No. 07-953

In The

Supreme Court of the

United States

____________

CITIZENS UNITED, Appellant,

v.

FEDERAL ELECTION COMMISSION, Appellee.

____________

On Appeal from the United States District Court

for the District of Columbia

 ____________

Reply to

Supplemental Brief for Appellee

____________

March 13, 2008

James Bopp, Jr.

 Counsel of Record

Richard E. Coleson

Jeffrey P. Gallant

Clayton J. Callen

BOPP, COLESON & BOSTROM

1 South 6th Street

Terre Haute, IN 47807-3510

812/232-2434 (telephone)

812/235-3685 (facsimile)

Counsel for Citizens United
(i)

Corporate Disclosure Statement

Citizens United has no parent corporation, and no

publicly held company owns ten percent or more of its

stock. Rule 29.6.
(ii)

Table of Contents

Argument ................................................................... 1

I. The Actual Language of § 1253 Controls ....... 1

II. Congressional Intent in Allowing the

BCRA Option Controls ................................... 5

Conclusion ................................................................. 8
(iii)

Table of Authorities

Cases

Goldstein v. Cox, 396 U.S. 471 (1970) ...................... 5

McConnell v. FEC, 540 U.S. 93 (2003) ..................... 4

Constitution, Statutes, Regulations & Rules

2 U.S.C. § 437h .......................................................... 7

28 U.S.C. § 1253 .............................................. passim

28 U.S.C. § 2284 .............................................. passim

42 U.S.C. § 2000a-5 ................................................... 6

BCRA § 403 ..................................................... passim

Public Law 107-155 (“BCRA”) .................................. 1

Other Authorities

Eugene Gressman et al., Supreme Court Practice (9th

ed. 2007) ................................................................. 4, 5
Argument

The FEC errs in not applying the actual language

of 28 U.S.C. § 1253 and ignoring congressional intent

in continuing to provide BCRA’s special procedures.

I. The Actual Language of § 1253 Controls. 

The FEC quotes § 1253, FEC-Br. 5, but ignores its

actual requirement. Congress gave this Court jurisdiction over appeals from “interlocutory or permanent

injunction[s] in any . . . suit . . . required by any Act of

Congress to be heard and determined by a district court

of three judges” (emphasis added). The italicized

language resolves the present issue. As set out in

Appellant’s prior brief, CU-Br. 1-9, the sole focus of

“required” is what Congress “required” not what a

plaintiff elected. Citizens United was categorically

incapable of requiring anything “by an[] Act of Congress.” It neither is Congress nor controls Congress.

The jurisdictional question is simple: Was there “an

Act of Congress” that “required” convening a threejudge court? The same question faced the district court

under 28 U.S.C. § 2284: Was there an “Act of Congress”

that “required” it to convene a three-judge court?

There was such an “Act of Congress” that required

the three-judge Court—Public Law 107-155 or BCRA.

Section 403 sets out procedures governing constitutional challenges. Subsection (a) requires that challenges “shall be heard by a 3-judge court convened

pursuant to section 2284 . . . .” Section 1253’s jurisdictional requirement is met.

The only exception would be if subsection (a) were

inapplicable. Subsection (d) governs the “applicability”
2

of (a). Subsection (a) is inapplicable only if a plaintiff

after 2007 did not elect that it apply.

So a three-judge court is “required by an[] Act of

Congress,” 28 U.S.C. § 1253, under BCRA § 403(a),

whenever BCRA § 403(a) is applicable, under BCRA

§ 403(d), with “applicability” determined by election.

The question of whether a three-judge court is “required by an[] Act of Congress,” under § 1253, must be

answered only by looking to BCRA § 403(a), which is

the only provision that addresses Congressional

requirement of a three-judge court. Subsection (d) only

answers the question of whether subsection (a) is

applicable. If subsection (a) is applicable, it “require[s]”

a three-judge court by congressional act, which triggers

operation of 28 U.S.C. § 2284 (convening three-judge

court) and 28 U.S.C. § 1253 (jurisdiction of appeals

from interlocutory injunctions).

The FEC slips the question of whether a threejudge court is “required” from BCRA § 403(a) down to

subsection (d). See FEC-Br. 3-7. But any “elect[ion]” in

subsection (d) is not a “require[ment] by an[] Act of

Congress, as § 1253 mandates. It is merely an election

by a plaintiff. Section 1253 requires a search for a

“require[ment]” done by Congress. BCRA § 403(a)

provides that. Subsection (d) does not. Seeking in

subsection (d) for the congressional “require[ment]” of

a three-judge court that § 1253 mandates is searching

for oranges at an apple stand.

