United States District Court

District of Columbia

Shaun McCutcheon et al.,

Plaintiffs

v.

Federal Election Commission,

Defendant

Civil Case No. 1:12-cv-01034-JEB 

 THREE-JUDGE COURT REQUESTED

Application for Three-Judge Court Or,

Alternatively, Certification Under 2 U.S.C. § 437h,

and Memorandum in Support

Plaintiffs move for the convening of a three-judge court to adjudicate this challenge, pursuant to § 403(a)(1) and (d)(2) of the Bipartisan Campaign Reform Act of 2002 (“BCRA”). Pub. L.

No. 107-155 (2002), 116 Stat. 81, 113-14. See LCvR 9.1; 28 U.S.C. § 2284. BCRA § 403 is set

out below. See infra note 1.

Alternatively, if this Court finds it lacks jurisdiction under BCRA § 403, Plaintiffs invoke

the judicial-review provision at 2 U.S.C. § 437h and request the Court to “immediately . . . certify all questions of constitutionality of [the Federal Election Campaign Act (“FECA”)] to the

United States court of appeals . . . , which shall hear the matter sitting en banc.”

Points and Authorities

I. The BCRA Judicial-Review Provisions Apply.

A. Plaintiffs Meet the Criteria for Judicial Review under BCRA § 403.

Pursuant to BCRA § 403(d)(2), Plaintiffs elect to have the provisions of § 403(a) apply to

this case. 116 Stat. at 113-14. BCRA § 403(a) provides that a constitutional challenge to any

Application for Three-Judge Court

Or for Certification 1

Case 1:12-cv-01034-JEB Document 3 Filed 06/22/12 Page 1 of 19
BCRA provision shall be filed in this Court, and “shall be heard by a 3-judge court convened

pursuant to section 2284 of title 28, United States Code.” 116 Stat. at 113-14. The referenced

1

statute, section 2284(a), says that “[a] district court of three judges shall be convened when otherwise required by Act of Congress.” Section 2284(b)(1) states: 

[T]he judge to whom the request is presented shall, unless he determines that three judges

are not required, immediately notify the chief judge of the circuit, who shall designate two

other judges, at least one of whom shall be a circuit judge. The judges so designated, and

the judge to whom the request was presented, shall serve as members of the court to hear

and determine the action or proceeding.

 In relevant part, BCRA § 403, 116 Stat. at 113-14, provides as follows: 1

SEC. 403. JUDICIAL REVIEW.

(a) SPECIAL RULES FOR ACTIONS BROUGHT ON CONSTITUTIONAL

GROUNDS.—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, the

following rules shall apply:

(1) The 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 section 2284 of

title 28, United States Code.

(2) A copy of the complaint shall be delivered promptly to the Clerk of the House

of Representatives and the Secretary of the Senate.

(3) A final decision in the action shall be reviewable only by appeal directly to the

Supreme Court of the United States. Such appeal shall be taken by the filing of a notice

of appeal within 10 days, and the filing of a jurisdictional statement within 30 days, of

the entry of the final decision.

(4) It shall be the duty of the United States District Court for the District of Columbia and the Supreme Court of the United States to advance on the docket and to

expedite to the greatest possible extent the disposition of the action and appeal.

(b) . . . .

(c) . . . .

(d) APPLICABILITY.—

(1) INITIAL CLAIMS.— . . . .

(2) SUBSEQUENT ACTIONS.—With respect to any action initially filed after

December 31, 2006, the provisions of subsection (a) shall not apply to any action

described in such section unless the person filing such action elects such provisions to

apply to the action.

Application for Three-Judge Court

Or for Certification 2

Case 1:12-cv-01034-JEB Document 3 Filed 06/22/12 Page 2 of 19
BCRA § 403(a) permits plaintiffs to elect its special judicial-review provision in any “challenge [to] the constitutionality of any provision of [BCRA] or any amendment made by

[BCRA].” 116 Stat. 113-14 (emphasis added). The criteria here are (1) a constitutional challenge

to (2) a BCRA provision or an amendment made by BCRA.

First, regarding the constitutional-challenge criterion, Plaintiffs’ challenge to the individual

biennial contribution limits, codified at 2 U.S.C. § 441a(a)(3), is based on a violation of the First

Amendment. So this criterion is met.

Second, regarding the BCRA provision/amendment criterion, the challenged current biennial

contribution limits statute (2 U.S.C. § 441a(a)(3)) is entirely a BCRA “provision,” though it is

part of BCRA § 307 which also made “amendments.” BCRA § 307 contained some “amendments” that merely raised contribution limits, such as the increase in the amount that a person

could contribute to a candidate committee from $1,000 to $2,000, see infra (setting out relevant 2

portion of § 307), but the change to the prior individual biennial contribution limit went beyond

merely altering the numbers (or indexing some for inflation, as BCRA § 307 also did). The nature of the significant change may be seen by comparing the before and after provisions codified

at 2 U.S.C. § 441a(a)(3).

