The appearance of undersigned counsel is pursuant to section 288l(b) of title 2 1

of the United States Code, which provides that: “The [Senate Legal] Counsel, the Deputy

Counsel, or any designated Assistant Counsel . . . shall be entitled, for the purpose of

performing his functions under this chapter, to enter an appearance in any proceeding

before any court of the United States or of a State or political subdivision thereof without

compliance with any requirement for admission to practice before such court . . . .”

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

Ocala Division

____________________________________

)

MARIBETH SCHONBERG and )

STEVEN E. SCHONBERG, )

)

 Plaintiffs, )

)

 v. ) Case No. 5:09-CV-534-Oc-32-JRK

)

Civil Officer BERNIE SANDERS, et al., )

) Dispositive Motion

Defendants. )

____________________________________)

MOTION TO DISMISS ON BEHALF OF 

DEFENDANT SENATORS LIEBERMAN,

LINCOLN, McCAIN, McCONNELL, AND SANDERS 

United States Senators Joseph Lieberman, Blanche Lincoln, John McCain, Mitch

McConnell, and Bernie Sanders (collectively the “Senate Defendants”), by and through

undersigned counsel , hereby respectfully move this Court, pursuant to Fed. R. Civ. P. 1

12(b)(1), (2), (3), and (6), to dismiss plaintiffs’ claims against them. As set forth in detail

in the following memorandum in support of this motion, plaintiffs’ claims against these

Members of Congress should be dismissed on the following grounds: (1) Plaintiffs lack

Case 5:09-cv-00534-TJC-JRK Document 27 Filed 02/12/10 Page 1 of 22
2

standing; (2) Plaintiffs’ claims are barred by the Speech or Debate Clause of the

Constitution, Art. I, § 6, cl. 1; (3) the Court lacks personal jurisdiction over the Senate

Defendants and venue is improper; and (4) the complaint fails to state a claim upon which

relief can be granted.

For these reasons, the Senate Defendants respectfully request that the Court

dismiss plaintiffs’ claims against them with prejudice.

MEMORANDUM IN SUPPORT OF 

SENATE DEFENDANTS’ MOTION TO DISMISS

STATEMENT OF THE CASE

A. Introduction

Plaintiffs Maribeth and Steven Schonberg filed this action against the Senate

Defendants, two Members of the United States House of Representatives, and the Federal

Election Commission, claiming that the Federal Election Campaign Act (FECA) is

unconstitutional because it designates Members of Congress as agents of their campaign

committees in violation of the Constitution’s prohibition on Members of the House and

Senate holding any office under the United States during their service in Congress. 

At the heart of plaintiffs’ case are their allegations that they have incurred

substantial medical expenses resulting from high insurance premiums and costly medical

care for Ms. Schonberg, and that the financial burden placed on them by these expenses

would be alleviated if Congress enacted unspecified health insurance reform legislation. 

Plaintiffs argue that Congress’ failure to enact such legislation results from the opposition

of the seven defendant Members of Congress, several of whom allegedly received

Case 5:09-cv-00534-TJC-JRK Document 27 Filed 02/12/10 Page 2 of 22
3

campaign contributions from health care or health insurance companies. Plaintiffs assert

a single legal claim as a basis for relief for their injuries, namely, that FECA’s

requirement that Members of Congress be considered agents of their campaign

committees violates the Incompatibility Clause of the Constitution, Art. I, § 6, cl. 2,

because it gives sitting Members an “Office under the United States.” Plaintiffs claim

that if those FECA provisions were declared unconstitutional and Members’ campaign

committees disbanded, “Congress would probably act in the best interests of the Plaintiffs

and [public]” and “[r]eal health insurance reform legislation would result.” Plaintiffs’

Complaint for Emergency Injunction, Damages, and Motion for Declaratory Judgment

¶ 15 [hereinafter “Compl.”]. 

Plaintiffs’ claim is without any legal merit, and their suit against the Senate

Defendants should be dismissed on threshold grounds and for failure to state a claim as a

matter of law. First, plaintiffs lack Article III standing as the complaint fails to plead

facts that, if true, could demonstrate that plaintiffs have suffered any concrete injury to a

legally protected interest that is fairly traceable to the Senate Defendants and likely to be

redressed by a favorable judicial decision. Second, plaintiffs’ suit arising from the Senate

Defendants alleged attempt to prevent passage of health insurance reform legislation is

barred by the Speech or Debate Clause of the Constitution, which protects Members of

Congress from suit for actions taken in the legislative sphere.

Third, plaintiffs have not alleged any facts that establish either that this Court has

personal jurisdiction over the Senate Defendants or that venue is proper in this District. 

