UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_________________________________________ 

)

TED CRUZ FOR SENATE, et al., )

)

Plaintiffs, )

)

v. ) Case No. 19-cv-908 (APM)

)

FEDERAL ELECTION COMMISSION, et al., )

)

Defendants. )

_________________________________________ )

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

Plaintiffs, Senator Rafael Edward Cruz (“Senator Cruz”) and Ted Cruz for Senate (“Cruz 

Committee” or “Committee”), seek declaratory and injunctive relief invalidating and enjoining 

the enforcement of Section 304 of the Bipartisan Campaign Reform Act (“BCRA”) and its 

implementing regulations, which place limits on the amount of post-election contributions that 

may be used to pay back a candidate’s pre-election loans. They have asked the court to convene 

a three-judge district court to hear their challenges in accordance with BCRA’s judicial review 

provision. Defendants, the Federal Election Commission and its four current Commissioners 

(collectively the “FEC”), oppose that request and have moved to dismiss the Complaint for lack 

of jurisdiction. For the reasons that follow, the court grants Plaintiffs’ motion to convene a 

three-judge court and denies the FEC’s motion to dismiss. 

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II. BACKGROUND

A. Legal Background

1. The Loan Repayment Limit

In 2002, Congress enacted the Bipartisan Campaign Reform Act (“BCRA”), Pub. L. No.

107-155, 116 Stat. 81, which amended the Federal Election Campaign Act of 1971 (“FECA”). 

One provision of BCRA states that a “candidate who incurs personal loans . . . in connection 

with the candidate’s campaign for election shall not repay (directly or indirectly), to the extent 

such loans exceed $250,000, such loans from any contributions made to such candidate or any 

authorized committee of such candidate after the date of such election.” 52 U.S.C. § 30116(j). 

The FEC’s implementing regulations clarify that BCRA’s $250,000 limit applies both to loans 

secured by the candidate for the benefit of his campaign and to loans made to the campaign from 

the candidate’s personal funds. 11 C.F.R. § 116.11(a). 

BCRA and its implementing regulations (collectively the “Loan Repayment Limit”) thus 

give a campaign committee two options for paying back a candidate’s personal loans after an 

election. First, the committee may repay up to “the entire amount of the personal loans using 

contributions to the candidate or the candidate’s authorized committee provided that those 

contributions were made on the day of the election or before.” Id. § 116.11(b)(1). If the 

committee elects to use pre-election contributions to repay all or part of the loan, “it must do so 

within 20 days of the election.” Id. ¶ 116.11(c)(1). 

Alternatively, the committee “[m]ay repay up to $250,000 of the personal loans from 

contributions made to the candidate or the candidate’s authorized committee after the date of the 

election.” Id. § 116.11(b)(2). There is no time limit on when the campaign may repay the 

$250,000 using post-election contributions; however, the committee “[m]ust not repay . . . the 

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aggregate amount of the personal loans that exceeds $250,000, from contributions to the 

candidate or the candidate’s authorized committee if those contributions were made after the date 

of the election.” Id. § 116.11(b)(3). After the 20-day post-election period has elapsed, the 

committee must “treat the remaining balance of the candidate’s personal loan that exceeds 

$250,000 as a contribution from the candidate.” See Increased Contribution and Coordinated 

Party Expenditure Limits for Candidates Opposing Self-Financed Candidates, 68 Fed. Reg. 

3970, 3974 (Jan. 27, 2003); see also 11 C.F.R. § 116.11(c)(2). 

2. Judicial Review of Constitutional Challenges to BCRA

Section 403 of BCRA provides that “[i]f any action is brought for declaratory or 

injunctive relief to challenge the constitutionality of any provision of this Act[,] . . . [t]he action 

shall be filed in the United States District Court for the District of Columbia and shall be heard 

by a 3-judge court convened pursuant to [28 U.S.C.] section 2284.” See Pub. L. No. 107-155, 

§ 403(a) (codified at 52 U.S.C. § 30110 note (hereinafter BCRA § 403)). The party seeking to 

convene a three-judge court must file a request, whereupon “the judge to whom the request is 

presented shall” initiate the process, “unless he determines that three judges are not required.” 

28 U.S.C. § 2284(b)(1). A three-judge court’s final decision on such an action “shall be

reviewable only by appeal directly to the Supreme Court of the United States.” BCRA

§ 403(a)(3). 

B. Factual Background

This case arises from Senator Cruz’s 2018 reelection campaign for the United States 

Senate. On the day before the November 6, 2018 general election, Senator Cruz made two loans 

totaling $260,000 to the Cruz Committee to help finance his campaign. See Compl., ECF No. 1 

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[hereinafter Compl.], ¶ 28; Ted Cruz for Senate, FEC Form 3 at 401-02 (Jan. 31, 2019).

1

 Of the 

$260,000 lent to the Committee, $5,000 originated from Senator Cruz’s personal bank accounts 

and $255,000 originated from a margin loan secured with Senator Cruz’s personal assets. 

Compl. ¶ 28. 

