UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

____________________________________ 

 ) 

BENJAMIN BLUMAN, ET AL., ) 

 ) 

 Plaintiffs, ) Civ. No. 10-1766 (RMU) 

 ) 

 v. ) 

 ) OPPOSITION 

FEDERAL ELECTION COMMISSION, ) 

) 

 Defendant. ) 

____________________________________) 

FEDERAL ELECTION COMMISSION’S OPPOSITION TO PLAINTIFFS’ 

APPLICATION FOR THREE-JUDGE COURT 

Plaintiffs have requested appointment of a three-judge court pursuant to a special judicial 

review provision designed eight years ago to quickly resolve serious questions about the 

constitutionality of the Bipartisan Campaign Reform Act of 2002 (“BCRA”), Pub. L. No. 

107-155, 116 Stat. 81. Under dispositive Supreme Court precedent, however, a three-judge court 

should not be convened to adjudicate plaintiffs’ claims because their proposed conduct was 

already unlawful before BCRA’s enactment. 

Plaintiffs Benjamin Bluman and Dr. Asenath Steiman are foreign nationals who 

temporarily reside and work in the United States for terms of three years; they are neither United 

States citizens nor permanent residents. They claim that the longstanding prohibition in the 

Federal Election Campaign Act (“FECA”) on certain involvement by foreign nationals in United 

States elections, 2 U.S.C. § 441e, is unconstitutional as applied to them. BCRA amended FECA 

and includes a provision, Section 403, 116 Stat. at 113-14, authorizing the convening of a threejudge district court to hear claims that provisions of BCRA are unconstitutional. Although 

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BCRA reworded and strengthened the foreign national prohibition, plaintiffs’ intended activities 

were unlawful before BCRA’s amendment. As we explain below, under McConnell v. FEC, 540 

U.S. 93, 229 (2003), plaintiffs’ alleged injuries therefore cannot be redressed by a three-judge 

court convened under BCRA § 403. Accordingly, the Court should reject plaintiffs’ application 

and decline to convene a three-judge court to hear their claims. 

BACKGROUND 

BCRA § 403 establishes special procedures for actions brought on constitutional grounds 

challenging “any provision” of BCRA or “any amendment made by” it. BCRA § 403(a), 116 

Stat. at 113-14. Before December 31, 2006, all such actions were required to be filed in the 

United States District Court for the District of Columbia and heard by a three-judge district court 

convened pursuant to 28 U.S.C. § 2284, which provides that “[a] district court of three judges 

shall be convened when . . . required by Act of Congress.” Section 403 further provides that 

final decisions of such three-judge courts are reviewable only by direct appeal to the Supreme 

Court. BCRA § 403(a)(3), 116 Stat. at 114. The special procedural rules do not apply to actions 

filed after December 31, 2006, “unless the person filing such action elects such provisions to 

apply to the action.” BCRA § 403(d)(2), 116 Stat. at 114. BCRA’s legislative history suggests 

that Congress’s primary purpose in enacting BCRA § 403 was to ensure that the serious 

constitutional issues raised by BCRA would be resolved promptly. See 148 Cong. Rec. S2142 

(Mar. 20, 2002) (statement of Sen. Feingold) (BCRA’s expedited judicial review rules will 

“assist [in] an orderly transition from the old system to the new system” of campaign finance 

through a “prompt and efficient resolution of the litigation”); 147 Cong. Rec. S3189 (Apr. 2, 

2001) (statement of Sen. Hatch) (BCRA “supporters and opponents alike[] stand to gain by a 

prompt and definite determination of the constitutionality of many of the bill’s controversial 

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provisions”; “it is imperative that we afford the Supreme Court the opportunity to pass on the 

constitutionality of this legislation as soon as possible”). 

Plaintiffs specifically allege that they wish to engage in eight different transactions 

encompassing five different types of activities: contributing to four federal candidates 

(Representative Inslee, Senator Coburn, President Obama, and President Obama’s eventual 

opponent in the 2012 general election), contributing to a national political party committee (the 

National Republican Senatorial Committee), donating to a political committee that independently 

advocates for candidates (Club for Growth),1

 contributing to a state candidate (New York State 

Senator Diane Savino), and making independent expenditures on behalf of a candidate (printing 

and distributing flyers on behalf of President Obama). (Compl. ¶¶ 13, 18.) Plaintiffs anticipate 

wanting to make “similar contributions and expenditures” in other years. (Compl. ¶¶ 14, 19.)