Finally, plaintiffs fail to state a claim on the face of the complaint because service as an

Case 5:09-cv-00534-TJC-JRK Document 27 Filed 02/12/10 Page 3 of 22
 Mr. Schonberg, who has separate medical insurance coverage, pays for his 2

wife’s medical expenses. Compl. ¶ 2.

 Plaintiffs note that Ms. Schonberg has found a “slightly less exorbitant rate for 3

her health insurance” with Coventry Health Systems, though it is unclear whether Ms.

Schonberg has switched her insurance coverage to this provider. Compl. ¶ 7, n.3. 

4

agent of a campaign committee does not constitute holding an office of the United States,

and, consequently, the FECA’s provisions that designate Members as agents of their

campaign committees do not violate the Constitution’s Incompatibility Clause. 

For these reasons, plaintiffs’ claims against the Senate Defendants should be

dismissed.

B. Plaintiff’s Allegations

Plaintiff Maribeth Schonberg, a resident of New Hampshire, and Steven

Schonberg, a resident of Florida, are husband and wife. Compl. ¶ 2. Plaintiffs allege that

Ms. Schonberg, who has incurred significant medical expenses , had to move to New 2

Hampshire to obtain health insurance after being denied health insurance in Florida due to

a pre-existing condition. Id. ¶ 7. As a resident of New Hampshire, Ms. Schonberg has

been able to purchase health insurance from Anthem Blue Cross Blue Shield, which is

owned by Wellpoint, Inc., a for-profit company. Id. Her insurance premium with

Anthem was $5,100 for 2007 and then rose to $8,100 in 2009. Id. In addition to those 3

premiums, Ms. Schonberg has had substantial medical expenses from medications and

testing for her pre-existing condition, most of which have not been covered by her

Anthem insurance. Id. ¶ 12. Plaintiffs have also incurred travel costs of approximately

$2,000 per year since 2007 splitting their time between Florida and New Hampshire in

Case 5:09-cv-00534-TJC-JRK Document 27 Filed 02/12/10 Page 4 of 22
 Plaintiffs allege that “Defendants McCain, McConnell, Boehner, and Cantor are 4

leaders in their political party in the effort to defeat health care reform,” Compl. ¶ 3, that

Defendant Lieberman “has threatened to filibuster any health insurance reform bill on the

floor of the Senate,” id., that Defendant Lincoln “intends to block any ‘public option’ in

health care reform legislation,” id., and that Defendant Sanders “plans to vote ‘no’ to any

proposed legislation that fails to contain a robust public option[.]” Id. ¶ 5.

 Plaintiffs allege that Senator Sanders’ intent to vote against legislation that does 5

not contain a robust public option constitutes a “windfall” to health insurance companies,

and while not alleging that he received campaign contributions from health insurance and

pharmaceutical companies, plaintiffs do allege that Senator Sanders has received

campaign contributions from other donors. Compl. ¶ 5.

5

order to maintain Ms. Schonberg’s access to health insurance as a New Hampshire

resident, while simultaneously preserving Mr. Schonberg’s Florida residency. Id. ¶ 14.

Plaintiffs claim that these health care expenses are the result of Congress’ failure

to pass “real health insurance reform legislation.” Id. ¶ 15. Plaintiffs allege that, at the

time the complaint was filed, the seven defendant Members of Congress, for various

reasons, were obstructing the passage of health care legislation. Id. ¶¶ 3, 15. Plaintiffs 4

further allege that Senators Lieberman, Lincoln, McCain, and McConnell, though not

Senator Sanders, along with Representatives Boehner and Cantor, have received

campaign contributions from the health insurance and pharmaceutical industries, and that

such contributions have resulted in those Members of Congress opposing health

insurance reform. Id. ¶¶ 5, 11, 15, 17. Plaintiffs allege that if no such campaign 5

contributions were received, “Defendants and the rest of Congress would probably act in

the best interests of the Plaintiffs and the People of the United States. Real health

insurance reform legislation would result[,] . . . [Ms. Schonberg] would become eligible

Case 5:09-cv-00534-TJC-JRK Document 27 Filed 02/12/10 Page 5 of 22
 Plaintiffs refer to this constitutional provision as the “Emoluments Clause,” 6

Compl. ¶ 1, but the courts generally refer to it as the “Incompatibility Clause.” See, e.g.,

Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 210-11 (1974).

6

for major medical health insurance in Florida[,] and [Mr. Schonberg] would pay the

reasonable cost [of that insurance].” Id. ¶ 15. 

Plaintiffs assert one legal claim in their complaint. Plaintiffs claim that the

Federal Election Campaign Act (FECA), “requires that members of Congress who form

campaign committees . . . be considered as Agents of their campaign committees,” id.

