BAZELON, Chief Judge
(dissenting):
I am strongly opposed to remand and severance at this time, as I view both unnecessary and likely to cause serious delay in deciding these vital matters. The plain words of sections 315(a) and 9011(b) notwithstanding, I cannot conceive that Congress wishes the constitutional questions arising in connection with regulation of private campaign financing and the institution of limited public campaign financing be decided in two or three separate forums.
Nor can I see what specific advance will come from a remand to formulate constitutional questions since the District Court’s formulation can not be realistically binding either upon the parties or upon this court on review. The section 315(a) review provision really involves certification of an entire case and not isolated questions such as those covered by direct certification to the Supreme Court or the United States Temporary Emergency Court of Appeals. This is because the plaintiffs’ attack is upon the facial limitations imposed in the challenged statutes, rather than upon application of those statutes to a murky fact situation.
The majority cites three Supreme Court cases holding that questions raised by certification must be precisely framed, and tailored to the specific controlling facts. But those cases deal pri marily with adjudicatory facts, or events which are themselves in dispute between the parties, and upon the resolution of which disputes by the trier of fact, application of law might well turn. And the certification involved, as I just noted, was of independent legal questions not the interrelated questions presented by this major constitutional case. At issue in this case is whether statutory prohibitions actually infringe upon constitutional rights. The facts bearing upon these questions are — we should assume absent specific evidence of particular adjudicatory disputes — legislative facts. In no way is the trial court better qualified than we to isolate and to decide those many questions whose resolution will turn on such legislative facts. Further, if the court below chooses to immerse itself in the long record made while the matter was on our docket, even more time may be lost.
The court tells us it does not decide whether these Supreme Court cases and their gloss on “certification” requires a formal certification procedure. But I perceive no other explanation for the court’s action. Even if we ignore the term “remand,” the practical effect of the court’s decision is still to require compliance with these decisions on “certification.” As to the majority’s apparent view that this case must conform to normal judicial procedures of initial decision and appellate review, I think that the entire thrust of the review provision added by the 1974 Amendments was intentionally to make this case sui generis. In that regard, I would prefer selection as Special Master of an Article III judge to consider discovery requests and organize the already bulky factual presentations. The parties could then make motions for judgment in this court on the basis of the factual submissions. The majority’s desire to “regularize” proceedings seems based on an unnecessarily technical view of our jurisdiction, a view motivated more, I take it, by a fear that the Supreme Court might reverse on such grounds than on a serious concern that assumption of jurisdiction would tamper with some important policy of judicial administration or impair the rights of any party or potential interve-nor. I agree with plaintiffs’ counsel when he stated at oral argument that any such fears should not be given significant weight. The Supreme Court, as well as we, can perceive the sui generis nature of this case and of Congress’ command of expedition. And it will surely conclude, as I think we must, that no policy of judicial administration prevents a “nonregular” treatment of the case.
If this case is remanded to the District Court, and if discovery proceeds there, it may be utterly impossible for the May 19th deadline to be met. As it is, that date would only give this court a bare six weeks to hear objections to the District Court’s formulation of questions and briefing and arguments on the merits before the July 1, 1975 date for disbursements to finance the nominating conventions pursuant to 26 U.S.C. § 9008(e). And, of course, this court and its personnel would have to re-immerse itself in the case and duplicate work performed by the District Court. A briefing schedule which contemplated appointment of a special master by this court would leave little time to spare for decisions of this matter, and I totally fail to perceive how remand will speed things up. This delay is particularly unfortunate considering the fact that the court has had the motion for remand under advisement officially since early February. The delay in ruling on the motion to remand is in my view cause enough to deny it, considering the further delay granting it will cause.