 Regarding terminology, Plaintiffs follow the FEC’s use of “candidate committee,” “na- 2

tional party committee,” and “political action committee” (“PAC”). See FEC, The Biennial Contribution Limit (revised 2011). “Candidate committee” includes “candidate” because candidates

(except for Vice President) must designate a principal campaign committee (and may designate

additional authorized political committees), 11 C.F.R. 101.1(a)-(b), and receive any contributions

as agents of their authorized committee(s), 11 C.F.R. 101.2. The cited brochure uses “state, local

& district party committee,” but “state party committee” will be used here to include local and

district party committees, unless context contraindicates, because all share a $10,000 per calendar

year combined limit. Plaintiffs do not follow the FEC’s use of “biennial contribution limit” to

refer to all limits at 2 U.S.C. 441a(a)(3) because the statute contains multiple limits.

Application for Three-Judge Court

Or for Certification 3

Case 1:12-cv-01034-JEB Document 3 Filed 06/22/12 Page 3 of 19
Before BCRA, the FECA individual-contribution-limit provision at 2 U.S.C. § 441a(a)(3)

read as follows:

No individual shall make contributions aggregating more than $25,000 in any calendar

year. For purposes of this paragraph, any contribution made to a candidate in a year other

than the calendar year in which the election is held with respect to which such contribution

is made, is considered to be made during the calendar year in which such election is held. 

See, e.g., Buckley v. Valeo, 424 U.S. 1, 189 (1976) (per curiam) (Appendix setting out statute). This

biennial limit was not in the original Federal Election Campaign Act of 1971 (“FECA”), but was first

added as part of § 101 of the FECA Amendments of 1974, Pub. L. 93-433 (1974), 88 Stat. 1263.

In BCRA, Congress adjusted some contribution limits, see, e.g., BCRA § 307(a), infra, but it

broke the old biennial aggregate limit on individual’s contributions into three limits, with (1) one

limit for contributions to candidate committees, (2) another limit on contributions to non-candidate

committees (i.e., national party committees, state party committees, and PACs), and (3) another, a

sub-limit, on non-candidate, non-national party committees (i.e., state party committees and

PACs)—with the first limit independent of the other two and the latter two interdependent. BCRA

§ 307 is as follows:

SEC. 307. MODIFICATION OF CONTRIBUTION LIMITS.

(a)INCREASE IN INDIVIDUAL LIMITS FOR CERTAIN CONTRIBUTIONS.—Section 315(a)(1)

of the Federal Election Campaign Act of 1971 (2 U.S.C. 441a(a)(1)) is amended—

(1) in subparagraph (A), by striking “$1,000” and inserting “$2,000”; and

(2) in subparagraph (B), by striking “$20,000” and inserting “$25,000”.

(b) INCREASE IN ANNUAL AGGREGATE LIMIT ON INDIVIDUAL CONTRIBUTIONS.—Section 315(a)(3) of the Federal Election Campaign Act of 1971 (2 U.S.C.

441a(a)(3)) is amended to read as follows:

“(3) During the period which begins on January 1 of an odd-numbered year and ends

on December 31 of the next even-numbered year, no individual may make contributions

aggregating more than—

“(A) $37,500, in the case of contributions to candidates and the authorized committees of candidates;

“(B) $57,500, in the case of any other contributions, of which not more than

$37,500 may be attributable to contributions to political committees which are not

political committees of national political parties.”.

Application for Three-Judge Court

Or for Certification 4

Case 1:12-cv-01034-JEB Document 3 Filed 06/22/12 Page 4 of 19
BCRA § 307(a)-(b), 116 Stat. 102-03. The change here in BCRA § 307(a) is an example of a

mere amendment in the amount of a limit. But the change in BCRA § 307(b) is an amendment

that repeals and replaces an old provision with a new provision, with multiple limits and altered

operation with constitutional significance for the present challenge.3

Therefore, while BCRA speaks of § 307(b) as “amend[ing]” the prior provision, it is properly considered a new provision, not a mere change in the amount of a contribution limit. As such

it is a “provision of [BCRA],” subject to the election by Plaintiffs of the special judicial-review

provisions at BCRA § 403. 116 Stat. 113-14 (emphasis added). But even if considered “an

amendment made by [BCRA],” BCRA § 403 provides for its judicial-review provisions to apply

to a constitutional challenge to “an amendment.” Id.