¶ 19, that serving as an agent of a campaign committee constitutes holding a “civil office”

under the United States, and, therefore, that FECA’s provision designating Members of

Congress as agents of their campaign committees violates the Incompatibility Clause of

the Constitution, Art. I, § 6, cl. 2, which provides that “no Person holding any Office

6

under the United States, shall be a Member of either House during his Continuance in

Office.” See id. ¶¶ 1, 19. For relief, plaintiffs request that the relevant parts of the FECA,

2 U.S.C. §§ 432, 434, 439, and 441i, be declared unconstitutional, that the Senate

Defendants’ principal campaign committees be abolished, that funds in those committees’

accounts be returned to donors, and that those Members be barred from voting on any

health care legislation pending the return of all campaign contributions from large health

care firms. Compl. ¶ 27.

C. Procedural Background

Plaintiffs filed this case on December 3, 2009. Along with the complaint,

plaintiffs moved for emergency injunctive relief, for a three-judge court to be convened,

Case 5:09-cv-00534-TJC-JRK Document 27 Filed 02/12/10 Page 6 of 22
7

and for an order shortening the time for defendants to respond to the complaint. The

Court denied those motions. See Order 12/03/2009, Docket # 6. Plaintiffs renewed their

request to shorten the time for defendants to respond, and the Court denied that request. 

See Order 12/14/2009, Docket # 18.

ARGUMENT

I. Plaintiffs Lack Standing to Bring Their Claims Against the

Senate Defendants.

“Article III of the Constitution limits the ‘judicial power’ of the United States to

the resolution of ‘cases’ and ‘controversies.’” Valley Forge Christian Col. v. Americans

United for Separation of Church and State, 454 U.S. 464, 471 (1982). Indeed, “[n]o

principle is more fundamental to the judiciary’s proper role in our system of government

than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” Raines v. Byrd, 521 U.S. 811, 818 (1997) (citation omitted). A vital part of

Article III’s case or controversy limitation on the power of federal courts is the

requirement that a plaintiff must have standing to invoke federal court jurisdiction. See

Valley Forge, 454 U.S. at 471-73; Bochese v. Town of Ponce Inlet, 405 F.3d 964, 974

(11 Cir. 2005) (“Standing is a doctrine that stems directly from Article III’s ‘case or th

controversy’ requirement”) (internal quotation marks and citation omitted). 

“Standing . . . [is a] threshold jurisdictional question of whether a court may consider the

merits of a dispute.” Elend v. Basham, 471 F.3d 1199, 1204 (11 Cir. 2006). th

 A party seeking to invoke a federal court’s jurisdiction bears the burden of

establishing his standing to sue. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561

Case 5:09-cv-00534-TJC-JRK Document 27 Filed 02/12/10 Page 7 of 22
8

(1992); Bischoff v. Osceola County, Fla., 222 F.3d 874, 878 (11 Cir. 2000). To satisfy th

that burden, a plaintiff must allege facts demonstrating the three elements that form the

“irreducible constitutional minimum of standing” under Article III: (1) that he or she

“ha[s] suffered an injury in fact – an invasion of a legally protected interest which is (a)

concrete and particularized, . . . and (b) actual or imminent, not conjectural or

hypothetical;” (2) that the injury was caused by, or is “fairly . . . trace[able] to the

challenged action of the defendant”; and (3) that it is “likely, as opposed to merely

speculative, that the injury will be redressed by a favorable decision.” Lujan, 504 U.S. at

560-61 (internal quotation marks and citations omitted); accord Bischoff, 222 F.3d at 883. 

If a plaintiff fails to satisfy the prerequisites for Article III standing, the Court lacks

jurisdiction and must dismiss the complaint. See Valley Forge, 454 U.S. at 475-76

(“Those who do not possess Art. III standing may not litigate as suitors in the courts of

the United States.”). For the following reasons, plaintiffs’ allegations fail to demonstrate

Article III standing. 

A. Plaintiffs Lack an Injury Sufficient to Establish Standing.

“An injury sufficient for standing purposes is ‘an invasion of a legally protected

interest which is (a) concrete and particularized, and (b) actual or imminent, not

conjectural or hypothetical.’” Common Cause/Georgia v. Billups, 554 F.3d 1340, 1350

(11 Cir. 2009) (quoting Lujan, 504 U.S. at 560 (internal citations and quotation marks th

omitted)) (emphasis added). As the Eleventh Circuit has explained, “[n]o legally

cognizable injury arises unless an interest is protected by statute or otherwise. . . . That

interest must consist of obtaining compensation for, or preventing, the violation of a

Case 5:09-cv-00534-TJC-JRK Document 27 Filed 02/12/10 Page 8 of 22
9

legally protected right.” Bochese, 405 F.3d at 980 (internal quotation marks and citations

omitted). The complaint fails to articulate any harm to a concrete and particularized

“legally protected interest” from the alleged failure of Congress to pass health insurance

reform legislation. 

