UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

STEVE SCHONBERG, )

)

Plaintiff-Appellant, ) No. 11-5199 

 ) 

v. )

)

 REPLY 

 

FEDERAL ELECTION COMMISSION 

and UNITED STATES OF AMERICA, 

)

)

)

 

 Defendants-Appellees. ) 

APPELLEE FEDERAL ELECTION COMMISSION’S 

REPLY MEMORANDUM IN SUPPORT OF 

ITS MOTION FOR SUMMARY AFFIRMANCE 

 Appellant Steve Schonberg’s response to appellee Federal Election 

Commission’s (“FEC” or “Commission”) motion for summary affirmance 

confirms why the district court correctly ruled that Schonberg lacks standing. 

Schonberg again fails to show that the ruling he seeks — invalidating the limits 

and restrictions of the Federal Election Campaign Act (“FECA”), 2 U.S.C. §§ 431-

57 — would redress the financial disadvantage he allegedly suffered due to his 

incumbent-opponent’s ability to accept limited contributions from corporate 

political action committees (“PACs”).1

 

 

1

 Schonberg has apparently disavowed his alleged health-care injury. (See

Appellant’s Resp. to the FEC’s Mot. for Summ. Affirmance (“Resp.”) at 9 (Doc. 

No. 1333748).) 

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Without FECA’s limits, Schonberg’s opponent could accept unlimited 

contributions directly from corporate treasury funds, which, according to 

Schonberg’s own theories, would only aggravate, and not redress, his alleged 

financial disadvantage. Schonberg’s claim that in the absence of FECA, bribery 

laws would outlaw all campaign contributions is frivolous. Schonberg also fails to 

show that his alleged financial disadvantage in elections is a valid injury-in-fact in 

light of the Supreme Court’s holding to the contrary in McConnell v. FEC; 

Schonberg’s alleged injury was not caused by FECA but by his own refusal to 

accept contributions. See 540 U.S. 93 (2003). And finally, while Schonberg 

quibbles extensively with the Commission’s descriptions of his shifting claims, he 

cannot show that he has stated valid constitutional claims. This Court should 

summarily affirm the district court’s grant of the Commission’s motion to dismiss.2

I. Schonberg Lacks Standing 

 Schonberg’s response fails to demonstrate that he satisfies any of the three 

required elements of Article III standing: (1) redressability; (2) injury-in-fact, and 

(3) causation. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). In 

fact, Schonberg appears to contend that he does not need to demonstrate standing 

for his Emoluments, Appointments, and Compensation Clause claims. (Resp. 

 

2

 Summary affirmance is appropriate where, as here, the merits are so clear 

that “plenary briefing, oral argument, and the traditional collegiality of the 

decisional process would not affect [this Court’s] decision.” Sills v. Bureau of 

Prisons, 761 F.2d 792, 793-94 (D.C. Cir. 1985). 

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at 10.) Of course, that is incorrect: A plaintiff “must demonstrate standing for 

each claim he seeks to press and for each form of relief that is sought.” Davis v. 

FEC, 554 U.S. 724, 734 (2008) (internal quotation marks omitted). Contrary to 

Schonberg’s argument, nothing in Buckley v. Valeo, 424 U.S. 1 (1976), says 

otherwise. 

As the district court held, Schonberg’s alleged injury is not redressable since 

he would only suffer greater financial disadvantage if FECA’s restrictions were 

struck down. FECA does not authorize campaign contributions, as Schonberg 

contends. (See, e.g., Resp. at 4-6.) Without the ban on direct corporate 

contributions in 2 U.S.C. § 441b, corporations could contribute directly from their 

treasury funds (rather than only through PACs with funds collected from 

shareholders and employees). Without section 441a’s “[d]ollar limits on 

contributions,” id. § 441a(a), corporations could contribute unlimited funds. And 

without section 432(e)’s requirement that candidates designate campaign 

committees, candidates could accept contributions themselves. 

Nor does FECA immunize bribery from prosecution. These limits and 

restrictions do not prevent the federal government from prosecuting bribes, which 

are plainly different from contributions.3

 A contribution is not a bribe “unless the 

 

3

 Contrary to Schonberg’s claim (Resp. at 4), the district court was not 

required to accept, for purposes of the FEC’s motion to dismiss, Schonberg’s legal 

claim that all contributions are bribes. A court need only “accept as true all of the 

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payment is made in exchange for an explicit promise to perform or not perform an 

official act.” U.S. v. Allen, 10 F.3d 405, 411 (7th Cir. 1993). If a corporation 

made such a quid pro quo payment to a federal officeholder, the federal 

government could prosecute that bribe regardless of whether it would also 

constitute a campaign contribution limited by FECA.4

 Thus, corporations are not 

currently “allowed to bribe members of [C]ongress,” as Schonberg claims (Resp. at 

