422 U.S.

66
95 S.Ct. 2080.
45 L.Ed.2d 26

Stewart S. CORT et al., Petitioners,

v.
Richard A. ASH, etc.
No. 731908.
Argued March 18, 1975.
Decided June 17, 1975.

Syllabus
Respondent stockholder brought this action seeking damages in favor of
petitioner Bethlehem Steel Corp., a Delaware corporation, and injunctive
relief because of advertisements in connection with the 1972 Presidential
election that petitioner corporate directors had authorized from general
corporate funds in alleged violation of 18 U.S.C. 610, which prohibits
corporations from making contributions or expenditures in connection
with specified federal elections. Respondent alleged jurisdiction under 28
U.S.C. 1331 and sought to state a private claim for relief under 18
U.S.C. 610, and also invoked pendent jurisdiction for an ultra vires
claim under Delaware law. The District Court's denial of a preliminary
injunction was upheld on appeal, following which respondent dropped the
pendent claim rather than post security for expenses under state law
before proceeding with that claim. The District Court then granted
petitioners' motion for summary judgment. The Court of Appeals reversed,
holding that the passage of the election had not mooted the case since
damages were sought and that 'a private cause of action, whether brought
by a citizen to secure injunctive relief or by a stockholder to secure
injunctive or derivative damage relief (is) proper to remedy violation of
610.' After the Court of Appeals decision Congress enacted the Federal
Election Campaign Act Amendments of 1974 (hereinafter the
Amendments), under which, inter alia, the Federal Election Commission
can receive citizen complaints of statutory violations and where warranted
request the Attorney General to seek injunctive action. Held:
1. The Amendments constitute an intervening law that relegates to the

Commission's cognizance respondent's complaint as citizen or stockholder

for injunctive relief against any alleged violations of 610 in future
elections, since this Court must examine this case according to the law
existing at the time of its decision. United States v. Schooner Peggy, 1
Cranch 103, 110, 2 L.Ed. 49; Bradley v. Richmond School Board, 416
U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476. Pp. 74-77.
2. Respondent stockholder's derivative suit with regard to the alleged 1972
violation cannot be implied under 18 U.S.C. 610, and respondent's
remedy, if any, must be under Delaware's corporation law. Pp. 77-85.
(a) Section 610 was primarily concerned, not with the internal relations
between corporations and stockholders, but with corporations as a source
of aggregated wealth and therefore of potential corrupting influence; thus
this statute differs from other criminal statutes in which private causes of
action have been inferred because of a clearly articulated federal right in
the plaintiff, e.g., Bivens v. Six Unknown Federal Narcotics Agents, 403
U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619, or a pervasive legislative
scheme governing the relationship between the plaintiff class and the
defendant class in a particular regard, e.g., J.I. Case Co. v. Borak, 377
U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423. Pp. 78-82.

(b) The legislative history of 610 suggests no congressional intention to vest

in corporate shareholders a federal right to damages for a violation of the
statute. Pp. 82-84.

(c) A private remedy would not further the statutory purpose of dulling
corporate influence on federal elections since any compelled repayment to the
corporation might well not deter the initial violation. P. 84.

(d) The cause of action is one traditionally relegated to state law in an area of
primarily state concern. In addition to the ultra vires claim urged by respondent
the alleged misuse of corporate funds might, under the law of some States, give
rise to a cause of action for breach of a fiduciary duty. Pp. 84-85.

496 F.2d 416, reversed.

Edwin P. Rome, Philadelphia, Pa., for petitioners; Jerome R. Richter, Richard

P. McElroy, William H. Roberts, Philadelphia, Pa., and Curtis H. Barnette,
New Haven, Conn., on the briefs.

David Berger, Philadelphia, Pa., for respondents; Cletus P. Lyman and Paul J.
McMahon, Philadelphia, Pa., on the brief.

Solicitor Gen. Robert H. Bork, Acting Asst. Atty. Gen. John C. Keeney, and
Jerome M. Feit, Washington, D.C., filed a brief for the United States as amicus
curiae.

James F. Rill, Thomas F. Shannon, John Hardin Young, Milton A. Smith, and
Lawrence B. Kraus, Washington, D.C., filed a brief for the Chamber of
Commerce of the United States as amicus curiae.

Alan B. Morrison and Reuben B. Robertson III, Washington, D.C., filed a brief
for Judith Bonderman and others as amici curiae.

10

Mr. Justice BRENNAN delivered the opinion of the Court.

11

There are other questions, but the principal issue presented for decision is
whether a private cause of action for damages against corporate directors is to
be implied in favor of a corporate stockholder under 18 U.S.C. 610, a criminal
statute prohibiting corporations from making 'a contribution or expenditure in
connection with any election at which Presidential and Vice Presidential
electors . . . are to be voted for.'1 We conclude that implication of such a federal
cause of action is not suggested by the legislative context of 610 or required
to accomplish Congress' purposes in enacting the statute. We therefore have no
occasion to address the questions whether 610, properly construed, proscribes
the expenditures alleged in this case, or whether the statute is unconstitutional
as violative of the First Amendment or of the equal protection component of the
Due Process Clause of the Fifth Amendment.

