. 2000)
(interpreting judicial review provision of Federal Communications
Act, which provides, for certain agency actions, “[a]ppeals may be
taken” to this court, 47 U.S.C. § 402(b), to confer exclusive
jurisdiction to review those actions on this court); Johnson v. U.S.
R.R. Ret. Bd., 969 F.2d 1082, 1085–86 (D.C. Cir. 1992)
(interpreting judicial review provision of Railroad Retirement Act
of 1974, which provides that any party aggrieved by final decision
of Railway Retirement Board “may . . . obtain a review” in courts
of appeals, 45 U.S.C. § 355(f), to confer jurisdiction to review
exclusively on courts of appeals); Indep. Broker-Dealers’ Trade
Ass’n v. SEC, 442 F.2d 132, 142 (D.C. Cir. 1971) (interpreting
judicial review provision of the Securities Exchange Act, which
provides that “person aggrieved by a final order of the [Securities
Exchange Commission] . . . may obtain judicial review of the
order” in courts of appeals, 15 U.S.C. § 78y(a)(1), to confer
exclusive jurisdiction on those courts).

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of an existing statutory provision, repetition of the same
language in new statutes indicates, as a general matter, the
intent to incorporate its . . . judicial interpretations as well.”).
Accordingly, we are convinced that the language of section
437h manifests the Congress’s intent to confer exclusive
original jurisdiction of Appellants’ constitutional claims on
the en banc court of appeals.
The legislative purpose underlying section 437h confirms
our interpretation of the statute. See Chapman v. Houston
Welfare Rights Org., 441 U.S. 600, 608 (1979) (“As in all
cases of statutory construction, our task is to interpret the
words of . . . statutes in light of the purposes Congress sought
to serve.”). The Congress is understood to have enacted
section 437h to further the public’s interest in having
questions of FECA’s constitutionality speedily resolved.6 See
Bread PAC, 455 U.S. at 583 (it is “obvious fact that Congress
wanted a broad class of questions to be speedily resolved”);
CalMed, 453 U.S. at 188 (Congress enacted section 437h as
“method for obtaining expedited review of constitutional
challenges to the [FECA].”); Bread Political Action Comm. v.
FEC, 591 F.2d 29, 31 (7th Cir. 1979) (noting “apparent
Congressional intent to provide expedited review to attack
‘any provision’ of” FECA); Buckley, 519 F.2d at 819 (noting
“intention of Congress for expedition in appellate
disposition”); Buckley v. Valeo, 387 F. Supp. 135, 138
(D.D.C. 1975) (“The very essence of [section 437h] . . . is
speedy judicial review.”). The legislative history confirms
6 Appellants are correct that interpreting section 437h to be
exclusive does not centralize review in a single court with a
particular expertise. This observation is of no moment, however,
because expertise was not the Congress’s objective when it enacted
section 437h. Its objective was, and is, speed.

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this understanding. Senator James Buckley,7 the author and
Senate sponsor of the amendment which became section
437h, informed his colleagues on the Senate floor that it
merely provides for the expeditious review of the
constitutional questions I have raised. I am sure we
will agree that if, in fact, there is a serious question as
to the constitutionality of this legislation, it is in the
interest of everyone to have the question determined
by the Supreme Court at the earliest possible time.
120 C ONG. R EC . 10,562 (Apr. 10, 1974) (statement of Sen.
James Buckley) (emphasis added). Similarly, the
amendment’s House sponsor stated that section 437h
provided a “direct method” for “any individual” to “raise
[constitutional] questions and to have those considered as
quickly as possible by the Supreme Court.” Id. at 35,140 (Oct.
10, 1975) (statement of Rep. William Frenzel).
This interest remains salient today. Challenges to FECA
have predictably declined since its enactment. See CalMed,
453 U.S. at 192 n.13 (“[T]he Federal Election Campaign Act
is not an unlimited fountain of constitutional questions, and it
is thus reasonable to assume that resort to § 437h will
decrease in the future.”). But federal elections are repeat
events, as they were when section 437h was enacted. With
elections come political campaigns and political campaigns
lie “at the heart of American constitutional democracy.”
Brown v. Hartlage, 456 U.S. 45, 53 (1982). FECA, and its
many amendments, comprehensively regulate those
campaigns. See Buckley v. Valeo, 424 U.S. 1, 7 (1976) (per
curiam). A constitutional challenge to FECA’s provisions
clouds the rights and obligations of all Americans in the area
7 Senator Buckley later served as a distinguished member of
this Court from 1985 until his retirement in 2000.

