UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF FLORIDA 

OCALA DIVISION 

MARIBETH SCHONBERG, et al., )

)

Plaintiffs, )

)

v. )

)

 Case No. 5:09-cv-534-Oc-32JRK 

BERNIE SANDERS, et al., )

)

Dispositive Motion 

 Defendants. )

DEFENDANT FEDERAL ELECTION COMMISSION’S 

MOTION TO DISMISS 

Thomasenia P. Duncan 

General Counsel 

tduncan@fec.gov

David Kolker 

Associate General Counsel 

dkolker@fec.gov

Harry J. Summers 

Assistant General Counsel 

hsummers@fec.gov

Robert W. Bonham III 

Senior Attorney 

(Trial Counsel) 

rbonham@fec.gov

February 2, 2010 FOR THE DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, D.C. 20463 

(202) 694-1650 

(202) 219-0260 (fax) 

 

Case 5:09-cv-00534-TJC-JRK Document 25 Filed 02/02/10 Page 1 of 34
TABLE OF CONTENTS 

Page 

BACKGROUND 1 

A. Plaintiffs 1 

B. Defendant Federal Election Commission 2 

C. Individual Defendants 3 

D. Federal Election Campaign Act 3 

E. Plaintiffs’ Claims 4 

ARGUMENT 7 

I. LEGAL STANDARDS 8 

A. Federal Rule of Civil Procedure 12(b)(1) 8 

B. Federal Rule of Civil Procedure 12(b)(6) 8 

II. PLAINTIFFS LACK STANDING TO CHALLENGE THE 

CONSTITUTIONALITY OF THE ACT’S REGULATION 

OF POLITICAL COMMITTEES 9 

A. Plaintiffs’ General Allegations That Their Health Care Is 

Too Expensive Do Not Constitute a Concrete and Particularized 

 Injury 10 

B. Plaintiffs Cannot Demonstrate a Causal Connection Between 

Their Alleged Injury and the FECA, Which Actually Restricts 

the Campaign Fundraising About Which Plaintiffs Complain 13 

C. Plaintiffs Cannot Demonstrate That Their Alleged Injury Would 

Be Redressed By Striking Down Portions of FECA 15 

III. PLAINTIFFS FAIL TO STATE A CLAIM UNDER THE EMOLUMENTS 

CLAUSE, WHICH DOES NOT BAR CAMPAIGN CONTRIBUTIONS 17 

A. The Constitution Does Not Prohibit Campaign Committees for 

Federal Candidates 17 

i 

Case 5:09-cv-00534-TJC-JRK Document 25 Filed 02/02/10 Page 2 of 34
ii 

B. Candidates’ Agency Relationships with Their Campaign Committees 

Do Not Constitute “Offices” of the United States under 

the Emoluments Clause 19 

CONCLUSION 24

Case 5:09-cv-00534-TJC-JRK Document 25 Filed 02/02/10 Page 3 of 34
Table of Authorities 

 Page 

Cases 

Alabama-Tombigbee Rivers Coalition v. Norton, 338 F.3d 1244 (11th Cir. 2003) 

 cert. denied, 128 S. Ct. 8775 (2008) 14 

Albanese v. FEC, 78 F.3d 66 (2d Cir. 1996) 14, 17 

Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242 (11th Cir. 2005) 9 

Allen v. Wright, 468 U.S. 737 (1984) 14 

Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) 9 

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) 9 

Buckley v. Valeo, 424 U.S. 1 (1976) passim

Castro v. Secretary of Homeland Security, 472 F.3d 1334 (11th Cir. 2006) 9 

Conley v. Gibson, 355 U.S. 41 (1957) 9 

Edmond v. United States, 520 U.S. 651 (1997) 23 

Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004) 10 

Ex parte Levitt, 302 U.S. 633 (1937) 11 

FEC v. Kalogianis, No. 8:06-cv-68-T-23EAJ, 2007 WL 4247795 

(M.D. Fla. 2007) 2 

Freedom Republicans, Inc. v. FEC, 13 F.3d 412 (D.C. Cir. 1994) 16

Freytag v. Commissioner of Internal Revenue, 501 U.S. 868 (1991) 5 

Hill v. White, 321 F.3d 1334 (11th Cir. 2003) 9 

Hughes v. Rowe, 449 U.S. 5 (1980) 9 

Koger v. Florida, 130 Fed. Appx. 327 (11th Cir. 2005) 9 

Kean for Congress Committee v. FEC, 398 F. Supp. 2d 26 (D.D.C. 2005) 21 

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) 10, 13 

iii

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Page 

McClure v. Carter, 513 F. Supp. 265 (D. Idaho 1981) aff’d. sub nom. 