BCRA § 307(b) was not challenged in McConnell v. FEC, 540 U.S. 93 (2003), and has yet

to be considered by any court. Thus, the reasons that Congress had for providing special judicialreview provisions for BCRA provisions and amendments apply fully to this challenge to BCRA

§ 307(b). Moreover, while Buckley rejected a facial constitutional challenge to the now-repealed

4

 BCRA § 307 (in relevant part) is codified at 2 U.S.C. 441a(a)(3) as follows (2011-12, 3

inflation-adjusted amounts in brackets):

(3) During the period which begins on January 1 of an odd-numbered year and ends on

December 31 of the next even-numbered year, no individual may make contributions

aggregating more than—

(A) $37,500 [$46,200], in the case of contributions to candidates and the authorized

committees of candidates;

(B) $57,500 [$70,800], in the case of any other contributions, of which not more than

$37,500 [$46,200] may be attributable to contributions to political committees which are

not political committees of national political parties.

Buckley’s holding does not control here because: (a) that ceiling’s statutory context has 4

been materially altered, (b) that ceiling was repealed and replaced by BCRA’s multiple biennial

contribution limits, see 2 U.S.C. § 441a(a)(3); (c) Buckley was a facial holding (so inapplicable

to as-applied challenges); and (d) Buckley did not even suggest that contributions to candidate

committees could pose a circumvention concern (so a biennial limit based on contributions to

candidates, as in 2 U.S.C. 441a(a)(3)(A), has never been considered by any court). These arguApplication for Three-Judge Court

Or for Certification 5

Case 1:12-cv-01034-JEB Document 3 Filed 06/22/12 Page 5 of 19
“overall $25,000 ceiling” on total contributions under the FECA judicial-review provision at 2

U.S.C. § 437h, see id. at 38, that was because the old overall ceiling was a FECA provision,

while BCRA § 307(b) is a BCRA provision.

B. Judicial Review of BCRA Differs From Judicial Review of FECA.

As noted above, BCRA § 403 authorizes a three-judge court to adjudicate constitutional

challenges to “any provision of [BCRA] or any amendment made by [BCRA].” Such three-judge

courts do not have authority to review provisions of FECA. McConnell, 540 U.S. at 229. Rather,

actions challenging the constitutionality of FECA are subject to direct review before the appropriate court of appeals sitting en banc. Id.; 2 U.S.C. § 437h. Because three-judge BCRA courts

have no authority over FECA, a plaintiff challenging a BCRA provision must have an injury

redressable by a ruling with respect to BCRA, not one requiring a ruling with respect to a FECA

provision. McConnell, 540 U.S. at 229. BCRA § 307(b), codified at 2 U.S.C. § 441a(a)(3), is just

such a provision.

B. Plaintiffs Have Standing Because a Three-Judge Court Can Fully Redress Their Injuries with a Favorable Ruling with Respect to BCRA Alone. 

FECA does not cause or contribute to Plaintiffs’ injuries because the original aggregate limit

contained in FECA no longer exists, having been wholly repealed and replaced by BCRA

§ 307(b). A three-judge court may redress Plaintiffs’ injuries by invalidating 2 U.S.C.

§ 441a(a)(3), a BCRA provision, as applied and facially, without reviewing any FECA provision.

Consequently, Plaintiffs have standing to assert their claim before a three-judge court convened

pursuant to BCRA § 403.

ments are developed in the Memorandum in Support of Preliminary Injunction.

Application for Three-Judge Court

Or for Certification 6

Case 1:12-cv-01034-JEB Document 3 Filed 06/22/12 Page 6 of 19
C. Plaintiffs Have Standing Under Bluman v. FEC.

The recent decision by this Court in Bluman v. FEC, 766 F. Supp. 2d 1, 4 (D.D.C. Jan. 7,

2011) (mem. op.), granting a request for a three-judge court in a case presenting a challenge to a

different BCRA provision, directly supports Plaintiffs’ standing to assert their claim before a

three-judge court.

The plaintiffs in Bluman were foreign nationals, lawfully present in the U.S., who challenged

BCRA § 303, which prohibits contributions and expenditures by foreign nationals. 766 F. Supp.

2d at 1. While the prohibition on contributions from foreign nationals had been extant in FECA

since 1976, “[i]n 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).” Id. at 2. Based on this statutory history, the FEC opposed the plaintiffs’ application for a three-judge court, arguing that a three-judge court would “lack[] ‘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 3 (citation omitted). The FEC contended that even if

the court ruled in favor of plaintiffs on 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 plaintiffs therefore would lack standing.” Id. at 3 (quoting FEC opposition

memorandum). The FEC lost, the district court reasoning that

if a three-judge court were to strike down § 303 as unconstitutional, then no other law . . .

would prohibit the plaintiffs from engaging in their desired conduct. . . . [T]he pre-BCRA

provision barring foreign nationals from making political contributions is no longer in

effect, having been entirely replaced by 303 of the BCRA. 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, they have the requisite standing and are entitled

Application for Three-Judge Court

Or for Certification 7

Case 1:12-cv-01034-JEB Document 3 Filed 06/22/12 Page 7 of 19
to a three-judge court to review their constitutional challenge to BCRA 303.

