Nos. 02-1674 and 02-1675 

IN THE 

Supreme Court of the United States

SENATOR MITCH MCCONNELL, et al., 

Appellants, 

v. 

FEDERAL ELECTION COMMISSION, et al., 

Appellees. 

NATIONAL RIFLE ASSOCIATION, et al., 

Appellants, 

v. 

FEDERAL ELECTION COMMISSION, et al., 

Appellees. 

On Appeals from the


United States District Court


for the District of Columbia


INTERVENOR-APPELLEES’ RESPONSE 

TO JURISDICTIONAL STATEMENTS 

ROGER M. WITTEN SETH P. WAXMAN 

WILMER, CUTLER & Counsel of Record 

PICKERING RANDOLPH D. MOSS 

399 Park Avenue ERIC J. MOGILNICKI 

New York, NY 10022	 EDWARD C. DUMONT 

PAUL R.Q. WOLFSON 

WILMER, CUTLER & 

PICKERING 

2445 M Street, N.W. 

Washington, D.C. 20037 

(202) 663-6000 

Additional Counsel Listed On Inside Cover 
BURT NEUBORNE


FREDERICK A.O. SCHWARZ, JR.


BRENNAN CENTER FOR


JUSTICE 

161 Avenue of the Americas, 

12th Floor 

New York, NY 10013 

CHARLES G. CURTIS, JR. 

DAVID J. HARTH 

MICHELLE M. UMBERGER 

HELLER EHRMAN WHITE & 

MCAULIFFE LLP 

One East Main Street, Suite 201 

Madison, WI 53703 

BRADLEY S. PHILLIPS 

MUNGER, TOLLES & 

OLSON LLP 

355 South Grand Ave. 

35th Floor 

Los Angeles, CA 90071 

E. JOSHUA ROSENKRANZ 

HELLER EHRMAN WHITE & 

MCAULIFFE LLP 

120 West 45th Street 

New York, NY 10036 

ALAN B. MORRISON


SCOTT L. NELSON


PUBLIC CITIZEN LITIGATION


GROUP 

1600 20th Street, N.W. 

Washington, D.C. 20009 

MICHAEL D. LEFFEL 

A. KRISAN PATTERSON 

JENNIFER L. MUELLER 

STACY E. BECK 

JERROD C. PATTERSON 

WILMER, CUTLER & 

PICKERING 

2445 M Street, N.W. 

Washington, D.C. 20037 

FRED WERTHEIMER


ALEXANDRA EDSALL


DEMOCRACY 21


1825 Eye Street, N.W. 


Suite 400


Washington, D.C. 20006


TREVOR POTTER


GLEN M. SHOR


CAMPAIGN LEGAL CENTER


1101 Connecticut Ave., N.W.


Suite 330


Washington, D.C. 20036

QUESTIONS PRESENTED 

1. Whether the Court should summarily dispose of the 

McConnell appellants’ constitutional challenges to Sections 

211, 212, and 214 of the Bipartisan Campaign Reform Act of 

2002 (BCRA), Pub. L. No. 107-155, 116 Stat. 81, because 

those challenges were either waived below, or are plainly 

nonjusticiable or insubstantial under settled law. 

2. Whether, in other respects, the Court should note 

probable jurisdiction over the McConnell and NRA 

appellants’ constitutional challenges to BCRA, and set the 

appeals on those issues for briefing and oral argument. 

(i) 
TABLE OF CONTENTS 

Page


QUESTIONS PRESENTED.................................................i


TABLE OF CONTENTS.....................................................iii


TABLE OF AUTHORITIES...............................................iv


INTRODUCTION.................................................................1


ARGUMENT.........................................................................3


I.	 APPELLANTS FAIL TO RAISE JUSTICIABLE OR 


SUBSTANTIAL QUESTIONS WITH RESPECT TO 


ANY “ADVANCE NOTICE” REQUIREMENT IN 


BCRA SECTION 212........................................................3


II.	 APPELLANTS FAIL TO RAISE JUSTICIABLE OR 


SUBSTANTIAL QUESTIONS WITH RESPECT TO 


THE COORDINATION PROVISIONS OF BCRA 


SECTIONS 211 AND 214...................................................5


CONCLUSION....................................................................13


(iii) 
iv 

TABLE OF AUTHORITIES 

CASES 

Page(s) 

Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam)............. 7, 12


Clark v. Valeo, 559 F.2d 642 (D.C. Cir.), aff’d, 


431 U.S. 950 (1977)........................................................ 10


Colorado Republican Federal Campaign Committee v. FEC, 518 U.S. 604 (1996)............................... 11


Delta Air Lines, Inc. v. August, 450 U.S. 346 (1981)............. 6


Dothard v. Rawlinson, 433 U.S. 321 (1977)........................... 6


FCC v. ITT World Communications, Inc.,


466 U.S. 463 (1984)........................................................ 10


FEC v. Colorado Republican Federal Campaign 

Committee, 533 U.S. 431 (2001) .......................... 7, 11, 12


Martin Tractor Co. v. FEC, 627 F.2d 375 (D.C. 


Cir.), cert. denied, 449 U.S. 954 (1980) .......................... 10


New Mexicans for Bill Richardson v. Gonzales, 


64 F.3d 1495 (10th Cir. 1995)......................................... 10


Nixon v. Administrator of General Services, 


433 U.S. 425 (1977).......................................................... 9


Perez v. Ledesma, 401 U.S. 82 (1971)..................................... 3


Public Citizen Health Research Group v. FDA, 


740 F.2d 21 (D.C. Cir. 1984) .......................................... 10


Public Service Commission v. Brashear Freight 

Lines, Inc., 306 U.S. 204 (1939)....................................... 3


Renne v. Geary, 501 U.S. 312 (1991) ................................ 4, 10


United States v. United Foods, Inc., 533 U.S. 405 


(2001)............................................................................... 6


Virginia v. American Booksellers Association,


484 U.S. 383 (1988).......................................................... 4


Wisconsin Right to Life, Inc. v. Paradise,


138 F.3d 1183 (7th Cir. 1998)........................................... 4


CONSTITUTION, STATUTES AND REGULATIONS 

Bipartisan Campaign Reform Act of 2002, Pub. L. 


No. 107-155, 116 Stat. 81


§ 201................................................................................. 3


§ 202................................................................................. 5

v 

TABLE OF AUTHORITIES—Continued 

Page(s) 

§ 211....................................................................... passim 

§ 212....................................................................... passim 

§ 214....................................................................... passim 

§ 214(a) .......................................................................... 12


§ 214(b).................................................................... 2, 7, 9


§ 214(c)................................................................... 2, 8, 11


§ 401................................................................................. 3


§ 403(a) .......................................................................... 10


§ 403(a)(3)........................................................................ 2


§ 403(a)(4)........................................................................ 2


§ 403(b)............................................................................ 1


Federal Election Campaign Act of 1971, Pub. L. No. 


92-225, 86 Stat. 3


2 U.S.C. § 434(f)............................................................... 3


2 U.S.C. § 441a(a)(7)(B)(i) ............................................. 12


Administrative Procedure Act, Pub. L. No. 103-272, 


80 Stat. 392


5 U.S.C. § 701 et seq..................................................... 8, 9


11 C.F.R. § 100.23 (2002)........................................................ 7


65 Fed. Reg. 76138 (Dec. 6, 2000). .......................................... 7


66 Fed. Reg. 23537 (May 9, 2001)........................................... 7


68 Fed. Reg. 404 (Jan. 3, 2003) (to be codified at 11 


C.F.R. § 109.10)............................................................... 4


68 Fed. Reg. 421 (Jan. 3, 2003)............................................... 8


68 Fed. Reg. 455 (Jan. 3, 2003)............................................. 12


148 Cong. Rec. S2144 (daily ed. Mar. 20, 2002)...................... 8


148 Cong. Rec. S2145 (daily ed. Mar. 20, 2002)................ 8, 12


Fed. R. Civ. P. 24(a)(1)........................................................... 1


MISCELLANEOUS 

Statement of Reasons of Commissioner Thomas & 

Chairman McDonald in In re The Coalition, et 

al., MUR 4624 (FEC Sept. 7, 2001)................................. 8


Statement of Reasons of Commissioners Thomas 


and McDonald in In re Republicans for Clean 

Air, MUR 4982 (FEC Apr. 23, 2002) .............................. 8

IN THE 

Supreme Court of the United States

NO. 02-1674 

SENATOR MITCH MCCONNELL, et al., 

Appellants, 

v. 

FEDERAL ELECTION COMMISSION, et al., 

Appellees. 

NO. 02-1675 

NATIONAL RIFLE ASSOCIATION, et al., 

Appellants, 

v. 