 McClure v. Reagan, 454 U.S. 1025 (1981) 11 

McConnell v. FEC, 540 U.S. 93 (2003) 10, 13, 15, 16 

McCormick v. United States, 500 U.S. 257 (1991) 18 

Morrison v. Amway Corp., 323 F.3d 920 (11th Cir. 2003) 8

Pillsbury v. United Engineering Co., 342 U.S. 197 (1952) 19 

Raines v. Byrd, 521 U.S. 811 (1997) 10 

Rodearmel v. Clinton, No. 09-171, __ F.Supp.2d __, 2009 WL 3486634 

(D.D.C. 2009) 11 

Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208 (1974) 10, 12 

Sinaltrainal v. Coca-Cola. Co, 578 F.3d 1252 (11th Cir. 2009) 9 

Stanley v. Central Intelligence Agency, 639 F.2d 1146 (5th Cir. 1981) 8 

Steel Co. v. Citizens for a Better Env’t., 523 U.S. 83 (1998) 8 

Tannenbaum v. United States, 148 F.3d 1262 (11th Cir. 1998) 9 

Taylor v. Appleton, 30 F.3d 1365 (11th Cir. 1994) 8 

United States v. Greer, 440 F.3d 1267 (11th Cir. 2006) 22 

United States v. Goland, 959 F.2d 1449 (9th Cir. 1992) 21 

United States v. Hartwell, 73 U.S. 385, 1867 WL 11216 (1867) 21, 22

United States v. Lane, 64 M.J. 1 (C.A.A.F. 2006) 11 

United States v. Siegelman, 561 F.3d 1215 (11th Cir. 2009), 

 petition for cert. filed, 78 USLW 3083 (Aug. 10, 2009) 18 

United States v. Stevens, 529 U.S. 765 (2000) 15 

Vink v. Hendrikus Johannes Schijf Rolkan N.V., 839 F.2d 676 (Fed. Cir. 1988) 8

Whitmore v. FEC, 68 F.3d 1212 (9th Cir. 1996) 14, 17 

iv

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 Page 

Winpisinger v. Watson, 628 F.2d 133 (D.C. Cir. 1980) 15 

Statutes and Regulations 

Federal Election Campaign Act, codified at 2 U.S.C. §§ 431-55 passim

2 U.S.C. §§ 432-434 4 

2 U.S.C. § 432(b)(3) 4, 19 

2 U.S.C. § 432(e) 20 

2 U.S.C. § 432(e)(1) 3, 4, 20 

2 U.S.C. § 432(e)(2) 6, 20, 21, 25 

2 U.S.C. § 432(g) 4 

2 U.S.C. § 433 4 

2 U.S.C. § 434(a) 21 

2 U.S.C. § 437c(a)(4) 2 

2 U.S.C. § 437c(b)(1) 2 

2 U.S.C. § 437d(a) 2 

2 U.S.C. § 437d(a)(6) 2 

2 U.S.C. § 437d(a)(7) 2 

2 U.S.C. § 437d(e) 2 

2 U.S.C. § 437g 2 

2 U.S.C. § 437g(a)(1)-(2) 2 

2 U.S.C. § 437g(a)(6) 2 

2 U.S.C. § 438(a) 4 

2 U.S.C. § 438(a)(8) 2 

v

Case 5:09-cv-00534-TJC-JRK Document 25 Filed 02/02/10 Page 6 of 34
 Page 

2 U.S.C. § 439 4 

2 U.S.C. § 439a(a) 4 

2 U.S.C. § 439a(b) 4 

2 U.S.C. § 441a 4, 14 

2 U.S.C. § 441a(a) 3 

2 U.S.C. § 441a(a)(1)A) 3 

2 U.S.C. § 441a(a)(2)(A) 3 

2 U.S.C. § 441a(a)(7)(A) 21 

2 U.S.C. § 441a(a)(8) 21 

2 U.S.C. § 441b 4 

2 U.S.C. § 441b(a) 4 

2 U.S.C. § 441b(b)(2)(C) 6 

2 U.S.C. § 441i 4 

18 U.S.C. § 1951 18 

11 C.F.R. § 101.2(a) 20 

11 C.F.R. § 110.10 21 

Other Authorities 

United States Constitution, Art. I, § 4 3 

United States Constitution, Art. I, § 6, cl. 2 5, 19, 24 

United States Constitution, Art. III 1, 7, 9, 10 

Pub. L. 92-255 § 304 21 

Pub. L. 96-187 § 104 21 

1979 U.S. Code. Cong. & Ad. News 21 

vi

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vii

 Page 

74 Fed. Reg. 7435 (Feb. 17, 2009) 3 

Federal Rule of Civil Procedure 12(b)(1) 1, 8-9

Federal Rule of Civil Procedure 12(b)(6) 1, 8 

Application of the Emoluments Clause to a Member of the President’s 

Council on Bioethics (March 9, 2005), available at, 

http://www.justice.gov/olc/opinions.htm. 23 

Memorandum for the General Counsels of the Executive Branch, from Steven G. 

Bradbury, Acting Assistant Attorney General, Office of Legal Counsel 

(April 16, 2007), available at, http://www.justice.gov/olc/opinions.htm. 23

 

Case 5:09-cv-00534-TJC-JRK Document 25 Filed 02/02/10 Page 8 of 34
Pro se plaintiffs Steven and Maribeth Schonberg filed this suit against the Federal 

Election Commission (“Commission” or “FEC), five United States Senators, and two 

Members of the U.S. House of Representatives. Complaint (Doc. 1). The Court denied 

plaintiffs’ requests for emergency relief, see Orders (Docs. 6, 9, 15, 18), and the Commission 

now moves to dismiss plaintiffs’ complaint pursuant to Federal Rules of Civil 

Procedure 12(b)(1) and 12(b)(6). Plaintiffs lack Article III standing to raise their 

constitutional claims, which are generalized, speculative complaints about the cost of health 

care that could not be redressed by striking down portions of the nation’s principal federal 

campaign finance statute. In addition, plaintiffs have not stated a claim upon which relief 

can be granted because the Constitution does not limit the ability of Members of Congress to 

raise funds for their election campaigns, and because federal candidates’ roles as agents of 

their campaign committees are not “Offices” of the United States within the meaning of the 

Emoluments Clause of Article I. 

BACKGROUND 

A. Plaintiffs 

 Steven Schonberg is a retired attorney with “decades of legal experience” and 

inactive memberships in the New Mexico and Texas bars. Memorandum in Support of 

Motion for Admission to CM/ECF System (Doc. 13) at 1. He is also a medical doctor. 

Letter to the Honorable John Lynch from “Steven E. Schonberg, MD, JD” (Sept. 27, 2009), 

Exhibit 1 to Memorandum in Support of Plaintiffs’ Complaint for Emergency Injunction, 

Damages, and Motion for Declaratory Judgment (Doc. 2) (“Memo.”) at 2. 

Maribeth Schonberg is married to Steven Schonberg. Complaint ¶ 2. According to the 

1

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complaint, both plaintiffs had been residents of Florida, but Maribeth Schonberg changed her 

residency to New Hampshire because she was denied health insurance coverage in Florida 

due to a pre-existing condition. From 2007 until at least 2009, Mrs. Schonberg purchased 

health insurance from Anthem Blue Cross Blue Shield of New Hampshire. Mr. Schonberg 

pays for his wife’s medical insurance and medical bills. Complaint ¶¶ 2, 7 and n.3. Plaintiffs 

now split their time between Florida and New Hampshire. Complaint ¶ 14. 

B. Defendant Federal Election Commission 

The Commission is an independent agency of the United States government with 

exclusive jurisdiction over the administration, interpretation and civil enforcement of the 

Federal Election Campaign Act of 1971, as amended (“Act” or “FECA”), codified at 

2 U.S.C. §§ 431-55. See generally 2 U.S.C. §§ 437c(b)(1), 437d(a), 437g. Congress 

authorized the Commission to “formulate policy” under the FECA, see, e.g. 2 U.S.C. 

§ 437c(b)(1), and to make rules and issue advisory opinions thereunder. 2 U.S.C. 

§§ 437d(a)(7), (8); 437f; 438(a)(8). See also Buckley v. Valeo, 424 U.S. 1, 110-111 (1976). 

The Commission is also authorized to institute investigations of possible violations of the 

Act, 2 U.S.C. §§ 437g(a)(1)-(2), and has exclusive jurisdiction to initiate civil actions in the 

United States district courts to obtain judicial enforcement of the Act. 2 U.S.C. 

§§ 437c(b)(1), 437d(a)(6), 437d(e), 437g(a)(6); FEC v. Kalogianis, No. 8:06-cv-68-T23EAJ, 2007 WL 4247795, at *1 (M.D. Fla. 2007). The Commission is authorized to appear 

in and defend against any action instituted under the Act. 2 U.S.C. §§ 437c(a)(4), 

437d(a)(6). 