12

* In August and September 1972, and advertisement with the caption 'I say let's
keep the campaign honest. Mobilize 'truth squads" appeared in various national
publications, including Time, Newsweek, and U.S. News and World Report,
and in 19 local newspapers in communities where Bethlehem Steel Corp.
(Bethlehem), a Delaware corporation, has plants. Reprints of the advertisement,
which consisted mainly of quotations from a speech by petitioner Stewart S.
Cort, chairman of the board of directors of Bethlehem, were included with the
September 11, 1972, quarterly dividend checks mailed to the stockholders of
the corporation. The main text of the advertisement appealed to the electorate
to 'encourage responsible, honest, and truthful campaigning.' It alleged that
vigilance was needed because 'careless rhetoric and accusations . . . are being
thrown around these daystheir main target being the business community.' In

italics, under a picture of Mr. Cort, the advertisement quoted 'the following
statement made by a political candidate: 'The time has come for a tax system
that says to big business-you must pay your fair share." It then printed Mr.
Cort's rejoinder to this in his speech, including his opinion that to say 'large
corporations (are) not carrying their fair share of the tax burden' is 'baloney.'
The advertisement concluded with an offer to send, on request, copies of Mr.
Cort's entire speech2 and a folder 'telling how to go about activating Truth
Squads.'3 These publications could be obtained free from the Public Affairs
Department of Bethlehem. It is stipulated that the entire costs of the
advertisements and various mailings were paid from Bethlehem's general
corporate funds. App. A29A30; 350 F.Supp. 227, 229 (ED Pa.1972).
13

Respondent owns 50 shares of Bethlehem stock and was qualified to vote in the
1972 Presidential election. He filed this suit in the United States District Court
for the Eastern District of Pennsylvania on September 28, 1972, on behalf of
himself and derivatively, on behalf of Bethlehem. The complaint specified two
separate and distinct bases for jurisdiction and relief. Count I alleged
jurisdiction under 28 U.S.C. 1331, and sought to state a private claim for
relief under 18 U.S.C. 610, which, as mentioned, in terms provides only for a
criminal penalty. Court II invoked pendent jurisdiction for a claim under
Delaware law, alleging that the corporate campaign expenditures were 'ultra
vires, unlawful and (a) willful, wanton and gross breach of (defendants') duty
owed to (Bethlehem).' Immediate injunctive relief against further corporate
expenditures in connection with the 1972 Presidential election or any future
campaign was sought, as well as compensatory and punitive damages in favor
of the corporation.

14

The District Court denied a preliminary injunction on October 25, 1972. 350
F.Supp. 227. While the denial was supported on three grounds,4 it was upheld
on appeal to the Court of Appeals for the Third Circuit only on the narrow
ground that irreparable harm was not shown. 471 F.2d 811 (1973).5

15

After the affirmance on appeal, petitioners sought an order requiring

respondent to post security for expenses as required by Pennsylvania law. The
court declined to order such security with regard to the federal cause of action
alleged in Count I, but did order respondent to post $135,000 before proceeding
with the pendent claim under Count II. Rather than post security, respondent
filed an amended complaint, which dropped Count II, the separate state cause
of action, from the case. 6

16

The District Court then granted petitioners' motion for summary judgment
without opinion. The Court of Appeals reversed, 496 F.2d 416 (1974). The

Court of Appeals held that, since the amended complaint sought damages for
the corporation for violation of 610, the controversy was not moot, although
the election which occasioned it was past. The Court of Appeals held further
that 'a private cause of action, whether brought by a citizen to secure injunctive
relief or by a stockholder to secure injunctive or derivative damage relief (is)
proper to remedy violation of 610.' Id., at 424. We granted certiorari, 419
U.S. 992, 95 S.Ct. 302, 42 L.Ed.2d 264 (1974). We reverse.
II
17

We consider first the holding of the Court of Appeals that respondent has 'a
private cause of action . . . (as) a citizen (or as a stockholder) to secure
injunctive relief.' The 1972 Presidential election is history, and respondent as
citizen or stockholder seeks injunctive relief only as to future elections. In that
circumstance, a statute enacted after the decision of the Court of Appeals, the
Federal Election Campaign Act Amendments of 1974, Pub.L. 93443, 88 Stat.
1263 (Amendments) (amending the Federal Election Campaign Act of 1971, 86
Stat. 3), requires reversal of the holding of the Court of Appeals.