 Plaintiffs allege that applying the foreign national prohibition and the Commission’s 

implementing regulations, 11 C.F.R. 110.20, to their intended future activities would violate their 

First Amendment rights. The foreign national prohibition, now codified at 2 U.S.C. § 441e, was 

initially enacted by Congress in 1966 as an amendment to the Foreign Agents Registration Act of 

1938 (“FARA”), 80 Stat. 244 (1966). In 1976 Congress deleted the foreign national prohibition 

from the FARA and reenacted it as part of FECA. 90 Stat. 486, 493, 496 (1976). Until it was 

amended by BCRA in 2002, subsection (a) of the foreign national prohibition provided that 

It shall be unlawful for a foreign national directly or through any other person to 

make any contribution of money or other thing of value, or to promise expressly 

 

1

 FECA defines a “political committee” as “any committee, club, association, or other 

group of persons which receives contributions aggregating in excess of $1,000 during a calendar 

year or which makes expenditures aggregating in excess of $1,000 during a calendar year.” 

2 U.S.C. § 431(4)(A). Any organization that qualifies as a political committee must register with 

the Commission and file periodic reports for disclosure to the public of all receipts and 

disbursements to or from a person in excess of $200 in a calendar year (and in some instances, of 

any amount). See 2 U.S.C. §§ 433-34. 

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or impliedly to make any such contribution, 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 political office . . . . 

2 U.S.C. § 441e(a) (2001). In 2002, BCRA § 303, 116 Stat. 96, amended the foreign national 

prohibition. In relevant part, BCRA § 303 struck the then-existing foreign national prohibition 

and replaced it with current subsection (a)(1): 

It shall be unlawful for . . . a foreign national, directly or indirectly, 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) (2010).2

 

ARGUMENT 

I. A THREE-JUDGE COURT WOULD HAVE NO AUTHORITY TO 

ADJUDICATE PLAINTIFFS’ CLAIMS REGARDING THE 

CONSTITUTIONALITY OF FECA AND THEREFORE COULD NOT 

REDRESS PLAINTIFFS’ ALLEGED INJURIES 

The Supreme Court’s decision in McConnell forecloses plaintiffs’ request for a threejudge court under BCRA § 403. In McConnell, a set of plaintiffs challenged BCRA § 307, 

which increased and indexed for inflation certain FECA contribution limits; those plaintiffs 

alleged that the contribution limits violated the Freedom of the Press Clause of the First 

Amendment. On direct appeal from a three-judge court, the Supreme Court observed that BCRA 

§ 307 “merely increased and indexed for inflation certain FECA contribution limits.” McConnell, 

 

2

 Both before and after BCRA amended section 441e, the foreign national prohibition has 

not applied to United States citizens or to those lawfully admitted for permanent residence. 

2 U.S.C. § 441e(b). 

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Case 1:10-cv-01766-RMU Document 10 Filed 11/05/10 Page 4 of 11
540 U.S. at 229.3

 The Court also explained that it had “no power to adjudicate” a challenge to 

FECA’s contribution limits because challenges to FECA were not subject to review in a threejudge district court or on direct appeal to the Supreme Court pursuant to BCRA § 403. Id. The 

Court thus held that it could not redress plaintiffs’ alleged injuries even if it were to rule on the 

amendments BCRA § 307 made to the pre-existing contribution limits. “[I]f the Court were to 

strike down the increases and indexes established by BCRA § 307,” the Court reasoned, it would 

not remedy the plaintiffs’ alleged injury because the limits imposed by FECA “would remain 

unchanged.” Id. “A ruling in the . . . plaintiffs’ favor, therefore, would not redress their alleged 

injury, and they accordingly lack standing.” Id. 

 For the same reasons, any three-judge court convened here could not redress plaintiffs’ 

alleged injuries: Such a court would have no authority to address FECA’s pre-BCRA 

prohibitions on foreign nationals’ activity. Thus, even if 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, plaintiffs’ alleged injuries would not be redressed, and 

plaintiffs therefore would lack standing. 