At the close of election day, the Cruz Committee had approximately $2.2 million on hand

and nearly $2.5 million in debts associated with the 2018 general election. Id. ¶ 29. The 

Committee then “used the funds it had on hand to pay vendors and meet other obligations instead 

of repaying [Senator Cruz’s] loans.” Id. The Committee did not use any of the funds it had on 

hand to pay off Senator Cruz’s loans during the 20-day period, meaning that after that period 

elapsed, the balance of those loans that exceeded BCRA’s $250,000 statutory cap on postelection contributions—$10,000—converted into a campaign contribution. See id. ¶¶ 30–31; 

11 C.F.R. § 116.11(c)(2). 

Following the 20-day repayment period, the Cruz Committee repaid Senator Cruz the 

$250,000 statutory maximum using post-election contributions, but BCRA foreclosed it from

paying back the $10,000 balance. Compl. ¶¶ 31–32. Plaintiffs allege that, “[a]bsent the 

restrictions of [BCRA] and the Commission’s corresponding regulation[s],” they “would solicit 

debt-retirement funds from potential donors and would use post-election contributions to defray 

the remaining $10,000 loan balance.” Id. ¶ 33. 

C. Procedural History 

In April 2019, Plaintiffs filed suit against the FEC, contending that: (1) the Loan 

Repayment Limit unconstitutionally infringes on their First Amendment rights to freedom of 

speech; (2) the limit also infringes on the First Amendment free speech rights of potential postelection donors; and (3) the implementing regulation, 11 C.F.R. § 116.11, is contrary to law and 

 

1 Available at https://docquery fec.gov/pdf/325/201901319145235325/201901319145235325.pdf. 

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arbitrary and capricious. See Compl. ¶¶ 5, 34–51. On the same day, Plaintiffs filed a request to 

convene a three-judge district court pursuant to BCRA § 403 and 28 U.S.C. § 2284. See Appl. 

For a Three-Judge Court, ECF No. 2. 

The FEC opposes Plaintiffs’ motion to appoint a three-judge court and seeks dismissal of

Plaintiffs’ Complaint for lack of jurisdiction. See Defs.’ Opp’n to Pls.’ Appl. for a Three-Judge 

Court and Mot. to Dismiss for Lack of Subject-Matter Jurisdiction, ECF No. 25 [hereinafter 

Defs.’ Mot.]. The FEC argues that this case is not justiciable because Plaintiffs lack standing, 

see id. at 13–24, and that the three-judge court lacks subject-matter jurisdiction over the case 

because Plaintiffs’ constitutional claims are “wholly insubstantial,” see id. at 25–44. The FEC 

also contends this court should deny Plaintiffs’ request to convene a three-judge court with 

respect to their challenges to the implementing regulations because the three-judge court would 

lack authority to rule on those challenges. Id. at 44–45. Plaintiffs retort that (1) the FEC’s 

standing argument must be resolved by a three-judge court, and that in any event Plaintiffs do 

have standing; (2) their challenges are constitutionally substantial; and (3) a three-judge court 

has, at a minimum, supplemental jurisdiction to adjudicate Plaintiffs’ challenges to the FEC’s 

implementing regulations. See generally Pls.’ Reply in Supp. of Their Appl. For a Three-Judge 

Court & Resp. to Defs.’ Mot. to Dismiss, ECF No. 29 [hereinafter Pls.’ Reply]. 

III. DISCUSSION 

A. Plaintiffs’ Standing

1. This Court Has Jurisdiction to Decide the Standing Question 

Plaintiffs contend that BCRA’s requirement that a three-judge court be convened to hear 

any “action” challenging BCRA’s constitutionality precludes a single-judge court from ruling on 

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a motion to dismiss for lack of standing in such an action. Plaintiffs’ rigid reading of the word 

“action,” however, is foreclosed by binding Supreme Court precedent. 

Section 403 of BCRA provides that a three-judge district court shall adjudicate any 

“action . . . brought for declaratory or injunctive relief to challenge the constitutionality of any 

provision of this Act.” BCRA § 403(a)(3). Though framed in mandatory terms, the provision 

cross-references 28 U.S.C. § 2284, which provides that a single judge need not convene a threejudge panel if she “determines that three judges are not required.” § 2284(b)(2). The Supreme 

Court has held that a “three-judge court is not required where the district court itself lacks 

jurisdiction [over] the complaint or the complaint is not justiciable in the federal courts.” 

Shapiro v. McManus, 136 S. Ct. 450, 455 (2015) (quoting Gonzalez v. Automatic Emp. Credit 

Union, 419 U.S. 90, 100 (1974)). A case is not justiciable in federal courts when the plaintiff 

lacks standing, and therefore the absence of standing is a “ground upon which a single judge 

[may] decline[] to convene a three-judge court.” See Gonzalez, 419 U.S. at 100. 