FEDERAL ELECTION COMMISSION, et al., 

Appellees. 

INTERVENOR-APPELLEES’ RESPONSE 

TO JURISDICTIONAL STATEMENTS 

INTRODUCTION 

Although intervenor-appellees take issue with the 

positions taken on the merits by Senator McConnell, et al., 

and the National Rifle Association, et al., in their 

jurisdictional statements, we agree that most of the 

questions presented in their jurisdictional statements 

warrant plenary consideration by this Court.1 In light of 

1 Intervenor-appellees are Senator John McCain, Senator Russell 

Feingold, Representative Christopher Shays, Representative Martin 

Meehan, Senator Olympia Snowe, and Senator James Jeffords. They were 

granted leave to intervene as of right in the proceedings below pursuant 

to BCRA § 403(b) and Fed. R. Civ. P. 24(a)(1). See Orders of May 3 and 

May 10, 2002 (granting intervention). The intervenors are also appellants 

in No. 02-1702, McCain v. McConnell. See 02-1702 J.S. 15 & n.17. 
2 

Sections 403(a)(3) and (a)(4) of the Bipartisan Campaign 

Reform Act of 2002 (BCRA), Pub. L. No. 107-155, 116 Stat. 

81, which provide for direct and expedited review in this 

Court of any final decision of a three-judge district court 

hearing a challenge to the constitutionality of BCRA, and in 

light of the importance of the issues to the nation, 

intervenor-appellees agree with the McConnell and NRA 

appellants that the Court should note probable jurisdiction 

over these appeals and set the case for briefing and oral 

argument. 

Some of the questions presented in Senator McConnell’s 

jurisdictional statement (No. 02-1674), however, do not 

warrant plenary consideration by this Court. Those 

questions seek (in whole or in part) to raise challenges to 

BCRA that were unequivocally waived below, or are clearly 

nonjusticiable under well-settled principles of constitutional 

and administrative law, or are otherwise so insubstantial as 

not to justify further briefing and argument (particularly 

given the number and complexity of the other issues 

properly before the Court). Summary disposition of those 

issues at this stage of the case would focus the briefing on 

the remaining issues that do warrant this Court’s plenary 

review, and may assist in the orderly resolution of these 

appeals. Accordingly, the Court may wish to consider 

summarily disposing of the following issues: 

First, the Court should summarily dispose of Senator 

McConnell’s challenge to a provision in BCRA Section 212 

requiring disclosure of contracts to make disbursements 

with respect to independent expenditures. See McConnell 

J.S. Question Presented 3 and pp. 14-15. Under settled law, 

that challenge is clearly nonjusticiable. 

Second, the Court should summarily dispose of all 

challenges to the “independent” and “coordinated” expenditure provisions in BCRA Sections 211 and 214. See 

McConnell J.S. Question Presented 4 and pp. 15-16. 

Appellants waived all claims with respect to Section 211; 

their challenges to Section 214(b) and (c) are clearly 
3 

nonjusticiable; and their other challenges to Section 214 are 

insubstantial under settled law. 

ARGUMENT 

I. APPELLANTS FAIL TO RAISE JUSTICIABLE OR 

SUBSTANTIAL QUESTIONS WITH RESPECT TO ANY 

“ADVANCE NOTICE” REQUIREMENT IN BCRA 

SECTION 212 

The third question presented in Senator McConnell’s 

jurisdictional statement is “[w]hether the district court 

erred by holding nonjusticiable challenges to, and upholding, 

portions of the ‘advance notice’ provisions of BCRA . . . 

because they violate the First Amendment.” The targeted 

provisions are disclosure requirements in BCRA Section 212 

applicable to “independent expenditures.”2 Appellants 

contend that, because the statutory language refers to the 

disclosure not only of disbursements but also of contracts to 

make such disbursements, the statute must be read as 

requiring disclosure in advance of any actual independent 

2 Senator McConnell has also presented a constitutional challenge to 

the “advance notice” requirement of BCRA § 201 in his jurisdictional 

statement, see McConnell J.S. Question Presented 3 and pp. 14-15. In fact, 

Senator McConnell prevailed on that challenge in the district court. 

