)

)

Plaintiff

)

V.

Civil No. 1:12-cv-01451

Federal Election Commission,

Three-Judge Court Requested

)

Defendant. )

))

APPLICATION FOR THREE-JUDGE COURT AND MEMORANDUM IN SUPPORT

Plaintiff moves for the convening of a lhree-judge court to adjudicate this challenge.

pursuant to § 403(a)(l) and (dW2 of the Bipartisan Campaign Refon Act of 2002 (BCRA”).’

Plaintiff submits this motion in accordance with LCvR 9.] of this Court

In relevantpart. BCRA 403. Pub. L. No. 107-155 (2002). 116 Stac 81. 13-14. provides for JUDICIAL

REVIEW as follows:

(a) SPECIAL RULES FOR ACTIONS BROUGHT ON CONSTITLTIONAL GROUNDS.If any azdon is

brc-ught for declaratory or injunctive relief:o chaflei:ge he constiiui:onality ofany provision ofthis Act orany amendment made by this Act, the following raes shall apply:

(1) The action shall be filed in (he Ur.ied States Disinct Cowl for the District ofcolmtbia and

shall be heard by a 3-jLdge court conversed pursuant to secticti 2284 of title 28. United S:atesCode.

2) A copy ofthe complaint shall be deLivered promp:ly to the Clerk ofthe House of

Representat’es and the Secretary ofthe .Senate

(3) A final decision in the action shall be rvie’able enly by appeal drecrlv to the Supreme

Ccurt ofii’e United States. Such appeal shal be taLen by the fili:g ofa notice ofappeal

thin 0 days, and the filing efa urisdict:cmnal satemen[ within 30 dvs. of die etirn oftlie

Qr.al decision.
action is brought for declaratory or injunctive relief to chaflenge the constitutionality of any

provision of this Act.. .[tjhe action shall be filed in the United States District Court for the

District of Columbia and shall be heard by a 3-judge court RCRA § 4O3a), 116 Stat, at 113-14

(emphasis added).

BCRA § 403(a) permits plaintiffs to elect three-judge review when they “cha]lenge the

constitutionality of any provision of [BCRA] or any amendment made by [BCRAJ.” Id. In

other words, BCRA creates a two-part test for plaintiffs who wish to elect such review: Plaintiff

must (1) make a constitutional challenge (2) to a BCRA provision or an amendment BCRA

made.

a. This case is a constitutional challenge.

Ms. James’ challenge to 2 U.S.C. § 441a(a)(3)’s sub-aggregate limit on individua]

candidate contributions is based on that limit’s violation of her First Amendment right to

(4) It shall be the durvofthe United S:a:es District Coart for the Distri:: cfCclumbia and the

Supreme Conil of the United Smies to advance on the docket and to epedite to the grealeslpossible exieni the disposition ofthe aclion and appeal

(b)

(c)

(d) APPLICABILITY.—

(I) INITIAL CLAIMS—....

(2) SUBSEQUENT ACTIONS—With respect to any action initially filed after December 31,2006, the

provisions ofsubseccion (a) shall not apply to any action described in such section unless the person filingsuch action elects such provisions to apply Eo the action.

2
b. This challenge arises under a provision of BCRA.

2 U.S.C. 441a(a)(3)(A)’s sub-aggregate limit on contributions to individual candidates

is wholly a BCRA provision. FECA, BCRA’s predecessor, contained an aggregate cap on tolal

contributions to candidates, parties and PACs. FECA 608(b)(3). BCRA, however, introduced a

novel statutory restriction by way of an additional sub-ag2regate limit on total contributions lo

individual candidates. 2 U.S.C. § 441a(a)(3)(A) (indexed for inflation peril C.F.R. §

I l0.5(b)(3)-(4) at 76 Fed. Reg. 8368 (Feb. 14, 201 1)). This [imit is lower than BCRA’s limit on

total contributions. Thus, BCRA effectively forces contributors to contribute to parties and/or

PACs if they wish to associaEe to the maximum amount allowed by [aw (currently $117000). 2

U.S.C. S 441a(a)(3) (indexed for inflation per 1] C.F.R. § I lO.5(b)(3)-(4) at 76 Fed. Reg. 836S

(Feb. 14, 2011)).

FECA did not contain a similar restriction, and instead only contained § 608(b)(3)’s

aggregate cap. Contributors could give up to this MI amount and, if they so desired, could do so

only throuzh contributions to various individual candidates. In effect, the relief Plaintiffultimately seeks is a ,erunl to a FECA-style aggregate scheme, lending her associationa] righis

the same legitimacy as ihose of contributors who wish lo associate with parties and PACs as wefl

as candidates.

Pursuant to LCvR 7(m) of this Court, Plaintiff has conferred with opposing counsel, and

Defendant does not oppose this motion.

3
Allen Dickerson, DC Bar 1003781Center for Competitive Politics

124 West Street South

Suite 201

Alexandria, Virginia 22314Phone: 703.894.6800

Facsimile :703.894.6811adickerson campai gnfreedom org

Counsel kn Plaintiff

4
to be served on the foflowing. via electronic and first class mail:

David KolkerAssociate General Counsel

Federal Election Commission

999 E Street. NW

Washington. D.C. 20436Phone: 202.694.1650Facsimile: 2022190260Email: dkolkerraJfecgov

Counsel/Or Du/endant, FEC

s/ Allen Dickerson

Allen Dickerson

-I