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of utmost constitutional protection. See Eu v. San Francisco
Cnty. Democratic Cent. Comm., 489 U.S. 214, 223 (1989)
(“Indeed, the First Amendment ‘has its fullest and most
urgent application’ to speech uttered during a campaign for
political office.” (quoting Monitor Patriot Co. v. Roy, 401
U.S. 265, 272 (1971))). The uncertainty was precisely what
the Congress sought to remove by commanding expedited
resolution of challenges to FECA.
Nor have amendments to section 437h altered the
Congress’s purpose. The repeal of subsections (b) and (c)
may have altered how the Congress has addressed the public’s
interest in quick resolution. But those repeals changed only
section 437h’s volume, not its tune. Section 437h continues
to pretermit review by district courts and panels of courts of
appeals and that pretermission undoubtedly serves the
Congress’s goal of expedition. See Harrison v. PPG Indus.,
Inc., 446 U.S. 578, 593 (1980) (“The most obvious advantage
of direct review by a court of appeals is the time saved
compared to review by a district court, followed by a second
review on appeal.”).
Because the purpose underlying section 437h is the
vindication of the public’s interest in the expeditious
resolution of constitutional challenges to FECA, we reject the
parties’ interpretation of the statute. Their reading threatens
to make that interest illusory by leaving its effectuation
entirely up to individual plaintiffs’ litigation strategies. See
N.Y. Dep’t of Soc. Servs. v. Dublino, 413 U.S. 405, 419–20
(1973) (Courts “cannot interpret federal statutes to negate
their own stated purposes.”); Motor Vehicles Mfrs. Ass’n of
U.S., Inc. v. Ruckelshaus, 719 F.2d 1159, 1165 (D.C. Cir.
1983) (“A statute should ordinarily be read to effectuate its
purposes rather than to frustrate them.”); United States v. Pub.
Utils. Comm’n of D.C., 151 F.2d 609, 613 (D.C. Cir. 1945)
(“[A]n interpretation should be chosen as will effect [the

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statute’]s purpose, rather than one which defeats it . . . .”).
Legislative purpose therefore confirms the mandate of the
statutory text: section 437h vests exclusive jurisdiction in the
en banc courts of appeals to resolve constitutional challenges
brought by the three parties enumerated in that section.
Our interpretation is further bolstered by the Supreme
Court’s own language. In McConnell v. FEC, 540 U.S. 93
(2003), overruled on other grounds by Citizens United v.
FEC, 558 U.S. 3010 (2010), the Supreme Court considered a
challenge to the 2002 overhaul of FECA effected by the
Bipartisan Campaign Reform Act of 2002 (BCRA), Pub. L.
No. 107–155, 116 Stat. 81. BCRA required the convening of
a three-judge district court to hear constitutional challenges to
its provisions. BCRA § 403(a), 116 Stat. at 113–14 (codified
at 2 U.S.C. § 437h note). Two of the plaintiffs challenged a
provision of FECA unaffected by BCRA. The Supreme Court
noted:
This Court has no power to adjudicate a challenge to
the FECA limits in this litigation because challenges
to the constitutionality of FECA provisions are subject
to direct review before an appropriate en banc court of
appeals, as provided in 2 U.S.C. § 437h, not in the
three-judge District Court convened pursuant to
BCRA § 403(a).
McConnell, 540 U.S. at 229. In other words, plaintiffs
challenging provisions of FECA must bring those challenges
under section 437h. And even dictum is accorded substantial
weight. See Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399
(1821) (Marshall, C.J.); United States v. Dorcely, 454 F.3d
366, 375 (D.C. Cir. 2006) (“[C]arefully considered language
of the Supreme Court, even if technically dictum, generally
must be treated as authoritative.” (quotation marks omitted)).
Although McConnell does not settle the question, it confirms