Section 201 of BCRA amended 2 U.S.C. § 434(f) to add disclosure 

requirements with respect to disbursements for “electioneering 

communications” “if the person has executed a contract to make the 

disbursement.” The district court ruled that appellants’ constitutional 

challenge to Section 201 was ripe, see Supplemental Appendix to 

Jurisdictional Statement (JSSA) 109-11sa (per curiam), and ruled in their 

favor on the merits as well, JSSA 115sa (per curiam). The government 

has appealed from that aspect of the district court’s decision. See No. 02-

1676, Gov’t J.S. 26-27. Senator McConnell, however, may not appeal from 

the district court’s ruling in his favor on that point. See Perez v. Ledesma, 

401 U.S. 82, 87 n.3 (1971); Public Serv. Comm’n v. Brashear Freight 

Lines, Inc., 306 U.S. 204, 206 (1939). 

The district court also held that the challenged “advance notice” 

requirement of BCRA § 201 is severable from the remainder of that 

section. JSSA 115-16sa (per curiam); see BCRA § 401 (severability 

provision). Senator McConnell’s jurisdictional statement does not mention, let alone contest, that severability ruling, which applied wellestablished law. 
4 

expenditures. That requirement, they assert, “will chill the 

exercise of free speech by forcing would-be speakers to 

disclose their plans in advance.” McConnell J.S. 15. 

That challenge warrants summary disposition. The 

FEC’s regulations implementing Section 212 unambiguously 

construe the statute not to require such advance disclosure. 

See 68 Fed. Reg. 404, 452 (Jan. 3, 2003) (to be codified at 11 

C.F.R. § 109.10). The district court therefore found no 

current threat that appellants, or anyone else, will have an 

advance-notice requirement enforced against them under 

Section 212. See Supplemental Appendix to Jurisdictional 

Statement (JSSA) 130-34sa (per curiam).3 

Nowhere in Senator McConnell’s Jurisdictional 

Statement is there any argument explaining why appellants 

think the district court’s opinion was wrong on this point. 

Nor is there any apparent argument to be offered. It is 

black-letter law that “an actual and well-founded fear that 

the law will be enforced” is a prerequisite to a finding of a 

case or controversy when a plaintiff seeks pre-enforcement 

review of the constitutionality of a statute on First 

Amendment grounds. Virginia v. American Booksellers 

Ass’n, 484 U.S. 383, 393 (1988).4 In light of the FEC’s 

regulations, there can be no credible threat that Section 212 

3 In the district court, another of the parties challenging Section 212 

on this basis argued that the FEC regulations offered no assurance 

against enforcement of an “advance notice” requirement because the 

regulations “may not be approved by Congress” or the Commission might 

later change its mind. JSSA 134sa (per curiam). The congressional 

review period has now passed, however, and the regulations remain in 

effect. And the FEC could not, of course, change its mind without noticeand-comment rulemaking. If it did so, a case or controversy might then be 

presented, but that purely speculative possibility does not create a 

present threat that the statute will be construed in the manner the 

challengers claim to fear. 

4 See also Renne v. Geary , 50 U.S. 312, 323 (1991); Wisconsin Right 

to Life, Inc. v. Paradise, 138 F.3d 1183, 1185 (7th Cir. 1998) (holding that a 

challenge to a state election law did not present a case or controversy 

where an opinion of the state attorney general and a regulation of the 

state elections board precluded application of the law to the challenger). 
5 

will be enforced to require appellants to give “advance 

notice” of their disbursements as they have contended. The 

district court therefore correctly concluded that appellants’ 

challenge to Section 212 is nonjusticiable, and this Court 

should summarily dispose of that challenge. 

II. APPELLANTS FAIL TO RAISE JUSTICIABLE OR 

SUBSTANTIAL QUESTIONS WITH RESPECT TO THE 

COORDINATION PROVISIONS OF BCRA SECTIONS 211 

AND 214 

The fourth question presented in Senator McConnell’s 

jurisdictional statement is “[w]hether the district court 

erred by holding nonjusticiable challenges to, and upholding, 

the ‘coordination’ provisions of BCRA (sections 202, 211, and 

214), because they violate the First Amendment.” The 

Court should summarily dispose of appellants’ challenges to 

Sections 211 and 214 because (a) appellants expressly 

waived all challenges to Section 211; and (b) the rulemaking 

provisions of Section 214 present no justiciable issues, and 

the remaining provisions raise no substantial issue 

warranting plenary consideration.