 Plaintiffs allege that they have suffered harm from “the lack of availability of

health insurance in Florida,” “paying exorbitant health insurance premiums and health

care costs,” and the costs of traveling back and forth from New Hampshire to Florida,

Compl. ¶ 14, and that the financial burden imposed by these conditions would be reduced

if Congress passed health insurance reform legislation that would assist them. Id. ¶¶ 15,

17, 26. 

Such allegations are not sufficient to establish standing. Plaintiffs have no legally

protected interest (in statute or otherwise) in lower health care expenses. Nor do they

have a protected interest in Congress’ enacting any particular legislation to benefit them. 

Rather, plaintiffs’ alleged injuries are nothing more than generalized grievances with

current government policy. Indeed, plaintiffs are situated similarly to every other citizen

who has financial interests which might benefit from congressional legislation. Certainly

persons in such situations do not have standing to sue Members, as plaintiffs have done,

alleging constitutional violations of campaign finance laws. See Warth v. Seldin, 422

U.S. 490, 499 (1975) (court’s exercise of jurisdiction not warranted when “asserted harm

is a ‘generalized grievance’ shared in substantially equal measure by all or a large class of

citizens”). Plaintiffs’ suit here is based on the mistaken notion that plaintiffs have a

protected legal interest in a particular legislative outcome that would benefit them – and

Case 5:09-cv-00534-TJC-JRK Document 27 Filed 02/12/10 Page 9 of 22
10

therefore they are harmed by the absence of such legislation. Harm to such an interest is

not “legally cognizable” and is insufficient for standing. 

Furthermore, plaintiffs’ harm – that they are paying more for health insurance and

medical expenses than they would if Congress passed health insurance reform legislation

– is “conjectural” and “hypothetical.” Lujan, 504 U.S. at 560. Whether or not plaintiffs

would be paying more or less in health insurance premiums and medical expenses had

health insurance reform legislation been enacted by Congress is pure conjecture. 

Plaintiffs’ allegations amount to the possibility that plaintiffs might be suffering harm –

based on their guess as to the effect unspecified legislation might have on their health care

expenses. Such a conjectural injury does not provide plaintiffs with standing to bring this

suit before the federal courts.

B. Plaintiffs Fail to Demonstrate That Their Alleged Harm Was

Caused by the Senate Defendants.

Plaintiffs’ allegations also fail to demonstrate that the harm they allege was

caused by, or traceable to, the actions of the individual Senate Defendants. Plaintiffs’

alleged injury, the lack of availability of affordable health insurance and the burden of

high medical expenses, is not “fairly traceable” to the Senate Defendants. The Senate

Defendants did not cause the plaintiffs’ health care concerns, were not involved in the

decision of Florida insurers not to insure plaintiff, and did not set plaintiff’s insurance

premiums or decide what procedures and medications would be covered by plaintiff’s

policy. All of those matters depended on the “independent action of some third party not

Case 5:09-cv-00534-TJC-JRK Document 27 Filed 02/12/10 Page 10 of 22
11

before the court,” Bischoff, 222 F.3d at 883 (quoting Lujan, 504 U.S. at 561), and thus are

not fairly traceable to the Senate Defendants. 

Furthermore, plaintiffs’ premise that the failure to enact health insurance reform

legislation is directly traceable to these five Senators and two Representatives disregards

the nature of legislative action, which requires bicameral action and presentation to the

President, U.S. Const. art. I, § 7, see I.N.S. v. Chadha, 462 U.S. 919, 945-49 (1983), and

the fact that there are 433 other House Members and 95 other Senators who vote on

pending legislation. Any action or inaction by the collective bodies of the House or

Senate cannot be attributed to a mere handful of Members from both chambers. 

Consequently, even if plaintiffs could establish an injury-in-fact, the complaint fails to

demonstrate that their alleged injuries are fairly traceable to the actions of the five Senate

Defendants.

C. Plaintiffs’ Alleged Injuries Are Not Likely to Be Redressed 

by a Favorable Judicial Decision Against the Senate Defendants.

Plaintiffs also fail the redressability prong of the standing test, as the harm they

allege is not likely to be redressed by a favorable decision against the Senate Defendants. 

First, a federal court has no power to command Congress or its Members to take

legislative action or to refrain from taking legislative action, as plaintiffs request. Compl.