2

Case 5:09-cv-00534-TJC-JRK Document 25 Filed 02/02/10 Page 10 of 34
C. Individual Defendants 

Plaintiffs named five Senators and two Members of the House of Representatives 

as individual defendants. All seven Senators and Representatives are declared candidates for 

re-election to their current seats, and have designated political committees to serve as the 

principal campaign committees for their re-election effort. 2 U.S.C. § 432(e)(1). Senators 

Blanche Lincoln (D-Ark) and John McCain (R-Ariz) and Representatives John 

Boehner (R-Ohio) and Eric Cantor (R-Va) are candidates for re-election in 2010; Senators 

Joe Lieberman (I-Conn) and Bernie Sanders (I-Vt) are candidates in 2012; and Senator Mitch 

McConnell (R-Ky) is a candidate in 2014. Each legislator is named as a defendant in his or 

her capacity as an “Agent” and purported “Civil Officer” of the principal campaign 

committee for the legislator’s upcoming re-election campaign. Complaint ¶ 3; 

Memo. (Doc. 2) at 2, 6. 

D. Federal Election Campaign Act 

 As the Supreme Court has explained, “[t]here is, of course, no doubt that Congress 

has express authority to regulate congressional elections, by virtue of the power conferred in 

Art. I, § 4.” Buckley, 424 U.S. at 131-132. Congress enacted the FECA primarily “to limit 

the actuality and appearance of corruption resulting from large individual financial 

contributions[.]” Id. at 26. The FECA places dollar limitations on contributions by 

individuals and political committees to candidates for federal office, 2 U.S.C. § 441a(a),1

 and 

prohibits campaign contributions by corporations and unions from their treasury funds. 

 

1

 For the 2009-2010 election cycle, individuals may give no more than $2,400 to each 

candidate per election, 2 U.S.C. § 441a(a)(1)(A); 74 Fed. Reg. 7435, 7436 (Feb. 17, 2009), 

and multicandidate political committees may give no more than $5,000 to each candidate and 

their candidate committees. 2 U.S.C. § 441a(a)(2)(A).

3

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2 U.S.C. § 441b(a). The Act also requires comprehensive public disclosure of contributions 

and expenditures in connection with federal election campaigns. 2 U.S.C. §§ 432-434. 

 All candidates for Congress must designate a political committee to serve as the 

principal campaign committee for the candidate’s campaign. 2 U.S.C. § 432(e)(1). These 

political committees are responsible for complying with the Act’s recordkeeping and 

reporting requirements, as well as the limitations and prohibitions on contributions. 

See generally 2 U.S.C. §§ 432-434, 441a, 441b. For example, federal candidates’ authorized 

campaign committees must promptly register with the Commission, 2 U.S.C. § 433, and 

committee treasurers must file periodic reports of the committee’s receipts and 

disbursements. 2 U.S.C §§ 432(g), 434. These reports are placed on the public record within 

48 hours of receipt by the Commission. 2 U.S.C. § 438(a). 

 A committee’s funds must be segregated from, and not commingled with, the 

personal funds of any individual, including the candidate. 2 U.S.C. § 432(b)(3). The Act 

enumerates permitted uses for contributions accepted by candidates, 2 U.S.C. § 439a(a), and 

specifically prohibits the conversion of any contribution to “personal use.” 2 U.S.C. 

§ 439a(b). 

E. Plaintiffs’ Claims 

Plaintiffs challenge the constitutionality of 2 U.S.C. §§ 432, 434, 439a and 441i. 

Complaint ¶ 27.2

 Plaintiffs claim that these provisions violate the Emoluments Clause in 

Article I of the United States Constitution because they permit incumbent Members of 

Congress to establish political committees for their re-election campaigns which accept 

 

2

 Plaintiffs’ filings refer to both 2 U.S.C. § 439 and 2 U.S.C. § 439a, but only discuss 

the latter provision. See Memo. (Doc. 2) at 9-10.

4

Case 5:09-cv-00534-TJC-JRK Document 25 Filed 02/02/10 Page 12 of 34
contributions from persons with interests before Congress. The Emoluments Clause 

provides: 

No Senator or Representative shall, during the Time for which he was elected, 

be appointed to any civil Office under the Authority of the United States, 

which shall have been created, or the Emoluments whereof shall have been 

encreased during such time; and no Person holding any Office under the 

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

Office. 

United States Constitution, Art. I, § 6, cl. 2. 

The Emoluments Clause has two subclauses, each containing a separate prohibition. 

The language before the semicolon, known as the “Ineligibility Clause,” prohibits the 

appointment of Senators or Representatives to “any civil Office” during the terms they are 

currently serving when the “civil Office” was created or “Emoluments whereof” were 

increased during that term. The language following the semicolon, known as the 

“Incompatibility Clause,” prohibits a person holding any “Office under the United States” 

from simultaneously serving as a Member of Congress during his or her continuance in that 

Office. Both clauses serve to prevent corruption. 

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. This was guarded against by the Incompatibility and Ineligibility 

Clauses, Article I, § 6, cl. 2. 

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

citing Buckley, 424 U.S. at 124). Although plaintiffs use the terms “Ineligibility” and 

“Incompatibility” interchangeably, see Memo. (Doc. 2) at 8 and n.16, plaintiffs’ claims here 

appear to rest primarily on the Ineligibility Clause. 

5

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Plaintiffs contend that the defendant lawmakers’ positions as “agents” of their reelection committees under 2 U.S.C. § 432(e)(2) constitute a federally-created “civil Office,” 

and that the political contributions received by the committees constitute “emoluments” 

within the meaning of the Emoluments Clause in Article 1, Section 6. Plaintiffs claim that 

the Emoluments Clause both prohibits such “appointments” and prevents those legislators 

from accepting campaign contributions for their re-election campaigns. Complaint ¶ 4. 

Plaintiffs allege that all individual defendants, except Senator Sanders, have received 

“enormous campaign contributions from the health insurance industry and the 

pharmaceutical industry,” which plaintiffs characterize as “Big Health.” Complaint ¶ 3. 

Plaintiffs allege that legislative actions by these six lawmakers favorable to “Big Health” 

in 2009 constitute a quid pro quo for those campaign contributions. Complaint ¶ 13. 

The only purported “members” of “Big Health” plaintiffs identify as contributors to the 

individual defendants’ campaigns are Wellpoint, Inc. and Angela Braly, its Chief Executive 

Officer. Complaint ¶ 10. According to the Complaint, Wellpoint owns Anthem Blue Cross 

Blue Shield, which has insured Maribeth Schonberg. Complaint ¶ 7. Wellpoint has a 

political committee, WellPAC, which can accept voluntary contributions from the 

corporation’s executive and administrative personnel, and then make contributions from 

those receipts. See 2 U.S.C. §§ 441b(b)(2)(C), (b)(4)(C). WellPAC and Ms. Braly have 

made contributions to federal candidates. See Complaint ¶¶ 10-11.3

 

3

 According to plaintiffs, campaign contributions received by all seven defendant 

Members for the current election cycle total about $82,356,081. Complaint ¶ 20. Of this 

amount, only a tiny fraction, approximately $112,000, was contributed by WellPAC. 

Complaint ¶ 11. The only individual contribution plaintiffs identify is a $2,000 contribution 

from Ms. Braly to Senator McConnell’s campaign. Complaint ¶ 10; Memo. (Doc. 2) at 4.