18

In terms, 610 is only a criminal statute, providing a fine or imprisonment for

its violation. At the time this suit was filed, there was no statutory provision for
civil enforcement of 610, whether by private parties or by a Government
agency. But the Amendments created a Federal Election Commission, 2 U.S.C.
437(c)(a)(1) (1970 ed., Supp. IV);7 established an administrative procedure
for processing complaints of alleged violations of 610 after January 1, 1975, 2
U.S.C. 437g (1970 ed., Supp. IV), as amended, and 410, note following 2
U.S.C. 431 (1970 ed., Supp. IV); and provided that '(a)ny person who
believes a violation . . . (of 610) has occurred may file a complaint with the
Commission.' 2 U.S.C. 437g(a)(1)(A) (1970 ed., Supp. IV). The Commission
must either investigate the complaint or refer the complaint to the Attorney
General, 2 U.S.C. 437g(a)(2)(A) and (B) (1970 ed., Supp. IV).8 If the
Commission chooses to investigate the complaint, and after investigation
determines that 'any person has engaged or is about to engage in any acts or
practices which constitute or will constitute a violation' of 610, the
Commission may request the Attorney General to 'institute a civil action for
relief, including a permanent or temporary injunction, restraining order, or any
other appropriate order . . ..' 2 U.S.C. 437g(a)(7) (1970 ed., Supp. IV). And 2
U.S.C. 437c(b) (1970 ed., Supp. IV) expressly vests the Commission with
'primary jurisdiction' over any claimed violation of 610 within its purview.9
Consequently, a complainant seeking as citizen or stockholder to enjoin alleged
violations of 610 in future elections must henceforth pursue the statutory
remedy of a complaint to the Commission, and invoke its authority to request

the Attorney General to seek the injunctive relief. H.R.Conf.Rep.No. 93

1438, p. 94 (1974). Thus, the Amendments constitute an intervening law that
relegates to the Commission's cognizance respondent's complaint as citizen or
stockholder for injunctive relief against any alleged violations of 610 in future
elections. In that circumstance, the holding of the Court of Appeals must be
reversed, for our duty is to decide this case according to the law existing at the
time of our decision.
19

The governing rule was announced by Mr. Chief Justice Marshall in United
States v. Schooner Peggy, 1 Cranch 103, 110, 2 L.Ed. 49 (1801):

20

'It is in the general true that the province of an appellate court is only to enquire
whether a judgment when rendered was erroneous or not. But if subsequent to
the judgment and before the decision of the appellate court, a law intervenes
and positively changes the rule which governs, the law must be obeyed, or its
obligation denied. If the law be constitutional . . . I know of no court which can
contest its obligation. . . . In such a case the court must decide according to
existing laws, and if it be necessary to set aside a judgment, rightful when
rendered, but which cannot be affirmed but in violation of law, the judgment
must be set aside.'

21

We most recently reaffirmed the principle of Schooner Peggy in Bradley v.

Richmond School Board, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d
476 (1974), where we said: 'We anchor our holding in this case on the principle
that a court is to apply the law in effect at the time it renders its decision, unless
doing so would result in manifest injustice or there is statutory direction or
legislative history to the contrary.' There is no 'statutory direction or legislative
history to the contrary' in or respecting the Amendments, nor is there any
possible 'manifest injustice' in requiring respondent to pursue with respect to
alleged violations which have yet to occur the statutory remedy for injunctive
relief created by the Amendments.

III
22

Our conclusion in Part II pretermits any occasion for addressing the question of
respondent's standing as a citizen and voter to maintain this action, for
respondent seeks damages only derivatively as stockholder. Therefore, we turn
next to the holding of the Court of Appeals that 'a private cause of action . . . by
a stockholder to secure . . . derivative damage relief (is) proper to remedy
violation of 610.' We hold that such relief is not available with regard to a
1972 violation under 610 itself, but rather is available, if at all, under
Delaware law governing corporations.10

23

In determining whether a private remedy is implicit in a statute not expressly

providing one, several factors are relevant. First, is the plaintiff 'one of the class
for whose especial benefit the statute was enacted,' Texas & Pacific R. Co. v.
Rigsby, 241 U.S. 33, 39, 36 S.Ct. 482, 484, 60 L.Ed. 874 (1916) (emphasis
supplied)that is, does the statute create a federal right in favor of the
plaintiff? Second, is there any indication of legislative intent, explicit or
implicit, either to create such a remedy or to deny one? See, e.g., National
Railroad Passenger Corp. v. National Assn. of Railroad Passengers, 414 U.S.
453, 458, 460, 94 S.Ct. 690, 693, 694, 38 L.Ed.2d 646 (1974) (Amtrak). Third,
is it consistent with the underlying purposes of the legislative scheme to imply
such a remedy for the plaintiff? See, e.g., Amtrak, supra; Securities Investor
Protection Corp. v. Barbour, 421 U.S. 412, 423, 95 S.Ct. 1733, 1740, 44
L.Ed.2d 263 (1975); Calhoon v. Harvey, 379 U.S. 134, 85 S.Ct. 292, 13
L.Ed.2d 190 (1964). And finally, is the cause of action one traditionally
relegated to state law, in an area basically the concern of the States, so that it
would be inappropriate to infer a cause of action based solely on federal law?
See Wheeldin v. Wheeler, 373 U.S. 647, 652, 83 S.Ct. 1441, 1445, 10 L.Ed.2d
605 (1963); cf. J.I. Case Co. v. Borak, 377 U.S. 426, 434, 84 S.Ct. 1555, 1560,
12 L.Ed.2d 423 (1964); Bivens v. Six Unknown Federal Narcotics Agents, 403
U.S. 388, 394395, 91 S.Ct. 1999, 20032004, 29 L.Ed.2d 619 (1971); id., at
400, 91 S.Ct., at 2006 (Harlan, J., concurring in judgment).

