Court Rules FEC Invalid Because 2 Members Are Tied to Congress

The makeup of the Federal Election Commission was ruled unconstitutional Friday by a federal appeals court because the commission includes two non-voting members employed by Congress.

But the three-judge panel of the U.S. Circuit Court of Appeals suggested that the problem be remedied by amending the law creating the commission to eliminate the two members--the secretary of the Senate and the House clerk.

Throwing out an FEC ruling against the National Rifle Assn., the court said the Constitution’s separation-of-powers doctrine does not permit agents of Congress to serve on executive commissions--even in a non-voting capacity.

The FEC, created as part of campaign reform legislation enacted in response to the Watergate scandal, is composed of three Republican and three Democratic members appointed by the President, plus the secretary of the Senate and the House clerk.

The two congressional officials do not vote on agency matters but attend commission meetings and participate in their deliberations.

The FEC said it is studying Friday’s ruling and declined to say if it will appeal to the Supreme Court.

But the appeals court said its decision does not mean the FEC must disband.

The law creating the commission “contains an explicit severability clause,” Judge Laurence H. Silberman said. That “raises a presumption that Congress would wish the offending portion of the statute . . . to be severed from the rest,” he added.

He was joined by Judges Patricia M. Wald and Ruth Bader Ginsburg, who has since become a Supreme Court justice.