Bluman v. Federal Election Commission ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BENJAMIN BLUMAN et al., :
: Civil Action No.: 10-1766 (RMU)
Plaintiffs, :
: Re Document No.: 2
v. :
:
FEDERAL ELECTION COMMISSION, :
:
Defendant. :
MEMORANDUM OPINION
GRANTING IN PART AND DENYING IN PART THE PLAINTIFFS’ APPLICATION
FOR A THREE-JUDGE COURT
I. INTRODUCTION
The plaintiffs applied to have a three-judge court review their constitutional challenge to
a provision of the Bipartisan Campaign Reform Act of 2002 (“BCRA”) and its implementing
regulation. The defendant, the Federal Election Commission (“FEC”), opposes the application,
arguing that under a three-judge court would lack the authority to adjudicate the plaintiffs’
claims. For the reasons discussed below, the court grants in part and denies in part the plaintiffs’
application for a three-judge court.
II. BACKGROUND
A. Statutory Framework
Since 1976, the Federal Election Campaign Act (“FECA”) has prohibited foreign
nationals from contributing money or “other thing[s] of value . . . in connection with an election
to any political office or in connection with any primary election, convention, or caucus held to
select candidates for any office.” FECA, Pub. L. No. 94-283, § 324, 90 Stat. 493 (1976),
previously codified at 2 U.S.C. § 441e(a). In 2002, Congress enacted § 303 of the BCRA, which
repealed the previous foreign national prohibition provision codified at 2 U.S.C. § 441e(a) and
replaced it with 2 U.S.C. § 441e(a)(1). Like its predecessor, § 441e(a)(1) makes it unlawful for a
foreign national to make
(A) a contribution or donation of money or other thing of value, or to make
an express or implied promise to make a contribution or donation, in
connection with a Federal, State, or local election
(B) a contribution or donation to a committee of a political party; or
(C) an expenditure, independent expenditure, or disbursement for an
electioneering communication[.]
2 U.S.C. § 441e(a)(1).
When an action is commenced challenging the constitutionality of “any [BCRA]
provision,” “[s]pecial rules” set forth in § 403 of the BCRA must be followed. BCRA, Pub. L.
No. 107-155, § 403, 116 Stat. 81, 113-14 (2002). More specifically, the BCRA provides that
such an action must be filed in this district and “shall be heard by a [three]-judge court.” Id.Local Civil Rule 9.1 governs the procedure involved with an application for a three-judge court.
See LCvR 9.1.
B. Factual & Procedural History
The plaintiffs, two foreign nationals who lawfully reside and work in the United States,
seek to contribute funds to political candidates and committees of political parties as well as to
“independently spend[] money to advocate for their preferred candidates.” Compl. ¶ 2. These
activities, the plaintiffs contend, are prohibited by § 303 of the BCRA, codified at 2 U.S.C. §
441e(a)(1), and its implementing regulation, 11 C.F.R § 110.20. Id. ¶¶ 2-3. Believing that this
prohibition violates the First Amendment, the plaintiffs have commenced this action against the
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FEC, seeking a judgment declaring that § 303 of the BCRA and its implementing regulation are
unconstitutional insofar as they apply “to foreign nationals lawfully residing and working in the
United States.” Id. at 7.
Pursuant to § 403 of the BCRA, the plaintiffs have filed an application to have their case
heard by a three-judge court, see Pls.’ Application at 1, which the FEC opposes, see generally
Def.’s Opp’n. With the plaintiffs’ application now ripe for adjudication, the court turns to the
parties’ arguments and the applicable legal standard.
III. ANALYSIS
A. The Pre-BCRA Prohibition of the Plaintiffs’ Proposed Activities Does Not Foreclose
Review By a Three-Judge Court
The defendant maintains that the plaintiffs’ request for a three-judge court under § 403 is
foreclosed due to the Supreme Court’s decision in McConnell v. Federal Election Commission,
540 U.S. 93 (2003). Def.’s Opp’n at 4. More specifically, the defendant argues that under
McConnell, a three-judge court lacks “authority” to address the constitutionality of a provision of
the BCRA where the activities it prohibits were “already unlawful before BCRA’s enactment.”
Id. at 5-6. The defendant contends that “even if the plaintiffs were to obtain a favorable ruling
on their challenges to BCRA § 303, the prohibitions on foreign nationals’ activity in pre-BCRA
§ 441e would remain in place, [the] plaintiffs’ alleged injuries would not be redressed, and [the]
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plaintiffs therefore would lack standing.” 1 Id. at 5.
The plaintiffs counter that McConnell is “easily distinguishable” from the instant case.
Pls.’ Reply at 3. According to the plaintiffs, the McConnell Court determined that the plaintiffs’
alleged injury was caused not only by a provision of the BCRA but also by “other, extant
provisions” of FECA. Id. at 3. Thus, the plaintiffs contend that the McConnell Court reasoned
that even if it were to make a decision on the constitutionality of the BCRA provision, it could
not remedy the specific injury advanced by those plaintiffs. Id. Here, the plaintiffs maintain, §
303 of the BCRA, is “the only law prohibiting [their] proposed conduct,” and “the only law
being challenged,” and “[t]here is no other extant provision of law causing or contributing to
their injury.” Id. at 3. Accordingly, the plaintiffs argue that the pre-BCRA statute does not
“caus[e] or contribut[e] to [their] injury” because it has been “struck by the BCRA in its entirety
and no longer exists.” Id. at 3.