24

The dissenting judge in the Court of Appeals and petitioners here suggest that
where a statute provides a penal remedy alone, it cannot be regarded as creating
a right in any particular class of people. 'Every criminal statute is designed to
protect some individual, public, or social interest. . . . To find an implied civil
cause of action for the plaintiff in this case is to find an implied civil right of
action for every individual, social, or public interest which might be invaded by
violation of any criminal statute. To do this is to conclude that Congress
intended to enact a civil code companion to the criminal code.' 496 F.2d, at 428
429 (Aldisert, J., dissenting). Cf. Nashville Milk Co. v. Carnation Co., 355
U.S. 373, 377, 78 S.Ct. 352, 354, 2 L.Ed.2d 340 (1958).

25

Clearly, provision of a criminal penalty does not necessarily preclude

implication of a private cause of action for damages. Wyandotte Transportation
Co. v. United States, 389 U.S. 191, 201 202, 88 S.Ct. 379, 385386, 19
L.Ed.2d 407 (1967); see also J.I. Case Co. v. Borak, supra; Taxas & Pacific R.
Co. v. Rigsby, supra. However, in Wyandotte, Borak, and Rigsby, there was at
least a statutory basis for inferring that a civil cause of action of some sort lay
in favor of someone.11 Here, there was nothing more than a bare criminal
statute, with absolutely no indication that civil enforcement of any kind was
available to anyone.

26

We need not, however, go so far as to say that in this circumstance a bare

criminal statute can never be deemed sufficiently protective of some special
group so as to give rise to a private cause of action by a member of that group.
For the intent to protect corporate shareholders particularly was at best a
subsidiary purpose of 610, and the other relevant factors all either are not
helpful or militate against implying a private cause of action.

27

First, 610 is derived from the Act of January 26, 1907,12 which 'seems to have
been motivated by two considerations. First, the necessity for destroying the
influence over elections which corporations exercised through financial
contribution. Second, the feeling that corporate officials had no moral right to
use corporate funds for contribution to political parties without the consent of
the stockholders.' United States v. CIO, 335 U.S. 106, 113, 68 S.Ct. 1349,
1353, 92 L.Ed. 1849 (1948). See 40 Cong.Rec. 96 (1905) (Annual Message of
President Theodore Roosevelt). Respondent bases his derivative action on the
second purpose, claiming that the intent to protect stockholders from use of
their invested funds for political purposes demonstrates that the statute set up a
federal right in shareholders not to have corporate funds used for this purpose.

28

However, the legislative history of the 1907 Act, recited at length in United
States v. Auto Workers, 352 U.S. 567, 77 S.Ct. 529, 1 L.Ed.2d 563 (1957),
demonstrates that the protection of ordinary stockholders was at best a
secondary concern.13 Rather, the primary purpose of the 1907 Act, and of the
1925 Federal Corrupt Practices Act, 43 Stat. 1070, which reenacted the 1907
provision with some changes as 313 of that Act, see United States v. Auto
Workers, supra, at 577, 77 S.Ct., at 534, was to assure that federal elections are
"free from the power of money," 352 U.S., at 574, 77 S.Ct., at 533, to eliminate
"the apparent hold on political parties which business interests . . . seek and
sometimes obtain by reason of liberal campaign contributions." Id., at 576, 77
S.Ct., at 534, quoting 65 Cong.Rec. 9507 (1924) (remarks of Sen. Robinson).
See also 352 U.S., at 571577, 77 S.Ct., at 531534. Thus, the legislation
was primarily concerned with corporations as a source of aggregated wealth
and therefore of possible corrupting influence, and not directly with the internal
relations between the corporations and their stockholders. In contrast, in those
situations in which we have inferred a federal private cause of action not
expressly provided, there has generally been a clearly articulated federal right in
the plaintiff, e.g., Bivens v. Six Unknown Federal Narcotics Agents, supra, or a
pervasive legislative scheme governing the relationship between the plaintiff
class and the defendant class in a particular regard, e.g., J. I. Case Co. v. Borak,
supra.