Pre-BCRA § 441e, among other things, barred plaintiffs from making contributions to all 

their intended recipients: federal and state candidates, the federal (or “hard-money”) account of 

national political party committees, and political committees that independently advocate for 

candidates. Pre-BCRA § 441e prohibited contributions by foreign nationals “in connection with 

an election to any political office.” 2 U.S.C. § 441e(a) (2001). BCRA clarified and strengthened 

 

3

 For example, BCRA § 307 increased the limits on contributions from individuals to 

candidates from $1,000 to $2,000, and increased by $5,000 the amount individuals could 

contribute to a national party committee. BCRA § 307 also indexed most of FECA’s 

contributions limits to the consumer price index. See McConnell, 251 F. Supp. 2d 176, 219-20 

(D.D.C. 2003) (per curiam opinion for Kollar-Kotelly, J. and Leon, J.). 

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section 441e by making it explicit that the ban reached the “soft money” accounts of the political 

parties and adding additional banned activities such as making disbursements for electioneering 

communications. With respect to all of the plaintiffs’ proposed activities, however, those 

activities would have fallen within FECA’s pre-existing prohibitions, and BCRA merely 

enumerated the contributions and indirect assistance that were activities “in connection with an 

election to any political office” and eliminated the redundant listing of “primary election, 

convention, or caucus.” See 2 U.S.C. § 441e(a) (2001). “Under established canons of statutory 

construction, it will not be inferred that Congress, in revising and consolidating the laws, 

intended to change their effect unless such intention is clearly expressed.” Finley v. United 

States, 490 U.S. 545, 554 (1989) (internal quotation marks omitted). 

In the years before the enactment of BCRA in 2002, the Commission — and on occasion 

the courts when called upon — repeatedly interpreted section 441e to prohibit the various types 

of activities in which plaintiffs wish to engage. The Commission interpreted section 441e to 

prohibit contributions from foreign nationals to candidates. See, e.g., FEC Advisory Op. 

1998-14, 1998 WL 493079 (concluding that committee of United States Senate candidate may 

not accept contributions from foreign nationals residing in certain Pacific island territories). The 

Commission has also “consistently interpreted § 441e as applicable to federal, state, and local 

elections since 1976.” United States v. Kanchanalak, 192 F.3d 1037, 1049 (D.C. Cir. 1999); see

also FEC Advisory Op. 1999-37, 1998 WL 493079 (“Unlike most of the other provisions of the 

Act, section 441e applies to any election for any political office, including state and local 

offices.”). Accordingly, pre-BCRA § 441e would have prohibited foreign national contributions 

to state candidates and federal candidates, and would have barred plaintiffs’ planned 

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Case 1:10-cv-01766-RMU Document 10 Filed 11/05/10 Page 6 of 11
contributions to Representative Inslee, Senator Coburn, President Obama and his opponent in 

2012, as well as New York State Senator Diane Savino. 

The pre-BCRA foreign national prohibition also proscribed contributions to political 

committees and the federal accounts of political party committees. See, e.g., FEC Advisory Op. 

2000-20, 2000 WL 1358629 (stating that non-connected political committees may not solicit 

contributions from foreign nationals); FEC Advisory Op. 1999-37, 2000 WL 180366 (same); 

FEC Advisory Op. 1995-09, 1995 WL 247474 (advising that political committee’s website 

should explicitly state that it could not accept contributions from foreign nationals); United 

States v. Trie, 23 F. Supp. 2d 55, 59-61 (D.D.C. 1998) (holding that section 441e would apply to 

allegations that defendant foreign national had made “hard money” contributions to the 

Democratic National Committee).4

 Plaintiff Steiman’s planned contributions to the National 

Republican Senatorial Committee and the Club for Growth would have thus been unlawful 

before BCRA amended section 441e.5

 

4

 BCRA arguably altered existing law by making clear that “donations” to the non-federal 

or “soft money” accounts of state or local political party committees were unlawful. Campaign 

Finance Reform: Hearing Before the Comm. on House Admin., 107th Cong. (May 1, 2001) 

(testimony of Rep. Christopher Shays), at http://frwebgate.access.gpo.gov/cgibin/getdoc.cgi?dbname=107_house_hearings&docid=f:87390.wais.pdf at 32; see also id. at 2001 

WL 499463 (prepared statement of Reps. Christopher Shays and Marty Meehan) (noting that 

“the 1974 Federal Election Campaign Act . . . made it illegal for foreign nationals to contribute 

to any political campaign” but that soft money provided by “corporations, labor unions, and even 

foreign governments” have been used to finance campaign advertising). After BCRA, national 

political parties, such as the National Republican Senatorial Committee, cannot accept nonfederal funds from any source, BCRA § 101, 116 Stat. at 82 — a restriction upheld in 

McConnell, 540 U.S. at 134-61. Thus, Steiman’s planned contribution would be a hard-money 

contribution to the NRSC. 