6

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In addition to declaratory relief, plaintiffs seek orders dissolving the principal 

campaign committees connected with all seven individual defendants, requiring those 

committees to return all remaining funds to the donors, and referring all the legislators 

(except Senator Sanders) to the Department of Justice. Plaintiffs also seek an order 

forbidding the lawmakers (except Senator Sanders) from voting on or filibustering health 

care legislation unless all contributions received from “Big Health” in the past six years have 

been refunded. If any of the individual defendants fail to disband their committees and return 

all remaining funds, plaintiffs ask that the Court dismiss them from Congress. Prayer for 

Relief, Complaint ¶ 27 at A-D, G. 

 ARGUMENT 

This case should be dismissed because plaintiffs lack Article III standing and because 

they fail to state a cognizable claim. Plaintiffs’ alleged injury is no more than a generalized, 

speculative assertion that they pay too much for health care — an allegation that could be 

made by millions of other Americans. Moreover, plaintiffs cannot show that this alleged 

injury was caused by the provisions of FECA governing political committees, nor that 

striking those provisions down would redress the alleged injury. The chain of events linking 

those FECA provisions with the alleged injury is far too attenuated and conjectural, and it 

involves many actors not before the Court. Indeed, striking down those statutory provisions 

might actually eliminate existing restrictions on campaign contributions. 

In any case, plaintiffs fail to state a claim. Plaintiffs provide no support for their 

contention that the Constitution prohibits the collection of campaign contributions by federal 

candidates, and there is none. Moreover, there is no support for plaintiffs’ claim that the 

7

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roles of Members of Congress as agents of their campaign committees constitute an “Office” 

of the United States under the Emoluments Clause. That Clause has never been applied to a 

role that (as here) entails no employment or representative relationship to the United States 

government, and is shared by unsuccessful federal candidates who never become affiliated 

with the government. 

I. LEGAL STANDARDS. 

A. Federal Rule of Civil Procedure 12(b)(1) 

 Under Federal Rule of Civil Procedure 12(b)(1), an action must be dismissed if the 

Court lacks subject matter jurisdiction. See Stanley v. Central Intelligence Agency, 

639 F.2d 1146, 1157 (5th Cir. 1981). “[A] court must first determine whether it has proper 

subject matter jurisdiction before addressing the substantive issues.” Taylor v. Appleton, 

30 F.3d 1365, 1366 (11th Cir. 1994). If jurisdiction is found to be lacking, the Court cannot 

proceed; its sole remaining duty is to state that it lacks jurisdiction and dismiss the case. 

See Steel Co. v. Citizens for a Better Env’t., 523 U.S. 83, 94 (1998). When a defendant 

properly challenges subject matter jurisdiction under Rule 12(b)(1), the Court may consider 

matters outside the pleadings to evaluate that challenge. See Morrison v. Amway Corp., 

323 F.3d 920, 924-925 (11th Cir. 2003). See also Vink v. Hendrikus Johannes Schijf 

Rolkan N.V., 839 F.2d 676, 677 (Fed. Cir. 1988) (the court may consider affidavits and 

exhibits without converting the motion to dismiss into a motion for summary judgment). 

B. Federal Rule of Civil Procedure 12(b)(6) 

 A complaint should be dismissed for failure to state a claim if “it appears beyond 

doubt that the plaintiff can prove no set of facts” which would entitle him or her to relief. 

8

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Conley v. Gibson, 355 U.S. 41, 45-46 (1957). When considering a motion to dismiss under 

Rule 12(b)(6), the Court must accept all well-pled factual allegations as true and construe 

them in the light most favorable to plaintiffs. Castro v. Secretary of Homeland Security, 

472 F.3d 1334, 1336 (11th Cir. 2006); Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003). 

Courts may make reasonable factual inferences in plaintiff’s favor, but “are not required to 

draw plaintiff’s inference.’” Sinaltrainal v. Coca-Cola. Co, 598 F.3d 1252, 1260 (11th Cir. 

2009) (citation omitted). In addition, courts are not required to accept plaintiffs’ legal 

allegations. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). “To survive a motion to 

dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim 

to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 

550 U.S. 544, 570 (2007)). Determining whether a complaint states a plausible claim for 

relief is a context-specific task that requires the reviewing court to draw on its judicial 

experience and common sense. Id.

4

 II. PLAINTIFFS LACK STANDING TO CHALLENGE THE 

CONSTITUTIONALITY OF THE ACT’S REGULATION OF POLITICAL 

COMMITTEES 

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

resolution of “cases” and “controversies.” One element of the “‘bedrock’ case-or-

 

4

 When a plaintiff is preceding pro se, his or her pleadings are held to a less stringent 

standard than pleadings drafted by an attorney, and will be liberally construed. Hughes v. 

Rowe, 449 U.S. 5, 9-10 (1980) (per curium); Koger v. Florida, 130 Fed. Appx. 327, 332 

(11th Cir. 2005) (citing Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998)). 

However, even with pro se litigants, “conclusory allegations, unwarranted deductions of facts 

or legal conclusions masquerading as facts will not prevent dismissal.” Aldana v. Del Monte 

Fresh Produce, N.A. Inc., 416 F.3d 1242, 1246 (11th Cir. 2005) (internal quotation and 

citation omitted). Moreover, Mr. Schonberg is an experienced attorney. See Memorandum 

in Support of Motion for Admission to CM/ECF System (Doc. 13) at 1.

9

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controversy requirement is that plaintiffs must establish that they have standing to sue.” 

McConnell v. FEC, 540 U.S. 93, 225 (2003) (quoting Raines v. Byrd, 521 U.S. 811, 818 

(1997)). Article III standing has three requirements: (1) the plaintiff has suffered ‘an injury 

in fact,’ (2) that injury bears a causal connection to the defendant’s challenged conduct, and 

(3) a favorable judicial decision will likely provide the plaintiff with redress from that injury. 

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992). The party bringing the claim 

bears the burden of showing that these requirements are met. Elk Grove Unified Sch. Dist. v. 

Newdow, 542 U.S. 1, 12 (2004); Lujan, 504 U.S. at 560-561. Plaintiffs meet none of these 

requirements. 

A. Plaintiffs’ General Allegations That Their Health Care Is Too Expensiv

Do Not Constitute a Concrete and Particularized Injury 

e 

 To satisfy the “injury in fact” requirement, the injury must be both “concrete and 

particularized” and “actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. 

at 560 (internal quotation marks and citations omitted). See McConnell, 540 U.S. at 227. 

But plaintiffs’ claims about health care costs are extraordinarily generalized assertions that 

could be made by millions of United States citizens. 