Plaintiffs object that Gonzalez and Shapiro are inapposite because they did not involve a 

challenge to BCRA. They contend that BRCA is unique among other three-judge judicial review 

provisions because it requires a three-judge court to “adjudicate the entire ‘action’—which 

includes . . . a pre-trial motion to dismiss for lack of jurisdiction.” Pls.’ Reply at 13. BCRA’s 

use of the word “action” is not unique, however. Like BCRA, the statute at issue in Shapiro

similarly requires the convening of a three-judge court to adjudicate the entire “action,” 

28 U.S.C. § 2284(a), and yet the Supreme Court had no difficulty concluding that “a district 

judge need not unthinkingly initiate the procedures to convene a three-judge court without first 

examining the allegations in the complaint” and determining whether it “lacks jurisdiction [over] 

the complaint,” Shapiro, 136 S. Ct. at 452; see also Wertheimer v. FEC, 268 F.3d 1070, 1072 

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(D.C. Cir. 2001) (finding that “an individual district court judge may consider threshold

jurisdictional challenges prior to convening a three-judge panel” under the Presidential 

Campaign Fund Act, which, like BCRA, requires three-judge courts to hear applicable 

“actions”). The D.C. Circuit has specifically applied Shapiro’s reasoning in the context of 

BCRA, explaining that “a three-judge court is not required” to hear a constitutional challenge to 

BCRA “where the district court itself lacks jurisdiction [over] the complaint or the complaint is 

not justiciable in the federal courts.” Indep. Inst. v. FEC, 816 F.3d 113, 116 (D.C. Cir. 2016)

(quoting Shapiro, 136 S. Ct. at 455).

2

 Consistent with this precedent, a host of district courts 

have held that a single judge may dismiss a constitutional challenge to BCRA for lack of 

standing. See, e.g., Republican Party of La. v. FEC, 146 F. Supp. 3d 1, 8 (D.D.C. 2015); Rufer v. 

FEC, 64 F. Supp. 3d 195, 202 (D.D.C. 2014); Schonberg v. FEC, 792 F. Supp. 2d 14, 17 (D.D.C. 

2011). 

To be sure, Shapiro was focused on a separate jurisdictional issue—whether a claim was

too “constitutionally insubstantial” to implicate the court’s federal subject-matter jurisdiction—

but there is no basis to distinguish between Article III jurisdiction (standing) and federal subjectmatter jurisdiction (constitutional substantiality) for purposes of convening a three-judge court. 

As with Article III standing, the court’s power to dismiss a constitutionally insubstantial question 

does not hinge on any “interpretation of statutory text” of BCRA or 28 U.S.C. § 2284, but on the 

familiar proposition that the “essential” jurisdictional prerequisites must be met before a singlejudge court will exercise its jurisdiction to convene a three-judge panel. See Shapiro, 136 S. Ct. 

at 455 (quoting Ex parte Poresky, 290 U.S. 30, 31 (1933) (per curiam)); see also O’Hair v. 

United States, 281 F. Supp. 815, 818 (D.D.C. 1968) (“The first duty of the sole judge is to pass 

 2 Plaintiffs argue that Independent Institute’s statement is dicta. See Pls.’ Reply at 14. Even if it is, the issue is still 

controlled by Shapiro and Gonzalez; therefore, the court does not consider this argument further. 

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on the sufficiency of the complaint specifically as to whether or not a justiciable controversy is 

presented over which he has adjudicatory powers, and if he determines that the Court lacks 

jurisdiction, he must dismiss the suit.”). As discussed below, Plaintiffs freely concede that a 

single judge may dismiss a constitutionally insubstantial challenge to BCRA for lack of 

jurisdiction, see Pls.’ Reply at 14; it follows that the same is true of a case where jurisdiction is 

lacking for want of standing.

At oral argument, Plaintiffs sought to draw a line between these two jurisdictional 

inquiries, urging that the question of constitutional substantiality is within the single-judge

court’s jurisdiction because it goes to whether a constitutional question is raised at all—a 

necessary prerequisite to trigger BCRA § 403’s judicial review requirement—whereas questions 

regarding a litigant’s standing fall under the broad umbrella of an “action” challenging BCRA, 

and therefore must go to a three-judge court. That reading, however, is irreconcilable with 

Gonzalez, in which the Supreme Court held that it did not have mandatory jurisdiction over a 

three-judge court’s dismissal of a claim for lack of standing because the lower court’s dismissal 

was “not merely short of the ultimate merits; it was also, like an absence of statutory subjectmatter jurisdiction, a ground upon which a single judge could have declined to convene a threejudge court.” 419 U.S. at 100. The Court acknowledged that, under the statute at issue, a “single 

judge is literally forbidden to ‘dismiss the action, or enter a summary or final judgment’ in any 

case required to be heard by three judges,” but it eschewed such a literalist reading, noting that 

“we have always recognized a single judge’s power to dismiss a complaint for want of . . .

jurisdiction.” Id. at 96 n.14 (quoting 28 U.S.C. § 2284(5)). Thus, Gonzalez confirms that a 

single judge’s power to dismiss a case on jurisdictional grounds does not turn on the type of 

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jurisdictional question presented, even when, as here, the statute requires three-judge review of 

an entire “action.” 

