Nos. 02-1734, 02-1755, and 02-1756 

IN THE 

Supreme Court of the United States

AMERICAN CIVIL LIBERTIES UNION, 

Appellant, 

v. 

FEDERAL ELECTION COMMISSION, et al., 

Appellees. 

AMERICAN FEDERATION OF LABOR AND 

CONGRESS OF INDUSTRIAL ORGANIZATIONS, et al., 

Appellants, 

v. 

FEDERAL ELECTION COMMISSION, et al., 

Appellees. 

CHAMBER OF COMMERCE OF THE UNITED STATES, et al., 

Appellants, 

v. 

FEDERAL ELECTION COMMISSION, et al., 

Appellees. 

On Appeals from the United States District Court 

for the District of Columbia 

INTERVENOR-APPELLEES’ RESPONSE 

TO JURISDICTIONAL STATEMENTS 

ROGER M. WITTEN SETH P. WAXMAN 

WILMER, CUTLER & Counsel of Record 

PICKERING RANDOLPH D. MOSS 

399 Park Avenue ERIC J. MOGILNICKI 

New York, NY 10022 EDWARD C. DUMONT 

PAUL R.Q. WOLFSON 

WILMER, CUTLER & 

PICKERING 

2445 M Street, N.W. 

Washington, D.C. 20037 

(202) 663-6000 

Additional Counsel Listed On Inside Cover 
BURT NEUBORNE


FREDERICK A.O. SCHWARZ, JR.


BRENNAN CENTER FOR


JUSTICE 

161 Avenue of the Americas, 

12th Floor 

New York, NY 10013 

CHARLES G. CURTIS, JR. 

DAVID J. HARTH 

MICHELLE M. UMBERGER 

HELLER EHRMAN WHITE & 

MCAULIFFE LLP 

One East Main Street, Suite 201 

Madison, WI 53703 

BRADLEY S. PHILLIPS 

MUNGER, TOLLES & 

OLSON LLP 

355 South Grand Ave. 

35th Floor 

Los Angeles, CA 90071 

E. JOSHUA ROSENKRANZ 

HELLER EHRMAN WHITE & 

MCAULIFFE LLP 

120 West 45th Street 

New York, NY 10036 

ALAN B. MORRISON


SCOTT L. NELSON


PUBLIC CITIZEN LITIGATION


GROUP 

1600 20th Street, N.W. 

Washington, D.C. 20009 

MICHAEL D. LEFFEL 

A. KRISAN PATTERSON 

JENNIFER L. MUELLER 

STACY E. BECK 

JERROD C. PATTERSON 

WILMER, CUTLER & 

PICKERING 

2445 M Street, N.W. 

Washington, D.C. 20037 

FRED WERTHEIMER


ALEXANDRA EDSALL


DEMOCRACY 21


1825 Eye Street, N.W.


Suite 400


Washington, D.C. 20006


TREVOR POTTER


GLEN M. SHOR


CAMPAIGN LEGAL CENTER


1101 Connecticut Ave., NW


Suite 330


Washington, D.C. 20036

QUESTIONS PRESENTED 

1. Whether the Court should summarily dispose of 

appellants’ constitutional challenges to Sections 214(a), 

214(b), and 214(c) of the Bipartisan Campaign Reform Act of 

2002 (BCRA), Pub. L. No. 107-155, 116 Stat. 81, because 

those challenges are plainly nonjusticiable or insubstantial 

under settled law. 

2. Whether, in other respects, the Court should note 

probable jurisdiction over appellants’ constitutional 

challenges to BCRA, and set the appeals on those issues for 

briefing and oral argument. 

(i) 
TABLE OF CONTENTS 

Page


QUESTIONS PRESENTED ............................................... i


TABLE OF AUTHORITIES ............................................. iv


ARGUMENT ....................................................................... 1


I.	 THE AFL-CIO AND CHAMBER APPELLANTS 


FAIL TO RAISE SUBSTANTIAL QUESTIONS 


WITH RESPECT TO BCRA SECTION 214(a) .................. 1


II.	 THE ACLU AND CHAMBER APPELLANTS 


FAIL TO RAISE JUSTICIABLE OR SUBSTAN­


TIAL QUESTIONS WITH RESPECT TO THE 


COORDINATION RULEMAKING PROVISIONS OF 


BCRA SECTION 214(b)-(c) ............................................ 2


CONCLUSION .................................................................... 5


(iii) 
iv 

TABLE OF AUTHORITIES 

CASES 

Page(s) 

Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam).............. 2, 5


Colorado Republican Federal Campaign Commit-


tee v. FEC, 518 U.S. 604 (1996) ..................................... 5


FEC v. Christian Coalition, 52 F. Supp. 2d 45 


(D.D.C. 1999) ................................................................. 5


FEC v. Colorado Republican Federal Campaign 


Committee, 533 U.S. 431 (2001) ................................. 2, 5


CONSTITUTIONAL AND STATUTORY PROVISIONS 

2 U.S.C. § 441a(a)(7)(B)(i) ..................................................... 5


Bipartisan Campaign Reform Act of 2002, Pub. L. 


No. 107-155, 116 Stat. 81 ............................................... 1


§ 214(a) ....................................................................... 1, 2


§ 214(b) .................................................................. 2, 3, 5


§ 214(c) ................................................................... 2, 3, 4


§ 403(a) .......................................................................... 3


Federal Election Campaign Act of 1971, Pub. L. No. 


92-225, 86 Stat. 3 ..................................................... 1, 2, 5


REGULATIONS 

11 C.F.R. § 100.23 (2002) ...................................................... 5


11 C.F.R. § 109.21 ............................................................. 3, 5


LEGISLATIVE MATERIALS 

148 Cong. Rec. S2145 (daily ed. Mar. 20, 2002) ................ 3, 4

INTERVENOR-APPELLEES’ RESPONSE 

TO JURISDICTIONAL STATEMENTS 

Although intervenor-appellees take issue with the 

positions taken on the merits by the American Civil 

Liberties Union (ACLU), the American Federation of Labor 

and Congress of Industrial Organizations (AFL-CIO), et al., 

and the Chamber of Commerce of the United States 

(Chamber), et al., in their jurisdictional statements, we 

agree that many of the questions presented in their 

jurisdictional statements warrant plenary consideration by 

this Court. Some of the questions presented in these 

jurisdictional statements, however, do not warrant plenary 

consideration by this Court, because they are clearly 

nonjusticiable under well-settled principles of constitutional 

and administrative law, or are otherwise so insubstantial as 

not to justify further briefing and argument. As we have 

shown in our prior responses to other jurisdictional 

statements filed in these cases, it is entirely appropriate for 

the Court to summarily dispose of appeals by dismissal or 

affirmance, insofar as they seek to raise issues that are 

nonjusticiable or insubstantial. Such summary dispositions 

would focus the briefing in this Court on those issues that do 

warrant the Court’s plenary consideration, and would 

promote the orderly and expedited resolution of the various 

pending challenges to the Bipartisan Campaign Reform Act 

of 2002 (BCRA), Pub. L. No. 107-155, 116 Stat. 81. 

ARGUMENT 

I. THE AFL-CIO AND CHAMBER APPELLANTS FAIL TO 

RAISE SUBSTANTIAL QUESTIONS WITH RESPECT TO 

BCRA SECTION 214(a) 

Like the McConnell appellants, the AFL-CIO and 

Chamber appellants challenge BCRA Section 214(a), which 

extends the Federal Election Campaign Act’s (FECA) 

longstanding regulation of coordination with candidates and 

candidate committees to include coordination with any 

“national, State, or local committee of a political party” as 

well. See AFL-CIO J.S. Question Presented 2 and pp. 7-8, 
2 

14-18; Chamber J.S. Question Presented 2 and pp. 2, 12, 25. 

As we have explained in our response to the McConnell 

jurisdictional statement (at 12-13), that challenge is plainly 

insubstantial. In Section 214(a), Congress simply took the 

same definition that has governed expenditures coordinated 

with political candidates for more than 25 years, and applied 

it to coordination with parties. Congress did so to prevent 

circumvention of FECA’s contribution limits, a necessity 

long recognized by both this Court and Congress.1 Congress 

has found that, to enforce those contribution limits 

effectively, it is necessary to apply the coordination 

regulations to coordination with both candidates and parties. 