5

 Entities operating under the Club for Growth umbrella include a corporation organized 

under section 501(c)(4) of the Internal Revenue Code; a “political organization” under section 

527 of the Internal Revenue Code; and Club for Growth PAC, a political committee that is 

registered with and reports to the Commission under FECA. See Steve Weissman & Suraj 

Sazawal, Soft Money Political Spending by 501(c) Nonprofits Tripled in 2008 Election, 

Campaign Finance Institute, Tables 1-2 (Feb. 25, 2009), 

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Plaintiff Bluman’s proposed expenditures would also have been unlawful before BCRA. 

He alleges that he seeks to print and distribute flyers in Central Park supporting the reelection of 

President Obama. But since 1990, the Commission’s regulations have specified that foreign 

nationals could not make expenditures of any kind. 11 C.F.R. § 110.4(a) (2001); FEC, 

Contributions and Expenditures; Prohibited Contributions, 54 Fed. Reg. 48580-81 (Nov. 24, 

1989). 6

 The pre-BCRA regulation provided that “a foreign national shall not . . . make a 

contribution, or an expenditure.”7

 11 C.F.R. § 110.4(a) (2001). 

 In sum, if a three-judge court were to strike down BCRA § 303 pursuant to its limited 

grant of authority, pre-BCRA FECA would still proscribe all of plaintiffs’ intended activities. 

There is thus no reason for this Court to approve a three-judge court because it would not be able 

to redress plaintiffs’ alleged injuries. McConnell, 540 U.S. at 229.8 Ordinary judicial review 

would also be “consonant with the overriding policy . . . of minimizing the mandatory docket of 

 

http://moneyline.cq.com/flatfiles/editorialFiles/moneyLine/reference/20090225cfi.pdf (referring 

to spending by Club for Growth’s 501(c)(4) and 527 and to the existence of its PAC). It is thus 

not entirely clear to which Club for Growth organization plaintiff Steiman plans to contribute 

$100. Because plaintiffs allege that they will “donate to independent political committees” 

(Compl. ¶ 2), and “political committee” is a term of art under FECA, see supra p.3 n.1, however, 

it appears that plaintiff Steiman wishes to make a contribution to Club for Growth PAC. 

6

 After BCRA amended section 441e, the Commission’s foreign national prohibition was 

amended and moved from 11 C.F.R. § 110.4(a) to 11 C.F.R. § 110.20. FEC, Contribution 

Limitations and Prohibitions, 67 Fed. Reg. 69928 (Nov. 19, 2002). 

7

 Although BCRA § 303 clarified that disbursements by foreign nationals for 

“electioneering communication[s]” were also prohibited, plaintiff Bluman’s proposed spending 

on printed material to advocate the reelection of President Obama would not fall within the 

definition of “electioneering communication,” which applies only to television and radio 

communications. See 2 U.S.C. § 434(f)(3)(A). Thus, this BCRA amendment is inapplicable 

here. 

8

 Persons may bring constitutional challenges to FECA through ordinary district court 

review or, as the Court noted in McConnell, 540 U.S. at 229, certain types of plaintiffs may elect 

to seek review before the en banc court of appeals under 2 U.S.C. § 437h. Plaintiffs here are not 

eligible to elect section 437h as that provision may be invoked only by the Commission, national 

party committees, or eligible United States voters. 2 U.S.C. § 437h. 

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[the Supreme] Court in the interests of sound judicial administration.” Gonzalez v. Automatic 

Employees Credit Union, 419 U.S. 90, 98 (1974); see also Goldstein v. Cox, 396 U.S. 471, 478 

(1970) (“This Court has more than once stated that its jurisdiction under the Three-Judge Court 

Act is to be narrowly construed since any loose construction of the requirements of [the Act] 

would defeat the purposes of Congress . . . to keep within narrow confines our appellate 

docket.”) (internal quotation marks omitted). 