¶ 27.D (requesting order that Senate Defendants not vote on or filibuster health insurance

reform legislation until they have returned campaign donations from health insurance and

pharmaceutical firms). See Newdow v. U.S. Congress, 328 F.3d 466, 484 (9 Cir. 2003) th

(“[I]n light of the Speech and Debate Clause of the Constitution, Art. I, § 6, cl. 1, the

Case 5:09-cv-00534-TJC-JRK Document 27 Filed 02/12/10 Page 11 of 22
 Plaintiffs themselves recognize the speculative nature of redress that depends on 7

subsequent legislative action. Compl. ¶ 15 (alleging that if contributions to the Senate

Defendants’ campaign committees from the heath insurance and pharmaceutical

industries were not permitted, “the rest of Congress would probably act in the best

interests of the Plaintiffs and the People of the United States.”) (emphasis added).

12

federal courts lack jurisdiction to issue orders directing Congress to enact or amend

legislation.”), rev’d on other grounds, 542 U.S. 1 (2004); Cf. Trimble v. Johnston, 173 F.

Supp. 651, 653 (D.D.C. 1959) (“[T]he Federal courts may not issue an injunction or a

writ of mandamus against the Congress.”). 

Moreover, even if the Court could grant plaintiffs the relief they request, it is

wholly speculative that (a) the Senate and the House would subsequently pass health

insurance reform legislation, (b) the President would sign that legislation, and (c) the

legislation Congress passes would provide financial relief to plaintiffs. Accordingly, 7

plaintiffs cannot demonstrate that their alleged injury is likely to be redressed by a

favorable decision.

In sum, plaintiffs’ allegations wholly fail to demonstrate a legally cognizable

injury-in-fact fairly traceable to the Senate Defendants that could be redressed by this suit,

and, thus, plaintiffs lack standing to bring their claims against the Senate Defendants.

II. Plaintiffs’ Suit Against the Senate Defendants Is Barred by

the Speech or Debate Clause.

Plaintiffs’ claims against the Senate Defendants for allegedly obstructing the

passage of health insurance reform legislation are precluded by the Speech or Debate

Clause of the Constitution. That Clause provides that, “for any Speech or Debate in

either House, [Senators and Representatives] shall not be questioned in any other Place.” 

Case 5:09-cv-00534-TJC-JRK Document 27 Filed 02/12/10 Page 12 of 22
13

U.S. Const. art. I, § 6, cl. 1. “[T]he central role of the Speech or Debate Clause [is] to

prevent intimidation of legislators by the Executive and accountability before a possibly

hostile judiciary.” Gravel v. United States, 408 U.S. 606, 617 (1972). The Clause is

designed to ensure that the “legislative function the Constitution allocates to Congress

may be performed independently,” Eastland v. United States Servicemen’s Fund, 421

U.S. 491, 502 (1975), “without regard to the distractions of private civil litigation,”

Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 415 (D.C. Cir. 1995),

thereby “reinforcing the separation of powers so deliberately established by the

Founders.” United States v. Johnson, 383 U.S. 169, 178 (1966). Because of its

importance to the Legislative Branch’s constitutional functions, the Supreme Court has

consistently “read the Speech or Debate Clause broadly to effectuate its purposes.” 

Eastland, 421 U.S. at 501; accord United States v. Swindall, 971 F.2d 1531, 1544 (11th

Cir. 1992).

 The Clause provides immunity from suit for all actions that “fall within the

sphere of legitimate legislative activity,” Eastland, 421 U.S. at 501; accord Gravel, 408

U.S. at 618, which encompasses “anything ‘generally done in a session of the House by

one of its members in relation to the business before it.’” Doe v. McMillan, 412 U.S.

306, 311 (1973) (quoting Kilbourn v. Thompson, 103 U.S. 168, 204 (1881)); accord

Swindall, 971 F.2d at 1544. The Clause precludes inquiry into “the deliberative and

communicative processes by which Members participate in committee and House

proceedings with respect to the consideration and passage or rejection of proposed

Case 5:09-cv-00534-TJC-JRK Document 27 Filed 02/12/10 Page 13 of 22
 The Clause similarly protects against suits for declaratory judgments. See 8

Consumers Union, 446 U.S. at 732 & n.10 (establishing that common-law legislative

immunity, like that of the Speech or Debate Clause, “is equally applicable to . . . actions

seeking declaratory or injunctive relief”); see also Eastland, 421 U.S. at 496, 512

(directing district court to dismiss complaint seeking injunctive and declaratory relief as

barred by Speech or Debate Clause).

14

legislation or with respect to other matters which the Constitution places within the

jurisdiction of either House.” Gravel, 408 U.S. at 625. 

The Clause’s immunity covers all civil actions, “whether for an injunction or

damages.” Eastland, 421 U.S. at 503; see also Nat’l Ass’n of Social Workers v.