Since 28 U.S.C. § 1253 is clear and plainly provides

jurisdiction because its sole criterion is met by BCRA

§ 403(a), there is no warrant to search for interpretation principles. Yet the FEC does.
3

The FEC notes that this Court has declined direct

appeals where a three-judge court was improperly

convened, but concedes that “the three judge court in

this case was properly convened after appellant elected

that procedure . . . .” FEC-Br. 4. This is an important

concession because 28 U.S.C. § 2284 requires the

convening of a three-judge court where “required by

Act of Congress.” The FEC did not challenge the

convening of the three-judge court and does not challenge it now, which means that the three-judge Court

was “required by Act of Congress,” which is the same

trigger as § 1253’s “required by an[] Act of Congress.”

The “require[ment] by . . . Congress” in both statutes is

satisfied by BCRA § 403(a), and both statutes are

applied in the context of the plaintiff having elected for

subsection (a) to be applicable under subsection (d).

The concession that the three-judge Court was “required by Act of Congress” for purposes of § 2284

vitiates the FEC’s argument that the three-judge court

was not “required by an[] Act of Congress” for purposes

of § 1253. The FEC’s inconsistent arguments as to

§§ 1253 and 2284 reveal the weakness of its jurisdictional argument.

The identical triggering requirement in §§ 1253 and

2284 reveal that Congress could not have intended to

grant a three-judge court without also granting direct

appeal under § 1253. Identical triggers mean that the

FEC’s argument as to § 1253 precludes a three-judge

court under § 2284. To be consistent, the FEC must say

that, since a plaintiff is not required to elect the BCRA

option, the “required by Act of Congress” trigger in

§ 2284 is not met and BCRA plaintiffs get no threejudge courts. But Congress clearly intended that
4

plaintiff election under BCRA § 403(d) would make the

congressional three-judge court requirement in

§ 403(a) applicable and so meet the “required by Act of

Congress” trigger of § 2284. The FEC concedes this

congressional intent by arguing that a plaintiff making

the election under § 403(d) gets a three-judge court.

FEC-Br. 7, 10-11. But since the triggers are the same,

if Congress intended a three-judge court it also intended jurisdiction under § 1253.

Congress must be presumed to know its own

statutes. Cf. McConnell v. FEC, 540 U.S. 93, 211 (2003)

(Congress presumed to know of this Court’s decisions).

So it must be presumed to have known that § 1253 had

the same trigger as § 2284. That is why there was no

need to “establish a BCRA-specific mechanism for appealing an interlocutory order.” FEC-Br. 2. Congress

knew that there was such a mechanism in § 1253,

triggered by its requirement of a three-judge court in

BCRA § 403(a). So it must be presumed that if Congress intended that the trigger in 28 U.S.C. § 2284

would be met, then it intended that the identical

trigger in § 1253 would also be met. The FEC’s arguments fail to overcome this necessary presumption of

congressional knowledge and intent.

The FEC argues that “this Court has applied a rule

of narrow construction” in resolving “doubtful questions” under § 1253. FEC-Br. 5. Nothing is “doubtful”

here, so construction rules are unneeded. And the rule

referenced came from before Congress repealed most

direct appeals, so that “[t]he basic reasons for construing the statutes so strictly have large disappeared.”See

Eugene Gressman et al., Supreme Court Practice 100-

01 (9th ed. 2007). In its prior brief, Appellant discussed
5

how this has resolved inundation concerns and cited

the opinion in Supreme Court Practice that “the Court

can no longer be said to be overburdened by the few

appeals from three-judge district courts that are now

being filed and heard.” CU-Br. 10 n.2 (citation omitted). That authority also notes that the repeals call

into question the “rule of narrow construction” that the

FEC now cites: “[T]he coverage of the surviving threejudge court statutes is so narrowly defined as to make

a restrictive interpretation unnecessary and, at least

in some circumstances, inconsistent with the intent of

Congress.” Supreme Court Practice 102.

Moreover, the same Congress cited in Goldstein v.

Cox, 396 U.S. 471, 478 (1970), as having the purpose of

narrowly confining this Court’s docket, see FEC-Br. 5,

specifically enacted a new direct appeal statute, BCRA

§ 403(a), both for “final decisions” and interlocutory appeals (because Congress must be presumed to have

known of § 1253). A congressional intent to limit direct

appeals that is evident in the repealing of direct-appeal

requirements cannot logically be argued as the basis

for avoiding direct appeals where the same Congress

expressly enacted this new direct-appeal statute.

Congress intended no rule of narrow construction.

II. Congressional Intent in

Allowing the BCRA Option Controls.

BCRA is unique in allowing continued plaintiff

election of the special procedures of BCRA § 403(a).