The single-judge court’s power to dispose of non-justiciable challenges to BCRA finds 

further support from its important role as a gatekeeper. See Republican Party of La., 146 

F. Supp. 3d at 8 (explaining that “the [single judge’s] role at this stage of the proceedings is to 

determine how and by whom this case will be heard”). It is the single-judge court’s 

responsibility to weed out jurisdictionally lacking cases that would otherwise “triple[] the normal 

cost of a case for the district court,” Turner Broad. Sys., Inc. v. FCC, 810 F. Supp. 1308, 1312 

(D.D.C. 1992), and burden the Supreme Court’s docket with mandatory review, see Gonzalez, 

419 U.S. at 98 (explaining that three-judge judicial review statutes should be construed narrowly 

consistent with the Court’s “overriding policy, historically encouraged by Congress, of 

minimizing the mandatory docket of [the Supreme Court] in the interests of sound judicial 

administration”). 

Plaintiffs’ unyielding interpretation of the word “action” would upend this court’s 

important gatekeeping role. For instance, because any “action” challenging BCRA’s 

constitutionality is reviewable “only by appeal directly to the Supreme Court,” see BCRA 

§ 403(a)(3), Plaintiffs’ reading would require that the Supreme Court assume “mandatory, direct 

appellate jurisdiction in this case” even if this court were to dismiss Plaintiffs’ Complaint for 

lack of standing, see Pls.’ Reply at 10. That cannot be squared with the “well settled” rule that 

the “refusal to request the convention of a three-judge court, dissolution of a three-judge court, 

and dismissal of a complaint by a single judge are orders reviewable in the court of appeals,” not 

in the Supreme Court. Gonzalez, 419 U.S. at 100; see also Turner, 810 F. Supp. at 1312 

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(rejecting an identical construction of the word “action” due to the “considerable burdens” it 

would place “on the federal judicial system”). 

In short, Plaintiffs seek to pile more weight on the word “action” as it is used in BCRA 

§ 403 than it can bear. This court has authority to consider the question of Plaintiffs’ standing, 

which it turns to now. 

2. Plaintiffs’ Standing

A plaintiff in federal court bears the burden of showing that she meets the “irreducible 

constitutional minimum” of Article III standing: (1) injury in fact, (2) causation, and 

(3) redressability. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). To establish 

standing at the motion to dismiss stage, the plaintiff “must state a plausible claim that [she has] 

suffered an injury in fact fairly traceable to the actions of the defendant that is likely to be 

redressed by a favorable decision on the merits.” Food & Water Watch, Inc. v. Vilsack, 808 F.3d 

905, 913 (D.C. Cir. 2015) (quoting Humane Soc’y of the U.S. v. Vilsack, 797 F.3d 4, 8 (D.C. Cir. 

2015)); see also Republican Party of La., 146 F. Supp. 3d at 9. 

Plaintiffs allege a variety of injuries, but the most clear-cut is Senator Cruz’s $10,000 

financial injury. To recap, Senator Cruz loaned his campaign $10,000 more than he could 

legally be repaid using post-election contributions. Compl. ¶ 28. Believing that he had a right 

be repaid with such funds, he declined to pay himself back with available pre-election funds and 

instead used those funds to pay back other creditors. Id. ¶ 29. After the 20-day period had

elapsed, Senator Cruz’s campaign repaid him the $250,000 maximum using post-election 

contributions, but it is legally barred from paying him back the $10,000 balance. Id. ¶¶ 30–32. 

As a consequence of all this, Senator Cruz is still owed $10,000, id. ¶ 32, which is plainly 

a cognizable injury. Indeed, any financial loss—even if only a “dollar or two”—is ordinarily a 

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cognizable injury for standing purposes. See Sprint Commc’ns Co., L.P. v. APCC Servs., Inc., 

554 U.S. 269, 289 (2008). That injury is caused by the Loan Repayment Limit, because the Cruz 

Committee’s inability to repay the $10,000 balance is due to the law’s restrictions on the amount 

of post-election contributions a campaign can use to repay a candidate’s loans. And the injury 

would be redressed by a favorable court decision, because, if a three-judge court were to strike 

down the Loan Repayment Limit, the Cruz Committee would solicit additional post-election 

contributions to pay off Senator Cruz’s loans. See Compl. ¶¶ 32–33. Senator Cruz has therefore 

met his burden of plausibly alleging each of the three elements of standing.3 

The FEC nevertheless argues that Senator Cruz lacks standing because, it says, the 

Senator’s injury is self-inflicted. A self-inflicted harm is neither a “cognizable” Article III 

injury, nor “fairly traceable to the defendant’s challenged conduct.” Nat’l Family Planning & 

Reprod. Health Ass’n, Inc. v. Gonzales, 468 F.3d 826, 831 (D.C. Cir. 2006). However, to be 

self-inflicted, an injury must be “so completely due to the [plaintiff’s] own fault as to break the 

causal chain.” Petro-Chem Processing, Inc. v. EPA, 866 F.2d 433, 438 (D.C. Cir. 1989)

(quoting Wright & Miller, 13A Fed. Prac. & Proc. Juris. § 3531.5 (2d ed. 1984)). Plaintiffs’ role 

in Senator Cruz’s injury does not rise to that level. 

