1

[ORAL ARGUMENT NOT YET SCHEDULED]

UNITED STATES COURT OF APPEALS

DISTRICT OF COLUMBIA CIRCUIT

__________________________________

 )

STEVE SCHONBERG, PRO SE, )

 )

 Plaintiff-Appellant, )

 )

 v. ) No. 11-5199

 )

FEDERAL ELECTION COMMISSION, ) RESPONSE TO 

 ET AL., ) DISPOSITIVE MOTION

 )

 Defendants-Appellees )

__________________________________ )

APPELLANT‟S REPONSE TO THE FEC‟S MOTION 

FOR SUMMARY AFFIRMANCE

Introduction

Just prior to the creation of the FEC in 1974, there was no internet, there 

were no commercially available computers, and corporations were not allowed to 

bribe members of congress.

“I am not an advocate for frequent changes in laws and 

Constitutions. But laws and institutions must go hand in hand 

with the progress of the human mind. As that becomes more 

developed, more enlightened, as new discoveries are made, new 

truths discovered and manners and opinions change, with the 

change of circumstances, institutions must advance also to keep 

pace with the times. We might as well require a man to wear still 

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the coat which fitted him when a boy as civilized society to 

remain ever under the regimen of their barbarous ancestors.”

Thomas Jefferson quote, inscribed on panel 4 of the Jefferson Memorial, 

Washington, D.C. 

“New truths” have been discovered since 1974. Because much of the “law 

of the land” with respect to first impressions on the constitutionality of FECA is 

now contained on two pages of an error-riddled opinion of a district court,1the 

FEC‟s motion for summary affirmance should be denied. 

ARGUMENT

A. SUMMARY AFFIRMANCE IS IMPROPER

“A party seeking summary disposition bears the heavy burden of 

establishing that the merits of his case are so clear that expedited action is 

justified.” TaxpayersWatchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 

1987), (internal citations, omitted). “To summarily affirm an order of the district 

court, this court must conclude that no benefit will be gained from further briefing 

and argument of the issues presented.” Id at 298. This Court is “obligated to view 

the record and the inferences to be drawn therefrom „in the light most favorable to 

[appellant].‟" United States v. Diebold, Inc., 369 U.S. 654, 655, (1962).

In its motion or summary affirmance, the FEC relied only on 

 

1 Mot. Exh 1 at 5-6

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TaxpayersWatchdog, Inc., supra. See Mot. at 3. This is perhaps because it is the 

sole reported case in which summary affirmance was discussed. And in 

TaxpayersWatchdog, Inc., 819 F.2d at 299, the record was “barren, however, of 

any facts that would suggest” a delay created by a full review would be beneficial. 

Unlike appellant TaxpayersWatchdog, Inc., appellant Schonberg is not appealing 

for the purpose of delay. 

Appellant has already extensively challenged the district court‟s opinion and 

ruling; summary affirmance is improper. See appellant‟s motion to expedite, Doc.

1328567 at 2-18, which is attached as Exhibit 1, and the reply, Doc. 1331980,

attached as Exhibit 2. The exhibits are incorporated by reference and relied upon 

in this response. The Court is invited to note that the FEC essentially admitted 

appellant‟s 5th Amendment and Compensation Clause claims. See Reply, Exh 2 at 

1-2. And the FEC was unable to respond to several of the district court‟s mistaken 

conclusions outlined in appellant‟s motion. See Reply, Exh 2 at 3-6.

B. FEC MISREPRESENTATIONS

“To be persuasive we must be believable; to be believable we must be 

credible; to be credible we must be truthful.” Edward R. Murrow quotes

(American Journalist, 1908-1965.) The FEC has lost credibility. Even if the Court 

could properly grant summary affirmance, which it cannot, the following 

misrepresentations by the FEC belie truthfulness.

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1. “Schonberg‟s claims all rest on the flawed premise that without FECA, 

other statutes or the Constitution would limit campaign contributions...”

