2

“required” the suit to be heard by such a tribunal. That
premise, however, self-evidently does not support appel-
lant’s contention that its suit falls within Section 1253’s cov-
erage. Congress cannot naturally be said to have “re-
quired” a three-judge court when it authorized a private
party to choose a different court. See Gov’t Supp. Br. 6.
Indeed, if Section 1253 were rewritten in the way that ap-
pellant accuses the government of attempting to rewrite it
(e.g., Appellant Supp. Br. 2)—~i.¢., as making this Court’s
jurisdiction contingent on whether the plaintiff has “re-
quired” the suit to be heard by a three-judge court—appel-
lant’s argument that Section 1253 applies here would be
much stronger. It is precisely because Section 1253 focuses
on whether Congress has “required” adjudication by a
three-judge court that the statute is not triggered when the
use of such a court depends on a plaintiff’s election.

At most, appellant’s focus on whether Congress has
required a three-judge panel for this suit exposes the ambi-
guity of the phrase “action, suit or proceeding” in 28 U.S.C.
1253. To the extent that phrase refers to the suit actually
filed subsequent to the plaintiff's election of a three-judge
panel, then at that point a three-judge panel is required. To
the extent it refers to the suit in the abstract (z.e., the sub-
stantive claims asserted) before the election takes place,
then a three-judge panel is not required because a suit as-
serting the same legal claims could have been filed before
and heard by a single judge.’ This simply restates the al-
ternatives of looking at the question from the perspective
of the district court (three-judge panel required) or the

? BCRA § 403(d)(2) appears to support the latter reading because it
refers to “any action” as a broad concept and allows the plaintiff to elect.
to have the three-judge court provisions “apply to the action.” 116 Stat.
114. That wording suggests that the plaintiff's election of a three-judge
court is distinct from, rather than part of, the pre-existing “action.”


7

eR ROK OK

For the reasons stated above and in the FEC’s supple-
mental brief, the appeal should be dismissed for lack of
jurisdiction. In the alternative, for the reasons explained in
the FEC’s motion to dismiss or affirm, the appeal should be
dismissed for lack of a substantial federal question, or the
judgment of the district court should be affirmed.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General

MARCH 2008

text. Neither BCRA nor 28 U.S.C. 1253 contains a comparable direc-
tive that this Court entertain appellant’s direct appeal from the inter-
locutory order at issue here.



4

lenging BCRA] in order to protect free speech.” Appellant
Supp. Br. 9; see id. at 9-11. But the question here is not
whether such a mechanism will be provided; the question is
only which court will furnish that mechanism. This Court’s
cases establish a preference for having the court of appeals
perform that role.

1. This Court has consistently interpreted Section 1253
in light of the “overriding policy, historically encouraged by
Congress, of minimizing the mandatory docket of this
Court in the interests of sound judicial administration.”
Gonzalez v. Automatic Employees Credit Union, 419 U.S.
90, 98 (1974) (emphasis added); see Gov’t Supp. Br. 5. That
policy, the Court has stated, “must be applied with redou-
bled vigor when the action sought to be reviewed here is an
interlocutory order of a trial court.” Goldstein v. Cox, 396
US. 471, 478 (1970).

Without explicitly acknowledging that established rule
of construction, appellant suggests (Supp. Br. 6, 10) that
such an interpretive approach is no longer appropriate be-
cause Congress has reduced the range of circumstances in
which three-judge courts are required. This Court, how-
ever, has never disavowed the canon of construction set
forth in such cases as Gonzalez and Goldstein. And, to the
extent that the overall coverage of three-judge court stat-
utes has declined during the years since those decisions
were issued, that fact simply suggests that Congress has
embraced the view that this Court’s mandatory jurisdiction
should be minimized. Indeed, BCRA itself reflects Con-
gress’s determination that, in constitutional challenges to
that statute, the three-judge court procedure was essential
(ie., required) only during a relatively brief period follow-
ing the law’s enactment (i.e, in suits filed on or before De-
cember 31, 2006). See BCRA § 403(d), 116 Stat. 114.



3

litigant (not required). The difficulty of concluding that a
non-mandatory three-judge panel is “required,” especially
when Section 1253 is read in light of rules of construction
disfavoring piecemeal appeals to this Court, counsels in
favor of resolving those ambiguities against jurisdiction.

