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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_____________________________________

 )

STEVE SCHONBERG )

 )

Plaintiff, ) 

v. ) Civil Action No. 10-2040 (RWR-JWR-CKK)

 )

FEDERAL ELECTION COMMISSION and ) THREE-JUDGE COURT 

THE UNITED STATES, )

 ) 

 Defendants. )

_____________________________________ )

 PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT 

 UNITED STATES’S MOTION TO DISMISS

Steve Schonberg, Pro Se

 7938 SE 12th Circle

 Ocala, FL 34480

 352-789-0610

 Email: sschonberg@aol.com

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TABLE OF CONTENTS

 Page

INTRODUCTORY ARGUMENT................................................................ 3

PLAINTIFF........................................................................................... 4

FACTS..................................................................................................4

ARGUMENT..........................................................................................5

A. PLAINTIFF HAS STANDING................................................5

B. THE MRA.........................................................................6

 1. FIFTH AMENDMENT DUE PROCESS VIOLATIONS................7

 2. THE MRA VIOLATES THE COMPENSATION CLAUSE........... 10

C. SOVEREIGN IMMUNITY DOES NOT APPLY...........................11

D. POLITICAL QUESTION DOCTRINE........................................12

E. EARMARKED LEGISLATION............................................... .12

CONCLUSION..........................................................................................15

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 INTRODUCTORY ARGUMENT

The Representational Allowance for Members of House of Representatives, a/k/a 

“MRA,” was created by 2 U.S.C. § 57b and provides taxpayer money for members of the House 

to run their offices. The MRA allotment for 2010 was between $1.4 million and $2.0 million 

dollars per house member.1

 Nowhere in its memorandum, Doc.34, does the United States 

explain why, how or whether the members of the House can use MRA funds for campaigning

without violating the law. The MRA statute, through both proper and improper use, allows an 

incumbent member of the House to use the taxpayers’ money from the MRA in her/his reelection campaign. The only “improper” use guidelines are contained in the Member’s

Congressional Handbook2 and the House Ethics Manual3

 1 See U.S. House of Representatives, 112th Congress, Statement of Disbursements. It is 

available online at: 

which have no force of law.

The misuse of the MRA by House members is done without a framework of outside 

oversight, no public accountability, and little fear of retribution. While FECA requires 

challengers for a seat in the House of Representatives to report all receipts and distributions used 

in their campaigns, FECA, by omission, excludes incumbents from reporting the use of MRA 

funds for campaigning. 

Rep.FL6 has a master-servant relationship with all of the federal employees who 

campaign for him. Rep.FL6 controls what his federal employees do. “Control must extend not 

only to ordering the work to be done or the result to be accomplished, but also to the manner and 

details of performance.” CJS EMPLOYER § 212. Rep.FL6’s campaigning employees are paid 

http://disbursements.house.gov/sod-glance.shtml. 2 See U.S. Motion to Dismiss, Memorandum, Doc.34 at 15. Plaintiff compiled a list of permitted 

uses of MRA from the Member’s Handbook in Doc.31. ¶163.

3 Manual cited by plaintiff in Doc.31 ¶57.

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out of the MRA. Plaintiff is a taxpayer4

 4 Doc.31, ¶ 11(a).

and a challenger to the incumbent for a seat in the U.S. 

House of Representatives. As a challenger and taxpayer, the MRA forces plaintiff into paying a 

share of Rep.FL6’s campaign expenses because the taxpayer funds the MRA, and Rep.FL6 uses 

the MRA for campaign activities. This is a taxpayer injury plaintiff has suffered as a candidate 

for federal office. Plaintiff’s injuries are concrete and particularized and actual or imminent, not 

conjectural, hypothetical or speculative. Nat’l Fed. of Indep.Builders v. Architectural & Trans. 

Barriers Compliance Bd., 461 F. Supp. 2d at 23. Plaintiff has met his burden of establishing his 

standing to sue. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).