2

Flawed or not, appellant‟s Second Amended Complaint, Mot. Exh 2, is 

replete with the claim that campaign contributions are bribes. E.g., ¶33: “All 

corporate donations to the campaign committees of members of Congress are 

emoluments or bribes, given in an attempt to influence or induce the member‟s 

conduct as a legislator.” That claim must be accepted as true for the purposes of a 

motion to dismiss. Swierkiewicz v.Sorema, 534 U.S. 506, 508 (2002). It can‟t be 

twisted by the FEC and the district court into the incredible error that statutes 

preventing “bribery and the like” would fail to stop bribery if FECA was ruled 

unconstitutional. 

After the FEC was created in 1974, the “majority of the voting members” of 

the Commission were “appointed by the President pro tempore of the Senate and 

the Speaker of the House.” Buckley v. Valeo, 424 U.S. 1,5 (1976). In overturning 

the original FECA appointment process, the Buckley court said, “[A]ny appointee 

exercising significant authority pursuant to the laws of the United States is an 

„Officer of the United States,‟ and must, therefore, be appointed in the manner 

prescribed by 2, cl. 2, of that Article.” 424 U.S.at 126. Members of that same 

Congress, who unconstitutionally tried to reserve for themselves the right to 

control the membership of the FEC, also devised a plan to appoint themselves as 

 

2Mot. at 1.

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agents of their campaign committees to legally receive bribes from the 

corporations they regulated. That plan was enacted in FECA, 2 U.S.C. § 431 et

seq., by: 

1. §441b (2)(C), allowing corporations to form political committees 

known as “PACs,” 

2. §441b(2)(D), allowing PACs to solicit funds from shareholders and 

employees, 

3. §432(e)(1), requiring a candidate for Congress to designate a 

campaign committee, 

4. §432(e)(2), causing members of Congress to become the agents of 

their campaign committees, and 

5. §441a(a)(2) authorizing corporate PACs to give campaign money to 

members of Congress. 

One of the adverse side-effects of this incestuous arrangement is that 

complicit incumbent members of congress are treated differently than their

challengers. The incumbent receives an enormous election advantage because the 

corporations that are enabled by FECA to bribe the complicit members do so to the 

detriment of a challenger who is devoid of the congressional power to advocate or 

help enact a quid pro quo for the corporation. “An essential element of an equal 

protection claim is that the challenged statute treats similarly situated entities 

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differently,” Calif. Med. Ass’n v. FEC, 453 U.S. 182, 200, (1981). 

Without FECA, corporations would be subject to the bribery statute, 18 

U.S.C. § 201(b)(1), which would prevent the extensive purchase of congressional 

votes by wealthy corporate donors. Congress is so inundated with corporate cash 

that it no longer seems to have the general welfare of the people as the top 

congressional priority. 

In addition, the Gift Rule, 5 U.S.C. § 7353, and the House Ethics Manual, 

(2008 Edition) at 23-85, properly restrict what the FEC erroneously claims would 

result in “unlimited” contributions if there were no FECA. FECA is 

unconstitutional, but that doesn‟t mean the constitution prohibits campaign 

contributions; and appellant never claimed it did, despite the misstatements

propounded by the FEC. Appellant‟s complaint is not flawed. This FEC motion 

is.

2. “Schonberg‟s claims all rest on the flawed premise that without FECA...the 

public financing of elections would inevitably follow.”

3

The FEC had no good faith basis to make this statement concerning public 

financing of campaigns. It provided no citation from which this alleged assertion 

arose. It is certainly not in Plaintiff‟s Second Amended Complaint, Mot. Exh 2. 

 

3Mot. at 1-2.

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3. “Schonberg... brought this suit claiming that FECA gives incumbents like 

his opponent an unconstitutional election advantage by authorizing them to 

accept campaign contributions.”

4

As above, this is simply not part of the Plaintiff‟s Second Amended 

Complaint, and the FEC has not provided a reference as to the origin of the alleged 

claim. Perhaps the FEC meant to say that appellant avers that “FECA gives 

incumbents an unconstitutional election advantage by authorizing them to be 

bribed by the corporations they regulate.” 