There is no basis in law or the record to set aside this 

congressional judgment. As the district court majority 

emphasized, appellants “have provided no explanation as to 

why the application of this coordination formula to the 

context of political parties chills political speech any more 

than when applied to expenditures coordinated with political 

candidates.” Supplemental Appendix to Jurisdictional 

Statement (JSSA) 137sa (per curiam).2 

II. THE ACLU AND CHAMBER APPELLANTS FAIL TO 

RAISE JUSTICIABLE OR SUBSTANTIAL QUESTIONS 

WITH RESPECT TO THE COORDINATION RULEMAKING 

PROVISIONS OF BCRA SECTION 214(b)-(c) 

Like the McConnell and RNC appellants, the ACLU 

and Chamber appellants challenge the coordination 

rulemaking provisions of BCRA Section 214(b)-(c). See 

ACLU J.S. Question Presented 2 and pp. 23-24; Chamber 

1 See FEC v. Colorado Republican Fed. Campaign Comm., 533 U.S. 

431, 447, 464 (2001); Buckley v. Valeo, 424 U.S. 1, 46-47 & n.53, 78 (1976) 

(per curiam); 2 U.S.C. § 441a(a)(7)(B)(i). 

2 The AFL-CIO now seeks to supply this missing explanation by 

reasoning that the coordination formula was tolerable so long as it was 

limited to agreements and formal collaborations, but that once Section 

214(c) was enacted, all rules dealing with coordination were rendered 

unconstitutional. See AFL-CIO J.S. 14 n.5, 15-16. This is not an argument 

against Section 214(a), but against Section 214(c). There are no 

substantial constitutional issues with respect to Section 214(a) itself. 
3 

J.S. Question Presented 2 and pp. 20-31. As we have 

explained in our response to the McConnell jurisdictional 

statement (at 7-12), these challenges to Section 214(b)-(c) fail 

under well-established principles of justiciability and 

subject-matter jurisdiction. There is no basis for a facial 

challenge to Sections 214(b) and (c), for those provisions 

merely repeal the Federal Election Commission’s (FEC) 

prior rules on coordination and direct the FEC to 

promulgate new rules that “shall address” certain factors. 

Further, the special jurisdiction that Congress vested in the 

three-judge district court to entertain constitutional 

challenges to BCRA does not reach constitutional or 

statutory challenges to the FEC’s new coordination 

regulations. Thus, if appellants are dissatisfied with the new 

rules on coordination, they must challenge those rules in an 

action for judicial review under the Administrative 

Procedure Act (APA), in which they may raise both 

constitutional and statutory challenges to the rules. The 

district court was therefore clearly correct in holding these 

claims to be nonjusticiable and beyond the subject-matter 

jurisdiction of the special three-judge district court 

conferred by BCRA Section 403(a). See JSSA 134-56sa (per 

curiam). 

The ACLU maintains that its routine legislative 

activities on issues will somehow be jeopardized under the 

coordination provisions of BCRA, even though the ACLU 

“does not, and never has, coordinated its activities with 

elected officials for the purpose of influencing elections.” 

ACLU J.S. 14. As we explain in our response to the 

McConnell jurisdictional statement (at 12 n.15), however, the 

new FEC rules contain an express safe harbor for legislative 

activity and lobbying. 11 C.F.R. § 109.21(f). That safe 

harbor is consistent with clear congressional intent not to 

reach routine legislative and lobbying activities, but rather 

to reach only campaign communications. See 148 Cong. Rec. 

S2145 (daily ed. Mar. 20, 2002) (statement of Sen. McCain). 

As the district court majority concluded, appellants’ claim 

that their lobbying activities are imperiled is therefore 
4 

speculative at best, and are insufficient to meet Article III 

standing requirements. JSSA 147sa n.95 (per curiam). 

The ACLU also contends that Section 214(c) “broadly 

deems any ‘substantial discussion’ about public 

communication between a candidate and an issue group as a 

basis for a finding of ‘coordination,’ ” and maintains that a 

“substantial discussion” standard will act “as a continuing 

prior restraint which bars the ACLU from engaging in core 

First Amendment speech for [a] lawmaker’s entire term of 

office.” ACLU J.S. 23-24. That reading of Section 214(c) 

however, is plainly incorrect. Section 214(c)(4) merely 

provides that the new regulations to be promulgated by the 

FEC “shall address” the subject of “payments for 

communications made by a person after substantial 

discussion about the communication with a candidate or 

political party.” A congressional instruction that an agency 

“address” an issue in rulemaking imposes no injury upon 

anyone. Any argument that the FEC’s rules might have 

exceeded constitutional or statutory bounds on this point 

may and must be raised in an APA challenge to those rules. 