Earmarked legislation is not part of a statutory framework because bills with earmarks 

may come out of the House of Representatives in almost any form. Earmarks provide funding 

for special projects that generally only benefit the home state of the member of Congress. 

Earmarks are used by members of Congress to obtain voter support and special favors from the 

member’s constituency. 

 PLAINTIFF

Plaintiff is a resident of Florida’s House District 6 and was a No Party Affiliation 

Candidate for that seat in the 2010 election. He was defeated by the only other candidate on the 

ballot who was referred to throughout the Second Amended Complaint as “Rep.FL6.” Plaintiff 

is also a taxpayer who is eligible to vote in any election for the office of President. 

(Doc 31, pgs 4-5, ¶¶ 11, 11(a).) 

 FACTS

The facts pertaining to this response are set out in Doc. 31, ¶¶15-201, and are hereby 

incorporated by reference.

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 ARGUMENT

A. PLAINTIFF HAS STANDING

Defendant United States’s boilerplate standing arguments rest on two grounds, 

insufficient injury and lack of causation, U.S. Motion to Dismiss, Doc.34, pgs 7-12.

With the MRA, Congress not only pays for the members’ to run their offices, but the members 

also use the allowance to pay for campaign expenses at the expense of the taxpayer. The United 

States does not explain why it is permissible for Rep.FL6 to have plaintiff’s taxes pay for 

Rep.FL6 to have his federal employees campaign against plaintiff. Instead, the United States 

wastes the Court’s time discussing plaintiff’s lack of insurance coverage which has nothing to do 

with the MRA or Earmarked Legislation. See Doc.34 at 10-12.

To meet the requirements of Article III standing, plaintiff must show: (1) that he has 

suffered an injury in fact, the invasion of a legally protected interest; (2) that the injury is fairly 

traceable to the defendant’s conduct (a causal connection); and(3) that a favorable decision on 

the merits likely will redress the injury. Nat’l Fed. of Indep.Builders v. Architectural & Trans. 

Barriers Compliance Bd., 461 F. Supp. 2d 19, 23 (D.D.C. 2006), internal citations omitted. 

Doc.31. ¶ 203 (b),(c),(f),(k),(l),(m),(n),(o),(p),(q),(r),(s),(t),(u),(v),(w),(x),(y),(z), aa),(bb),(ii), (jj)

and ¶ 163 contain a compilation of the MRA injuries plaintiff has suffered. Defendant U.S. did 

not refer to a single, specific injury plaintiff alleged, it merely cited the law and failed to apply 

any facts. Doc.34. at 6-9. 

Here is a sample from Doc.31 to which plaintiff will apply the law. Rep.FL6 uses his 

congressional office spaces in Florida for campaigning, he has free campaign advertising at a 

“.gov” website, and he uses his official stationary to advertise his support for the horse farming 

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industry.5 All of these campaign expenses are paid for by the taxpayer. Here is the application 

of these facts to law:

1. The legally protected interest is the right to a fair election in which both the plaintiff 

and Rep.FL6 are on equal footing.

2. The injury is that Rep.FL6 receives taxpayer funds to campaign with and plaintiff 

does not. The funds are directly traceable to the MRA.

3. A ruling that the MRA is unconstitutional will redress plaintiff’s injury because 

Rep.FL6 will no longer have MRA funds to tap into for campaigning.

Two out of many earmarked pieces of legislation which Rep.FL6 was responsible for are 

indentified in Doc. 31, ¶¶ 5.1 and 5.2. This earmarked legislation rewarded the constituents of 

Rep.FL6 with spending projects in Florida District 6. In return, Rep.FL6 receives votes and 

financial support from his constituents, again giving Rep.FL6 a campaign advantage. See Doc. 

31, ¶¶ 34, 36, 166-189. These earmarks invidiously discriminate against plaintiff in violation of 

due process equal protection afforded by the Fifth Amendment.