4. “Schonberg lacks standing. As the district court held, Schonberg‟s alleged 

injuries are not redressable because FECA does not make campaign 

contributions lawful as a matter of legislative grace — the statute limits 

contributions, which are otherwise lawful and unrestrained.”

5

The statute limits contributions, but it allows corporations to influence the 

legislators who control and regulate them by virtue of what the FEC calls 

“contributions” and what appellant calls “corruption.” And the FEC has admitted 

that the contributions would be “otherwise illegal,” but for FECA.6 Because 

corporations have no interest in influencing a challenger like appellant, but they 

have an enormous thirst to influence his incumbent opponent, appellant is injured 

by FECA‟s invidious discrimination. His opponent, Representative Cliff Stearns, 

receives hundreds of thousands of dollars of campaign donations from the 

corporations he regulates each year, and has a war chest of $2.4 million dollars as a 

 

4Mot. at 2

5

Id

6

FEC Opposition Doc. 1331133 at 5

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result.7 

In 1974 the Federal Election Commission and campaign committees were

created in amendments to FECA. The first business day after the new law took 

effect, Buckley v. Valeo, 424 U.S. 1(1976) was filed. ((See McConnell v.Federal 

Election Commission, 251 F.Supp.2d 176,194, (D.C. 2003) (per curiam)). 

Although the Buckley court considered Fifth Amendment invidious discrimination, 

it concluded:

Absent record evidence of invidious discrimination against 

challengers as a class, a court should generally be hesitant to 

invalidate legislation which on its face imposes evenhanded 

restrictions. Cf. James v. Valtierra, 402 U.S. 137 (1971).

Buckley, 424 U.S. at 31. A record of invidious discrimination was impossible in 

Buckley because it was filed so soon after the law went into effect. Appellant 

made an extensive record of invidious discrimination in his Second Amended 

Complaint.8 The district court neglected to address the claim of corporate bribery 

of incumbents and instead generally concluded:

With respect to Schonberg‟s FECA and BCRA claims, the

injuries of which he complains are that the campaign finance

regime as currently enacted unfairly advantages incumbents in

federal elections and has prevented the United States from

enacting universal, affordable health care.

 

7

See, e.g., Second Amended Complaint, Mot. Exh 2, ¶¶37,63,65,69-75

8

See Mot. Exh 2, ¶¶ 1,31,33,35,37,41,43,63,66,82-

92,94,102,155,196,199,201,203,213(e),243(d). 

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Mot. Exh 1 at 5. And although appellant did describe personal disappointment 

with health insurance availability, it was not part of any claim for relief. See Mot. 

Exh 2, at 46-66. 

7. “In any event, Schonberg‟s constitutional challenges to FECA are 

frivolous.”

9

 

The district court never said appellant‟s constitutional challenges were 

frivolous. See Mot. Exh 1. How can the FEC ask for summary affirmance based 

on a conclusion that was not part of the underlying decision?

8. “Thus, a ruling striking down FECA would allow incumbents to accept 

unlimited contributions, which according to Schonberg‟s own theories would 

exacerbate, not remedy, the electoral disadvantages and legislative ills about 

which he complains.” 

Unlimited contributions for incumbents and challengers would be fair and 

constitutional, as long as they do not run afoul of the bribery statute, the Gift Rule 

and the House Ethics Manual referenced above. Bribes, which only incumbents 

can receive, are what FECA allows. Those bribes are unconstitutional and 

invidiously discriminate against the challenger. “Equal protection analysis in the 

Fifth Amendment area is the same as that under the Fourteenth Amendment,” 

Buckley, 424 U.S. at 93. Appellant has shown that there is invidious 

discrimination against him of “some substance,” Texas v.White, 415 U.S. 767,782 

(1974). 