29

Second, there is no indication whatever in the legislative history of 610 which

29

suggests a congressional intention to vest in corporate shareholders a federal

right to damages for violation of 610. True, in situations in which it is clear
that federal law has granted a class of persons certain rights, it is not necessary
to show an intention to create a private cause of action, although an explicit
purpose to deny such cause of action would be controlling.14 But where, as
here, it is at least dubious whether Congress intended to vest in the plaintiff
class rights broader than those provided by state regulation of corporations, the
fact that there is no suggestion at all that 610 may give rise to a suit for
damages or, indeed, to any civil cause of action, reinforces the conclusion that
the expectation, if any, was that the relationship between corporations and their
stockholders would continue to be entrusted entirely to state law.

30

Third, while 'it is the duty of the courts to be alert to provide such remedies as
are necessary to make effective the congressional purpose,' J. I. Case Co. v.
Borak, 377 U.S., at 433, 84 S.Ct., at 1560, in this instance the remedy sought
would not aid the primary congressional goal. Recovery of derivative damages
by the corporation for violation of 610 would not cure the influence which
the use of corporate funds in the first instance may have had on a federal
election. Rather, such a remedy would only permit directors in effect to 'borrow'
corporate funds for a time; the later compelled repayment might well not deter
the initial violation and would certainly not decrease the impact of the use of
such funds upon an election already past.

31

Fourth, and finally, for reasons already intimated, it is entirely appropriate in

this instance to relegate respondent and others in his situation to whatever
remedy is created by state law. In addition to the ultra vires action pressed here,
see n. 6, supra, the use of corporate funds in violation of federal law may, under
the law of some States, give rise to a cause of action for breach of fiduciary
duty. See, e.g., Miller v. American Telephone & Telegraph Co., 507 F.2d 759
(CA3 1974). Corporations are creatures of state law, and investors commit their
funds to corporate directors on the understanding that, except where federal law
expressly requires certain responsibilities of directors with respect to
stockholders, state law will govern the internal affairs of the corporation. If, for
example, state law permits corporations to use corporate funds as contributions
in state elections, see Miller, supra, at 763 n. 4, shareholders are on notice that
their funds may be so used and have no recourse under any federal statute. We
are necessarily reluctant to imply a federal right to recover funds used in
violation of a federal statute where the laws governing the corporation may put
a shareholder on notice that there may be no such recovery.

32

In Borak, supra, we said: '(If) the law of the State happened to attach no
responsibility to the use of misleading proxy statements, the whole purpose of

( 14(a) of the Securities Exchange Act of 1934) might be frustrated.' 377 U.S.,
at 434435, 84 S.Ct., at 1561. Here, committing respondent to state-provided
remedies would have no such effect. In Borak, the statute involved was clearly
an intrusion of federal law into the internal affairs of corporations; to the extent
that state law differed or impeded suit, the congressional intent could be
compromised in statecreated causes of action. In this case, Congress was
concerned, not with regulating corporations as such, but with dulling their
impact upon federal elections. As we have seen, the existence or nonexistence
of a derivative cause of action for damages would not aid or hinder this primary
goal.
33

Because injunctive relief is not presently available in light of the Amendments,

and because implication of a federal right of damages on behalf of a corporation
under 610 would intrude into an area traditionally committed to state law
without aiding the main purpose of 610, we reverse.

34

It is so ordered.

35

Reversed.

Title 18 U.S.C. 610 (1970 ed. and Supp. III) provided in part as follows when
this suit was filed:
'Contributions or expenditures by national banks, corporations or labor
organizations.
'It is unlawful for any national bank, or any corporation organized by authority
of any law of Congress, to make a contribution or expenditure in connection
with any election to any political office, or in connection with any primary
election or political convention or caucus held to select candidates for any
political office, or for any corporation whatever, or any labor organization to
make a contribution or expenditure in connection with any election at which
Presidential and Vice Presidential electors or a Senator or Representative in, or
a Delegate or Resident Commissioner to Congress are to be voted for, or in
connection with any primary election or political convention or caucus held to
select candidates for any of the foregoing offices, or for any candidate, political
committee, or other person to accept or receive any contribution prohibited by
this section.
'Every corporation or labor organization which makes any contribution or
expenditure in violation of this section shall be fined not more than $5,000; and

