The defendant suggested, therefore, that the Court vacate the district court's judgment on grounds of lack of ripeness, without further briefing or oral argument. On January 14, 1982, the GSA Administrator also filed responses to NOW's motions to expedite, arguing that while expedited consideration of the jurisdictional statements and petitions for certiorari was appropriate, expedited briefing and oral argument was "inadvisable." As reasons he cited: (1) the difficult and complex nature of the issues, which required more time to be adequately addressed; (2) the lack of necessity for expedition in view of the possibility of subsequent mootness and the fact that no legal barrier had been established to impede further state ratifications; and (3) the lack of ripeness. On the last point, the GSA Administrator maintained that the Supreme Court should not compound the district court's error of intruding prematurely into the amendment process by itself ruling on the merits in "an essentially advisory context." Also on January 14, 1982, the plaintiffs/appellees filed their own motions to expedite [in Nos. 81-1282-ADX and 81-1283-CFX] and a response to NOW's suggested briefing schedule. While, in view of the fundamental constitutional issues involved in the case, the plaintiffs joined NOW in requesting the Supreme Court to promptly note jurisdiction and to set an expedited briefing and argument schedule, they sought somewhat more time for the submission of briefs. On January 15, 1982, the Court invited the parties to respond to the suggestions of the Solicitor General (in the GSA Administrator's jurisdictional statement) that the Court vacate the judgment of the district court on the ground of lack of ripeness, without further briefing or oral argument. On January 19, 1982, the amici, Speaker O'Neill and Chairman Rodino, filed a response strongly urging a disposition of the case which would summarily vacate the judgment of the district court and direct the dismissal of the complaint for lack of ripeness. The amici agreed with NOW and GSA that the court below had overstepped its bounds by deciding a case that was not ripe for adjudication, and also that the question of ripeness was itself ripe for review at that time. While the amici argued that the Court should summarily vacate and dismiss, thereby returning the case to the status quo ante and eliminating the impact of the district court's opinion, they contended that if the Court disagreed it should alternatively summarily reverse the lower court based on Coleman v. Miller, or grant the motions for an expedited hearing. The amici specifically disputed the implication in the GSA Administrator's jurisdictional statement that the case presented difficult constitutional questions not previously resolved by the Supreme Court: Indeed, amici cannot even understand that suggestion. Less than four years ago the Department of Justice assured Congress that precisely the opposite was true-telling the House Committee on the Judiciary that Coleman, together with Dillon v. Gloss, 256 U.S. 368 (1921), were "dispositive" in establishing both the permissibility of extensions and the inefficacy of rescissions. Quoted in H.R. Rep. No. 95-1405, at 15, 9-10. The Department told Judge Callister precisely the same thing in defending the case 71 On January 20, 1982, NOW filed its response to the suggestion of summary disposition, also supporting action by the Supreme Court summarily to vacate the district court judgment for lack of ripeness and to direct dismissal of the complaint. NOW noted, however, that it continued to believe that the alternative of plenary, but expeditious, review and reversal of the lower court decision, on justiciability grounds and the merits, would not entail undue difficulty. Also on January 20, 1982, the plaintiffs/appellees filed their response to the suggestion that the district court judgment be vacated. In their view, "summary vacation on the issue of ripeness would not be proper in light of the parties and the issues presented by the case and would, in fact, be a ruling on the 'antecedent' issue of whether Congress has plenary power and control over the amending process under Article V, which ruling would, in turn, decide many of the fundamental constitutional issues and policies presented by this case." [Response of Appellees, State of Idaho and State of Arizona. . ., January 20, 1982, at 2-3 (footnote omitted)] The plaintiffs urged the Court to assign the case for expedited briefing and oral argument in line with their filing of January 14. On January 25, 1982, the Supreme Court issued orders: (1) granting the motions to expedite consideration of the jurisdictional statements and petitions for certiorari: (2) denying the motions in all other respects, including the requests to expedite plenary consideration; (3) granting the petitions for certiorari before judgment; (4) postponing further consideration of the question of jurisdiction until hearing the case on