UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_________________________

)

STEVE SCHONBERG, )

)

Plaintiff, )

)

v. ) Civil Action No. 10-02040

) (JWR-CKK-RWR)

Federal Election )

Commission, et al., )

)

Defendants. )

)

MEMORANDUM OPINION

Currently pending before the court designated to hear and

determine plaintiff Steve Schonberg’s second amended complaint

are four motions: (1) Schonberg’s motion to trifurcate the

proceedings; (2) defendant Federal Election Commission’s motion

to dissolve the three-judge district court; (3) the Commission’s

motion to dismiss the second amended complaint; and (4) defendant

United States’ motion to dismiss the second amended complaint. 

This opinion addresses only the motion to dissolve the threejudge district court filed by the Commission. For the following

reasons, we grant the motion.

I.

As set forth in the second amended complaint, Schonberg, a

Florida resident, ran unsuccessfully for Congress in November

2010; he intends to be a candidate for the same office in

November 2012. See Second Am. Compl. ¶¶ 11, 12. On November 24,

2010, Schonberg filed a complaint for a declaratory judgment and

an injunction against the Commission, alleging that certain

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provisions of the Federal Election Campaign Act of 1971 (“FECA”),

Pub. L. No. 92-225, 86 Stat. 3, and the Bipartisan Campaign

Reform Act of 2002 (“BCRA”), Pub. L. No. 107-155, 116 Stat. 81,

facially violate the Due Process, Equal Protection, Emoluments,

Appointments, and Congressional Compensation Clauses of the

United States Constitution. Compl. ¶¶ 1-3. The complaint

focuses on the purported competitive advantages BCRA and FECA

afforded incumbent Florida Congressman Cliff Stearns in defeating

Schonberg’s 2010 congressional bid and would continue to afford

Stearns in the 2012 election cycle. See, e.g., id. ¶ 20. In

Schonberg’s view, the statutes “permit and encourage corruption

in Congress,” rather than “prevent gifting, bribery, and

influence peddling.” Id. ¶ 13. Schonberg also filed an

application requesting that his constitutional challenges to BCRA

be adjudicated by a three-judge district court. See BCRA §

403(a)(1), (d), 116 Stat. 113-14 (reprinted at 2 U.S.C. § 437h

note); see also LCvR 9.1. The application for designation was

granted on December 8, 2010, and the following day Judge Rogers

and Judge Kollar-Kotelly were named to constitute, with Judge

Roberts to whom the case was initially assigned, this three-judge

district court.

On December 23, 2010, the Commission filed a motion to

dissolve the three-judge district court on three grounds: the

purported constitutional challenges to BCRA were actually

challenges to FECA requiring adjudication by the U.S. Court of

Appeals for the District of Columbia Circuit sitting en banc, see

2 U.S.C. § 437h; Schonberg lacked constitutional standing; and

the claims were otherwise insubstantial or frivolous. Schonberg

filed an amended complaint four days later repeating verbatim his

constitutional challenges to BCRA and FECA and his view that they

afford incumbent federal officeholders unconstitutional

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competitive advantages over challengers. See Am. Compl. ¶¶ 1-3,

16, 30. It also contained several additions and clarifications. 

In particular, the amended complaint named the United States as

an additional defendant, alleged that the statute governing

“Representational allowance for Members of House of

Representatives,” 2 U.S.C. § 57(b) (hereinafter “the MRA”),

violated various constitutional provisions, and specified which

claims involved only BCRA, Am. Compl. ¶¶ 153-62. Responding to a

minute order, the Commission indicated its intent to pursue its

motion to dissolve because “the amendments [to the complaint] do

not add any claims that may be appropriately considered by a

three-judge court under section 403 of [BCRA], nor do the

amendments provide standing or present any substantial claim that

would support the convening of a three-judge court.” Comm’n

Notice at 1.

Schonberg then filed a motion to trifurcate the proceedings

on January 21, 2011.1 The motion acknowledged that the amended

complaint brought claims arising under three statutes, each

requiring adjudication by a separately constituted court – this

three-judge district court for BCRA, the Court of Appeals sitting

en banc for FECA, and a single-judge district court for the MRA. 

Schonberg also noted his intention to file a second amended

complaint to facilitate trifurcation. This court, upon receiving

the parties’ status reports, by minute order set a schedule for

the filing of the second amended complaint and the parties’

motions and responsive briefs. Schonberg filed a second amended

1

 In addition, Schonberg filed a motion to disqualify

Commission counsel on conflict of interest grounds. This court

denied the motion. See Schonberg v. Fed. Election Comm’n, No.

1:10-cv-02040, 2011 WL 311038 (D.D.C. Feb. 1, 2011) (per curiam)

(three-judge district court).

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complaint, the Commission re-filed its motion to dissolve the

three-judge panel to address new allegations, and the Commission

and the United States sought dismissal.