Harwood, 69 F.3d 622, 630 (1 Cir. 1995) (legislative immunity protects legislators st

“‘from suits for either prospective relief or damages’” (quoting Supreme Court of

Virginia v. Consumers Union of the United States, Inc., 446 U.S. 719, 731 (1980)).8

Furthermore, as the Supreme Court has made clear, the immunity provided by the Clause

serves not merely as “a defense on the merits[,] but also protects a legislator from the

burden of defending himself.” Powell v. McCormack, 395 U.S. 486, 502-03 (1969);

Dombrowski v. Eastland, 387 U.S. 82, 85 (1967) (per curiam). Thus, “once it is

determined that Members are acting within the ‘legitimate legislative sphere’ the Speech

or Debate Clause is an absolute bar to interference.” Eastland, 421 U.S. at 503. 

The actions of the Senate Defendants that plaintiffs challenge in this case fall

squarely within the protections of the Speech or Debate Clause. Plaintiffs allege that the

Senate Defendants are trying to defeat health insurance reform by “voting” against the

measure, see, e.g., Compl. ¶¶ 3, 5, “filibuster[ing] . . . the bill on the floor of the Senate,”

id. ¶ 3, and generally opposing the legislation in the Congress. Id. Yet, such activities –

Case 5:09-cv-00534-TJC-JRK Document 27 Filed 02/12/10 Page 14 of 22
 In addition to the immunity provided under the Speech or Debate Clause, the 9

(continued...)

15

voting, debating, and other legislative activity on the floor of a House of Congress – are at

the very core of the “legitimate legislative sphere” and, thus, constitute matters generally

done in a session of the House by one of its members in relation to the business before it. 

See Gravel, 408 U.S. at 617 (Speech or Debate immunity “equally cover[s]” 

“[c]ommittee reports, resolutions, and the act of voting” as it does actual speech or

debate); Kilbourn v. Thompson, 103 U.S. at 204; Nat’l Ass’n of Social Workers, 69 F.3d

at 630 (“the Clause protects not only speech and debate per se, but also voting, . . .

circulation of information to other legislators, . . . participation in the work of legislative

committees, . . . and a host of kindred activities”) (citations omitted). 

That plaintiffs allege an improper motivation on the part of the Senate Defendants

– that their actions on health insurance reform legislation are the result of their alleged

receipt of campaign donations from the health insurance and pharmaceutical industries –

does not affect the absolute bar provided by the Speech or Debate Clause. The Supreme

Court has made clear that “the Speech or Debate Clause protects against inquiry into acts

that occur in the regular course of the legislative process and into the motivation for those

acts.” Eastland, 421 U.S. at 508 (quoting United States v. Brewster, 408 U.S. 501, 525

(1972)) (emphasis added).

Accordingly, plaintiffs’ claims challenge the legislative actions of the Senate

Defendants and are therefore barred by the Speech or Debate Clause and must be

dismissed.9

Case 5:09-cv-00534-TJC-JRK Document 27 Filed 02/12/10 Page 15 of 22
(...continued) 9

Senate Defendants are also shielded from plaintiffs’ suit by sovereign immunity. 

Plaintiffs’ suit challenges the official actions of the Senate Defendants with regard to

health insurance reform legislation. Such a suit against individual government officials in

their official capacities is equivalent to a suit against the government and is barred by

sovereign immunity. See Keener v. Congress, 467 F.2d 952, 953 (5 Cir. 1972) th

(affirming dismissal because Congress “is protected from suit by sovereign immunity”);

Rockefeller v. Bingaman, 234 Fed. Appx. 852, 855 (10 Cir. 2007) (affirming dismissal th

of suit against Senator and Representative in their official capacities on sovereign

immunity grounds); State of Florida, Dep’t of Bus. Regulation v. U.S. Dep’t of the

Interior, 768 F.2d 1248, 1251 (11 Cir. 1985) (“Designation of a government agency or th

officer as party-defendant does not avoid the sovereign immunity problem.”); see also

Kentucky v. Graham, 473 U.S. 159, 166 (1985)). 

16

III. The Court Lacks Personal Jurisdiction Over the Senate Defendants

and Venue Is Improper in This District.

A. Plaintiffs Have Alleged No Facts That Would Establish Personal

Jurisdiction Over the Senate Defendants in This Court.

“A plaintiff seeking the exercise of personal jurisdiction over a nonresident

defendant,” as in this case, “bears the initial burden of alleging in the complaint sufficient

facts to make out a prima facie case of jurisdiction.” United Technologies Corp. v.

Mazer, 556 F.3d 1260, 1274 (11 Cir. 2009). Plaintiffs fail to meet this burden as the th

complaint does not allege sufficient facts demonstrating that the Court has personal

jurisdiction over the Senate Defendants.