Appellant’s reliance (Supp. Br. 7-8) on Wisconsin Right
to Life, Inc. v. FEC, No. 04-5992, 2004 WL 1946452 (D.C.
Cir. Sept. 1, 2004) (WRTL), is misplaced. Because the suit
in WRTL was filed before December 31, 2006, the three-
judge procedure was mandatory rather than elective. See
Bipartisan Campaign Reform Act of 2002 (BCRA), Pub. L.
No. 107-155, § 403(d)(1), 116 Stat. 114. Under the law in
effect at that time, the suit was unambiguously “required”
by BCRA to be adjudicated by a three-judge court, and the
District of Columbia Circuit correctly held that the plain-
tiffs interlocutory appeal lay to this Court rather than to
the court of appeals. The court in WRTL had no occasion
to apply 28 U.S.C. 1258 to a post-2006 suit, in which the
three-judge court procedure is elective rather than manda-
tory.”

B. Appellant’s Policy Arguments Lack Merit

Appellant contends that construing 28 U.S.C. 1253 to
apply in these circumstances would represent a wise policy
choice because “there needs to be a mechanism for expedi-
tious appeal of preliminary injunction denials [in suits chal-

? Appellant speculates (Supp. Br. 8) that, if the plaintiff in a post-
2006 challenge to BCRA elected a three-judge district court and the
court granted a preliminary injunction, the FEC would argue that the
injunction was reviewable by this Court. As the government’s supple-
mental brief explains (at 9 n.2), however, we agree with appellant that
both grants and denials of preliminary injunctive relief in such cases
would be reviewable in the same manner. The FEC’s appeal from a
preliminary injunction issued by a three-judge court in a post-2006 suit
would therefore lie to the court of appeals rather than to this Court.



6

(Court granted certiorari before judgment to review a pre-
liminary injunction issued by the district court). Even if
Section 1253 is held to be inapplicable to post-2006 BCRA
challenges in which the plaintiff elects the three-judge
court procedure, this Court therefore will have ample au-
thority to hear such cases and to provide whatever clarifica-
tion it deems necessary concerning either the applicable
First Amendment principles or the standards governing
preliminary injunctive relief.

Thus, the disputed jurisdictional question in this case
goes not to this Court’s power to resolve interlocutory dis-
putes in constitutional challenges to BCRA, but to its duty
to do so. Appellant identifies no reason to conclude (or to
suppose that Congress concluded) that recognition of such
a duty would be sound policy.’

* The appeal in this case presents a relatively pure question of law—
i.e., whether advertisements that fall within BCRA’s definition of “elec-
tioneering communication,” BCRA § 201(a) (2 U.S.C. 434(f)(3) (Supp.
V2005)), but that do not constitute the “functional equivalent of express
advocacy” under the lead opinion in FEC v. Wisconsin Right to Life,
Inc., 127 S. Ct. 2652, 2667 (2007) (opinion of Roberts, C.J.), may con-
stitutionally be subjected to BCRA’s reporting and disclaimer re-
quirements. Under appellant’s construction of 28 U.S.C. 1253, however,
this Court would also have been required to review the district court’s
factbound ruling (see J.S. App. 10a-11a) that “Hillary: The Movie” is
the functional equivalent of express advocacy if appellant had chosen to
appeal the district court’s denial of preliminary injunctive relief with
respect to the film itself. More generally, determining (sometimes on
the basis of an incomplete record) whether a particular plaintiff has
established a substantial likelihood of success on the merits of its
constitutional claim, and assessing the relative harms to the parties of
granting or withholding interim relief, will rarely be a sound use of this
Court’s resources. BCRA § 403(a)(3)'s grant of a right of appeal to this
Court from the district court’s “final decision” in this case is itself a
significant deviation from the generally discretionary character of this
Court’s docket. That deviation, however, is mandated by BCRA’s plain





{
'

5

2. If this Court finds jurisdiction lacking under Section
1253, the courts of appeals will provide “a mechanism for
expeditious appeal of preliminary injunction denials” (Ap-
pellant Supp. Br. 9) under 28 U.S.C. 1292(a)(1) in post-2006
constitutional challenges to BCRA* Not only is that result
consistent with the preference reflected in Gonzalez and
Goldstein, but it has practical advantages as well. In many
instances, particularly when a preliminary injunction is
denied at a time when this Court is in recess, the court of
appeals may be better positioned to give expeditious atten-
tion to such an appeal. See Gov’t Supp. Br. 9.