5 

A. Section 211 amends FECA to include, in the 

definition of “independent expenditure,” any expenditure 

that is “not made in concert or cooperation with or at the 

request or suggestion of [a] candidate, the candidate’s 

authorized political committee, or their agents, or a political 

party or its agents.” Senator McConnell now seeks to 

5 Appellants’ constitutional challenge to the coordination provisions 

of Section 202, although flawed, does present a substantial question 

insofar as that section is linked to the “electioneering communications” 

provisions of BCRA that are before the Court. See McConnell J.S. 16. As 

the district court majority noted, however, some of the Section 202 

arguments made below also “challenge[] the scope of activities covered by 

BCRA’s definition of ‘coordination’ ”; the majority concluded that those 

arguments “are not ripe given the statutory construction of Section 214 

and the recent promulgation of final regulations by the FEC.” JSSA 

130sa (per curiam). If any appellant presses such arguments in this Court, 

the Section 202 questions are to that extent nonjusticiable and 

insubstantial for all the reasons set forth in this response with respect to 

appellants’ claims regarding Section 214. 
6 

challenge Section 211 on First Amendment grounds. See 

McConnell J.S. Question Presented 4 and pp. 7, 15-16. In the 

district court, however, Senator McConnell and other 

plaintiffs challenging BCRA waived all challenges to Section 

211. Neither the Per Curiam opinion’s “Chart of the Court’s 

Rulings” nor Judge Henderson’s comprehensive “catalogue” 

of all challenges to BCRA’s provisions contains any 

reference to Section 211. See JSSA 10-15sa (per curiam); 

JSSA 186-214sa (Henderson). The reason for this omission 

is spelled out on page 128sa, note 81 of the Per Curiam 

opinion: 

Although Plaintiffs ask for judgment as to BCRA’s 

Section 211, . . . at oral argument they stated that 

they were not challenging the provision. See Tr. at 

341-42 (Judge Henderson: Mr. Starr, I’ve got down 

that you all are challenging [Section] 211. Am I 

wrong about that? . . . [Mr.] Baran: We are not 

challenging section 211[.]). Furthermore, other 

than a description of the provision, . . . Plaintiffs’ 

briefs are silent on the provision. (Second 

alteration in original.) 

It is difficult to imagine a more plain case of waiver.6 

See, e.g., United States v. United Foods, Inc., 533 U.S. 405, 

417 (2001) (declining to allow a challenger “to assert new 

substantive arguments attacking . . . the judgment when 

those arguments were not pressed in the court whose 

opinion we are reviewing, or at least passed upon by it”); 

Delta Air Lines, Inc. v. August, 450 U.S. 346, 362 (1981); 

Dothard v. Rawlinson, 433 U.S. 321, 323 n.1 (1977). 

6 The waiver at oral argument was carefully considered. Judge 

Henderson had earlier asked an attorney from the FEC a question about 

BCRA § 211, and he responded: “They haven’t challenged that. There’s 

been no briefing on that. That’s not part of their lawsuit.” Tr. at 316 (Mr. 

Kolker). In response to Judge Henderson’s question quoted above, Mr. 

Starr responded: “I need to double-check our list of provisions . . . . If it 

deserves to be challenged, we will challenge it. (Laughter).” Id. at 341. 

Following a 15-minute recess during which plaintiffs’ counsel conferred 

among themselves, Mr. Baran reported back that “[w]e are not 

challenging section 211[.]” Id. at 342. 
7 

B. The heart of Section 214 is Congress’s repeal of what 

it deemed to be an errant FEC rule defining “coordination” 

between a candidate or party and an outside spender, with 

instructions to the agency to go back to the drawing board 

and prepare new regulations. This Court and Congress have 

long recognized that, to prevent evasion of the campaign 

finance laws through “wink or nod” arrangements, 

“coordination” must be defined in a broad and realistic 

manner. FEC v. Colorado Republican Fed. Campaign 

Comm., 533 U.S. 431, 442 (2001) (Colorado II); see also 

Buckley v. Valeo, 424 U.S. 1, 46-47 & n.53, 78 (1976) (per 

curiam). 

In December 2000, however, a divided FEC promulgated new regulations redefining “coordination” much more 

narrowly in the context of “general public political 

communications.” See 65 Fed. Reg. 76138 (Dec. 6, 2000); see 

also 66 Fed. Reg. 23537 (May 9, 2001) (final rule and 

effective date); 11 C.F.R. § 100.23 (2002), repealedby BCRA 

§ 214(b). The FEC’s December 2000 rules provided in 

material part that coordination could be found between a 

candidate and a third party only where the third party’s 

communication was “created, produced or distributed” (1) 

“[a]t the request or suggestion of the candidate,” (2) after 

the candidate “has exercised control or decision-making 

authority” with respect to the communication, or (3) “[a]fter 

substantial discussion or negotiation ... the result of which 

is collaboration or agreement” between the third party and 

the candidate. 11 C.F.R. § 100.23(c)(2)(i)-(iii) (emphasis 

added). 