A federal court’s jurisdiction over a person can be based on either a federal statute

or the law of the forum in which the District Court sits. Here, no applicable federal

statute expands this Court’s jurisdiction, accordingly, personal jurisdiction over the

defendants can be obtained only if they are subject to the personal jurisdiction of the

Florida courts under Florida law and the exercise of such jurisdiction comports with due

Case 5:09-cv-00534-TJC-JRK Document 27 Filed 02/12/10 Page 16 of 22
17

process requirements. See Licciardello v. Lovelady, 544 F.3d 1280, 1283 (11 Cir. 2008) th

(“A federal district court in Florida may exercise personal jurisdiction over a nonresident

defendant to the same extent that a Florida court may, so long as the exercise is consistent

with federal due process requirements.”); Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d

623, 626-27 (11 Cir. 1996). th

“The Florida ‘long-arm’ statute[, Fla. Stat. § 48.193,] permits the state’s courts to

exercise jurisdiction over nonresident defendants who commit certain specific acts”

enumerated in that statute. Licciardello, 544 F.3d at 1283. Plaintiffs have not alleged

any actions by the Senate Defendants that would qualify for any of the possible bases for

personal jurisdiction over a non-resident provided by Florida’s “long arm” statute, Fla.

Stat. § 48.193, and the Court therefore cannot exercise jurisdiction over them in this case.

Even if the provisions of the Florida “long arm” statute did reach the actions of

the Senate Defendants, the exercise of jurisdiction over them would not comport with due

process. To determine whether due process permits the exercise of jurisdiction, a court

first “must determine whether [defendants] have established sufficient ‘minimum

contacts’ with the state of Florida. Second, [a court] must decide whether the exercise of

this jurisdiction over [the defendant] would offend traditional notions of fair play and

substantial justice.” Sculptchair, Inc., 94 F.3d at 630-31 (internal quotation marks and

citations omitted). None of the Senate Defendants represent Florida, and all of plaintiffs’

allegations regarding them involve their legislative actions related to health insurance

reform legislation pending in Congress. Those actions took place in Washington, D.C.,

and plaintiffs have not alleged – and cannot allege – that any of those legislative activities

Case 5:09-cv-00534-TJC-JRK Document 27 Filed 02/12/10 Page 17 of 22
18

occurred in Florida. Accordingly, Plaintiffs fail to establish the minimum contacts

between the Senate Defendants and Florida necessary to permit the Court to exercise

jurisdiction over them consistent with due process. Furthermore, “traditional notions of

fair play and justice” would be offended by hauling non-Florida Members of Congress

into Florida courts on claims deriving solely from their legislative actions in Washington,

D.C. Consequently, even if plaintiffs’ allegations established jurisdiction under the

Florida “long arm” statute, which they do not, exercising personal jurisdiction over the

Senate Defendants would not comport with the requirements of due process. 

B. Venue Is Improper in This District.

Dismissal of the complaint is also required because venue is improper in the

Middle District of Florida. “On a motion to dismiss based on improper venue, the

plaintiff has the burden of showing that venue in the forum is proper.” Wai v. Rainbow

Holdings, 315 F. Supp. 2d 1261, 1268 (S.D. Fla. 2004). The complaint’s allegations

provide no basis for venue in this District under the general venue statute, 28 U.S.C.

§ 1391. First, subsection 1391(e), regarding actions against agencies, officers, and

employees of the United States, applies only to the executive branch and not to the Senate

Defendants. See Duplantier v. United States, 606 F.2d 654, 664 (5 Cir. 1979) (“Section th

1391(e)’s reach should not be expanded beyond the executive branch. To do so might

bring about absurd consequences.”); see also King v. Russell, 963 F.2d 1301, 1304 (9

th

Cir. 1992) (28 U.S.C. § 1391(e) “only applies to suits against officers of the executive

branch”); Liberation News Serv. v. Eastland, 426 F.2d 1379, 1384 (2d Cir. 1970). 

Case 5:09-cv-00534-TJC-JRK Document 27 Filed 02/12/10 Page 18 of 22
 In addition, Senate Defendants note that plaintiffs sent the summons and 10

complaint to their congressional offices by mail and have not effected proper service. See

Fed. R. Civ. P. 4(i).

19

That leaves subsection 1391(b) as the only potentially applicable venue provision. 

Under that provision, venue does not exist in this District because (1) none of the

defendants to this action reside in this jurisdiction, nor do they all reside in the same state;

(2) a substantial part of the events giving rise to plaintiffs’ claims against defendants did

not arise or occur in this judicial district, but rather in Washington, D.C., as described

previously; and (3) there is another district, the District of Columbia, where (absent the

other obstacles to this suit) venue could lie. Thus, the complaint should be dismissed for

improper venue.10

IV. The Complaint Fails to State a Claim as FECA’s Provisions Treating

Members of Congress as Agents of Their Campaign Committees

Do Not Violate the Incompatibility Clause of the Constitution.