Id. at 4 (emphasis in original). 

The district court’s holding in Bluman applies directly to the case at bar. As in Bluman,

Plaintiffs challenge a BCRA provision that repealed and replaced a FECA provision governing

the subject matter at issue. The BCRA provision challenged in Bluman contained a ban on contributions from foreign nationals that had been included in FECA since 1976. Id. at 2. While FECA

did not include (prior to BCRA’s enactment) the stand-alone limits on contributions to candidate

committees and non-candidates, the latter with a sub-limit, candidate contributions were counted

for purposes of FECA’s undifferentiated aggregate limit, and one could have challenged the inclusion of candidate contributions in this calculation on the same grounds urged by Plaintiff

McCutcheon, just as one could have challenged the foreign national contribution ban in FECA

before it was replaced with a similar provision by BCRA. However, the “fact that the plaintiff’s

proposed activities”—here, contributing to candidate committees and national party committees

without restriction by the biennial contribution limits—“were banned before the BCRA’s enactment” does not “impact the plaintiff’s entitlement to a three-judge court.” Id. at 4. Rather, because Plaintiffs’ requested relief (invalidation of the biennial contribution limits as applied and

facially) would remedy their alleged injury in fact, they have the requisite standing and are entitled to a three-judge court, just as were the plaintiffs in Bluman. See id.

D. The cases rejecting applications for three-judge courts are distinguishable.

a. McConnell Is Distinguishable.

In Bluman, the FEC opposed the request for a three-judge court, seeking refuge in

McConnell, 540 U.S. 93. The Bluman district court found McConnell readily distinguishable for

reasons that apply equally in the case at bar.

Application for Three-Judge Court

Or for Certification 8

Case 1:12-cv-01034-JEB Document 3 Filed 06/22/12 Page 8 of 19
In McConnell, a three-judge court had been convened under BCRA § 403(a) to address a

challenge to BCRA § 307 for increasing certain contribution limits and indexing them for inflation. 540 U.S. at 226. The claims of two groups of plaintiffs—the “Adams plaintiffs” and the

“[Ron] Paul plaintiffs”—to BCRA § 307 had been dismissed by the three-judge court below because they lacked standing. See id. at 229. The Paul plaintiffs’ challenge is relevant here.

The Paul plaintiffs asserted a First Amendment “Freedom of Press Clause” violation because

they were subject to contribution limits but the institutional media were not, and, they claimed,

“their political campaigns and public interest advocacy involve[d] traditional press activities and

that, therefore, they [we]re protected by [the free-press right].” Id. at 228. The reason the Court

found that the Paul plaintiffs lacked standing was that Congress had merely increased the limits

they challenged in BCRA § 307 and left the media-exemption provisions in place, so that if they

succeeded in striking the BCRA limits “both the limitations imposed by FECA and the exemption for news media would remain unchanged.” Id. at 229. Thus, a victory would not redress 5

 BCRA § 401 provides that “[i]f any provision . . . or amendment made by [BCRA], or the 5

application of a provision or amendment to any person or circumstances, is held to be unconstitutional, the remainder . . . shall not be affected . . . .” 116 Stat. 112. So one reading of McConnell

here is that, if there is an existing FECA statute for which the amount of a contribution limit has

been altered by BCRA, if the raised (and inflation-indexed) limit is held unconstitutional, the

existing FECA statute would remain unaltered. It is not necessary to decide this question because

in McConnell the press-exemption was extant (and in multiple provisions) so that the relief

sought would not redress the plaintiffs’ alleged injury. At this time, Plaintiffs express no opinion

on whether, or in what circumstances, judicial invalidation of a BCRA provision would resurrect

the preexisting FECA provision or, instead, would render the code provision “a legal nullity in all

its iterations, as assumed by the Bluman court. See Bluman, 766 F. Supp. 2d at 4. Nevertheless,

McConnell does not support the view that, where a BCRA provision has entirely replaced the

preexisting FECA provision on the subject, invalidation of the provision would resurrect the

FECA language. The amendments at issue in McConnell (BCRA § 307(a)) merely substituted the

numbers extant in FECA with higher numbers. 540 U.S. at 226. Such question is irrelevant to

Plaintiffs’ challenge here because, as stated, their injuries can be remedied by striking a subsection of the amendment and leaving the rest of BCRA § 307 in force.

Application for Three-Judge Court

Or for Certification 9

Case 1:12-cv-01034-JEB Document 3 Filed 06/22/12 Page 9 of 19
their complaint. Id. So “although the Court ha[d] jurisdiction to hear a challenge to § 307,” id.