 B. THE MRA6

 

It is incomprehensible that the United States would allow its members of Congress to use 

money from the Treasury for campaign activities. But that unfortunately is the position taken by 

the defendant United States in its Motion to Dismiss, which ignores plaintiff’s MRA grievances 

5 Both Rep.FL6 and the plaintiff are residents of Marion County, Florida which claims to be the 

“Horse Capital of the World.” See

http://www.ocalacc.com/ocala_florida/templates/tourism.aspx?articleid=18. By referring to 

himself as the Congressional “Horse Caucus, Co-chairman” on his letterhead, Rep.FL6 receives 

taxpayer funded advertising and Florida District 6 votes. See Doc. 31, ¶58.

6 Doc.31. ¶ 203 (b),(c),(f),(k),(l),(m),(n),(o),(p),(q),(r),(s),(t),(u),(v),(w),(x),(y),(z), 

(aa),(bb),(ii),and (jj) contains a compilation of the MRA injuries plaintiff has suffered.

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and states plaintiff’s claims are based “on his guess as to how” the MRA is used. See Doc.34 at 

11. The plaintiff’s Second Amended Complaint contains first-hand allegations pertaining to the 

use of MRA funds (Doc.31, ¶¶ 57-61,105-132), and also cites the House Ethics Manual and the 

Member’s Congressional Handbook for specific uses, (Doc.31 at 16,34). These are not 

“guesses,” and for the purposes of a FRCP Rule 12(b) motion to dismiss, these examples must be 

accepted as true. Swierkiewicz v.Sorema, 534 U.S. 506, 508 (2002).

The MRA allows campaign spending by the incumbent that is hidden, surreptitious, and 

unfair to the challenger who not only has no access to MRA campaign funds et al, but has to 

account to the FEC for every dollar received or spent on campaigning. Plaintiff is invidiously 

discriminated against and injured because MRA denies him equal protection.

 1. FIFTH AMENDMENT DUE PROCESS VIOLATIONS

In Bolling v. Sharpe, 347 U.S. 497 (1954), the Supreme Court ruled that due process 

protection afforded by the Fifth Amendment prohibited invidious discrimination and segregation 

in the District of Columbia public schools. And Buckley v. Valeo, 424 U.S. 1(1976), the seminal 

case on the constitutionality of FECA, provided that, “Equal protection analysis in the Fifth 

Amendment area is the same as that under the Fourteenth Amendment,” Buckley at 93. 

It is plaintiff’s burden to show that there is invidious discrimination against him of “some 

substance,” Texas v.White, 415 U.S. 767,782 (1974). 

It is for a single U.S. District Court Judge to determine if the evidence of invidious 

discrimination alleged in Doc. 31 supports the conclusion that MRA is unconstitutional on the 

basis of the Fifth Amendment. “An essential element of an equal protection claim is that the 

challenged statute treats similarly situated entities differently,”7

 7 Quote is from Doc.33-1, pg 34.

Calif. Med. Ass’n v. FEC, 453 

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U.S. 182, 200, (1981). In ¶¶ 203 and 219-222 of Doc. 31, plaintiff contends that the MRA

provides a “monetary advantage” to the incumbent which results in invidious discrimination as 

follows:

(b). By supplying the incumbent with a taxpayer funded political website.

(c). By giving the incumbent taxpayer funded internet search engine 

 privileges.

(f). By authorizing incumbents to use federal employees to campaign for them.

(k). By sanctioning the incumbent’s use of official, sealed, U.S. government 

 stationary for campaigning.

(l). By giving the incumbent a press secretary paid for by the government 

 to draft and release campaign press releases.

(m). By enabling the incumbent to use federal employees to act as campaign 

 surrogates.

(n). By sanctioning the incumbent’s use of official district business offices for 

 campaigning.

(o). By allowing the incumbent’s use of government video from the floor of the 

 House of Representatives in campaign advertising.

(p). By permitting an incumbent to use government created mailing lists for their 

 political campaigns.

(q). By providing the incumbent a government employed photographer for 

 campaign photographs.