 

9Mot. at 2

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9. “Schonberg has also failed to show that FECA has caused him any 

cognizable injury-in-fact.”10

With respect to the Emoluments, Appointments and Compensation Clauses, 

no court, nor the FEC, has contended that an injury need be shown. The Buckley 

court determined these would be questions “of ripeness, rather than lack of case or 

controversy under Art. III...,” 424 U.S. 117-18. The courts can decide whether 

FECA is or is not unconstitutional based solely on the arguments advanced on 

these clauses. In contrast, however, the Fifth Amendment invidious discrimination 

claim does require the showing of an injury in fact. Lujan v. Defenders of Wildlife, 

504 U.S. 555, 560-61(1992). 

Appellant must show that he, (1) suffered an injury in fact, (2) which is 

fairly traceable to the challenged act, and (3) is likely to be redressed by a 

favorable decision. Lujan, 504 U.S. at 560-61. The following injuries are 

described in appellant‟s Second Amended Complaint, Mot. Exh 2, and their 

existence was ignored by the district court and the FEC.

 1. Monetary Advantage 

In the 2010 election cycle Representative Stearns sat on several committees 

of the House of Representatives that regulate corporations. He has received 

 

10Mot. at 9

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hundreds of thousands of dollars from the corporations he regulates.11 

Corporations are in the business of making money and their Political Action 

Committees (PACs) do not make political contributions to candidates unless they 

are in a position to help the corporations be profitable. “A corporation is set up to 

provide legal and economic benefits to those who invest in it...,” 18 CJS 1, (1990).

An incumbent member of Congress who regulates a corporation is in a 

position to help the corporation be profitable. A challenger who does not regulate 

the corporation is not in a position to help the corporation be profitable. By 

allowing members of Congress to receive campaign contributions from corporate 

PACs, FECA gives the incumbent a monetary advantage. Appellant was injured 

because his opponent received a monetary advantage simply by carrying out his 

congressional duty of regulating corporations. 

(1) The injury in fact: Unjust Campaign Money to Rep. Stearns.

(2) Traceability: Yes, from corporate contributions which would be 

bribes, but for FECA.

(3) Redressability: Yes, if there were no FECA, the contributions 

would be treated as bribes by the U.S. Department of Justice, 18 U.S.C. § 

201(b)(1) , and they would violate the Gift Rule, 5 U.S.C. § 7353.

 

11Mot. Exh 2 at ¶¶ 45,87,94,147,155.

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 2. Campaign Cash in Financial Institutions12

“Friends of Cliff Stearns” is the multi-million dollar principal campaign 

committee fund which Representative Stearns oversees in his duty as Agent and 

civil Officer. FECA allows incumbents to amass enormous amounts of corporate 

money in their campaign accounts as the incumbent is re-elected, election cycle 

after cycle. 

“Friends of Cliff Stearns” earned over $75,000 from various financial 

institutions in Florida District 6 in 2009. In the two year campaign cycle, 

Representative Stearns could use far in excess of $100,000 from these earnings for 

any campaign purpose. The cash came largely from corporations regulated by 

Representative Stearns; and it‟s availability to assist his re-election campaign 

invidiously discriminates against appellant. Having millions of dollars in several 

banks in Florida District 6 also provides Representative Stearns with election 

advantages because of support for him by the banks‟ employees and customers. 

This is another campaign injury appellant suffered because of the invidious 

discrimination.

(1) The injury in fact: Unjust election votes and campaign cash for 

Representative Stearns. 

(2) Traceability: Yes, FECA allowed Representative Stearns to amass 

 

12 Mot. Exh 2 at ¶¶ 62-81.

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enormous wealth in “Friends of Cliff Stearns” and to deposit the cash in local 

financial institutions.

(3) Redressability: Yes, If no FECA, then no “Friends of Cliff 

Stearns.”

10. “FECA treats all candidates equally and creates no federal „office‟ that 

would implicate the various constitutional clauses Schonberg invokes.”