 The Supreme Court has “consistently held that a plaintiff raising only a generally 

available grievance about government — claiming only harm to his and every citizen’s 

interest in proper application of the Constitution and laws, and seeking relief that no more 

directly and tangibly benefits him than it does the public at large — does not state an 

Article III case or controversy.” Lujan, 504 U.S. at 573-574. In fact, the Court has twice 

rejected suits by citizens challenging appointments under the Emoluments Clause for lack of 

sufficient injury. Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 215-

10

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227 (1974) (citizens lacked standing to litigate, under the Incompatibility Clause, the 

eligibility of Members of Congress to serve in the military reserves); Ex parte Levitt, 

302 U.S. 633, 634 (1937) (per curium) (citizen and member of Supreme Court bar lacked 

standing to challenge, under the Ineligibility Clause, the appointment to the Supreme Court 

of a Senator who was in Congress when it enacted a new judicial pension plan). More 

recently, courts have determined that even claimants with apparently more direct interests in 

the federal appointments at issue lacked standing to challenge them under the Emoluments 

Clause. See Rodearmel v. Clinton, No. 09-171, __ F.Supp.2d __, 2009 WL 3486634, at *2-6 

(D.D.C. 2009) (three-judge court) (Foreign Service Officer lacked standing to challenge 

Senator’s appointment to Secretary of State under Ineligibility Clause); McClure v. Carter, 

513 F. Supp. 265 (D. Idaho 1981) (three-judge court held Senator lacked standing to 

challenge Representative’s appointment to the Court of Appeals under the Ineligibility 

Clause), aff’d. sub nom. McClure v. Reagan, 454 U.S. 1025 (1981).5

 

 Plaintiffs and their health care issues have no particularized connection with any of 

the defendants. Plaintiffs assert that they have standing because they claim to have paid 

higher insurance premiums and out-of-pocket medical costs due to the alleged failure of 

Congress to “reform” the nation’s health care financing system; in turn, plaintiffs attribute 

this alleged failure to the six legislators’ receipt of campaign contributions from 

 

5

 Cf. United States v. Lane, 64 M.J. 1, 2-4 (C.A.A.F. 2006) (claimant had standing to 

challenge the assignment of a reservist Senator to serve as judge on a military Court of 

Criminal Appeals hearing the challenger’s own case, because the “direct liberty implications 

for Appellant ma[d]e this case distinct from other abstract circumstances where the 

Incompatibility Clause might be implicated.”)

11

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“Big Health.” Complaint ¶¶ 7-18; Memo. (Doc. 2) at 2-6.6

 Plaintiffs claim that their 

“injuries will continue . . . as long as the six legislators receive bribes and/or illegal 

gratuities. . . . If there were no bribes or illegal gratuities, these 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.” Complaint ¶ 15. 

However, these claims are extraordinarily general and speculative. As the Supreme 

Court recognized in rejecting the Incompatibility Clause claim in Schlesinger: 

The very language of respondents’ complaint . . . reveals that it is nothing 

more than a matter of speculation whether the claimed nonobservance of that 

Clause deprives citizens of the faithful discharge of the legislative duties of 

reservist Members of Congress. And that claimed nonobservance, standing 

alone, would adversely affect only the generalized interest of all citizens in 

constitutional governance, and that is an abstract injury. 

Schlesinger, 418 U.S. at 217 (footnote omitted). The Court held that “standing to sue may 

not be predicated upon an interest of the kind alleged here which is held in common by all 

members of the public, because of the necessarily abstract nature of the injury all citizens 

share.” 418 U.S. at 220. Plaintiffs’ claims here are similarly generalized, conjectural, and 

abstract. Virtually all members of the public are affected in some way by the health care 

financing system. In addition, it would seem impossible for a court to measure the extent to 

which plaintiffs in particular have allegedly been harmed by the lack of a hypothetical health 

care financing system that would reflect their views of “the best interests of the Plaintiffs and 

the People of the United States,” Complaint ¶ 15. Plaintiffs, therefore, have failed to satisfy 

the injury-in-fact requirement. 

 

6

 Plaintiffs link the “high” out-of-pocket medical expenses paid by plaintiffs with 

“exorbitant” salaries and compensation paid to Wellpoint executives and alleged “bribery” of 

the six legislators.” See, e.g., Complaint ¶ 12.

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B. Plaintiffs Cannot Demonstrate a Causal Connection Between Their 

Alleged Injury and the FECA, Which Actually Restricts the Campa

Fundraising About Which Plaintiffs Complain 

ign 

 To establish standing plaintiffs must also show “‘a causal connection between the 

injury and the conduct complained of — the injury has to be ‘fairly trace[able] to the 

challenged action of the defendant, and not . . . th[e] result [of] some third party not before 

the court.’” McConnell, 540 U.S. at 225 (quoting Lujan, 504 U.S. at 560-561). But in this 

case, plaintiffs’ theory of causation — that the Act’s alleged authorization of candidate 

fundraising has made plaintiffs’ health care costs too high — is far too attenuated to support 

standing. 

 Plaintiffs do not allege that they are directly subject to the FECA provisions they 

challenge, so their burden to show causation is especially high. 

When . . . a plaintiff’s asserted injury arises from the government’s allegedly 

unlawful regulation (or lack of regulation) of someone else, much more is 

needed. In that circumstance, causation and redressability ordinarily hinge on 

the response of the regulated (or regulable) third party to the government 

action or inaction — and perhaps on the response of others as well. 

The existence of one or more of the essential elements of standing depends on 

the unfettered choices made by independent actors not before the courts and 

whose exercise of broad and legitimate discretion the courts cannot presume 

either to control or to predict, . . . and it becomes the burden of the plaintiff to 

adduce facts showing that those choices have been or will be made in such a 

manner as to produce causation and permit redressability of injury. 

Lujan, 504 U.S. at 562 (emphasis in original; internal quotation marks and citations omitted). 

“Thus, when the plaintiff is not himself the object of the government action or inaction he 

challenges, standing is not precluded, but it is ordinarily ‘substantially more difficult’ to 

13

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establish.” Id.7

 Here, plaintiffs’ constitutional claims are premised on the assumption that the Act 

authorizes, or otherwise causes, Senators and Representatives to accept campaign 

contributions. However, the Act is restrictive, not permissive; it does not create a right to 

receive campaign contributions. Instead, it imposes restrictions on the otherwise unfettered 

ability of federal candidates to accept contributions. As the Ninth Circuit explained in a 

similar case seeking to outlaw out-of-state federal contributions, 

[t]he Act neither prohibits nor authorizes out-of-state campaign contributions. 

The appellants’ premise, that what the Act does not prohibit, it authorizes, is 

foreign to our libertarian tradition. * * * The Act restricts certain campaign 

conduct, but authorizes nothing. Campaign conduct is unrestricted, except to 

the extent that the law limits it. People do not depend on Congressional 

“authorization,” as plaintiffs assume, for their liberty to express their political 

preferences. 

Whitmore v. FEC, 68 F.3d 1212, 1215 (9th Cir. 1996). Thus, “[s]ince the Act does not 

‘authorize’ the contributions, it cannot be the cause of plaintiffs’ claimed injuries.” Id. 

The Second Circuit reached a similar result in Albanese v. FEC, 78 F.3d 66, 68 (2d Cir. 