(emphasis added), the Paul plaintiffs lacked standing to challenge the increase in, and inflationindexing of, contribution limits in BCRA, as they had done. Without Article III standing, there

was no more the Court could do, and it dismissed the challenge. Id.

As part of its analysis, the McConnell Court indicated that any challenge to the FECA provisions (which it said would apply if the BCRA changed limits were held unconstitutional) would

have to be brought under the judicial-review provisions of FECA, not BCRA: 

The Paul plaintiffs cannot show the “‘substantial likelihood’ that the requested relief will

remedy [their] alleged injury in fact,” [Vermont Agency of Natural Resources v. United

States ex rel.] Stevens, 529 U.S. [765,] 771 [(2000)]. The relief the Paul plaintiffs seek is

for this Court to strike down the contribution limits, removing the alleged disparate editorial controls and economic burdens imposed on them. But § 307 merely increased and

indexed for inflation certain FECA contribution limits. This Court has no power to adjudicate a challenge to the FECA limits in this case because challenges to the constitutionality

of FECA provisions are subject to direct review before an appropriate en banc court of

appeals, as provided in 2 USC § 437h, not in the three-judge District Court convened

pursuant to BCRA § 403(a). Although the Court has jurisdiction to hear a challenge to

§ 307, if the Court were to strike down the increases and indexes established by BCRA

§ 307, it would not remedy the Paul plaintiffs’ alleged injury because both the limitations

imposed by FECA and the exemption for news media would remain unchanged. A ruling

in the Paul plaintiffs’ favor, therefore, would not redress their alleged injury, and they

accordingly lack standing. See Steel Co. v. Citizens for Better Environment, 523 U.S. 83,

105-110 (1998). 

Id. (emphasis added).

The McConnell Court did not say that if BCRA “merely increased . . . FECA contribution

limits,” id., then a BCRA amendment was not really a BCRA amendment that could be reviewed

by a three-judge court. This is clear because the Court clearly said that “the Court has jurisdiction [on appeal under the BCRA judicial-review provision] to hear a challenge to § 307,” id.

(emphasis added), which section was about raising and inflation-adjusting contribution limits.

And it is also clear from BCRA § 403 itself, which provides the BCRA judicial-review provision

Application for Three-Judge Court

Or for Certification 10

Case 1:12-cv-01034-JEB Document 3 Filed 06/22/12 Page 10 of 19
for a “challenge [to] the constitutionality of . . . any amendment made by [BCRA].” 116 Stat.

113-14 (emphasis added). Thus, saying that BCRA “amendments” to FECA are not “amendments” reviewable under BCRA § 403 would be contrary to the plain statutory words.

So what the Court meant (and what it said, 540 U.S. at 229) was that, since striking the

BCRA contribution limits would leave FECA provisions in place, a challenge to the underlying

FECA limits would also be required to redress plaintiffs’ harm, and that could not be done under

BCRA’s judicial-review provisions. Rather, as the Court said, such a FECA challenge would be

brought under FECA’s judicial-review provision at 2 U.S.C. § 437h.

Thus, for plaintiffs who have standing (as here) to challenge a provision of BCRA § 307,

BCRA’s judicial-review provision, § 403, is properly employed. Plaintiffs here do not challenge

mere increases in the contribution limits in BCRA § 307 (nor FECA press-exemption provisions). They challenge the limits per se, as applied and facially, i.e., they challenge the very notion that an individual biennial limit is constitutionally justified. If they succeed, their requested

relief will redress their harm. So McConnell’s analysis does not deprive them of standing or

make BCRA’s judicial-review provision inapplicable.

Plaintiffs’ claim here is similar to the McConnell claim in one respect only: the three-judge

district court “has jurisdiction to hear a challenge to § 307.” McConnell, 540 U.S. at 229. Otherwise, it is distinguishable because, “[u]nlike McConnell, if a three-judge court were to strike

down [2 U.S.C. § 441a(a)(3) as applied and facially] . . . then no other [statutory] law . . . would

prohibit the plaintiffs from . . . their desired conduct.” See Bluman, 766 F. Supp. 2d at 4. In other

words, Plaintiffs have standing to assert their claims because “if the court were to strike down”

the biennial contribution limits, as applied and facially, that would redress Plaintiffs’ injury without requiring consideration of the preexisting FECA language. Cf. McConnell, 540 U.S. at 229;

Application for Three-Judge Court

Or for Certification 11

Case 1:12-cv-01034-JEB Document 3 Filed 06/22/12 Page 11 of 19
Schonberg v. FEC, 792 F. Supp. 2d 14, 19 (D.D.C. 2011).

b. Schonberg Is Distinguishable.

Schonberg involved a challenge to BCRA § 301, which “set forth the permissible and impermissible uses of campaign contributions accepted by successful candidates for federal office.”