every officer or director of any corporation, or officer of any labor

organization, who consents to any contribution
or expenditure by the corporation or labor organization, as the case may be, and
any person who accepts or receives any conribution, in violation of this section,
shall be fined not more than $1,000 or imprisoned not more than one year, or
both; and if the violation was willful, shall be fined not more than $10,000 or
imprisoned not more than two years, or both.
'As used in this section, the phrase 'contribution or expenditure' shall include
any direct or indirect payment, distribution, loan, advance, deposit, or gift of
money, or any services, or anything of value (except a loan of money by a
national or State bank made in accordance with the applicable banking laws
and regulations and in the ordinary course of business) to any candidate,
campaign committee, or political party or organization, in connection with any
election to any of the offices referred to in this section; but shall not include
communications by a corporation to its stockholders and their families or by a
labor organization to its members and their families on any subject; nonpartisan
registration and get-out-the-vote campaigns by a corporation aimed at its
stockholders and their families, or by a labor organization aimed at its members
and their families; the establishment, administration, and solicitation of
contributions to a separate segregated fund to be utilized for political purposes
by a corporation or labor organization: Provided, That it shall be unlawful for
such a fund to make a contribution or expenditure by utilizing money or
anything of value secured by physical force, job discrimination, financial
reprisals, or the threat of force, job discrimination, or financial reprisal; or by
dues, fees, or other monies required as a condition of membership in a labor
organization or as a condition of employment, or by monies obtained in any
commercial transaction.'
Definitions of various terms in 610 are included in 18 U.S.C. 591 (1970 ed.,
Supp. III).
The Federal Election Campaign Act Amendments of 1974, Pub.L. 93443, 88
Stat. 1263, 101(e), 102, increased substantially the fines for violation of
610 and changed many of the definitions in 591 of the terms used in 610.
2

The speech was a general defense of 'big business' and the current tax system.
Although it named no political candidate or party, it was in large part devoted
to refuting statements, which were quoted, by 'a prominent presidential
candidate.' The complaint in this case alleged that the 'candidate' referred to
was quite clearly the Democratic candidate for President at the time (George
McGovern), App. A13. The speech concluded with the suggestion that listeners

'(m)obilize 'truth squads"organize to refute 'false or deceptive' statements and

'outrageous accusations.'
3

The folder was entitled: 'How you can help to keep the campaign honest.' It
included suggestions for informing oneself about the election, using research
tools, refuting 'a statement you know to be wrong,' and organizing friends and
neighbors to do the same. Unlike the speech and advertisement, the folder
contained no quotations from any political candidate, nor any discussion of
issues.

First, the District Court held that the penal sanctions provided in 610 are
exclusive, and no private cause of action is to be implied. 350 F.Supp. at 231.
Second, the District Court held that 'the purpose of the advertisement was not to
influence the election of a specific candidate,' and therefore that 'the payment
for the advertisement did not constitute an 'expenditure' within the meaning of .
. . Section 610.' Id., at 231232. Third, the court found that '(i)n failing to
prove a likelihood of success on the merits, plaintiff has failed to prove that
irreparable harm would result if an injunction is not granted.' Id., at 232.

In affirming, the Court of Appeals observed that while the District Court's
opinion seemed to preclude respondent from any ultimate relief, the opinion
addressed only a request for preliminary relief and therefore had to be
considered only tentative, leaving respondent free to renew his contentions on
final hearing. 471 F.2d, at 812.

Respondent seems to invite the Court, in effect, to reinstate Count II. We

decline to do so. He argues, somewhat cryptically, that the order to post
security 'was a nullity' since '(a) court
may not dismiss a theory of relief.' Brief for Respondent 11 and n. 2. But the
District Court did not dismiss the pendent state-law claim; respondent
deliberately dropped it from his amended complaint. Therefore, whatever the
merits of the order for security as applied only to the pendent claim, see
Sargent v. Genesco, Inc., D.C., 337 F.Supp. 1244 (MD Fla.1972); cf. Cohen v.
Beneficial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949),
respondent has foreclosed himself from consideration of a state claim not now
raised by his operative pleading. Wheeldin v. Wheeler, 373 U.S. 647, 652, 83
S.Ct. 1441, 1445, 10 L.Ed.2d 605 (1963). We do not think that the pendent
state-law claim was preserved in these circumstances by the verbatim repetition
in the amended complaint of a general allegation from the original complaint
that petitioners' conduct was 'in violation of state and federal law.'
Therefore, there is not properly before us respondent's argument that the acts of
a Delaware corporation violative of United States criminal statutes are ultra