The court of appeals’ decision in such a case is in turn
reviewable by this Court under 28 U.S.C. 1254(1). Indeed,
because Section 1254 vests this Court with certiorari juris-
diction over “{c]ases in the courts of appeals,” the Court has
authority (albeit authority that is very rarely exercised) to
hear such a case even before the court of appeals renders
its decision. See 28 U.S.C. 2101(e); S. Ct. R. 11; United
States v. United Mine Workers, 380 U.S. 258, 269 (1947)

* Without citing any statute or rule, appellant states (Supp. Br. 11
n.3) that “[t]he time for noticing appeal in the D.C. Circuit has expired.”
That is incorrect. See Gov’t Supp. Br. 10.3. The district court’s decis-
ion denying appellant’s request for a preliminary injunction was issued
on January 15, 2008. BCRA § 403(a)(3)’s ten-day deadline for filing a
notice of appeal applies only to an appeal to this Court from a “final de-
cision” of the three-judge district court. 116 Stat. 114. If this Court
lacks jurisdiction pursuant to 28 U.S.C. 1253, then the 30-day deadline
in 28 U.S.C. 2101(b) is likewise inapplicable. Rather, the time for filing
a notice of appeal to the court of appeals is governed by the generally
applicable provisions of 28 U.S.C. 2107(b) and Federal Rule of Appel-
late Procedure 4(a)(1)(B), which establish a 60-day deadline in civil
cases to which a federal agency (here, the FEC) isa party. Thus, appel-
lant can still preserve its option to file a timely appeal to the District of
Columbia Circuit if it files a protective notice by March 17, 2008. See
Gov’t Supp. Br. 10 n.3.



In the Supreme Court of the Gnited States

No. 07-953
CITIZENS UNITED, APPELLANT
v.
FEDERAL ELECTION COMMISSION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

SUPPLEMENTAL REPLY BRIEF FOR THE APPELLEE

A. Congress Has Not “Required” This Case To Be Decided By
A Three-Judge District Court

Our supplemental brief explains why this Court lacks
jurisdiction over appellant’s interlocutory appeal from the
decision of the three-judge district court denying prelimi-
nary injunctive relief. Appellant contends (Supp. Br. 1-7)
that the government’s position is inconsistent with the lan-
guage of 28 U.S.C. 1253, under which the Court’s jurisdic-
tion over this appeal turns on whether appellant’s suit is
“required by any Act of Congress to be heard and deter-
mined by a district court of three judges.” That argument
lacks merit.

Appellant correctly explains (see Supp. Br. 3) that, un-
der the plain terms of Section 1253, the relevant question is
whether Congress has “required” this suit to be adjudicated
by a three-judge district court, not whether appellant has

(1)



II

Statutes and rules—Continued: Page
28 U.S.C. 1254 2... cece cece cece een een eens 5
28 U.S.C. 1254(1)

28 U.S.C. 1292(a)(1)
28 U.S.C. 2101(b)
28 U.S.C. 2101(e)
28 U.S.C. 2107(b)
Fed. R. App. P. 4(a)(1)(B)
S.Ct. R. 11



TABLE OF CONTENTS

A. Congress has not “required” this case to be decided
by a three-judge district court
B. Appellant’s policy arguments lack merit .

TABLE OF AUTHORITIES

Cases:

FEC v. Wisconsin Right to Life, Inc., 127S. Ct. 2652
(2007)

Goldstein v. Cox, 396 U.S. 471 (1970) .
Gonzalez v. Automatic Employees Credit Union,

419 U.S. 90 (1974) 0. cece eee eens 4
United States v. United Mine Workers, 330 U.S. 258

(1947) oo ec eect e ee eee eee e eens 5
Wisconsin Right to Life, Inc. v. FEC, No. 04-5992,

2004 WL 1946452 (D.C. Cir. Sept. 1, 2004) ........... 3

Constitution, statutes and rules:

USS. Const. Amend. 1 ....... 0... cece cece eee eee ee 6

Bipartisan Campaign Reform Act of 2002, Pub. L.
No. 107-155, 116 Stat. 81:

§ 201 (a) (2 U.S.C. 434(£)(8) (Supp. V 2005)) ........ 6
§ 408(a)(3), 116 Stat. 114 ........... 0. eee 5,6
§ 403(d), 116 Stat. 114
§ 403(d)(1), 116 Stat. 114
§ 403(d)(2), 116 Stat. 114
28 U.S.C. 1253