The new rules drew immediate and extensive criticism 

both on and off the Commission. A recurrent complaint was 

that the rules were “far too narrowly drafted and [would] 

make evasion of [FECA] commonplace”—for example, 

through the use of inside information by consultants and 

employees who could achieve de facto coordination through 

informal means while purporting to avoid the more formal 

arrangements that triggered coverage under the FEC 
8�

rules.7 Section 214 followed directly from these criticisms. 

Section 214(a) repeals the Commission’s former rules, 

effective December 22, 2002; (b) provides that the 

Commission “shall promulgate new regulations on 

coordinated communications” addressing at a minimum four 

specific situations;8 and (c) directs that the new rules “shall 

not require agreement or formal collaboration to establish 

coordination.” 

Rather than await the product of the mandated FEC 

rulemaking (which would, of course, be subject to judicial review under the Administrative Procedure Act (APA), 5 

U.S.C. §§ 701 et seq.), appellants flocked directly to the 

three-judge district court to insist that it would be 

impossible for the new, not-yet-drafted coordination rules 

ever to comply with the First Amendment. Meanwhile, the 

Commission proceeded with its coordination rulemaking, as 

directed by Congress. The FEC issued its Notice of Proposed Rulemaking on September 24, 2002, received written 

comments and held a public hearing in October, and adopted 

its replacement rules on December 5—the very day of oral 

argument on appellants’ challenge to Section 214 in the 

district court. The Commission transmitted its new rules to 

Congress on December 18 and published them in the 

Federal Register on January 3, 2003. See 68 Fed. Reg. 421 

(detailing rulemaking history). Many of the appellants 

7 Statement of Reasons of Commissioner Thomas and Chairman 

McDonald in In re The Coalition, et al., MUR 4624, at 8, 12 (FEC Sept. 7, 

2001); see also Statement of Reasons of Commissioners Thomas and 

McDonald in In re Republicans for Clean Air, MUR 4982, at 9-10 (FEC 

Apr. 23, 2002); 148 Cong. Rec. 2144-45 (daily ed. Mar. 20, 2002) (statement 

of Sen. Feingold). 

8 Section 214(c) directs the Commission to address (a) “payments for 

the republication of campaign materials”; (b) “payments for the use of a 

common vendor”; (c) “payments for communications directed or made by 

persons who previously served as an employee of a candidate or a political 

party”; and (d) “payments for communications made by a person after 

substantial discussion about the communication with a candidate or a 

political party.” 
9 

participated actively in the rule-making (as did many of the 

intervenor-appellees).9 

The district court correctly held appellants’ challenge to 

the rulemaking mandate of Section 214 to be nonjusticiable. 

See JSSA 144-56sa (per curiam). Whether evaluated under 

principles of standing, ripeness, finality pursuant to 5 U.S.C. 

§ 704, exhaustion of administrative remedies, or subjectmatter jurisdiction, appellants’ challenges to Section 214’s 

rulemaking provisions were not properly before the threejudge district court.10 To begin, appellants lack Article III 

standing, for they can have suffered no “specific objective 

harm” from a mere congressional instruction to the FEC to 

rewrite its coordination rules. JSSA 145sa (per curiam); see 

generally JSSA 145-48sa (per curiam). Until final rules were 

in place, it was entirely speculative whether any particular 

conduct in which an appellant wished to engage might be 

covered by the revised rules or not. 

It is also well-settled under principles of ripeness, 

finality, and exhaustion that litigants may not attempt to 

end-run congressionally established rulemaking procedures 

for resolving an issue by seeking to litigate that issue 

directly in court. See JSSA 148-56sa (per curiam); Nixon v. 

Administrator of Gen. Servs., 433 U.S. 425, 430, 437-39 

(1977) (matters subject to pending rulemaking were “not 

ripe for review,” because final rules might “eliminate, limit, 

or cast [the constitutional claims] in a different light”) 

9 Portions of the new coordination rules have been challenged under 

the APA by Reps. Shays and Meehan. See Shays v. FEC, Civ. Action No. 