13

FECA at 2 U.S.C. § 437h requires the district court to immediately “certify 

all questions of constitutionality of this Act to the United States court of appeals 

for the circuit involved, which shall hear the matter sitting en banc.” Neither this 

3-Judge Court nor the district court has jurisdiction to decide whether FECA 

creates a federal office by requiring members of congress to be appointed as agents 

of their campaign committees. If the Court ignores § 437h to deliberate on the 

conclusion sought by the FEC, then appellant asks it to consider the following.

 A. APPOINTMENTS CLAUSE INFRACTION

Article II, § 2, Clause 2 of the U.S. Constitution provides that, “... the 

Congress may by Law vest the Appointment of such inferior Officers, as they think 

proper, in the President alone, in the Courts of Law, or in the Heads of 

Departments.” Because Congress does not have appointment power, it cannot 

appoint its members to act as Agents and civil Officers of their respective 

 

13 Mot. at 2

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campaign committees. FECA at 2 U.S.C. §432, §434, §439, §439a, and §441i is 

therefore unconstitutional. See Mot, Exh 2, ¶¶ 205-06.

“The Framers‟ experience with post revolutionary self-government 

had taught them that combining the power to create offices with the 

power to appoint officers was a recipe for legislative corruption. The 

foremost danger was that legislators would create offices with the 

expectancy of occupying them themselves.” 

Freytag v. Commissioner of Internal Revenue, 501 U.S. 868, 904 (1991).

Although Buckley addressed the Appointments Clause issue with regard to 

the appointment of FEC members, Buckley, 424 U.S.117-137, the Buckley court 

never considered whether the appointment of a legislator as the agent of his/her 

campaign committee violated the Appointments Clause. Here is the Appointments 

Clause question that the Buckley court failed to answer:

1. Does 2 U.S.C. §432(e)(2) violate the Appointments Clause because 

members of Congress have appointed themselves as agents and civil Officers of 

their campaign committees?

 B. COMPENSATION CLAUSE INFRINGEMENTS

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 congress from raising its members‟ 

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compensation “until an election of Representatives shall have intervened.”

 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. FECA infringes on the 

Compensation Clause in numerous ways. Multiple examples are contained in 

Mot. Exh 2, ¶ 209. Because members of congress receive extra compensation 

from corporate bribes during the election cycle, FECA violates Amendment 

XXVII, which was not ratified until 1992, eighteen years after the FEC was 

created. Here is the Compensation Clause question that was not presented to the 

Supreme Court in Buckley:

1. Do 2 U.S.C.§§432(e)(1), 432(e)(2), 439a(a), and 439a(b) violate the 

Compensation Clause of the Constitution because these statutes provide members 

of Congress compensation in addition to that allowed by Art. I., Sec. 6 of the 

Constitution and Amendment XXVII?

C. EMOLUMENTS CLAUSE BREACHES 

The Emoluments Clause, United States Constitution, Art. I, § 6, cl. 2, states 

that members of Congress cannot be appointed to any “civil Office under the 

Authority of the United States”, and that, “no Person holding any Office under the 

United States” shall be a member of Congress. 

The Emoluments Clause was made a part of the United States Constitution 

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to help prevent corruption in Congress.14 Here are some of the notes of the 

framers:

Mr. Pierce Butler: “Look at the history of the government of Great 

Britain, where there is a very flimsy exclusion—Does it not ruin their 

government? A man takes a seat in parliament to get an office for 

himself or friends or both; and this is the great source from which 

flows its great venality and corruption.”15 

Mr. Alexander Hamilton: “I am, therefore, against all exclusions and 

refinements, except only in this case; that when a member takes his 

seat, he should vacate every other office.”16

“Mr. Rutledge, was for preserving the Legislature as pure as possible, 

by shutting the door against appointments of its own members to 

offices, which was one source of corruption.”17

“Mr. Jenifer remarked that in Maryland, the Senators chosen for five 

years, could hold no other office and that this circumstance gained 

them the greatest confidence of the people.”18

Gov. John Rutledge: “No person ought to come to the legislature with 

an eye to his own emolument in any shape.”19

Mr. George Mason: “But if we do not provide against corruption, our 

government will soon be at an end...”20

 

14 The Emoluments Clause and the Appointments Clause are counterparts. The 

former says a member of Congress cannot be a civil Officer and the latter says 

Congress cannot appoint a civil Officer.