the merits; (5) staying the judgment of the district court pending the sending down of the judgment of the Supreme Court; and (6) consolidating the various actions (i.e., Nos. 81-1282-ADX, 81-1283-CFX, 81-1312-ADX, and 81-1313-CFX). Numerous groups and individuals were also granted permission to file briefs as amici curiae.2 [102 S.Ct. 1272] Status-The case is pending in the U.S. Supreme Court. The complete texts of the March 3, 1981 decision of the district court and the May 11, 1981 decision of the circuit court are printed in the "Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, September 1, 1981. The complete text of the December 23, 1981 decision of the district court is printed in the "Decisions" section of this report at page 487. 2 Among those granted permission to file amicus briefs were: the AFL-CIO; Senator Jake Garn, et al.; Joseph E. Brennan, Governor of Maine, et al.; the American Bar Association; and ERAmerica. League of Women Voters of California v. Federal Communications Commission Civil Action No. 79-1562-MML (C.D.Cal.) On April 30, 1979, the League of Women Voters of California; U.S. Representative Henry Waxman of California; and the Pacifica Foundation, a non-profit educational corporation owning and operating five major market noncommercial FM radio stations throughout the United States, brought suit against the Federal Communications Commission ("FCC") in the U.S. District Court for the Central District of California. The complaint challenged the constitutionality of 47 U.S.C. § 399(a) which provided in relevant part that "no noncommercial educational broadcasting station may engage in editorializing or may support or oppose any candidate for political office." The plaintiffs sought both declaratory relief and an injunction against the statute's enforcement. The gravamen of the complaint was that section 399(a) was unconstitutional on its face in that it violated First Amendment rights to freedom of speech and of the press, and, as to plaintiff Pacifica, that it violated its right to equal protection of the laws under the Due Process Clause of the Fifth Amendment (since it deprived noncommercial broadcasters of constitutional rights exercised by commercial broadcasters). The FCC filed an answer to the complaint on July 25, 1979. An amended complaint was filed on August 27, 1979, and an answer was filed on September 12, 1979. On September 24, 1979, the plaintiffs filed a motion for summary judgment. In a memorandum accompanying the motion, the plaintiffs outlined the reasons why they believed section 399(a)'s absolute ban violated the First Amendment's guarantees of freedom of speech and of the press and the _Fifth Amendment's guarantee of equal protection under the Due Process Clause. At the outset, the memorandum contended that editorializing and endorsement of or opposition to political candidates by noncommercial broadcasting stations was speech "squarely within the protection of the First Amendment." It noted further that except where special regulations were needed to protect children, "every court-sanctioned regulation on the content of broadcast speech has been designed to increase the variety of views and opinions expressed over the air." [Memorandum of Points and Authorities in Support of Motion for Summary Judgment, September 24, 1979, at 8] It pointed out that what was involved was not only the right of noncommerical broadcasting stations to editorialize, but also the critical right of the broadcast audience the public-to receive such editorials and thereby be informed. The memorandum continued: In Red Lion [Broadcasting Co. v. FCC, 395 U.S. 367 (1969)], supra, the Supreme Court unanimously upheld the constitutionality of the FCC's fairness doctrine, which requires that discussion of public issues be presented on broadcast stations and that each side of those issues be given fair coverage. Faced with the possibility that stations might present only one viewpoint on important public issues, the Court found the only solution consistent with the First Amendment rights of the public to be the fair- By enacting § 399(a) to prevent potentially one-sided edi- Second, the memorandum contended that the Government could show no compelling interest which would justify the absolute prohibition found in section 399(a). Such a ban, the plaintiffs argued, was only permissible in cases where the utterances did not constitute "speech" at all-e.g. obscenities, false and deceptive advertising, defamation, and so forth. The only conceivable governmental interest in this case, the memorandum noted, was in preventing "public criticism and comment" directed at Congressional incumbents, "a purpose [which] is totally improper and cannot serve as a basis for upholding the statute." [Id. at 15] The plaintiffs also asserted that the fear that noncommercial stations might become a "giant government-controlled propaganda machine" was totally unfounded, not only because of the restraints built into the