In McConnell v. Federal Elections Commission, the Court considered the
constitutionality of the contribution limits imposed by § 307 of the BCRA, together with the
individual and political action committee contribution limitations of FECA § 315. 540 U.S. at
228. The Court determined that although § 307 of the BCRA “increased and indexed for
inflation certain FECA contribution limits,” it was the FECA provisions that actually imposed
the contested contribution limits. Id. at 229. The Court, however, observed that it “had no
1
The defendant also argues that the court should deny the plaintiffs’ application because they
violated Local Civil Rule 7(m) by failing to confer with the defendant before filing their
nondispositive motion. Def.’s Opp’n at 10. The plaintiffs respond that they “had no duty to
confer” with the defendant as this was not a motion but an application under Local Civil Rule 9.1.
Pls.’ Reply at 5. Local Civil Rule 9.1, as noted by the plaintiffs, requires that the application for
three-judge court be filed contemporaneously with the complaint, at which point a lawsuit had not
yet been filed and opposing counsel had not yet been identified. See LCvR 9.1. The court
therefore agrees with the plaintiffs that the duty for parties to confer regarding nondispositive
motions is not applicable to the plaintiffs’ for a three-judge court under Local Civil Rule 9.1.
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power to adjudicate a challenge to the FECA limits” because the plaintiffs were required to
challenge the constitutionality of the FECA provisions “before an appropriate en banc court of
appeals, as provided in 2 U.S.C. § 437h,[2] not in the three-judge District Court convened
pursuant to BCRA § 403(a).” Id. Thus, even if the Court were to exercise its jurisdiction to
review a constitutional challenge to § 307, “a ruling in the plaintiffs’ favor would not redress
their alleged injury” because the FECA provisions would remain intact. Id. Accordingly, the
Court held that because the plaintiffs could not “show the substantial likelihood that the
requested relief [would] remedy their alleged injury in fact,” they lacked standing to bring their
claim. Id. (internal quotations and citation omitted).
The plaintiffs here challenge the constitutionality of § 303 of the BCRA and its
implementing regulation. See generally Compl. Unlike McConnell, if a three-judge court were
to strike down § 303 as unconstitutional, then no other law (or at least none which the defendant
has identified) would prohibit the plaintiffs from engaging in their desired conduct. As the
defendant readily admits, the pre-BCRA provision barring foreign nationals from making
political contributions is no longer in effect, having been entirely replaced by § 303 of the
BCRA. See Def.’s Opp’n at 4. Nor does the fact that the plaintiffs’ proposed activities were
banned before the BCRA’s enactment impact the plaintiffs’ entitlement to a three-judge court.
See BCRA § 403 (stating that “any action . . . brought for declaratory or injunctive relief to
challenge the constitutionality of any provision of [the BCRA] . . . shall be heard by a [three]-
judge court”). Because the plaintiffs’ requested relief would remedy their alleged injury in fact,
2
Under § 437h, issues regarding the constitutionality of a provision in the FECA shall be
immediately certified to the Circuit, which is required to hear the matter sitting en banc. 2 U.S.C.
§ 437h.
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they have the requisite standing and are entitled to a three-judge court to review their
constitutional challenge to BCRA § 303.
B. The Plaintiffs’ Challenge to the FEC’s Regulation Is Not Reviewable
By a Three-Judge Court
The defendant further argues that a three-judge court convened under BCRA § 403 would
have no authority to adjudicate the plaintiffs’ claims regarding the constitutionality of the FEC’s
regulation implementing BCRA § 303, because BCRA § 403 “provides jurisdiction to a three-
judge court to decide only constitutional challenges to the [BCRA].” Def.’s Opp’n at 9. The
plaintiffs respond that they have not brought any independent challenge to the regulations, which
“simply parrot the statutory provision enacted by § 303 of the BCRA,” and which would
“necessarily fall along with the statute” if the plaintiffs were to succeed in their suit. Pls.’ Reply
at 1 n.1.
In McConnell, the Supreme Court noted that “to the extent that the alleged constitutional
infirmities are found in the implementing regulations rather than the statute itself,” “issues
concerning the [FEC’s] regulations” are “not appropriately raised in [a] facial challenge to
BCRA, but must be pursued in a separate proceeding.” McConnell, 540 U.S. at 223; cf. Shays
v. Fed. Elections Comm’n, 337 F. Supp. 2d 28 (D.D.C. 2004) (reviewing the FEC’s regulations
under the Administrative Procedure Act in a single-judge court). Here, the plaintiffs specifically
state in their complaint that they are challenging not only the constitutionality of 2 U.S.C. § 441e
but also of its implementing regulation, 11 C.F.R. § 110.20. Compl. at 1. Moreover, the
regulation does not simply “parrot” § 303 of the BCRA, but rather prohibits specific types of
election-related activities for foreign nationals. See 11 C.F.R. § 110.20 (stating, for example,
that a foreign national shall not participate in the decision-making process of a corporation’s
election-related activities). Because under McConnell, the FEC’s regulations are not
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appropriately challenged in a three-judge court, see McConnell, 540 U.S. at 223, the plaintiffs’
application is denied insofar as it requests that a three-judge court hear its claim that 11 C.F.R. §
110.20 is unconstitutional. 3
IV. CONCLUSION
For the foregoing reasons, the court grants in part and denies in part the plaintiffs’
application for a three-judge court. An Order consistent with this Memorandum Opinion is
separately and contemporaneously issued this 7th day of January, 2011.
RICARDO M. URBINA
United States District Judge
3
The court may, of course, consider the FEC’s regulations when determining the constitutionality
of the BCRA’s provisions. See McConnell, 540 U.S. at 169 n.63 (finding guidance in the FEC’s
regulation to determine whether a provision of the BCRA was unconstitutionally overbroad
although the regulation itself was not challenged).
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