02-CV-1984 (D.D.C.). To our knowledge, that is the only challenge that 

has been brought against the new coordination rules. 

10 Some of these challenges are also now moot. For example, appellants argued below that Section 214(b), which repealed the FEC’s former 

rules, “substantially aggravated the constitutional violation” by creating a 

period when there were no definitional rules in place. See JSSA 144sa 

(per curiam). As the district court majority held, the Commission’s 

promulgation of new rules rendered this “aggravation” claim moot. JSSA 

136sa n.88, 144sa (per curiam). 
10 

(internal quotation marks omitted).11 These ripeness principles apply fully in the First Amendment context. See 

JSSA 145sa, 149-55sa (per curiam); Renne v. Geary, 510 U.S. 

312, 320-324 (1991).

12 

In addition, any challenge to the outcome of the FEC 

rulemaking on coordination must be brought in a singlejudge district court in an action for judicial review under the 

APA. BCRA’s special jurisdictional grant “does not extend 

to the consideration of FEC regulations.” JSSA 144sa (per 

curiam); see JSSA 155-56sa (per curiam). The special 

jurisdictional provisions of BCRA Section 403(a) for a threejudge district court are limited to “any action . . . brought for 

declaratory or injunctive relief to challenge the 

constitutionality of any provision of this Act or any 

amendment made by this Act.” Those provisions do not 

extend the subject-matter jurisdiction of the three-judge 

district court to challenges to administrative rules 

promulgated pursuant to BCRA. Thus, there is no basis for 

challenging such rules outside the usual APA framework. 

See also FCC v. ITT World Communications, Inc., 466 U.S. 

463, 468 (1984) (“[l]itigants may not evade” statutory 

procedures for judicial review of matters committed to 

agency’s rulemaking process by commencing de novo actions 

in district court).13 

11 See also New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 

1495, 1504 n.5 (10th Cir. 1995); Public Citizen Health Research Group v. 

FDA, 740 F.2d 21, 29 (D.C. Cir. 1984). 

12 See also Martin Tractor Co. v. FEC, 627 F.2d 375, 378 (D.C. Cir.) 

(affirming dismissal of First Amendment challenges to allegedly 

ambiguous FECA language as “nonjusticiable as a constitutional matter 

and inappropriate for adjudication as a prudential matter,” given the 

opportunities for clarification through the FEC), cert. denied, 449 U.S. 954 

(1980); Clark v. Valeo, 559 F.2d 642, 647 (D.C. Cir.) (per curiam) (judicial 

review of various FECA issues inappropriate “because the unripeness of 

the action is so pervasive”), aff’d, 431 U.S. 950 (1977). 

13 Judge Henderson appears to have concluded that BCRA’s 

jurisdiction should be extended to the FEC’s rules on the theory that 

“extreme” hardship would otherwise result “because ordinary APA 

review of the regulations could take several months or even years.” JSSA 
11 

Appellants have argued that they are not required to 

await the outcome of the FEC’s rulemaking because (they 

contend) the First Amendment requires an outright 

“agreement” for any expenditure to be treated as 

“coordinated,” whereas Section 214(c) prohibits the FEC 

from requiring an agreement to demonstrate “coordination.” 

See JSSA 136-37sa & n.89, 146sa (per curiam); McConnell 

J.S. 16. The district court majority dissected this argument 

at length and correctly found it to be “inconsistent with the 

holdings of Buckley and its progeny.” JSSA 146sa (per 

curiam); see also JSSA 138-43sa (per curiam). As the district 

court stressed, Buckley expressly endorsed treating 

expenditures made “ ‘at the request or suggestion of the 

candidate or his agent[ ]’ ” as “coordinated,” a standard that 

clearly does not “equate to agreement.” JSSA 139sa (per 

curiam) (quoting Buckley, 424 U.S. at 47 n.53) (internal 

citations omitted); 143sa (per curiam).14 

It is therefore untenable to assert that any provision of 

Section 214 requires the FEC to violate any constitutional 

principle articulated in this Court’s decisions applicable to 

coordinated expenditures. Accordingly, appellants have no 

basis for disregarding the rulemaking procedures 

established by Congress, which may well have resolved 

many if not all of their practical concerns without the need 

for litigation on this issue. See JSSA 148sa, 150-52sa, 155-

56sa (per curiam). Of course, if appellants are dissatisfied 

with the outcome of the FEC’s rulemaking, they can 

challenge the Commission’s coordination rules in an action 

396sa. As the majority explained, that position does not take account of 

the fact that expedition and interim relief are available in APA challenges. 