The FEC’s primary self-infliction argument—that Senator Cruz caused his own injury by 

“transparently tailor[ing]” the $260,000 loans to bring a challenge to the Loan Repayment Limit, 

Defs.’ Mot. at 15, is easily disposed of. It has “long been settled . . . that an individual does not 

forfeit his standing for jurisdictional purposes merely because he is a ‘test’ plaintiff.” Gavett v. 

Alexander, 477 F. Supp. 1035, 1041 (D.D.C. 1979) (collecting cases). That is because, “if 

 3 Because Senator Cruz has standing due to his financial injury, the court does not address Plaintiffs’ other theories 

of standing. See Ams. for Safe Access v. Drug Enf’t Admin., 706 F.3d 438, 443 (D.C. Cir. 2013) (explaining that “to 

proceed to the merits” of a group of petitioners’ claims, the court “need only find one party with standing”). 

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actual[] adversary interests are involved, deliberate provocation of litigation does not defeat the 

existence of a controversy.” Wright & Miller, 13 Fed. Prac. & Proc. Juris. § 3530 (3d ed. 2019). 

So long as there is “concrete adverseness” between the parties, see Granfield v. Catholic Univ. of 

Am., 530 F.2d 1035, 1045 (D.C. Cir. 1976), a test case brought by a litigant who has been injured 

by a law he seeks to challenge is no less justiciable than any other, see Kuehl v. Sellner, 887 F.3d 

845, 851 (8th Cir. 2018) (“[W]hen an individual searches for and finds a violation of the law, it 

is the violation itself—not the search—that causes the plaintiff injury.”).4 Because the parties’ 

interests here are plainly adverse, the fact that Senator Cruz may have made the two loans fully

expecting that the Loan Repayment Limit would inhibit his ability to be fully repaid has no 

bearing on his standing to challenge the law. 

The FEC’s second argument—that Plaintiffs could have easily “taken legally available 

steps to avoid” Senator Cruz’s injury, Defs.’ Mot. at 16—is equally unavailing. Recall that the 

Loan Repayment Limit gives a campaign committee two options for paying back a candidate’s 

personal loans after an election. The committee may either (1) repay up to “the entire amount of 

the personal loans using” pre-election contributions, so long as it makes the payment within 

20 days of the election, 11 C.F.R. § 116.11(b)(1), (c)(1), or (2) “repay up to $250,000 of the 

personal loans from” post-election contributions at any time, with any outstanding balance above 

$250,000 converting to a contribution from the candidate after the 20-day period expires, id.

§ 116.11(b)(2), (c)(2). The FEC argues that Senator Cruz could have repaid himself with a 

minimum of $10,000 in pre-election contributions under Option 1, which would have enabled 

 4 The only case cited by the FEC in support of its position, J. Roderick MacArthur Foundation v. FBI, 102 F.3d 600 

(D.C. Cir. 1996), is not to the contrary. That case did not discuss the plaintiffs’ subjective motivations in bringing 

the lawsuit, and the only alleged harm—the risk to privacy associated with the public release of the plaintiffs’ 

information—was exclusively the fault of the plaintiffs, who voluntarily chose to make that information public. Id. 

at 606. Unlike that case, Senator Cruz’s harm is indisputably caused by the Loan Repayment Limit’s restrictions on 

how his loans can be repaid. 

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him to make himself whole with a maximum $250,000 payment using post-election funds. 

By choosing not to make a modest loan payment of $10,000 using pre-election funds, the FEC 

contends, Plaintiffs voluntarily chose to subject Senator Cruz to an injury under Option 2. Defs.’

Mot. at 16–17. 

The flaw in the FEC’s argument is that it would require Senator Cruz to avoid an injury 

by subjecting himself to the very framework he alleges is unconstitutional. For standing 

purposes, the court must accept as valid the merits of Plaintiffs’ claim, see re U.S. Office of Pers. 

Mgmt. Data Sec. Breach Litig., 928 F.3d 42, 54 (D.C. Cir. 2019), meaning the court must assume 

that the Loan Repayment Limit’s restriction on the amount of post-election contributions a 

campaign committee can use to repay a candidate’s pre-election loans unconstitutionally burdens

free speech, see Compl. ¶¶ 3, 35–41. The corollary of this is that Plaintiffs would have the right

to repay Senator Cruz’s loans in full using post-election contributions. Obligating Plaintiffs to 

avoid the Senator’s injury by repaying at least a portion of the loans using pre-election 

contributions would therefore require Senator Cruz to forego exercising a right that the court 

must assume he has, and subject him to the very framework that ostensibly unconstitutionally 

burdens his free speech. 

This principle animated the D.C. Circuit’s recent decision in Libertarian National 

Committee, Inc. v. FEC, where the court rejected an argument that a political committee had 

caused its own injury by refusing to subject itself to the statutory requirement it was challenging. 