The FEC concedes uniqueness, FEC-Br. 4, but ignores

its implications for congressional intent. Congress

recognized that BCRA operates in an especially-sensitive area that requires the special procedures. Congress has done this in other important contexts, as
6

1This unilateral election of three-judge courts answers

the “asymmetry” argument. FEC-Br. 10-11 n.2. BCRA

§ 403(a) allows direct appeal of “final decisions” although

plaintiff elected the three-judge court. Strict scrutiny even

imposes asymmetrical burdens on the government.

2The FEC here seeks to justify a rule of narrow construction for § 1253 by quoting a holding that a direct

appeal would be heard “‘only where such an order rests

upon resolution of the merits of the constitutional claim

presented below.’” FEC-Br. 7 (citation omitted). Whether

(continued...)

when civil rights are violated in public accommodations, where the Attorney General may elect a singleor three-judge court, with expedition similarly required. See 42 U.S.C. § 2000a-5.1

Congress believed that plaintiffs should continue to

have access to § 403(a)’s special procedures—for plaintiffs finding more benefits than detriments in them.

Congress indicated no intent to diminish the special

procedures after 2006. BCRA’s uniqueness shows the

high value Congress placed on plaintiffs having undiminished access to the special procedures. This intent

requires an approach that seeks to affirm and promote

the special protections that Congress affordedplaintiffs

against BCRA.

The FEC seeks instead to limit protection by an

appeal to “Congress’s broader purposes,” FEC-Br. 7-9,

and the other “benefits of . . . election.” FEC-Br. 10-11.

As to “broader purposes,” the FEC argues that what

Congress was really trying to avoid was “‘improvident

doom at the hands of a single judge.’” FEC-Br. 7

(citation omitted).

2

 The implication is that the only
7

2

(...continued)

the former rule of narrow construction survives has been

discussed, but the denial of the present preliminary injunction did “rest[] upon the merits,” as the FEC concedes. FECBr. 8. So the FEC’s point that “it [is not] sufficient that a

three-judge court was properly convened,” FEC-Br. 6, goes

nowhere, even if the “resolution of the merits” rule applies.

purpose served by a three-judge court statute was to

avoidconsideration of important constitutionalmatters

by a single judge and Congress didn’t care about direct

appeals. But that is not so, else Congress would not

have provided direct appeals, as to interlocutory and

permanent injunctions, from three-court decisions in

§ 1253 (and in such specific provisions as BCRA § 403).

Congress implemented three-judge court requirements

and direct appeal so that in highly important matters

the additional step of having a matter heard by three

judges could be skipped. A three-judge district court

essentially acts as the usual three-judge panel, thereby

allowing the appellate process to skip a step. Cf. 2

U.S.C. § 437h (skipping district court by requiring

cases challenging FECA provisions to be immediately

certified by the district court to the court of appeals for

en banc review). These statutes are not just about

providing multiple judges but are also about expedited

appellate review (by removing one of the usual layers),

judicial economy, and the importance of the matters

under consideration.

The FEC relies on the fact that Congress did not

mandate BCRA § 403(a) procedures after 2006, arguing that Congress apparently did not think them

necessary. FEC-Br. 8-9. This argument would mean

that a three-judge court shouldn’t be available either,
8

3

In light of the time for notice of appeal to the court of

appeals expiring on March 17, if this Court dismisses this

appeal for lack of jurisdiction on or after that date, Appellant requests a remand for a fresh order from the district

court.

because Congress did not make it necessary. But the

FEC’s essential flaw is in ignoring the implications of

Congress continuing to make BCRA procedures available, which indicates that Congress thought that the

special procedures are essential to plaintiffs finding

them useful. It is illogical to argue that Congress

thought special procedures were unimportant because

it no longer requires them, when Congress has taken

the extraordinary step of requiring them for plaintiffs

electing them.

Finally, the FEC argues that if dismissed Appellant

“will receive every procedural safeguard specified in

BCRA § 403(a) itself.” FEC-Br. 10. As already discussed, Congress would have intended to include

interlocutory direct appeals under § 1253 without

mentioning them because it knew that the three-judge

court would trigger them. It intended jurisdiction, and

this sort of case requires this Court’s prompt review of

preliminary injunctions.

Conclusion

This Court has jurisdiction.3
9

Respectfully submitted,

James Bopp, Jr.,

Counsel of Record

Richard E. Coleson

Jeffrey P. Gallant

Clayton J. Callen

BOPP, COLESON & BOSTROM

1 South 6th Street

Terre Haute, IN 47807-3510

812/232-2434 (telephone)

812/235-3685 (facsimile)

Counsel for Citizens United