15 “1787 DRAFTING THE U.S. CONSTITUTION,” Wilbourn E. Benton, editor, 

(1986), pg. 715.

16 Id. at 717

17 Id. at 718

18 Id. at 721

19 Id. at 723

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Mr. James Madison: “I believe all public bodies are inclined, from 

various motives, to support its members; but it is not always done 

from the base motives of venality...”21

Mr. Roger Sherman: “The Constitution should lay as few temptations 

as possible in the way of those in power.”22

The Article I Emoluments Clause was discussed in Buckley,

424 U.S. at 124-5.23 Here are two Emoluments Clause issues that the Buckley

court did not analyze:

1. Is a member of Congress, acting as the agent of his/her campaign 

committee, a civil Officer under the Art. I Emoluments Clause?

2. Does 2 U.S.C.§439a(a)(2) create an Art. I, § 6, cl. 2 civil Office if 

campaign funds are used to pay the office expenses of a member of 

Congress? 

The Emoluments Clause in the context of FECA creating a “civil Office” had not 

been decided by the Supreme Court or any other court before the district court put 

its erroneous holding in footnote 3 of Mot. Exh 1, at 6.

11. “Schonberg does not, and cannot, point to any provision of FECA that

affirmatively authorizes private citizens or groups to make contributions.”

24

 

 

20 Id.

21 Id.

22 Id.at 732

23 See Doc.33-1 at pg 39.

24 Mot. at 9

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This quote is untrue, irrelevant, and not part of the Second Amended 

Complaint. FECA, 2 U.S.C. § 441a, provides the details of how contributions (and 

bribes, though not defined as such) are authorized by private citizens and groups.

12. “The Commission is an independent agency of the United States 

government with exclusive jurisdiction over the administration, 

interpretation, and civil enforcement of FECA. See generally 2 U.S.C. §§ 

437c(b)(1), 437d(a), 437g.”

25

The FEC is not independent because the Subcommittee on Elections of the 

Committee on House Administration has oversight responsibility on the activities 

of the FEC.26 And Congress determines the annual budget for the FEC.27 The 

FEC is quasi-independent at best and clearly under the thumb of, and accountable 

to, the U.S. House of Representatives. And if the FEC has “exclusive jurisdiction 

over the...interpretation...of FECA,” it should have moved to dismiss appellant‟s

original complaint in the district court for want of jurisdiction. 

 

 

 

25Mot. at 3

26 See: http://cha.house.gov/subcommittees/elections 

27See:

http://www.fec.gov/pages/budget/fy2012/FY_2012_Cong_Budget_Justification_fi

nal.pdf

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CONCLUSION

Congress enacted FECA and allowed incumbent congressmen/women to 

corruptly enrich themselves while it invidiously discriminates against challengers. 

The FEC ought to be made to show that FECA furthers “a compelling interest and 

is narrowly tailored to achieve that interest,” (emphasis added). FEC v. Wisconsin 

Right to Life, Inc., 551 U. S. 449,464 (2007). The unconstitutional congressional 

corruption created by FECA could be effectively reduced by “narrow tailoring” if 

the en banc Court of Appeals is permitted to address the merits of appellant‟s 

complaint.

 Respectfully submitted, 

/s/Steve Schonberg

Steve Schonberg, pro se

7938 SE 12th Circle

Ocala, FL 34480

sschonberg@aol.com

352-789-0610

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Certification of Service

I hereby certify that I filed the foregoing with the Clerk of the Court for the

United States Court of Appeals for the District of Columbia Circuit by using the

Appellate CM/ECF system on October 6, 2011. For participants in the case who

are registered CM/ECF users, service will be accomplished by the Appellate

CM/ECF system.

__/s/Steve Schonberg

Steve Schonberg, pro se

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