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the conclusion we independently reach: section 437h is a
grant of exclusive jurisdiction to the en banc court of appeals.
B
Convinced that the statutory text, read in light of its
purpose, manifests that Appellants must comply with section
437h’s expedited review procedures, we quickly dispense
with the parties’ remaining arguments. First, the parties
contend that the Congress’s decision not to permit all
potential plaintiffs to use section 437h’s procedures suggests
that section 437h is not exclusive. But the specific
enumeration in section 437h is simply a form of “statutory
standing.” Int’l Ass’n of Machinists & Aerospace Workers v.
FEC, 678 F.2d 1093, 1098 (D.C. Cir. 1982) (per curiam) (en
banc). Statutory standing requirements—particularly that the
party seeking judicial review be “aggrieved” by the
challenged agency action—are commonplace in statutes
conferring exclusive jurisdiction on a particular court. See,
e.g., Boston & Me. Corp. v. Surface Transp. Bd., 364 F.3d
318, 320 (D.C. Cir. 2004) (exclusive judicial review provision
of Hobbs Act, 28 U.S.C. §§ 2342, 2344); Grand Council of
Crees (of Quebec) v. FERC, 198 F.3d 950, 954–55, 959–60
(D.C. Cir. 2000) (exclusive judicial review provision of
Federal Power Act, 16 U.S.C. § 825l(a)); see also cases cited
supra note 5. The only distinction between section 437h’s
statutory standing requirement and the more traditional “party
aggrieved” language is that the latter requires the judiciary to
flesh out which parties have statutory standing whereas, in the
former, the Congress has made that determination. Just as the
“party aggrieved” language does not make an otherwise
exclusive jurisdiction-conferring statute elective, we will not
interpret section 437h’s specific enumeration of parties with
statutory standing to make that provision optional.

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Second, the parties argue that the section 437h procedure
is ill-suited to its task because it results in a less-focused
record than ordinary litigation and is burdensome to both the
en banc court and to litigants. They claim that the Congress
could not have intended to make such an onerous procedure
mandatory. But an argument based on section 437h’s burdens
is an argument against its enactment, not against interpreting
it as a grant of exclusive jurisdiction. The parties may be
correct that section 437h’s procedure might not achieve the
Congress’s desired end. See CalMed, 453 U.S. at 208
(Stewart, J., dissenting) (section 437h procedure “places
uncommonly heavy burdens on the federal court system” and
may prove “cumbersome”); Lance II, 635 F.2d at 1137 (“[I]f
mandatory en banc hearings were multiplied, the effect on the
calendars of this court as to such matters and as to all other
business might be severe and disruptive.” (quotation marks
omitted)); see also Harold Leventhal, Courts and Political
Thickets, 77 C OLUM. L. R EV. 345, 384–87 (1977). But these
arguments are unavailing because “this court simply is not at
liberty to displace, or to improve upon, the jurisdictional
choices of Congress.” Five Flags Pipe Line Co. v. Dep’t of
Transp., 854 F.2d 1438, 1441 (D.C. Cir. 1988). They belong
in a legislative hearing room, not a brief.
Finally, the FEC cites several cases decided by district
courts and panels of the courts of appeals which it contends
show that courts “have implicitly rejected [our interpretation
of section 437h] by considering challenges to FECA outside
the 437h context.” FEC Supp. Br. 8. All but one of these
cases, however, arose in the section 437g context. The
district courts and panels of the courts of appeals of course
have jurisdiction to consider constitutional questions raised as
defenses to section 437g actions. See Bread PAC, 455 U.S. at
584–85; CalMed, 453 U.S. at 187. But jurisdiction to
consider a constitutional defense does not include jurisdiction