JSSA 155-56sa & n.98-99 (per curiam). In any event, that argument 

cannot supply subject-matter jurisdiction to review rulemaking issues 

where no such jurisdiction has been granted by Congress. 

14 See also Colorado Republican Fed. Campaign Comm. v. FEC , 

518 U.S. 604, 614 (1996) (plurality opinion) (Colorado I); (recognizing need 

to reach “general . . . understanding[s]”); Colorado II, 533 U.S. at 442 

(same, with respect to “wink or nod” arrangements) . 
12 

under the APA, in which they may raise both constitutional 

and statutory challenges to those rules.15 

C. Section 214 makes two other minor changes to 

FECA outside the rulemaking context. Any challenges to 

those provisions that might be raised by appellants are 

insubstantial. 

First, Section 214(a) extends FECA’s longstanding 

regulation of coordination with candidates and candidate 

committees to include coordination with any “national, State, 

or local committee of a political party” as well. As the 

district court majority explained, Congress simply took the 

“same definition [that] has been applied to expenditures 

coordinated with political candidates for over 25 years,” and 

applied it to coordination with parties. JSSA 135sa (per 

curiam). In doing so, Congress acted on the need to avoid 

circumvention of FECA’s contribution limits, a necessity 

long recognized by both this Court and Congress.16 

Congress has found that, to enforce those contribution limits 

effectively, it is necessary to apply the coordination 

regulations to coordination with both candidates and parties. 

There is no basis in law or in the record to set aside this 

congressional judgment. As the district court majority 

concluded, “[appellants] have provided no explanation as to 

15 Judge Henderson expressed the view that vague coordination 

standards could threaten to interfere with protected lobbying and 

information-gathering activities. See JSSA 280-86sa, 386-96sa. Again, 

that point is a question for APA review of the FEC’s coordination 

regulations rather than this litigation. Moreover, the sponsors of BCRA 

repeatedly emphasized that any rule that sought to find “coordination” 

based on genuine lobbying activities would be contrary to Congress’s 

intent. See, e.g., 148 Cong. Rec. S2145 (daily ed. Mar. 20, 2002) (statement 

of Sen. McCain). Consistent with that legislative intent, the FEC’s new 

rules contain a safe-harbor provision for “responses to inquiries about 

legislative or policy issues.” 68 Fed. Reg. at 455 (quoting new 11 C.F.R. 

§ 109.21(f)). Thus, as the district court majority explained, appellants’ 

claims that their genuine lobbying activities could be in jeopardy are 

speculative at best, and are insufficient to meet Article III standing 

requirements. See JSSA 147sa n.95. (per curiam). 

16 See Colorado II, 533 U.S. at 447, 464; Buckley , 424 U.S. at 46-47 & 

n.53, 78; 2 U.S.C. § 441a(a)(7)(B)(i). 
13 

why the application of this coordination formula to the 

context of political parties chills political speech any more 

than when applied to expenditures coordinated with political 

candidates.” JSSA 137sa (per curiam). 

Second, appellants may raise a First Amendment 

constitutional challenge to BCRA Section 214(d). As the 

district court majority explained, however, that provision 

simply amends 2 U.S.C. § 441b to bring its definitions into 

alignment with other sections of FECA. JSSA 156-57sa (per 

curiam). Thus, any challenge to Section 214(d) is likewise 

insubstantial and does not warrant this Court’s plenary 

consideration. 

CONCLUSION 

In No. 02-1674, the Court should summarily dispose of 

appellants’ challenges to Sections 211, 212, and 214. In other 

respects, the Court should note probable jurisdiction of the 

appeals in No. 02-1674 and No. 02-1675 and set those cases 

for plenary review. 

ROGER M. WITTEN 

WILMER, CUTLER & 

PICKERING 

399 Park Avenue 

New York, NY 10022 

JUNE 2003 

Respectfully submitted, 

SETH P. WAXMAN 

Counsel of Record 

RANDOLPH D. MOSS 

ERIC J. MOGILNICKI 

EDWARD C. DUMONT 

PAUL R.Q. WOLFSON 

WILMER, CUTLER & 

PICKERING 

2445 M Street, N.W. 

Washington, D.C. 20037 

(202) 663-6000