Further, I lay great emphasis upon section 315(a)’s use of the word “immediately” in the phrase “immediately shall certify.” Some have argued that “immediately” here means the equivalent of “certify prior to deciding those constitutional questions it has formulated.” But I would read the use of the word “immediately,” in conjunction with the absence of any time provision relative to the District Court to mean that the case should be transmitted to this court immediately, if the trial judge finds any valid constitutional question raised by any person with standing to raise it. That was the understanding of the trial judge and I concur in it. The Memorandum and Order of January 24, 1975 specifically stated: “The Court specifically finds that the plaintiffs raise substantial constitutional questions, and that at least the four individual plaintiffs have standing to seek judicial review of the provision in question.”
That being the case, I am of the view that our evidentiary order of March 14, 1975, in conjunction with another order appointing a Special Master to organize legislative facts submitted by the parties would provide a sufficient framework to focus and refine constitutional questions without remand. Such a procedure would also be more in harmony with the statute’s call for expedition and avoid wasteful duplication. For these reasons, I would deny the motion for remand and dissent from the decision of the court.
. That is section 315(a) of the Federal Election Campaign Act, as amended, added by section 208(a) of the Federal Election Campaign Act Amendments of 1974.
. 26 U.S.C. § 9011(b) contained within Chapter 95 of the Subtitle H and limited to “this chapter.”
. See Lowden v. Northwestern Nat. Bank & Trust Co., 298 U.S. 160, 162, 56 S.Ct. 696, 697, 80 L.Ed. 1114 (1936); Atlas Ins. Co. v. Southern, Inc., 306 U.S. 563, 571-573, 59 S.Ct. 657, 83 L.Ed. 987 (1939); Emsheimer v. New Orleans, 186 U.S. 33, 22 S.Ct. 770, 46 L.Ed. 1042 (1902). In Lowden, supra, the Court took the view that it would not answer questions on certification that were “abstract” and “unrelated,” “unnecessarily general,” or “which admit of one answer in one set of circumstances and a different answer in another; the differentiating circumstances being imperfectly disclosed.” But there, there was no original jurisdiction in the Supreme Court, and the case was intended to go to judgment below. Here, no party or applicant for intervention argues that the statute contemplates judgment in the District Court. That said, the latitude for certification in the instant case is obviously broader. Lowden, supra, involved the technicalities of applying section 77 of the Bankruptcy Act to a complicated railway reorganization. While it is true that the trial judge did not formulate specific questions in the case at bar, neither is it the kind of case in which the questions which would be answered by this court would be abstract, unrelated, general or admitting of different answers since they relate chiefly to facial statutory dollar limitations. There is no danger here that this court will “declare a mere abstraction which might seem too narrow or too broad thereafter when the facts were shown forth.” 298 U.S. at 163, 56 S.Ct. at 698. In another context the Low-den court comments about the error of assum ing identical meanings each time the same word appears in statutory materials, which is very relevant to our inquiry into the meaning of the word “certify:” “when things are called by the same name, it is easy for the mind to slide into an assumption that the verbal identity is accompanied in all its sequences by identity of meaning.” Id.
Atlas, supra, involves the applicability of various defenses in a state action over cancellation of insurance policies. The Supreme Court refused to answer questions certified to it because of this defect: “the certified questions are incapable of categorical answer and the questions which they suggest can be properly answered only by reframing the questions certified or giving qualified answers to them.” 306 U.S. at 572, 59 S.Ct. at 661. This case, too, involves no special statutory review procedure and deals with adjudicatory facts, the shape of which may affect the decisions of law. In the instant case the constitutional questions arising from the complaint are answerable in light of legislative facts, where different outcomes will turn on interpretation rather than disputed events shared by the parties.
The Emsheimer case likewise involves a certification to the Supreme Court in a case where judgment below was required. There it was said, “The entire record should not be transmitted and a decision asked on the whole case," but rather that the certificate should “contain a proper statement of the facts on which such question or proposition of law arises.” One test in Emsheimer is that each question of law “can be definitely answered without regard to other issues of law in the case.” 186 U.S. at 42, 22 S.Ct. at 773. Taking that as a standard, I do not see how this court could review a interrelated multi-statute regulatory scheme as is raised herein.