924 F.3d 533, 536 (D.C. Cir. 2019). In that case, a deceased member of the Libertarian Party 

had bequeathed more than $200,000 to the Libertarian National Committee (“LNC”)—well 

above the annual contribution limit of $33,400. Id. at 536. The LNC could have accepted the 

bequest all at once by placing $33,400 in its general treasury and the rest in segregated accounts 

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that limited the purposes for which the funds could be spent, but the committee believed it had a

First Amendment right to receive the full bequest with no strings attached. Id. at 538. Rather 

than accept the money into spending-limited accounts, the LNC deposited the money into 

escrow, which limited its ability to use the money for expressive purposes. See id. at 538–39. 

The court rejected the FEC’s argument that the LNC inflicted its own injury by failing to accept 

the entire bequest into segregated accounts, reasoning that “the LNC’s injury stems not from its 

inability to accept the entire bequest immediately (which it could have done), but rather from the 

committee’s inability to accept immediately the entire bequest for general expressive purposes

(which FECA prohibits).” Id. at 538 (cleaned up). Thus, as with this case, the LNC had no 

obligation to avoid its injury by subjecting itself to the very statutory requirement it claimed to 

be unconstitutional. 

None of the cases the FEC cites supports the notion that to avoid causing her own injury 

a plaintiff must do the very thing she claims she has a right not to do. For instance, in Gonzalez, 

the D.C. Circuit held that a plaintiff lacked standing where its purported injury—uncertainty as 

to how to comply with a purportedly conflicting statute and regulation—could have easily been 

resolved by asking the relevant agency to clarify its regulations. 468 F.3d at 831. The plaintiff 

was not challenging the requirement that it seek clarification, however. Thus, unlike Plaintiffs’ 

injury here, the Gonzalez plaintiff’s “easy means for alleviating the alleged [injury],” id., did not 

require it to comply with a legal requirement it was challenging. Likewise, in Huron v. Berry, 

the court held that a family lacked standing to challenge the federal government’s approval of

certain health insurance plans for federal employees after the family switched to a plan that 

lacked medical coverage the father needed. 12 F. Supp. 3d 46, 47 (D.D.C. 2013). The family’s

injury was self-inflicted, the court held, because they had chosen to enroll in a plan that lacked 

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the needed coverage notwithstanding the fact that there were at least seven other federal plans 

that offered such coverage. Id. at 52–53. The family’s decision not to enroll in those other plans 

was based purely on their “own economic self-interest,” id. at 53; the family did not allege, as 

Plaintiffs allege here, that they had a constitutional right to enroll in the plan that lacked 

coverage, or that enrolling in any of the other plans would violate their rights. 

The FEC makes much of the D.C. Circuit’s decision in Stop This Insanity Inc. Employee

Leadership Fund v. FEC, 761 F.3d 10 (D.C. Cir. 2014), but, as the agency conceded at oral 

argument, that case was not about standing. Instead, the court held “on the merits” that a 

corporation that sought to use a functionally obsolete type of political action committee to solicit 

contributions and make independent expenditures had no First Amendment right to be free of 

restrictions on that type of committee when the corporation itself could have engaged in the same 

activity free of any such restrictions. Id. at 12–14. The court could not have reached the merits 

if the plaintiffs lacked standing, see Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101–02

(1998), which suggests that, as here, a plaintiff does not lack an injury simply because there are 

“less burdensome” and “more robust option[s]” to accomplish her desired goals, see Stop This 

Insanity, 761 F.3d at 14. 

In sum, Senator Cruz has plausibly alleged a cognizable, redressable injury that is caused 

by the Loan Repayment Limit, not by Plaintiffs. 

B. The Constitutional Substantiality of Plaintiff’s BCRA Challenges

The FEC argues that the court should also deny Plaintiffs’ application for a three-judge 

court “for the separate and independent reason that plaintiffs have failed to ‘present a substantial 

[constitutional] claim.’” Defs.’ Mot. at 25 (quoting Republican Party of La., 146 F. Supp. 3d at 

8). The court disagrees. 

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“[A] district judge need not unthinkingly initiate the procedures to convene a three-judge 

court without first examining the allegations in the complaint” and determining whether it has 

jurisdiction over the action. Shapiro, 136 S. Ct. at 455. A challenge to BCRA fails to implicate 

federal subject-matter jurisdiction, thereby precluding federal judicial review, when the 

constitutional claim is “wholly insubstantial and frivolous.” Id. (quoting Bell v. Hood, 327 U.S. 

678, 682–683 (1946)). “[T]he exception for insubstantial claims is narrow,” however. 

Independence Institute, 816 F.3d at 116. “It applies only when the case is ‘essentially fictitious, 

wholly insubstantial, obviously frivolous, and obviously without merit.’” Id. (quoting Shapiro, 

136 S. Ct. at 456). Plaintiffs’ constitutional challenges to BCRA are not so lacking as to fail to 

clear this low bar. 

Plaintiffs’ main constitutional concern with the Loan Repayment Limit is 

straightforward: “[B]y bar[r]ing the repayment of candidate loans greater than $250,000 from 

money raised after the election,” they argue, “the [Loan Repayment Limit] necessarily increases 

the risk that these loans will not be repaid in full, or perhaps at all.” Pls.’ Reply at 15–16. This 

has the effect, Plaintiffs continue, of “deterring a candidate from making loans in excess of 

$250,000,” thereby “directly burdening his First Amendment right ‘to speak without legislative 

limit on behalf of his own candidacy.’” Id. (quoting Buckley v. Valeo, 424 U.S. 1, 54 (1976)).