Schonberg, 792 F. Supp. 2d at 18. BCRA § 301 amended FECA § 313 by striking the FECA language in its entirety and replacing it. However, the new section was “essentially the same” as the

prior FECA language. Id. The court stressed this point in its opinion, noting that the amendment

had merely codified the extant FEC regulations on the use of campaign funds for personal expenses. Id.

The plaintiff, who litigated pro se, was a non-incumbent congressional candidate who

brought constitutional challenges against provisions of FECA and BCRA, alleging facial violations of the Due Process, Equal Protection, Emoluments, Appointments, and Congressional

Compensation Clauses of the U.S. Constitution. Id. at 15-16. The plaintiff’s alleged injury

stemmed from “the purported competitive advantages BCRA and FECA afforded” the incumbent

Congressman who had defeated plaintiff previously and who plaintiff planned to challenge again

in 2012. Id. at 15. While he originally challenged multiple BCRA sections, the plaintiff abandoned all BCRA challenges except to § 301, which he alleged provided incumbents with an unconstitutional advantage in federal elections because they could use certain official perks to the

practical benefit of their reelection campaigns. Id. at 19.

The three-judge panel granted the FEC’s motion to dissolve the three-judge court, holding

that it “lack[ed] jurisdiction to consider Schonberg’s BCRA claim.” Schonberg, 792 F. Supp. 2d

at 14. The panel provided two bases for its decision: that Schonberg failed to state a claim under

BCRA, and that he had “not shown the injuries he alleges . . . would be redressed by a favorable

Application for Three-Judge Court

Or for Certification 12

Case 1:12-cv-01034-JEB Document 3 Filed 06/22/12 Page 12 of 19
decision of this court holding BCRA 301 unconstitutional.” Id. at 19.

The panel’s conclusion that Schonberg’s challenge to BCRA § 301 was not a BCRA claim

“over which this court has jurisdiction under BCRA § 403(a),” misreads the Supreme Court’s

holding in McConnell. The Schonberg panel, as noted above, stated expressly that BCRA § 301

had merely codified the FEC’s extant regulations and was “essentially the same” as the FECA

section it replaced. Id. at 18. Likening this to the amendments considered in McConnell, the

panel concluded that “the change effected by BCRA 301 is not materially greater than that effected by BCRA 307’s raising and indexing the contribution limits at issue in McConnell.” Id. at

19. “Accordingly,” the panel continued, “Schonberg’s claim that BCRA 301 is unconstitutional

is actually a challenge to FECA, which falls outside the jurisdiction of a three-judge district

court. . . .” Id. This conclusion is flawed because the McConnell Court based its referenced holding exclusively on a lack of standing—specifically, lack of redressability. McConnell, 540 U.S. at

229. Contrary to the panel’s reading, McConnell stated expressly that it otherwise had jurisdiction to consider the Paul plaintiffs’ BCRA challenge. Id. (“Although the Court has jurisdiction to

hear a challenge to § 307, if the Court were to strike down the increases and indexes established

by BCRA § 307, it would not remedy the . . . alleged injury because both the limitations imposed

by FECA and the exemption for news media would remain unchanged.” (emphasis added)). The

Schonberg court’s conclusion that it lacked jurisdiction over the BCRA provision at issue is

therefore in direct tension with McConnell. It is also contrary to the language of BCRA itself,

section 403(a) of which provides jurisdiction to adjudicate constitutional challenges to “any provision” of BCRA or “any amendment made by” BCRA, and to this district court’s earlier holding

in Bluman. Even if it were not so, this portion of Schonberg is easily distinguishable from

McCutcheon’s claim because BCRA § 307(b) materially changed the previous aggregate limit.

Application for Three-Judge Court

Or for Certification 13

Case 1:12-cv-01034-JEB Document 3 Filed 06/22/12 Page 13 of 19
That is, unlike in Schonberg, the two provisions are not “essentially the same.” Schonberg, 792

F. Supp. 2d at 18.

Schonberg’s holding with respect to standing is also easily distinguishable. The scope of the

plaintiff’s alleged injury in fact determines what is necessary to redress the injury. See

McConnell, 540 U.S. at 227 (noting that standing “often turns on the nature and source of the

claim asserted”). Schonberg filed an incredibly broad complaint. Alleging that he suffered a competitive disadvantage vis a vis incumbents, he leveled claims against numerous FECA provisions

and even the statute governing the “Representational Allowance for Members of House of Representatives” (2 U.S.C. § 57(b)), in addition to requesting invalidation of BCRA § 301. Schonberg,

792 F. Supp. 2d at 15-18. The district court contemplated two alternative consequences of invalidation, and correctly concluded that Schonberg lacked standing because neither alternative would

remedy Schonberg’s injury. 