The Chamber appellants argue that Congress’s 

instruction to the FEC, in Section 214(c), that the new 

coordination rules “shall not require agreement or formal 

collaboration to establish coordination” is so broad that “[n]o 

element of agreement, formal or informal, express or 

implied, can be required” as a condition of finding 

coordination. Chamber J.S. 26. That argument was 

correctly rejected by the district court majority. Relying on 

familiar canons of statutory construction, the majority ruled 

that the term “agreement,” when followed by the phrase “or 

formal collaboration,” means only that the new FEC rules 

may not require “formal agreements” to establish 

coordination. JSSA 146-47sa n.94 (per curiam). That 

reading is faithful to Congress’s intent to ensure that the 

new rules would reach “de facto and informal coordination” 
5 

as well as formal arrangements. Id.3 Section 214(c) is thus 

entirely consistent with this Court’s recognition that 

coordination includes “general . . . understanding[s]” and 

“wink or nod” arrangements. Colorado Republican Fed. 

Campaign Comm. v. FEC, 518 U.S. 604, 614 (1996) 

(plurality opinion); see FEC v. Colorado Republican Fed. 

Campaign Comm., 533 U.S. 431, 442 (2001). 

The Chamber appellants also seek to broaden these 

cases to encompass the validity of the FEC’s new 

coordination regulations. Chamber J.S. 14, 26-30. As noted 

above, any challenge to those rules must be brought before a 

single-judge district court in an action under the APA. The 

Chamber’s challenge to the rules is also insubstantial on the 

merits. The principal challenged rule is new 11 C.F.R. 

§ 109.21(d)(1), which, the Chamber complains, “continues to 

include as ‘coordinated’ any independent speech ‘at the 

request or suggestion of a candidate or an authorized 

committee, political party committee, or agent.’ ” Chamber 

J.S. 30 (emphasis added). In Buckley v. Valeo, 424 U.S. 1, 47 

n.53 (1976) (per curiam), this Court approved a “request or 

suggestion” standard for coordination reflected in the 

legislative history of the 1974 FECA amendments, and 

Congress expressly adopted that standard in 1976 in reliance 

on Buckley (see 2 U.S.C. § 441a(a)(7)(B)(i)).4 

CONCLUSION 

The Court should summarily dispose of the ACLU, 

AFL-CIO, and Chamber appellants’ challenges to Sections 

3 See 148 Cong. Rec. S2145 (daily ed. Mar. 20, 2002) (statement of 

Sen. McCain) (intent is to reach “[i]nformal understandings and de facto 

arrangements [that] can result in actual coordination as effectively as 

explicit agreement or formal collaboration”); id. (statement of Sen. 

Feingold) (FEC’s prior rule “sets too high a bar” and “would miss many 

cases of coordination that result from de facto understandings”). 

4 That standard was approved again in the Christian Coalition 

district court decision upon which appellants otherwise rely, and indeed 

was part of the prior FEC rules that appellants are seeking to restore. 

See FEC v. Christian Coalition, 52 F. Supp. 2d 45, 91 (D.D.C. 1999); 11 

C.F.R. § 100.23(c)(2)(i) (2002), repealed by BCRA § 214(b). 
6 

214(a), 214(b), and 214(c). In all other respects, the Court 

should note probable jurisdiction of the appeals in these 

cases and set the cases for plenary review. 

ROGER M. WITTEN 

WILMER, CUTLER & 

PICKERING 

399 Park Avenue 

New York, NY 10022 

JUNE 2003 

Respectfully submitted, 

SETH P. WAXMAN 

Counsel of Record 

RANDOLPH D. MOSS 

ERIC J. MOGILNICKI 

EDWARD C. DUMONT 

PAUL R.Q. WOLFSON 

WILMER, CUTLER & 

PICKERING 

2445 M Street, N.W. 

Washington, D.C. 20037 

(202) 663-6000