The FEC responds that Plaintiffs’ constitutional argument is “wholly insubstantial” because the 

Loan Repayment Limit “merely sets conditions on a candidate having his or her loans repaid, 

which is not a constitutional right at all,” and that even if the Limit did burden a candidate’s free 

speech, it would be justified by the government’s compelling interest in preventing corruption. 

See Defs.’ Mot. at 26–27. 

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The FEC has not shown that Plaintiffs’ argument is “frivolous or . . . so settled by 

precedent as to be beyond controversy.” Republican Party of La., 146 F. Supp. 3d at 13. Indeed, 

the FEC has not identified any case law specifically holding that the type of indirect burden on a 

candidate’s ability to freely loan to his campaign identified by Plaintiffs does not implicate the 

First Amendment’s protections on political speech. Nor has the FEC shown that any speech 

burdens that the Loan Repayment Limit places on candidates would unequivocally survive 

constitutional scrutiny. Thus, while the argument “may or may not prevail on the merits,” 

Plaintiffs are entitled to make that case before a three-judge court. Independence Institute, 816 

F.3d at 117. 

Plaintiffs also argue that the Loan Repayment Limit unconstitutionally burdens the First 

Amendment rights of committees and potential contributors, Pls.’ Reply at 20–23, and the FEC 

contends that these claims are similarly insubstantial, Defs.’ Mot. at 33–35. The court need not 

address these arguments, however. Since Plaintiffs have advanced “at least one argument . . .

that is not essentially fictitious, wholly insubstantial, obviously frivolous, and obviously without 

merit, the case must proceed to a three-judge court.” Independence Institute, 816 F.3d at 117

(internal quotation marks omitted). 

C. Whether Plaintiffs’ Challenges to the FEC’s Implementing Regulations May 

Be Heard by a Three-Judge Court

Finally, the FEC argues that the court should decline Plaintiffs’ request to convene a 

three-judge court with respect to Plaintiffs’ claims challenging the FEC’s implementing 

regulations because, it insists, a three-judge court would have no authority to rule on those 

claims. That is incorrect; if appropriate, a three-judge court could exercise supplemental 

jurisdiction over Plaintiffs’ challenges to the FEC’s regulations. 

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It has long been understood that in cases involving a claim that must be heard by a threejudge court, that court “has power to decide other claims in the case that, standing alone, would 

require only a single judge.” See Wright & Miller, 17A Fed. Prac. & Proc. Juris. § 4235 (3d ed.

2019) (collecting cases); see also 28 U.S.C. § 1367(a) (granting district courts supplemental 

jurisdiction “over all other claims that are so related to claims in the action within such original 

jurisdiction that they form part of the same case or controversy”). In Zemel v. Rusk, for instance, 

the Supreme Court held that a three-judge court properly exercised jurisdiction over a claim that 

the Secretary of State was acting in excess of his statutory authority because the complaint also 

included a substantial constitutional challenge to the enabling statutes themselves. 381 U.S. 1, 5 

(1965). The Court rejected the government’s argument that the three-judge court was improperly 

convened, holding that the “joining in the complaint of a nonconstitutional attack along with the 

constitutional one does not dispense with the necessity to convene [a three-judge] court.” Id. at 6

(quoting Fla. Lime & Avocado Growers, Inc. v. Jacobsen, 362 U.S. 73, 80 (1960)). Likewise, in 

Allee v. Medrano, the court reiterated that a three-judge court “could properly consider” a 

challenge that raised claims not covered by the three-judge statute because it had “jurisdiction 

ancillary to that conferred by the constitutional attack . . . which plainly required a three-judge 

court.” 416 U.S. 802, 812 (1974). 

The FEC argues that the Supreme Court’s decision in McConnell v. FEC, 540 U.S. 93 

(2003), compels a different result, see Defs.’ Reply in Supp. of its Mot. to Dismiss for Lack of 

Subject-Matter Jurisdiction, ECF No. 32 [hereinafter Defs.’ Reply], at 9–10, but the agency 

misreads that case. The McConnell plaintiffs had raised vagueness and overbreadth challenges 

to a new provision of BCRA that directed the FEC to issue new regulations regarding noncandidates’ expenditures in support of a candidate. 540 U.S. at 220. The FEC issued its 

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regulations only after oral argument and briefing had completed, however, and the plaintiffs 

never amended their complaints to challenge the regulations themselves. See McConnell v. FEC, 

251 F. Supp. 2d 176, 261–62 (D.D.C. 2003); see generally Docket Nos. 1:02-cv-00583-CKKRJL; 1:02-cv-00751-CKK-RJL; 1:02-cv-00754-CKK; 1:02-cv-00754-CKK-RJL. The threejudge district court held that the challenge was unripe because the plaintiffs had not directly 

challenged the regulations, and the court did “not know to what extent the regulations have 

clarified the vagueness Plaintiffs contend would chill their rights.” McConnell, 251 F. Supp. at 

262.5 On appeal, “portions of plaintiffs’ challenge . . . focus[ed] on the regulations” themselves, 

and the Supreme Court rejected those arguments, explaining that “issues concerning the 

regulations are not appropriately raised in this facial challenge to BCRA, but must be pursued in 

a separate proceeding.” McConnell, 540 U.S. at 223. Accordingly, the Court agreed with the 

district court that, “to the extent that the alleged constitutional infirmities are found in the 

implementing regulations rather than the statute itself,” plaintiffs’ challenge to the provision was 

unripe. Id. 