vires acts under Delaware corporation law, Del.Code.Ann. Ann. Tit. 8, 101; 6
W. Fletcher, Cyclopedia Corporations 335 (1968 ed.), and that his ultra vires
cause of action therefore 'arises under' federal law, that is 610, within the
meaning of 28 U.S.C. 1331. He relies upon Smith v. Kansas City Title Co.,
255 U.S. 180, 41 S.Ct. 243, 65 L.Ed. 577 (1921); see also Wheeldin v.
Wheeler, supra, 373 U.S., at 659660, 83 S.Ct., at 14431449 (Brennan, J.,
dissenting). Not only was Count II dropped from the case by respondent, and
no argument addressed to it made by him in the District Court or the Court of
Appeals, but he neither cross-petitioned nor raised the contention in his
Opposition to the Petition for Certiorari. Moreover, this Court must necessarily
depend upon the district courts and courts of appeals for initial determinations
of questions of state law; indeed, our practice of deference to such
determinations should generally render unnecessary review of their decisions in
this respect. Commissioner of Internal Revenue v. Estate of Bosch, 387 U.S.
456, 462, 87 S.Ct. 1776, 1781, 18 L.Ed.2d 886 (1967); Ragan v. Merchants
Transfer Co., 337 U.S. 530, 534, 69 S.Ct. 1233, 1235, 93 L.Ed. 1520 (1949).
Obviously, then, we should not undertake to decide such questions, inherent in
respondent's theory, in the first instance.
In sum, in this case 'we see no cause for deviating from our normal policy of
not considering issues which have not been
presented to the Court of Appeals and which are not properly presented for
review here.' Neely v. Eby Construction Co., 386 U.S. 317, 330, 87 S.Ct. 1072,
1081, 18 L.Ed.2d 75 (1967); cf. Wiener v. United States, 357 U.S. 349, 351 n.,
78 S.Ct. 1275, 1277, 2 L.Ed.2d 1377 (1958).
7

A Federal Election Commission was included in the Senate-passed bill in 1971,

but was eliminated in conference. See Berry & Goldman, Congress and Public
Policy: A Study of the Federal Election Campaign Act of 1971, 10
Harv.J.Legis. 331, 343, 354 (1973); S.Conf.Rep. No. 92580, pp. 3435
(1971); H.R.Conf.Rep. No. 92752, pp. 3435 (1971). The Commission in
the Senate version was given no explicit authority with regard to violations of
610. See S. 382, 308(b), as passed Aug. 5, 1971 (3 Leg.Hist. of Federal
Election Campaign Act of 1971).

Other provisions of the Amendments which may have relevance to private

parties' complaints of violations of 610 include 2 U.S.C. 437g(a)(9) (1970
ed., Supp. IV), providing for judicial review at the behest of '(a)ny party
aggrieved' by any order granted in a civil action filed by the Attorney General,
and 2 U.S.C. 437h(a) (1970 ed., Supp. IV), permitting 'any individal eligible
to vote in any election for the office of President of the United States' to file
'such actions . . . as may be appropriate to construe the constitutionality of . . .

( 610).'
9

The parties disagree upon whether this reference to 'primary jurisdiction'

suggests that a complainant, after filing a complaint with the Commission, may
file a civil suit for injunctive relief if the Commission fails to cause one to be
filed. They also dispute whether the exhaustion requirement applies to a suit for
damages. Compare 120 Cong.Rec. 35134 (1974) (remarks of Mr. Hays)
(suggesting that the statutory remedies are exclusive) with id., at 35132
(remarks of Mr. Brademas) ('individuals or organizations who may have
complaints about possible violations (must) first exhaust their administrative
remedies with the Commission . . .' (emphasis supplied)); see also
H.R.Conf.Rep. No. 931438, p. 94 (1974). However, these issues are not here
relevant; it suffices for the purposes of this case to hold that the statute requires
that a private complainant desiring injunctive relief against alleged future
violations of 610 must at least exhaust his statutory remedy under the
Amendments when and if such violations occur. We note that the question of
the availability of a private cause of action by respondent for injunctive relief
may not arise at all if the Attorney General seeks and obtains injunctive relief
for any claimed violations by Bethlehem. Cf. Richardson v. Wright, 405 U.S.
208, 209, 92 S.Ct. 788, 789, 31 L.Ed.2d 151 (1972).

10

Although the considerations upon which we base our present decision have
relevance to a similar determination under the Amendments, we imply no view
whether the same result would obtain under the Amendments. See n. 9, supra,
and n. 14, infra.

11

In Wyandotte, it was conceded that the United States had a civil in rem action
against the ship obstructing navigation under 19 of the Rivers and Harbors
Act of 1899, and could retain the proceeds of the sale of the vessel and its
cargo. 389 U.S., at 200 n. 12, 88 S.Ct., at 385. The only question was whether
it also had other judicial remedies for violation of 15 of the Act, aside from
the criminal penalties provided in 16.
In Borak, 27 of the Securities Exchange Act of 1934 specifically granted
jurisdiction to the district courts over civil actions to 'enforce any liability or
duty created by this title or the rules and regulations thereunder,' and there
seemed to be no dispute over the fact that at least a private suit for declaratory
relief was authorized; the question was whether a derivative suit for rescission
and damages was also available. 377 U.S., at 430431, 84 S.Ct., at 1559.
Further it was clear that the Securities and Exchange Commission could sue to
enjoin violations of 14(a) of the Act, the section involved in Borak. See 21
of the Act, 15 U.S.C. 78u.