1), and a ruling invalidating FECA would have no effect on bribery prosecutions.5

Schonberg has also failed to allege a valid injury-in-fact or an injury that 

was caused by FECA. In his response, Schonberg does not even attempt to address 

the Supreme Court’s holdings in McConnell v. FEC that a candidate (1) has no 

legally protected interest in having “an equal ability to participate in the election 

process based on . . . economic status”; and (2) cannot claim that his fundraising 

 

factual allegations contained in the complaint,” Swierkiewicz v. Sorema N.A., 534 

U.S. 506, 508 n.1 (2002), and is “not bound to accept as true a legal conclusion 

couched as a factual allegation,” Papasan v. Allain, 478 U.S. 265, 286 (1986). 

4

 See Citizens United v. FEC, 130 S. Ct. 876, 908 (2010) (explaining that a 

contribution “given to secure a political quid pro quo . . . would be covered by 

bribery laws, see, e.g., 18 U.S.C. § 201, if a quid pro quo arrangement were 

proved” despite FECA’s “preventative” contribution limits) (internal quotation 

marks omitted). 

5

 Schonberg claims (Resp. at 3, 7) that the FEC “admitted” that contributions 

are “‘otherwise illegal’” but for FECA, relying on a sentence from the FEC’s 

opposition to his motion to expedite. But the FEC has admitted no such thing and 

has consistently argued just the opposite. Indeed, the very sentence Schonberg 

distorts states that “a ruling striking down FECA would allow incumbents to 

accept unlimited contributions.” (Appellee FEC’s Opp’n to Appellant’s Mot. to 

Bifurcate and to Expedite FECA Issues at 5 (Doc. No. 1331133).) 

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disadvantage is caused by FECA where it stems from the candidate’s own personal 

choice not to accept contributions. See 540 U.S. at 227-28. 

In short, Schonberg utterly fails to establish that he has Article III standing. 

And on that basis, the district court’s decision should be summarily affirmed. 

II. Schonberg Fails to State a Claim upon Which Relief Can Be Granted 

Schonberg’s response also fails to seriously contest the Commission’s 

showing that he has failed to state a claim upon which relief can be granted.6

 (See

Appellee FEC’s Mot. for Summ. Affirmance at 13-18 (Doc. No. 1331127).) 

For example, in an attempt to save his Ascertainment Clause claim, 

Schonberg invents a meritless Twenty-Seventh Amendment claim (Resp. at 14-

15), which does not appear in his Complaint and thus cannot be considered. As for 

his Fifth Amendment claim, Schonberg contends (see, e.g., Resp. at 5, 9) that 

FECA disadvantages challengers because corporations seek to bribe only 

incumbents, not challengers, but this assertion describes how third parties (i.e., 

corporations) purportedly seeking to make bribes allegedly treat challengers 

differently — not how FECA treats challengers differently. FECA treats 

 

6

 Contrary to Schonberg’s assertion (Resp. at 13), 2 U.S.C. § 437h does not 

deny any court jurisdiction to determine whether he has stated a claim. See Cal. 

Med. Ass’n v. FEC, 453 U.S. 182, 192 n.14 (1981) (section 437h certification not 

required when plaintiff lacks standing or fails to state a non-frivolous constitutional 

claim); Goland v. U.S., 903 F.2d 1247, 1257-62 (9th Cir. 1990) (affirming denial 

of section 437h certification and Rule 12(b)(6) dismissal). 

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incumbents and challengers the same way, so Schonberg’s Fifth Amendment claim 

also fails. See Buckley, 424 U.S. at 30-31. 

Thus, Schonberg’s frivolous claims fail as a matter of law. 

CONCLUSION 

 For the foregoing reasons, this Court should summarily affirm the district 

court’s grant of the Commission’s motion to dismiss. 

Respectfully submitted, 

Anthony Herman 

General Counsel 

David Kolker 

Associate General Counsel 

Harry J. Summers 

Assistant General Counsel 

Robert W. Bonham III 

Senior Attorney 

/s/ Kevin P. Hancock 

Kevin P. Hancock 

Attorney 

October 17, 2011 FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, D.C. 20463 

(202) 694-1650 

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CERTIFICATE OF SERVICE 

I hereby certify that on October 17, 2011, I will file the foregoing 

electronically via the Court’s ECF system pursuant to D.C. Cir. R. 25(a), 

I will cause four paper copies to be sent to the Court by first-class mail pursuant to 

D.C. Cir. R. 27(b), and I will serve a copy on the following by e-mail pursuant to 

Fed. R. App. P. 25(c)(1)(D): 

 Steve Schonberg, Sschonberg@aol.com 

/s/ Kevin P. Hancock 

Kevin P. Hancock 

Attorney 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

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