II. A THREE-JUDGE COURT WOULD HAVE NO AUTHORITY TO 

ADJUDICATE PLAINTIFFS’ CLAIMS REGARDING THE 

CONSTITUTIONALITY OF THE COMMISSION’S REGULATIONS

A three-judge court convened under BCRA § 403 would have no authority to adjudicate 

plaintiffs’ claims regarding the Commission’s regulations. The plain language of that provision 

provides jurisdiction to a three-judge court to decide only constitutional challenges to the statute 

itself. BCRA § 403(a) (“If any action is brought for declaratory or injunctive relief to challenge 

the constitutionality of any provision of this Act or any amendment made by this Act . . .”). 

Moreover, in another portion of McConnell, certain plaintiffs challenged BCRA § 214, which 

directed the Commission to promulgate certain regulations. 251 F. Supp. 2d at 186, 261-64. 

After briefing was completed and the three-judge court convened under BCRA § 403 heard 

argument, the Commission promulgated regulations implementing section 214. Id. at 261. The 

three-judge court held that because the recently promulgated regulations “affected the contours 

of the dispute between the parties,” the claims regarding this provision of BCRA were not ripe 

for review. Id. at 239 n.72, 261-64. The court went on to explain that the proper venue to 

challenge the new regulations would be in a single-judge court under the Administrative 

Procedure Act, rather than in a three-judge court under BCRA § 403. Id. at 262. 

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When this issue reached the Supreme Court, the Court affirmed the district court’s 

reasoning: “As the District Court explained, issues concerning the regulations are not 

appropriately raised in this facial challenge to BCRA, but must be pursued in a separate 

proceeding.” 540 U.S. at 223. Because a three-judge court here would “lack[] the jurisdiction to 

rule on the regulations,” 251 F. Supp. 2d at 264, this Court should reject plaintiffs’ application to 

the extent it asks for claims regarding the Commission’s regulations to be referred to such court. 

III. THE COURT SHOULD DENY PLAINTIFFS’ APPLICATION BECAUSE THEY 

VIOLATED LOCAL RULE 7(m) BY FAILING TO CONFER WITH THE 

DEFENDANT BEFORE FILING THEIR NONDISPOSITIVE MOTION

Local Rule 7(m) requires counsel for a moving party to confer with opposing counsel 

before filing a nondispositive motion. Plaintiffs’ counsel here did not confer with counsel for the 

Commission before requesting a three-judge court. “If a party files a nondispositive motion 

without certifying its compliance with Rule 7(m), the motion will be denied.” Ellipso, Inc. v. 

Mann, 460 F. Supp. 2d 99, 102 (D.D.C. 2006). Plaintiffs’ application should thus be denied. 

For the foregoing reasons, defendant Federal Election Commission respectfully asks this 

Court to deny plaintiffs’ application and decline to convene a three-judge court pursuant to 

BCRA § 403. 

 Respectfully submitted, 

Phillip Christopher Hughey 

Acting General Counsel 

chughey@fec.gov 

 

David Kolker 

Associate General Counsel 

dkolker@fec.gov 

 

Kevin Deeley 

Assistant General Counsel 

kdeeley@fec.gov 

10 

Case 1:10-cv-01766-RMU Document 10 Filed 11/05/10 Page 10 of 11
11 

/s/ Steve N. Hajjar

Steve N. Hajjar 

Attorney 

shajjar@fec.gov 

 Adav Noti 

 Attorney 

 anoti@fec.gov 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

 Washington, DC 20463 

November 5, 2010 (202) 694-1650 

Case 1:10-cv-01766-RMU Document 10 Filed 11/05/10 Page 11 of 11
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

____________________________________ 

 ) 

BENJAMIN BLUMAN, ET AL., ) 

 ) 

 Plaintiffs, ) Civ. No. 10-1766 (RMU) 

 ) 

 v. ) 

 ) PROPOSED ORDER 

FEDERAL ELECTION COMMISSION, ) 

) 

 Defendant. ) 

____________________________________) 

PROPOSED ORDER 

 The Court, upon consideration of the submissions of the parties, hereby 

ORDERS that Plaintiffs’ Application for Three-Judge Court is DENIED. 

IT IS SO ORDERED. 

Dated: ________________ _______________________ 

 RICARDO M. URBINA 

 United States District Judge 

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