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to hear a constitutional challenge brought by a party
enumerated in section 437h. And the lone case the FEC cites
that was not a section 437g proceeding is plainly
distinguishable. In FEC v. Beaumont, 539 U.S. 146, 149–50
(2003), a corporation, its officers and a single eligible voter
sought a declaration that FECA’s prohibition on corporate
contributions violated the First Amendment. While not all of
the plaintiffs were eligible to invoke section 437h, at least the
individual voter was. But the Supreme Court never addressed
jurisdiction and we can thus infer nothing therefrom regarding
the jurisdictional issue. See Lewis v. Casey, 518 U.S. 343, 352
n.2 (1996) (“[W]e have repeatedly held that the existence of
unaddressed jurisdictional defects has no precedential
effect.”); In re Navy Chaplaincy, 534 F.3d 756, 764 (D.C. Cir.
2008) (“It is a well-established rule that cases in which
jurisdiction is assumed sub silentio are not binding authority
for the proposition that jurisdiction exists.” (quotation marks
omitted)).8 After all, “sometimes even excellent Homer
nods.” Consol. Rail Corp. v. United States, 896 F.2d 574, 579
(D.C. Cir. 1990) (quotation marks omitted).
The text of section 437h, read in the context of its
underlying legislative purpose, makes clear that the parties
therein enumerated may bring actions challenging FECA’s
8 The FEC notes that section 437h “has resulted in only about a
dozen en banc decisions in the almost 40 years since the law was
passed.” FEC Supp. Br. 9; see also id. n.4 (citing thirteen
decisions). Unclear to us is what the FEC intends to prove with this
information. As discussed supra, the FEC cites only Beaumont for
the proposition that one party eligible to invoke section 437h
obtained judicial review by invoking section 1331. And we accord
Beaumont no weight on the jurisdictional question because the
Supreme Court did not consider it. To the extent, if any, the
thirteen cases provide guidance, they confirm our interpretation in
light of the scarcity of section 1331 challenges to FECA.

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constitutionality only under that section. Neither Appellants
nor the FEC provide any reason for us to disregard section
437h’s text and purpose. We therefore conclude that both the
district court and this panel lack jurisdiction to decide the
constitutional questions pressed by Appellants.
III
We recognize that by remanding for the district court to
comply with the expedited review provision, we risk further
prolonging this litigation. But even if we believed that the
American citizenry’s interest in expedient resolution of
constitutional challenges to FECA were best served by
addressing the merits, we are without authority to do so.
Inferior federal courts have only the jurisdiction the Congress
confers upon them. Bath County v. Amy, 80 U.S. (13 Wall.)
244, 247–48 (1871); Sierra Club v. Thomas, 828 F.2d 783,
792 (D.C. Cir. 1987). The Congress decided that challenges
to FECA’s constitutionality belong in the en banc courts of
appeals to the exclusion of all other tribunals. Although we
may review the district court’s error in failing to certify the
constitutional questions to the en banc court, see Judd v. FEC,
304 Fed. App’x 874, 875 (D.C. Cir. 2008); Goland, 903 F.2d
at 1252, 1256–58; Gifford v. Tiernan, 670 F.2d 882, 883–85
(9th Cir. 1982), the merits of Appellants’ constitutional
challenges are beyond our reach. We therefore must vacate
the district court’s judgment and remand the case. In re
Lorazepam & Clorazepate Antitrust Litig., 631 F.3d 537, 542
(D.C. Cir. 2011) (“Ordinarily a finding that the district court
lacked jurisdiction . . . lead[s] us to vacate the court’s
judgment and remand . . . .”).9
9 Because Appellants appeal only the denial of summary
judgment, the district court’s denial of preliminary injunctive relief
is not before us. We therefore do not decide whether section 437h

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For the foregoing reasons, it is ORDERED sua sponte
that the judgment of the district court be vacated and the case
remanded to the district court to make appropriate findings of
fact, as necessary, and to certify those facts and the
constitutional questions to the en banc court of appeals within
five days of the date of this opinion.
So ordered.
deprives the district court of authority to grant such relief based on
a constitutional challenge to FECA. We hold only that the district
court is without authority to enter final judgment on the merits of
any constitutional challenge to the provisions of FECA brought by
a party enumerated in section 437h.

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