1996), in which plaintiffs claimed their rights under the Fourteenth Amendment’s Equal 

Protection Clause were violated by the solicitation and use of private funds in elections for 

federal office. The court explained that “the injury [plaintiffs] assert is not ‘fairly traceable’ 

to FECA. FECA does not require that contributions be made to any candidate. Rather, it 

limits the amounts of contributions that may be made. See 2 U.S.C. § 441a. Hence, any 

injury claimed by these plaintiffs is not attributable to FECA.” 

 

7

 See also Allen v. Wright, 468 U.S. 737 (1984); Alabama-Tombigbee Rivers 

Coalition v. Norton, 338 F.3d 1244, 1254 (11th Cir. 2003), cert. denied, 128 Sect. 8775 

(2008). 

14

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 Moreover, there are far too many independent actors in plaintiffs’ alleged chain of 

causation — health care providers, health insurers, drug and medical equipment companies, 

parent companies, corporate officers, and political action committees, none of whom are 

parties to this litigation — to demonstrate causation with the required level of certainty. 

And, of course, the lawmakers who form the final link in this chain may vote on or otherwise 

influence health financing legislation for different reasons, including the views of the voters 

in their districts and their own political convictions. Cf. Winpisinger v. Watson, 

628 F.2d 133, 139-141(D.C. Cir. 1980) (“The endless number of diverse factors potentially 

contributing to [an election result] forecloses any reliable conclusion that voter support of a 

candidate is ‘fairly traceable’”).8

 Finally, plaintiffs themselves reveal the fatal uncertainty in 

their chain of causation in asserting that, in the absence of campaign contributions, Congress 

would “probably” pass “[r]eal health insurance reform legislation.” Complaint ¶ 15. 

C. Plaintiffs Cannot Demonstrate That Their Alleged Injury Would 

Be Redressed By Striking Down Portions of FECA 

 Plaintiffs must also show a “‘substantial likelihood’ that the requested relief will 

remedy the alleged injury-in-fact.” McConnell, 540 U.S. at 226, 229 (quoting United 

States v. Stevens, 529 U.S. 765, 771 (2000)). For many of the same reasons that plaintiffs 

 

8

 In Winpisinger, the D.C. Circuit denied standing to voters and supporters of Senator 

Kennedy in the 1980 Democratic presidential primary who sought to challenge the Carter 

Administration’s alleged use of government resources for campaign activity, stating that 

“whether an appellant is viewed in the character of a voter, contributor, a noncontributing 

supporter or a candidate for a delegate post, a court would have to accept a number of very 

speculative inferences and assumptions in any endeavor to connect his alleged injury with 

activities attributed to appellees. Courts are powerless to confer standing when the causal 

link is too tenuous.” Id. at 139 (citations omitted). 

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cannot show causation (see supra Section II.B), plaintiffs cannot demonstrate redressability.9

 

Even if the Court were to strike down all of the provisions that plaintiffs challenge, it is 

extremely speculative that changes in the campaign finance system would lead to the kind of 

health care reform that plaintiffs favor. Indeed, without the challenged provisions of the Act, 

there would appear to be no requirement that candidates create authorized campaign 

committees to accept their campaign contributions and separate such money from their 

personal funds. Thus, according to plaintiffs’ own theories, under that scenario their alleged 

injury could be even worse and their alleged injury would not be remedied. Plaintiffs are 

similarly situated to certain plaintiffs in McConnell, who claimed that the Constitution barred 

certain increases in the statutory contribution limits, which plaintiffs claimed put them at a 

political disadvantage. The Supreme Court found that those plaintiffs lacked standing and 

explained that striking down the increases would not remedy the plaintiffs’ alleged injury 

because the prior limitations imposed by FECA would remain. See 540 U.S. at 229. 

 In sum, for multiple reasons, plaintiffs have failed to satisfy their burden regarding 

any of the three requirements for standing, and their complaint should be dismissed.

 

9

 See Freedom Republicans, Inc. v. FEC, 13 F.3d 412, 418 (D.C. Cir. 1994) (“When 

plaintiffs’ claim hinges on the failure of government to prevent another party’s injurious 

behavior, the “fairly traceable” and redressability inquiries appear to merge. * * * In such 

cases, both prongs of standing analysis can be said to focus on principles of causation: fair 

traceability turns on the causal nexus between the agency action and the asserted injury, 

while redressability centers on the causal connection between the asserted injury and judicial 

relief”).

16

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III. PLAINTIFFS FAIL TO STATE A CLAIM UNDER THE EMOLUMENTS 

CLAUSE, WHICH DOES NOT BAR CAMPAIGN CONTRIBUTIONS 

A. The Constitution Does Not Prohibit Campaign Committees for 

Federal Candidates 

 Plaintiffs challenge the constitutionality of FECA’s provisions governing federal 

re-election campaigns, asserting that campaign contributions to the defendant Senators and 

Representatives are “unconscionable” contributions, “illegal gratuities,” or “outright 

bribe[s],” see, e.g., Complaint ¶¶ 4, 11-13, 15, 17, and that the Constitution forbids such 

contributions. But plaintiffs provide no support, and there is none, for the claim that the 

Constitution prohibits Congress from creating a mechanism for federal candidates to 

establish campaign committees to accept limited contributions.10 

 Plaintiffs request that certain provisions of the Act applicable to candidates and their 

political committees be declared unconstitutional, and that the Court require the defendant 

candidates to disgorge the contributions their campaign committees have received. 

See Prayer for Relief, Complaint at 11-12. However, as we explained supra Section II.C, 

declaring these FECA provisions unconstitutional would merely result in the removal of 

campaign finance restrictions. As the Supreme Court stated in 1976 when it upheld the 

FECA contribution restrictions: 

Under a system of private financing of elections, a candidate lacking immense 

personal or family wealth must depend on financial contributions from others 

to provide the resources necessary to conduct a successful campaign. The 

increasing importance of the communications media and sophisticated mass-

 

10 As discussed supra, two circuits have already rejected similar requests for courts to 

impose new, more restrictive federal regulations on federal campaign contributions, albeit 

both on standing grounds. Albanese v. FEC, 78 F.3d 66 (2d Cir. 1996) (denying, on standing 

grounds, request to prohibit private contributions); Whitmore v. FEC, 68 F.3d 1212 (9th Cir. 

1996) (same, out-of-state contributions).

17

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mailing and polling operations to effective campaigning make the raising of 

large sums of money an ever more essential ingredient of an effective 

candidacy. To the extent that large contributions are given to secure a political 

quid pro quo from current and potential office holders, the integrity of our 

system of representative democracy is undermined. 

Buckley, 424 U.S. at 26-27 and n.28 (citing the court of appeals decision in Buckley, 

519 F.2d 821, 838-840 and nn.36-38 (D.C. Cir. 1975), which “discussed a number of the 

abuses uncovered after the 1972 elections”).

 Contrary to plaintiffs’ claims, the Act does not authorize “bribery,” which is 

prohibited by other statutes such as the Hobbs Act, 18 U.S.C. § 1951. Plaintiffs seem to 

equate campaign contributions and bribes, but under the Hobbs Act, campaign contributions 

are considered bribes only if the payment is made in exchange for an explicit promise to 

perform or not perform an official act. The Supreme Court has explained that 

[s]erving constituents and supporting legislation that will benefit the district 

and individuals and groups therein is the everyday business of a legislator. 