(r). By empowering the incumbent to use government funded, unsolicited mass 

 

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 communications containing the Franking privilege.

(s). By failing to prevent the incumbent’s use of sealed, official, U.S. government 

 stationary in campaign ads.

(y). By providing a government studio for recording audio and video 

 advertisements by the incumbent.

(aa). By sanctioning official stationary that says, “Ranking Republican Member,” 

 “Deputy Ranking Republican Member,” and “CONGRESSIONAL HORSE 

 CAUCUS co-chairman.”

(bb). By supplying taxpayer funded short-term vehicle rentals with unlimited 

 mileage for use by the incumbent. 

(cc). By giving the incumbent a Government Travel Card.

(dd). By allowing the creation of Congressional Member Organizations (CMO’s) 

 that are purely political advertising for incumbent campaigns paid for by the 

 taxpayers.

(ii). By allowing the United States to provide email lists and social networking 

 devices to the incumbent without equal access given to the challenger.

(jj). By permitting members of Congress to email constituents promotions about 

 the Congress person's success in representing the constituent.

The monetary value of these MRA campaign benefits to Rep.FL6 are huge, unaccounted for, 

devoid of oversight, unregulated by the force of law, and withheld from the FEC. The MRA 

invidiously discriminates against plaintiff by providing Rep.FL6 with a monetary advantage.

By enacting FECA, Congress “broadly addressed” the problem of campaign financing. 

It wished “...to insure both the reality and the appearance of the purity and openness of the 

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federal election process,” Buckley, 424 U.S. at 78. While FECA requires challengers for a seat 

in the House of Representatives to report all receipts and distributions used in their campaigns, 

FECA, by omission, excludes incumbents from reporting the use of MRA funds for 

campaigning. And the MRA requires no reporting at all. The MRA therefore invidiously 

discriminates against plaintiff by allowing Rep.FL6 to have access to campaign funds, campaign 

goods, and campaign services which need not be reported to the FEC and which are unavailable 

to challengers of incumbents. Just as FECA fails the Buckley purity test by failing to account for 

MRA campaign spending by incumbents, MRA fails the test as well by muddling and 

obfuscating the source of campaign funding. Buckley, 424 U.S. at 78. 

Plaintiff is a taxpayer.8

 8 Doc.31, ¶ 11(a).

 Plaintiff is and was a candidate challenging an incumbent for a 

seat in the U.S. House of Representatives. As a challenger and taxpayer, FECA and the MRA 

force plaintiff into paying a share of incumbent Rep.FL6’s campaign expenses because the 

taxpayer funds the MRA, and Rep.FL6 uses the MRA for campaign activities. This is a taxpayer 

injury plaintiff has suffered as a candidate for federal office. The injury is “concrete and 

particularized and actual or imminent, not conjectural, hypothetical or speculative.” Center for 

Law and Education v. Dept. of Education, 396 F.3d 1152, 1157 (D.C. Cir. 2005), (internal 

citations omitted).

 2. THE MRA VIOLATES THE COMPENSATION CLAUSE 

Article I, Section 6, Clause 1 of the Constitution states, “The Senators and 

Representatives shall receive a Compensation for their Services, to be ascertained by Law, and 

paid out of the Treasury of the United States.” This clause has been labeled the Compensation 

Clause. Amendment XXVII to the Constitution limited increases to this compensation to prevent 

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the House of Representatives from raising its members’ compensation “until an election of 

Representatives shall have intervened.”

The compensation of members of Congress is codified at 2 U.S.C. ¶¶ 351-364 as a result 

of the Salary Act of 1967 and its subsequent amendments. The clear intent of the Constitution 

and Amendment XXVII is to prohibit members of Congress from receiving any government 

compensation over and above that contained in the Compensation Clause. The monetary 

advantage provided by the MRA to Rep.FL6 and detailed in the above section is in clear 

violation of the compensation clause because money from the Treasury is being converted by 

Rep.FL6 for his own personal campaign activities. And every other member of Congress could 

have done the same thing.