Corporation for Public Broadcasting charter and the FCC political editorializing rule (and the fairness doctrine) but also because noncommercial stations received but a fraction of their income from the Federal Government. Third, the memorandum contended that even if there were legitimate Government interests supporting section 399(a), because there were narrower, less drastic, means of satisfying those interests, the section was still unconstitutional. It pointed to several measures short of a total ban on editorializing already in effect, such as the fairness doctrine and the right of reply legislation, and suggested other alternatives. Turning to the Fifth Amendment equal protection issue, the plaintiffs argued that the noncontent-based distinction between noncommercial and commercial broadcasters was not premised on the required "substantial" government interest and therefore could not be sustained as a matter of constitutional law. On October 11, 1979, U.S. Attorney General Benjamin Civiletti informed Senate Majority Leader Robert Byrd by letter that the Department of Justice, which represented the FCC in the case, would not defend the constitutionality of the statute. The Attorney General in essence agreed with many of the arguments raised by the plaintiffs in their memorandum. He concluded that the statute violated the First Amendment and that no compelling state interest could be identified to justify the prior restraint on speech. He also noted that section 399(a) was overbroad (since public broadcasting stations receiving no public funds were covered) and that there were less restrictive ways to achieve the purposes of the stat ute. He noted that the FCC agreed that the statute "cannot be defended successfully in its present form." In a stipulation filed with the court on October 23, 1979, the FCC stated that it had "determined to discontinue its defense of the constitutionality of Section 399(a) . . .' ." and had so advised Congress. On January 18, 1980, the Justice Department, for the FCC, stated to the court that it had "no opposition to the arguments advanced by the plaintiffs in support of their Motion for Summary Judgment that §399(a) is unconstitutional." On January 17, 1980, the Senate moved to appear in the case as amicus curiae pursuant to Senate Resolution 328 (125 Cong. Rec. S19431, Dec. 20, 1979) and the Ethics in Government Act (2 U.S.C. § 2881(a), providing that permission to appear as amicus "shall be of right" if the appearance is timely). Simultaneously, the Senate Legal Counsel moved to dismiss the complaint and to defer responses to the plaintiffs' motion for summary judgment until the court had ruled on the motion to dismiss. The defendant FCC took no position on these motions. In a memorandum accompanying the motion to dismiss, the Senate argued that the court did not have jurisdiction to hear the action because there was no ripe case or controversy, there were no adverse parties, and the plaintiffs had not exhausted their administrative remedies. The memorandum characterized section 399(a) as a provision passed by Congress "to keep the massive infusion of federal money into the media commenced by the Public Broadcasting Act of 1967 from bringing in its wake political entanglements and control and partisan use of public money." [Memorandum in Support of Senate's Motion to Dismiss, January 17, 1980, at 1] On the case or controversy point, the Senate contended that the suit was "anticipatory" and not presented in a concrete form suitable for judicial resolution. "A proper judicial ruling," the memorandum stated, "must be informed, as this one is not, by the characteristics of the government-controlled broadcaster who makes the candidate endorsement or editorial violative of 47 U.S.C. §399(a), and by what he says, and how." [Id.] In this case, the Senate asserted, the plaintiffs did not allege that they had violated the statute, that it had been enforced or threatened to be enforced against them, or even that they had, or planned to have, engaged in, solicited, or prepared specific candidate endorsements or editorials by public broadcasters. Further, the Senate argued, if the court refused to rule on this anticipatory case, only "relatively mild statutory sanctions" [Id. at 17] would apply if the plaintiffs did later violate the statute (with likely mitigation), which did not constitute sufficient "hardship" to warrant the court's intervention. On the second point, the Senate asserted that the parties were not adverse on the merits because, in short, "plaintiffs assail 47 U.S.C. §399(a); the Department of Justice, representing the defendant FCC, does not defend it; and there are no other parties." [Id. at 18] The Senate emphasized that the parties in the case came to court "fresh from the rejection by Congress of the goal they seek here." [Id. at 1] The memorandum explained: [T]his suit was brought by Representative Waxman immediately upon his failure to obtain repeal of 47 U.S.C. |