Under one alternative, holding BCRA § 301 unconstitutional would mean that the preexisting FECA provision would be resurrected. Id. at 19 (“As in McConnell, were this court to hold

that BCRA § 301 is unconstitutional, the limitations imposed by FECA would remain in

force.”). The district court was here assuming that invalidating the challenged BCRA section 6

would render it “as inoperative as though it had never been passed,” resurrecting the FECA language that had been replaced. Id. (citation omitted). Cf. Bluman, 766 F. Supp. 2d at 4 (indicating

that invalidation of BCRA § 303, which had entirely replaced the preexisting FECA language,

would not resurrect the FECA language). Nevertheless, assuming the preexisting FECA language

 This conclusion does not necessarily follow from McConnell, because BCRA § 301 re- 6

pealed and completely replaced the preexisting FECA language. See BCRA § 301 (striking and

replacing all of FECA § 313). The amendments at issue in McConnell, on the other hand, had not

disturbed the preexisting FECA language, other than by substituting higher numbers.

Application for Three-Judge Court

Or for Certification 14

Case 1:12-cv-01034-JEB Document 3 Filed 06/22/12 Page 14 of 19
was to be given renewed effect, Schonberg’s injury would still be suffered under FECA.

Under the second alternative, invalidation of the BCRA provision would not give renewed

effect to the language it had replaced, but would simply nullify the corresponding code provision.

Schonberg, 792 F. Supp. 2d at 19. This option would not remedy Schonberg’s injury either. The

Court explained:

Alternatively, assuming that holding BCRA § 301 unconstitutional would render 2 U.S.C.

§ 439a a legal nullity in all its iterations, this result would not further Schonberg’s goal of

more stringent regulation of the federal campaign finance system and elimination of the

alleged competitive advantages for incumbent federal candidates... . Schonberg has made

no showing that federal candidates, free from the constraints imposed by 2 U.S.C. § 439a,

would be more restricted in their use of campaign funds or that the Constitution itself

forbids the pecuniary evils of the federal campaign finance system that he alleges persist.

To the contrary, removing these limits would exacerbate, rather than remedy, the perceived

ills.

Id. at 19 (emphasis supplied by the Court). The ineluctable conclusion was that Schonberg lacked

standing because, regardless of the consequence of invalidating the BCRA provision at issue,

neither alternative would redress his alleged injury in fact by setting him on par with incumbents.

By contrast, Plaintiffs’ injuries here are readily redressed by striking the biennial limits on

contributions BCRA § 307(b), as applied and facially. Therefore, Plaintiffs have standing to assert their challenges before a three-judge court.

II. Alternatively, the Constitutional Questions Should Be Certified.

In the alternative, if this Court finds it lacks jurisdiction under BCRA § 403, Plaintiffs invoke the judicial-review provision at 2 U.S.C. § 437h and request the Court to “immediately . . .

certify all questions of constitutionality of [FECA] to the United States court of appeals for the

circuit involved, which shall hear the matter sitting en banc.” 2 U.S.C. § 437(h). Plaintiffs move 7

 The provision authorizes review where a case is brought by “the national party of any polit- 7

ical committee” (Republican National Committee (“RNC”)) “or any individual eligible to vote in

Application for Three-Judge Court

Or for Certification 15

Case 1:12-cv-01034-JEB Document 3 Filed 06/22/12 Page 15 of 19
certification as to the questions set out below.

1. Has each of the Plaintiffs alleged sufficient injury to constitutional rights enumerated in the following questions to create a constitutional “case or controversy” within

the judicial power under Article III?

As was done in Buckley v. Valeo, 519 F.2d 821 (D.C. Cir. 1975), a preliminary question

deals with standing. Id. at 898-01. Plaintiffs have standing because the challenged provisions apply to their intended activities and Plaintiffs thus are chilled in the exercise of their First Amendment rights. The case is ripe because primaries are ongoing and the November 2012 general election is near. If this case is not fully decided before any particular primary or the November 2012

election, Plaintiffs have verified their intent to do materially similar activities in the future, and

elections are regularly recurring events, so this case is well within the exception to mootness for

cases capable of repetition yet evading review. See, e.g., FEC v. Wisconsin Right to Life, 551

U.S. 449, 461-63 (2007) (“WRTL-II”) (Roberts, C.J., joined by Alito, J.) (controlling opinion);

Davis v. FEC, 554 U.S. 724, 734-36 (2008). See also Verified Complaint for Declaratory and

Injunctive Relief (“VC”) ¶¶ 11-12, 22-54, 75-83.

2. (Count 1) Is the biennial limit (currently $70,800) on contributions to non-candidate

committees at 2 U.S.C. § 441a(a)(3)(B) unconstitutional as applied to contributions to

national party committees for lacking a cognizable interest?