C. SOVEREIGN IMMUNITY DOES NOT APPLY

“The government is answerable not only to the people, it is answerable also to the 

Constitution, and that great instrument prohibits government officials from delegating unto 

themselves, or exercising, powers that are not consistent therewith.” Kelley v. Metropolitan 

County Board of Education,Tenn, 372 F.Supp. 528,536, (1973). Sovereign Immunity and 

waivers thereto are generally for cases involving claims for money damages to be paid out of the 

Treasury, not challenges to the constitutionality of a law. The MRA was passed by the House of 

Representatives, for the House of Representatives. It has been unconstitutionally misused by the 

House of Representatives. Sovereign Immunity does not apply. “[T]he doctrine of sovereign 

immunity cannot transcend the authority of the Constitution.” Kelley, 372 F. Supp. at 536. The 

members of the House of Representatives cannot pass a law that is a violation of the 

Compensation Clause and retain the right of its members to collect unconstitutional 

compensation under a theory of Sovereign Immunity.

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 D. POLITICAL QUESTION DOCTRINE

Plaintiff has alleged violations of the constitution regarding the MRA and Earmarked 

legislation. The MRA gives the members of the House of Representatives access to between 

$1.4 and 2.0 million dollars to run their offices. There is nothing in the MRA preventing a 

member from using most of his/her MRA funds for campaign related expenses, thus converting 

the funds to personal use.9

 9 Virtually all members of the House disregard many of the recommendations contained in the 

Members Handbook, especially regarding the .gov web sites, which: “May not include personal, 

political, or campaign information.” Members Handbook, pg 45. See Doc.31, ¶ 201.

 Congress may not promulgate a statute granting to its House 

members the use of re-election campaign resources inconsistent with the Compensation Clause 

and the Fifth Amendment to the Constitution. Resolution of these constitutional questions is 

reserved for the courts. “[T]he limitations on judicial review imposed by the political-question 

doctrine apply only when the court is faced with a challenge to action by a coordinate branch of 

the government , and not where the issue involved falls within the traditional role accorded 

courts to interpret the law or constitutional provisions.” CJS Constitutional Law, IV.,C.,2. 

Political Questions, March, 2011. “Congress has plenary authority in all cases in which it has 

substantive legislative jurisdiction, McCulloch v. Maryland, 4 Wheat. 316 (1819), so long as the 

exercise of that authority does not offend some other constitutional restriction.” Buckley v. 

Valeo, 424 U.S. 1,132, (1976). The MRA offends two parts of the Constitution, making the 

constitutional question for the Court:

1. Does the MRA violate the Compensation Clause and/or the Fifth Amendment to the 

Constitution?

 E. EARMARKED LEGISLATION

Earmarked legislation is the basis for the last of plaintiff’s claims. His opponent’s, 

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“Congressional candidacy, compensation and family income was and will be the beneficiary” of 

earmarks specified in Doc.31, ¶¶ 5.1,5.2, and 11(b). “Earmarked legislation provides 

emoluments and/or bribes to the electorate from a Congressman to his constituents.” Id., ¶ 34. 

Several examples of earmarked legislation obtained by Rep.FL6 were provided in Doc.31. ¶¶ 

166-169. “Earmarked federal spending brings money, jobs, and business to Florida; and it brings 

votes for Rep.FL6.” Id., ¶ 170. The extra votes Rep.FL6 receives by virtue of his earmarks 

invidiously discriminate against plaintiff because plaintiff cannot provide earmarks to the Florida 

District 6 electorate. Earmarks treat the similarly situated candidates, plaintiff and Rep.FL6, 

differently. Calif. Med. Ass’n, 453 U.S., 200.

Plaintiff alleged that earmarks resulted in a quid pro quo arrangement with a local 

college that resulted in a job promotion for the spouse of Rep.FL6. Id. ¶¶ 171-180. Contrary to 

the U.S.’s claim that plaintiff never explained why earmarks are unconstitutional,10 the Second

Amended Complaint is replete with examples showing that Rep.FL6 gains votes and 

compensation from his earmarks, in violation of the Compensation Clause and the Fifth 

Amendment right of equal protection.