Finally, in Rigsby, the Court noted that the statutes involved included language
pertinent only to a private right of action for damages, although such a right of
action was not expressly provided, thus rendering '(t)he inference of a private
right of action . . . irresistible.' 241 U.S., at 40, 36 S.Ct., at 484. See also United
States v. Republic Steel Corp., 362 U.S. 482, 491, 80 S.Ct. 884, 889, 4 L.Ed.2d
903 (1960).
12

The Act provided:

'(It) shall be unlawful for any national bank, or any corporation organized by
authority of any laws of Congress, to make a money contribution in connection
with any election to any political office. It shall also be unlawful for any
corporation whatever to make a money contribution in connection with any
election at which Presidential and Vice-Presidential electors or a Representative
in Congress is to be voted for or any election by any State legislature of a
United States Senator. . . .' 34 Stat. 864.

13

Section 610 was later expanded to include labor unions within its prohibition.
The history of this expansion has been recounted before. United States v. CIO,
335 U.S. 106, 114116, 68 S.Ct. 1349, 13531354, 92 L.Ed. 1849 (1948);
United States v. Auto Workers, 352 U.S. 567, 578584, 77 S.Ct. 529, 534
537, 1 L.Ed.2d 563 (1957); Pipefitters v. United States, 407 U.S. 385, 402
409, 92 S.Ct. 2247, 22582261, 33 L.Ed.2d 11 (1972). We note that Congress
did show concern, in permanently expanding 610 to unions, for protecting
union members from use of their funds for political purposes. See United States
v. CIO, supra, 335 U.S., at 135, 142, 68 S.Ct., at 1363, 1367 (Rutledge, J.,
concurring). This difference in emphasis may reflect a recognition that, while a
stockholder acquires his stock voluntarily and is free to dispose of it, union
membership and the payment of union dues is often involuntary because of
union security and checkoff provisions. Cf. Machinists v. Street, 367 U.S. 740,
81 S.Ct. 1784, 6 L.Ed.2d 1141 (1961). It is therefore arguable that the federal
interest in the relationship between members and their unions is much greater
than the parallel interest in the relationship between stockholders and statecreated corporations. In fact, the permanent expansion of 610 to include labor
unions was part of comprehensive labor legislation, the Taft-Hartley Act of
1947, while the 1907 Act dealt with corporations only with regard to their
impact on federal elections. We intimate no view whether our conclusion that
610 did not give rise directly to a cause of action for damages in favor of
stockholders in statecreated corporations necessarily would imply that union
members, despite the much stronger federal interest in unions, are also
relegated to state remedies.

14

Petitioners point out that the Federal Election Campaign Act of 1971 did create

a private complaint procedure with regard to the disclosure provisions there

enacted, 308(d), 86 Stat. 18, and yet, while the Act, 205, did amend 610,
it did not provide a parallel remedy for private parties for violations of 610.
Relying on Amtrak, 414 U.S. 453, 94 S.Ct. 690, 38 L.Ed.2d 646 (1974), and
T.I.M.E., Inc. v. United
States, 359 U.S. 464, 79 S.Ct. 904, 3 L.Ed.2d 952 (1959), they ask us to infer
from the fact that some private remedy was provided with regard to Title III of
the 1971 Act an intention to deny any such remedy with regard to the criminal
statutes amended in Title II.
We find this excursion into extrapolation of legislative intent entirely
unilluminating. In Amtrak, there was a private cause of action provided in favor
of certain plaintiffs concerning the particular provision at issue. It was in this
context that we referred to '(a) frequently stated principle of statutory
construction . . . that when legislation expressly provides a particular remedy or
remedies, courts should not expand the coverage of the statute to subsume other
remedies.' 414 U.S., at 458, 94 S.Ct., at 693. In addition, there was specific
support in the legislative history of the Amtrak Act for the proposition that the
statutory remedies were to be exclusive. Id., at 458461, 94 S.Ct., at 693
694.
In T.I.M.E., supra, the Court did rely in part upon the fact that a particular
remedy was provided with regard to certain parts of the Interstate Commerce
Act to infer that none was intended with regard to others. But again, there was
specific support in the legislative history for this inference. 359 U.S., at 471
472, 477, and n. 18, 79 S.Ct., at 908909, 912.
Here, there was, as far as the parties have been able to point out and as far as
we have been able independently to determine, no discussion whatever in
Congress concerning private enforcement of 610. Further, while 610 was
amended in ways not pertinent here in 1971, it was, as we have seen, of much
earlier origin, and it would be odd to infer from Congress' actions concerning
the newly created provisions of Title III any intention regarding the
enforcement of a long-existing statute.
Petitioners also suggest that the legislative history of the Amendments throw a
'cross-light,' Pipefitters v. United States, 407 U.S., at 427, 92 S.Ct.At 2270,
upon Congress' understanding concerning private enforcement of 610. Any
such light cast is, in our view, exceedingly dim and of little help here.