It is also true that campaigns must be run and financed. Money is constantly 

being solicited on behalf of candidates, who run on platforms and who claim 

support on the basis of their views and what they intend to do or have done. 

Whatever ethical considerations and appearances may indicate, to hold that 

legislators commit the federal crime of extortion when they act for the benefit 

of constituents or support legislation furthering the interests of some of their 

constituents, shortly before or after campaign contributions are solicited and 

received from those beneficiaries, is an unrealistic assessment of what 

Congress could have meant by making it a crime to obtain property from 

another, with his consent, “under color of official right.” To hold otherwise 

would open to prosecution not only conduct that has long been thought to be 

well within the law but also conduct that in a very real sense is unavoidable so 

long as election campaigns are financed by private contributions or 

expenditures, as they have been from the beginning of the Nation. 

McCormick v. United States, 500 U.S. 257, 272 (1991). “[T]he Court made clear that only if 

‘payments are made in return for an explicit promise or undertaking by the official to perform 

or not to perform an official act, are they criminal.’” United States v. Siegelman, 

18

Case 5:09-cv-00534-TJC-JRK Document 25 Filed 02/02/10 Page 26 of 34
561 F.3d 1215, 1225 (11th Cir. 2009) (emphasis added) (quoting McCormick, 500 U.S. 

at 273), petition for cert. filed, 78 USLW 3083, 3090 (Aug. 10, 2009). Although campaign 

committees may receive contributions (subject to the Act’s limitations and prohibitions), 

candidates are prohibited from converting those contributions to their personal use. 2 U.S.C. 

§§ 432(b)(3), 439a. To accept the unprecedented proposition that such contributions 

constitute “emoluments” within the meaning of the Emoluments Clause would overturn 

centuries of practice and render the federal campaign finance system unworkable. 

 Thus, plaintiffs have provided no justification for their claim that the Constitution 

bars campaign contributions, and “bribery” – the apparent focus of their court complaint – 

is barred by other statutes. If plaintiffs are dissatisfied with current federal statutes, the 

proper recourse is with Congress, not the courts. Pillsbury v. United Engineering Co., 

342 U.S. 197, 200 (1952). 

B. Candidates’ Agency Relationships with Their Campaign Commi

Do Not Constitute “Offices” of the United States under the Emoluments 

Clause 

ttees 

 Plaintiffs’ claims under the Emoluments Clause in Article I also have no merit 

because federal candidates’ roles in their campaign committees are not “offices” of the 

United States. As discussed supra pp. 4-5, the Emoluments Clause contains two separate 

prohibitions, known as the Ineligibility Clause and the Incompatibility Clause. The former 

applies to “any civil Office under the Authority of the United States” and the latter applies to 

“any Office under the United States.” U.S. Constitution, Art. I, § 6, cl. 2. Plaintiffs cannot 

demonstrate that the challenged provisions of the Act violate either part of the Emoluments 

Clause because, as discussed below, the relevant precedent plainly interprets the Clause’s use 

19

Case 5:09-cv-00534-TJC-JRK Document 25 Filed 02/02/10 Page 27 of 34
of “office” to require some employment or representative relationship with the United States 

government. Candidates’ campaign committees are simply not part of the government; 

indeed, most candidate committees are created to support unsuccessful challengers who 

never become federal employees at all. Likewise, campaign committee treasurers and other 

employees obviously do not hold “offices” of the United States, since they do not represent 

the government or conduct government business. 

 Plaintiffs specifically assert (Complaint ¶ 19) that the “agency relationship” between 

federal candidates and their principal campaign committees established under 

2 U.S.C. § 432(e) “creates a civil office under the Authority of the United States and the 

Defendant Agents are the civil officers in charge of the committees.” Section 432(e) 

provides: 

Any candidate described in [2 U.S.C. 432(e)(1)] who receives a contribution, 

or any loan for use in connection with the campaign of such candidate for 

election, or makes a disbursement in connection with such campaign, shall be 

considered, for purposes of this Act, as having received the contribution or 

loan, or as having made the disbursement, as the case may be, as an agent of 

the authorized committee or committees of such candidate. 

2 U.S.C. § 432(e)(2) (emphasis added). See also 11 C.F.R. § 101.2(a). Plaintiffs contend 

that this one-sentence provision creates a “civil office” of the United States, but the text and 

history of section 432(e)(2) show otherwise. The plain language of the provision merely 

states that the candidate acts as an agent of the committee, not of the United States or any 

office of the United States. And the committee itself exercises no governmental power, but 

merely acts as the entity that receives and spends money, and that reports financial activity to 

the Commission, on behalf of a candidate running for office. 

20

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 From 1971 until 1979, both federal candidates and their campaign committees had 

independent reporting obligations under the Act. Pub. L. 92-255 § 304; Pub. L. 96-187 

§ 104. The 1979 Amendments to the Act (which became effective on January 8, 1980) 

consolidated all financial reporting obligations with the principal campaign committee and its 

treasurer. See Pub. L. 96-197 § 104 (deleting phrase “and each candidate for election to such 

office” from 2 U.S.C. § 434(a)). The legislative history of these amendments demonstrates 

that section 432(e)(2) was designed to “simplify recordkeeping and reporting provisions.” 

1979 U.S. Code. Cong. & Ad. News. 2860, 2861. The practical effect, however, was to 

ensure that financial activity conducted by the candidate (other than expenditures from the 

candidate’s personal funds, see 11 C.F.R. 110.10) was attributable to and controlled by the 

committee, and reported by the committee treasurer. See United States v. Goland, 

959 F.2d 1449, 1453 (9th Cir. 1992) (“Federal election law treats the candidate and his 

committees as a single unit for the purpose of accepting contributions”; citing 2 U.S.C. 

§§ 432(e)(2) and former 441a(a)(7)(A) (1992) (now section 441a(a)(8)); Kean for Congress 

Committee v. FEC, 398 F. Supp. 2d 26, 38-39 (D.D.C. 2005). 

 Plaintiffs provide no support for their claim (Complaint ¶ 19) that the relationship 

between a candidate and his or her campaign committee constitutes a “‘civil office’ in the 

Emoluments Clause.” Plaintiffs admit that “civil office” is not defined in the Constitution, 

and has been “rarely interpreted” by the Courts. Memo. (Doc. 2) at 8. Indeed, the only case 

plaintiffs cite for the interpretation of “civil office” is United States v. Hartwell, 73 U.S. 385 

(1867). In that case, the Supreme Court held that a clerk in the office of an assistant treasurer 

of the United States was an “officer of the United States” within the meaning of a federal 

21

Case 5:09-cv-00534-TJC-JRK Document 25 Filed 02/02/10 Page 29 of 34
statute enacted pursuant to the Appointments Clause that required “safe-keeping of the public 

money.” 73 U.S. at 392-394. The Court’s opinion emphasized that the “employment of the 

defendant was in the public service of the United States,” and that he was appointed by an 

assistant treasurer of the United States with the approval of the Secretary of the Treasury, 

pursuant to a statute authorizing the appointment of a specified number of clerks who were to 

received salaries fixed by law. Thus, rather than support plaintiffs’ expansive interpretation, 

Hartwell suggests that the term “civil office” should be interpreted more narrowly. And as 

explained above, more recent cases addressing Emoluments Clause claims have involved 

formal positions in the United States government, such as judgeships, Cabinet positions, and 

military service. 