The FEC seizes on the Supreme Court’s statement that “issues concerning the regulations 

. . . must be pursued in a separate proceeding,” see Defs.’ Reply at 10 (alterations in FEC’s 

brief), but it omits the Court’s clarification that those issues were not appropriately raised “in this 

facial challenge”—not all facial challenges to BCRA. McConnell, 540 U.S. at 223 (emphasis 

added). Any challenges to the regulations were not appropriately raised in McConnell for the 

simple reason that the plaintiffs had not challenged the regulations in their complaints. The 

Supreme Court thus could not have been overruling its decades-old rule that a three-judge court 

 5 The district court also noted that BCRA’s jurisdictional grant “does not extend to the consideration of FEC 

regulations,” McConnell, 251 F. Supp. 2d at 258, but that statement was dicta because the court was not confronted 

with a challenge to an FEC regulation. 

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may assume jurisdiction over a supplemental claim, nor creating an exception to that rule under 

BCRA, when there was no such supplemental claim to begin with.6

 

The FEC responds that supplemental jurisdiction under BCRA § 403 would be

incompatible with 52 U.S.C. § 30110, another special judicial review provision in FECA. See 

Defs.’ Reply at 10. Because that provision requires that constitutional challenges to non-BCRA 

provisions of FECA be certified directly to the en banc D.C. Circuit, the FEC fears that allowing 

supplemental jurisdiction in a BCRA challenge would mean that a constitutional challenge to 

FECA, brought alongside a constitutional challenge to BCRA, would have to be heard 

simultaneously by the D.C. Circuit and a three-judge district court. The FEC misconstrues the 

nature of supplemental jurisdiction, however. Supplemental jurisdiction is not required when

“expressly provided otherwise by Federal statute,” or when “there are other compelling reasons 

for declining jurisdiction.” 28 U.S.C. § 1367(a), (c)(4). These exceptions would surely excuse a 

three-judge court from exercising supplemental jurisdiction over claims for which the D.C. 

Circuit had exclusive jurisdiction.

7

 

Finally, the FEC argues that supplemental jurisdiction is inappropriate because Plaintiffs’ 

regulatory claims are insufficiently related to their constitutional claims. See Defs.’ Reply at 10–

11. That argument is dubious, as the challenged regulations implement Section 304 of BCRA. 

 6 The district court in Bluman v. FEC—cited by the FEC in support of its position—also read McConnell as holding 

that regulatory challenges are “not appropriately raised in [a] facial challenge to BCRA.” 766 F. Supp. 2d 1, 4 

(D.D.C. 2011) (alterations in original). This court is not, of course, bound by that decision. As discussed, 

McConnell’s holding that the backdoor regulatory challenges raised by the plaintiffs on appeal were not 

appropriately raised in “this facial challenge to BCRA” was confined to the facts of that case; the statement had 

nothing to do with whether a three-judge court has supplemental jurisdiction to hear non-constitutional claims 

alongside a BCRA claim. 7 That said, this potential statutory conflict illuminates why Plaintiffs’ alternate theory—that any claim that is part of 

an “action” that includes a constitutional challenge to BCRA challenge must be heard by the three-judge court, see 

Pls.’ Reply at 29–32—is incorrect. Such mandatory three-judge jurisdiction over all claims accompanying a BCRA 

constitutional claim—even claims utterly unrelated to BCRA—would directly conflict with 52 U.S.C. § 30110, see 

Wagner v. FEC, 717 F.3d 1007, 1011–12 (D.C. Cir. 2013) (explaining that section 30110 “deprive[s] both the 

district court and panels of the court of appeals of authority to hear the merits of constitutional challenges to the 

provisions of FECA”), and would impose untenable burdens on the courts, see Turner, 810 F. Supp. at 1312 

(rejecting a similar argument due to its potential “burdens on both lower federal courts and the Supreme Court”). 

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In any event, the issue is one better left for the three-judge panel to resolve in the discretionary 

exercise of its supplemental jurisdiction. 

IV. CONCLUSION AND ORDER

For the foregoing reasons, the court grants Plaintiffs’ Application for a Three-Judge 

Court, ECF No. 2, and denies the FEC’s Motion to Dismiss, ECF No. 25. As required under 

28 U.S.C. § 2284(b)(1), the Clerk of Court shall, on behalf of this court, notify the Chief Judge 

of the D.C. Circuit for assignment of this matter to a three-judge district court. 

 

Dated: December 24, 2019 Amit P. Mehta

United States District Court Judge

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