Plaintiffs’ sole legal claim, that FECA’s provisions designating Members of

Congress as agents of their campaign committees violates the Incompatibility Clause of

the Constitution, Art. I, § 6, cl. 2, is without merit as a matter of law. The Incompatibility

Clause provides that “no Person holding any Office under the United States, shall be a

Member of either House during his Continuance in Office.” Plaintiffs argue that by

making Members of Congress serve as agents of their campaign committees, FECA has

given those Members an “Office under the United States” in violation of the

Incompatibility Clause. Plaintiffs’ argument fails because serving as an agent of a

campaign committee does not constitute holding an office under the United States.

Case 5:09-cv-00534-TJC-JRK Document 27 Filed 02/12/10 Page 19 of 22
 The Court in Buckley noted the relationship between the Appointments Clause

11

and the Incompatibility and Ineligibility Clauses, and found that these “cognate

provisions” provided the context for interpreting the term “Officers of the United States.” 

424 U.S. at 124-25; see also Lane, 64 M.J. at 4. 

20

As the Supreme Court explained in discussing the Appointments Clause of the

Constitution, “the term ‘officers of the United States,’” “include[s] ‘all persons who can

be said to hold an office under the government,’” and means “any appointee exercising

significant authority pursuant to the laws of the United States[.]” Buckley v. Valeo, 424

U.S. 1, 125-26 (1976) (per curiam) (quoting United States v. Germaine, 99 U.S. 508, 510

(1879)); see also id. at 131 (term “‘Officers of the United States’ . . . “embrace[s] all

appointed officials exercising responsibility under the public laws of the Nation”); United

States v. Lane, 64 M.J. 1, 4 (C.A.A.F. 2006). Neither campaign committees nor their 11

officers or agents exercise any governmental authority on behalf of the United States. 

While campaign committees are regulated by federal law (like many private businesses

and organizations), they are not entities of the federal government, but private

organizations. Consequently, agents, officers, or directors of those campaign committees,

even if federal law requires campaign committees to maintain such designated positions,

are not “Officers of the United States” and do not hold an “Office under the United

States.” Accordingly, FECA’s provision designating Members of Congress as agents of

their campaign committees does not violate the Incompatibility Clause of the

Constitution, and plaintiffs’ allegations therefore fail to state a claim as a matter of law

and should be dismissed.

Case 5:09-cv-00534-TJC-JRK Document 27 Filed 02/12/10 Page 20 of 22
21

CONCLUSION

For the foregoing reasons, plaintiffs’ claims against the Senate Defendants should

be dismissed with prejudice.

Respectfully submitted, 

 Morgan J. Frankel

 Senate Legal Counsel

morgan_frankel@legal.senate.gov

Patricia Mack Bryan 

 Deputy Senate Legal Counsel

 

 Grant R. Vinik

 Assistant Senate Legal Counsel

 /s/ Thomas E. Caballero 

Thomas E. Caballero

Assistant Senate Legal Counsel

Florida Bar # 0118000

Trial Counsel

thomas_caballero@legal.senate.gov

 Office of Senate Legal Counsel

 642 Hart Senate Office Building

 Washington, D.C. 20510-7250

 Tel: (202) 224-4435

Fax: (202) 224-3391

Counsel for Defendant Senators 

Joseph Lieberman, Blanche Lincoln, 

John McCain, Mitch McConnell, and 

February 12, 2010 Bernie Sanders

Case 5:09-cv-00534-TJC-JRK Document 27 Filed 02/12/10 Page 21 of 22
22

CERTIFICATE OF SERVICE

I hereby certify that on February 12, 2010, I electronically filed the foregoing

Motion to Dismiss on Behalf of Defendant Senators Lieberman, Lincoln, McCain,

McConnell, and Sanders and memorandum in support with the Clerk of the Court by

using the CM/ECF system, which will provide notice of electronic filing to Steven E.

Schonberg, plaintiff pro se, to counsel for Defendant Federal Election Commission, and

to counsel for Defendant Representatives Boehner and Cantor.

 I further certify that I mailed the foregoing document and the notice of electronic

filing by first-class mail to the following non-CM/ECF participant:

Maribeth Schonberg 

60 Wilson Hill Road

Merrimack, NH 03054

Plaintiff pro se

 /s/ Thomas E. Caballero 

Thomas E. Caballero

Assistant Senate Legal Counsel 

Florida Bar # 0118000

Office of Senate Legal Counsel

642 Hart Senate Office Building

Washington, D.C. 20510-7250

Tel: (202) 224-4435

Fax: (202) 224-3391

thomas_caballero@legal.senate.gov

Case 5:09-cv-00534-TJC-JRK Document 27 Filed 02/12/10 Page 22 of 22