 Plaintiffs acknowledge that the Supreme Court’s landmark 1976 decision in Buckley

generally upheld the constitutionality of the Act, but plaintiffs “respectfully ask this Court to 

overrule Buckley.” Memo. (Doc. 2) at 1-2, 5.11 Plaintiffs also claim that the Buckley “Court 

never addressed the Emoluments Clause,” Memo. (Doc. 2) at 1, but this is incorrect; in fact, 

Buckley clearly undermines plaintiffs’ position here. In Buckley, the Court considered the 

language of the Clause in the context of interpreting similar language regarding government 

offices in the Appointments Clause. The Court recognized the close relationship between the 

Appointments Clause and the Ineligibility and Incompatibility Clauses, and observed that 

these “cognate provisions” provided the context for interpreting the Appointments Clause of 

the Constitution. Buckley, 424 U.S. at 124-125. The Court held that the appointment of four 

 

11 This court should reject this suggestion, since it is well established that “unless and 

until the Supreme Court specifically overrules” a decision, lower courts must follow it. 

United States v. Greer, 440 F.3d 1267, 1273 (11th Cir. 2006) (citing cases). 

22

Case 5:09-cv-00534-TJC-JRK Document 25 Filed 02/02/10 Page 30 of 34
members of the six-member FEC by the Senate and House, as provided in the original Act, 

was unconstitutional under the Appointments Clause. 

 In its analysis of this issue, Buckley emphasized that an essential element for 

qualifying as an “Officer of the United States” under the Appointments Clause is that the 

individual exercises “significant authority pursuant to the laws of the United States.” 

424 U.S. at 125-126 (emphasis added). As the Court reiterated later, “[t]he exercise of 

‘significant authority pursuant to the laws of the United States’ marks . . . the line between 

officer and non-officer.” Edmond v. United States, 520 U.S. 651, 662 (1997) (quoting 

Buckley, 424 U.S. at 126). Buckley concluded that many of the Commission’s statutory 

powers involved “the performance of a significant governmental duty exercised pursuant to a 

public law” which rendered the six voting members of the Commission subject to the 

Appointments Clause. 424 U.S. at 141. These powers included “primary responsibility for 

conducting civil litigation in the courts of the United States for vindicating public rights” and 

“administrative powers: rulemaking, advisory opinions, and determinations of eligibility for 

funds and even for federal elective office itself.” Id. at 140.12

 By contrast, in their roles as agents of their campaign committees, the individual 

defendants in this case plainly exercise no governmental authority at all, let alone any 

“significant authority pursuant to the laws of the United States” comparable to the powers at 

 

12 See generally Memorandum for the General Counsels of the Executive Branch, from 

Steven G. Bradbury, Acting Assistant Attorney General, Office of Legal Counsel (April 16, 

2007) (collecting authorities), available at, http://www.justice.gov/olc/opinions.htm. 

Cf. Application of the Emoluments Clause to a Member of the President’s Council on 

Bioethics (March 9, 2005), (“A position that carried with it no governmental authority 

(significant or otherwise) would not be an office for purposes of the Appointments Clause, 

and therefore, under [prior OLC opinions], would not be an office under the [Article I, 

Section 9] Emoluments Clause either”).

23

Case 5:09-cv-00534-TJC-JRK Document 25 Filed 02/02/10 Page 31 of 34
issue in Buckley. Indeed, plaintiffs fail to identify even one governmental power that such 

campaign committee roles afford to the individual defendants. Thus, as a matter of law, 

incumbent Senators and Representatives who serve as “agents” for their political committees 

under section 432(e)(2) cannot be considered to hold “civil office” within the meaning of the 

Emoluments Clause.13

CONCLUSION

For the foregoing reasons, the Commission’s motion to dismiss plaintiffs’ complaint 

should be granted, and plaintiffs’ complaint should be dismissed with prejudice. 

Respectfully submitted, 

/s/ Thomasenia P. Duncan 

Thomasenia P. Duncan 

General Counsel 

tduncan@fec.gov

/s/ David Kolker 

David Kolker 

Associate General Counsel 

dkolker@fec.gov

/s/ Harry J. Summers 

Harry J. Summers 

Assistant General Counsel 

hsummers@fec.gov

 

13 Plaintiffs also fail to meet their burden, in invoking the Ineligibility Clause, to show 

that the “civil office” “shall have been created, or the Emoluments whereof shall have been 

encreased during” “the Time for which [the Member] was elected.” U.S. Const, Art. I, § 6, 

cl. 2. Even if there was any such “office” in this context, it would obviously have been 

created prior to a candidate’s election, and there is no showing that candidates receive any 

“emoluments” within the meaning of the Clause under 2 U.S.C. § 432(e). See supra p. 18-

19. 

24

Case 5:09-cv-00534-TJC-JRK Document 25 Filed 02/02/10 Page 32 of 34
25

/s/ Robert W. Bonham III 

Robert W. Bonham III 

Senior Attorney 

(Trial Counsel) 

rbonham@fec.gov

February 2, 2010 FOR THE DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, D.C. 20463 

(202) 694-1650 

 (202) 219-0260 (fax) 

Case 5:09-cv-00534-TJC-JRK Document 25 Filed 02/02/10 Page 33 of 34
CERTIFICATE OF SERVICE 

I hereby certify that on February 2, 2010, I electronically filed the foregoing with the 

Clerk of the Court using the Court’s CM/ECF system, which will send a notice of electronic 

filing to pro se plaintiff Steven E. Schonberg, and to Christine Davenport, Assistant Counsel, 

Office of General Counsel, U.S. House of Representatives (counsel for defendants John 

Boehner and Eric Cantor). 

I hereby certify that I have caused identical copies of the foregoing to be served by 

first class mail, postage prepaid, on the following additional parties and counsel: 

 Maribeth Schonberg 

60 Wilson Hill Road 

Merrimack, NH 03054 

(pro se plaintiff), 

and 

Thomas W. Caballero 

Assistant Senate Legal Counsel 

Office of Senate Legal Counsel 

642 Hart Senate Office Building 

Washington, D.C. 20510-7252 

(Counsel for defendants Bernie Sanders, Joe Lieberman, 

Blanche Lincoln, John McCain and Mitch McConnell). 

/s/ Robert W. Bonham III

Robert W. Bonham III 

Senior Attorney 

rbonham@fec.gov

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, D.C. 20463 

(202) 694-1650 

(202) 219-0260 (fax) 

1

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