In Florida District 6, earmarks to the “Central Florida Community College,” now called 

the “College of Central Florida,” have been going on for years with Rep.FL6 the sponsor of the 

legislation. Doc.31. ¶¶ 175-176. The following excerpt regarding Mrs. “Rep.FL6” appeared in 

the Ocala newspaper on March 30, 2011 and identifies Rep.FL6’s spouse as the vice president at 

the College of Central Florida who oversees “grants and the CF Foundation”11

:

 10 See Doc.34. at 20

11 The excerpt appeared in the print edition and at: 

http://www.ocala.com/article/20110330/ARTICLES/110339996/1439?p=2&tc=pg&tc=ar.

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Plaintiff alleged that there was “nepotism by proxy” because the house ethics rules prohibited 

Rep.FL6 from hiring his wife with MRA funds. Doc.31. ¶¶ 175-179. The ruse is that Rep.FL6 

obtains earmarks for the College of Central Florida which in return hires or promotes Mrs. 

Rep.FL6. Stopping this sort of corruption is more important than the First Amendment right of 

free speech and should be foremost on the Court’s priorities. “The Supreme Court has 

recognized only one interest sufficiently important to outweigh the First Amendment interests 

implicated by contributions for political speech: preventing corruption or the appearance of 

corruption.” Speechnow.org v. FEC, 599 F.3d 686, 692 (D.C. Cir. 2010).

Defendant U.S. suggests the Compensation Clause of the Constitution cannot prevent 

“nepotism by proxy” because of Made In The USA Foundation v. United States, 242F.3d 1300, 

1311 (11th Cir. 2001); Nixon v. United States, 506 U.S. 224, 228; Cincinnati Soap Co. v. United 

States, 301 U.S. 308, 321-22 (1937); and One SimpleLoan v. U.S. Secretary of Education, 496 

F.3d 197, 203 (2d Cir. 2007). See Doc.34 at 20-21. The issue in the political question doctrine 

“is whether the Constitution has given one of the political branches final responsibility for 

Ocala StarBanner , March 30, 2011

“Joan _____, CF's vice president of 

institutional advancement, oversees 

the college's marketing, grants and 

the CF Foundation.

_____, who has worked in a similar 

capacity six of the last 11 years, said 

CF is the only college "in the nation 

that owns a world-class museum."

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interpreting the scope and nature” of the power of that particular branch of government. Nixon,

506 U.S. at 239. 

Plaintiff can find no interpretation of the Constitution forbidding this Court from deciding 

his constitutional challenges to the MRA or earmarked legislation. The U.S.’s theory is that an 

Appropriations bill, once enacted, is constitutionally untouchable12 because the Appropriations 

Clause of the Constitution is more important than the Compensation Clause. If this is true, then 

the Court should admit that the Constitution does not protect the American people from 

corruption in Congress. An Article V Constitutional Convention would be needed to fix the 

Constitution, as promoted in “OUR UNDEMOCRATIC CONSTITUTION” by Sanford 

Levinson,13 Oxford University Press, 2006.14

 CONCLUSION

Substantial constitutional questions require the Court’s determination of the legitimacy of 

the MRA and Earmarked Legislation. The United State’s Motion to Dismiss should be denied.

Respectfully submitted,

 

/s/Steve Schonberg

Steve Schonberg, Pro Se

 7938 SE 12th Circle

 Ocala, FL 34480

352-789-0610

Email: sschonberg @aol.com

 12 See Doc.34 at 21-22.

13 Mr. Levinson is a constitutional scholar and professor of law at the University of Texas.

14 Plaintiff has argued that a Fourth Branch of government is needed to oversee Congress. A 

draft of a Containment of Congress, “Fourth Branch,” amendment is posted at: 

http://perfectunion1787.com/containment.html. 

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