Count 1of the Verified Complaint raises this issue, VC ¶¶ 84-105, and it is addressed in the

Memorandum in Support of Preliminary Injunction Motion at 12-30. The arguments in those

documents suffice at present to show that this is an important question requiring prompt resolution.

any election for the office of President of the United States” (Shaun McCutcheon). Id.

Application for Three-Judge Court

Or for Certification 16

Case 1:12-cv-01034-JEB Document 3 Filed 06/22/12 Page 16 of 19
3. (Count 2) Are the biennial limits (currently $70,800 and $46,200) on contributions to

non-candidate committees at 2 U.S.C. § 441a(a)(3)(B) facially unconstitutional for lacking a cognizable interest and being substantially overbroad?

Count 2of the Verified Complaint raises this issue, VC ¶¶ 106-11, and it is addressed in the

Memorandum in Support of Preliminary Injunction Motion at 30-31. The arguments in those

documents suffice at present to show that this is an important question requiring prompt resolution.

4. (Count 3) Are the biennial limits (currently $70,800 and $46,200) on contributions to

non-candidate committees at 2 U.S.C. § 441a(a)(3)(B) unconstitutional, as applied and

facially, for being too low?

Count 3of the Verified Complaint raises this issue, VC ¶¶ 112-20, and it is addressed in the

Memorandum in Support of Preliminary Injunction Motion at 31-33. The arguments in those

documents suffice at present to show that this is an important question requiring prompt resolution.

5. (Count 4) Is the biennial limit (currently $46,200) on contributions to candidate committees at 2 U.S.C. § 441a(a)(3)(A) unconstitutional for lacking a cognizable interest?

Count 4of the Verified Complaint raises this issue, VC ¶¶ 121-37, and it is addressed in the

Memorandum in Support of Preliminary Injunction Motion at 33-40. The arguments in those

documents suffice at present to show that this is an important question requiring prompt resolution.

6.(Count 5) Is the biennial limit (currently $46,200) on contributions to candidate committees at 2 U.S.C. § 441a(a)(3)(A) unconstitutional for being too low?

Count 5of the Verified Complaint raises this issue, VC ¶¶ 138-42, and it is addressed in the

Memorandum in Support of Preliminary Injunction Motion at 40-41. The arguments in those

documents suffice at present to show that this is an important question requiring prompt resolution.

Application for Three-Judge Court

Or for Certification 17

Case 1:12-cv-01034-JEB Document 3 Filed 06/22/12 Page 17 of 19
Should this Court decide that this case does not qualify for the judicial-review provision at

BCRA § 403, Plaintiffs will request further briefing on certification, which seems unnecessary at

this point.

Plaintiffs have conferred with opposing counsel regarding this motion, and they do not oppose this motion. LCvR 7(m).

Of Counsel for Shaun McCutcheon:

Stephen M. Hoersting*

/s/ Dan Backer

Dan Backer, DC Bar #996641

DB CAPITOL STRATEGIES, PLLC

209 Pennsylvania Ave., S.E., Suite 2109

Washington, DC 20003

202/210-5431 phone

202/478-0750 fax

shoersting@dbcapitolstrategies.com

dbacker@dbcapitolstrategies.com

Jerad Wayne Najvar*

NAJVAR LAW FIRM

One Greenway Plaza, Suite 225

Houston, TX 77046

281/404-4696

jerad@najvarlaw.com

Respectfully submitted,

/s/ James Bopp, Jr. 

James Bopp, Jr., Bar #CO 0041

jboppjr@aol.com

Richard E. Coleson*

rcoleson@bopplaw.com

Jeffrey P. Gallant*

jgallant@bopplaw.com

THE BOPP LAW FIRM, PC

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434 telephone

812/235-3685 facsimile

Counsel for Plaintiffs

*Pro Hac Vice Application Filed

Application for Three-Judge Court

Or for Certification 18

Case 1:12-cv-01034-JEB Document 3 Filed 06/22/12 Page 18 of 19
Certificate of Service

I hereby certify that the foregoing document was served on June 22, 2012 on the following

persons by this Court’s electronic case filing service (“ECF”) (as applicable), by First Class U.S.

Mail, and by a courtesy copy to Anthony Herman at aherman@fec.gov and Adav Noti at

anoti@fec.gov:

Anthony Herman, General Counsel

FEDERAL ELECTION COMMISSION

999 E Street, NW

Washington, DC 20436

aherman@fec.gov

Counsel for Defendant FEC.

 /s/ Dan Backer

Dan Backer, DC Bar #996641

DB CAPITOL STRATEGIES, PLLC

209 Pennsylvania Ave., S.E., Suite 2109

Washington, DC 20003

Case 1:12-cv-01034-JEB Document 3 Filed 06/22/12 Page 19 of 19