The second amended complaint again alleges that FECA, BCRA,

and the MRA violate the Constitution and thus unlawfully provide

incumbent officeholders with unfair competitive advantages in

federal elections. See Second Am. Compl. ¶¶ 1-4, 16. It largely

tracks the text of the first amended complaint and at times

provides further factual elaboration. Although the second

amended complaint reflects Schonberg’s request for trifurcation,

he nonetheless suggests that because his MRA claims “are

inextricably intertwined with [his] BCRA and FECA claims, they

should be heard by both the Three-Judge Court and the en banc

Court of Appeals.” Id. ¶ 8(c). As to BCRA, Schonberg clarified

that his challenge on constitutional grounds concerned sections

101, 202, 203, 204, 211, 214, and 301. See id. ¶ 232. However,

in a response brief, he narrowed his BCRA claim to section 301,

signaling his abandonment of the remaining BCRA constitutional

challenges. See Pl.’s Resp. to Comm’n’s Mot. to Dissolve at 1 &

n.1.

II.

The question presented by the Commission’s motion to

dissolve is whether Schonberg’s constitutional challenge to BCRA

§ 301, codified as amended at 2 U.S.C. § 439a, is properly before

this three-judge district court. The Commission’s principal

argument is that the claim, when properly viewed, presents a

challenge to FECA, which can only be heard by the Court of

Appeals sitting en banc.

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Despite the mandatory language of BCRA § 403(a)(1) that a

constitutional challenge to the statute “shall be heard by a 3-

judge court convened pursuant to section 2284 of title 28, United

States Code,” 116 Stat. 114, it is well-settled that Schonberg

must first present a “substantial claim” and “justiciable

controversy.” Feinberg v. Fed. Deposit Ins. Corp., 522 F.2d

1335, 1338 (D.C. Cir. 1975) (citing Idlewild Bon Voyage Liquor

Corp. v. Epstein, 370 U.S. 713, 715 (1962)); see also Rostker v.

Goldberg, 453 U.S. 57, 61 n.2 (1981). As regards justiciability,

the Supreme Court explained that where a three-judge district

court has been convened, it may find that dissolution is

necessary because it lacks jurisdiction or the plaintiff has

failed to demonstrate standing:

Here the three-judge court dismissed the complaint for

lack of “standing.” This ground for decision, that the

complaint was nonjusticiable, was not merely short of

the ultimate merits; it was also, like an absence of

statutory subject-matter jurisdiction, a ground . . .

upon which the three-judge court could have dissolved

itself, leaving final disposition of the complaint to a

single judge.

Gonzalez v. Automatic Emps. Credit Union, 419 U.S. 90, 99-100

(1974); accord 17A Charles Alan Wright, Arthur R. Miller, Edward

H. Cooper & Vikram David Amar, Federal Practice and Procedure §

4235, at 209-10 (3d ed. 2007) (hereinafter “Wright & Miller”).

The Supreme Court’s conclusion on justiciability in

McConnell v. FEC, 540 U.S. 93, 229 (2003), overruled in part on

other grounds by Citizens United v. FEC, 130 S. Ct. 876, 913

(2010), is controlling. That case concerned (in part) a

challenge to the constitutionality of BCRA § 307, which specifies

campaign contribution limits for federal elections. See 2 U.S.C.

§ 441a. A three-judge district court was convened pursuant to

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BCRA § 403(a)(1). Framing the issue as one of standing, the

Supreme Court on direct appeal concluded that the plaintiffs’

challenge was nonjusticiable for two reasons. First, the

contribution limits at issue had been enacted decades earlier as

part of FECA; “[BCRA] § 307 merely increased and indexed for

inflation certain FECA contribution limits.” McConnell, 540 U.S.

at 229. To the extent the plaintiffs’ claim attacked the

constitutionality of the FECA contribution limits, the Court

stated that it “ha[d] no power to adjudicate a challenge to the

FECA limits . . . because challenges to the constitutionality of

FECA provisions are subject to direct review before an

appropriate en banc court of appeals, as provided in 2 U.S.C. §

437h, not in the three-judge District Court convened pursuant to

BCRA § 403(a).” Id. Second, to the extent the plaintiffs’ claim

was directed at BCRA rather than FECA, the Court held that,

despite having jurisdiction to hear the challenge, the plaintiffs

lacked standing. “[I]f the Court were to strike down the

increases and indexes established by BCRA § 307, it would not

remedy the . . . plaintiffs’ alleged injury because . . . the

limitations imposed by FECA . . . would remain unchanged.” Id.

In short, a favorable ruling would not redress the plaintiffs’

alleged injury.

These twin rationales apply with full force to foreclose

this court’s adjudication of Schonberg’s BCRA claim. Like BCRA §

307, the provisions of BCRA § 301, which set forth the

permissible and impermissible uses of campaign contributions

accepted by successful candidates for federal office, derive from

FECA. As it existed under FECA, 2 U.S.C. § 439a specified that

“[a]mounts received by a candidate as contributions that are in

excess of any amount necessary to defray his expenditures, and

any other amounts contributed to an individual,” could be used to

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“defray any ordinary and necessary expenses incurred in

connection with his or her duties as a holder of Federal office,”

contributed to certain charitable entities, or directed to “any

other lawful purpose, including transfers without limitation to

any national, State, or local committee of any political party.” 

2 U.S.C. § 439a (2000). It also prohibited candidates from

converting the funds to personal use. Id. BCRA § 301 amended

this provision by listing the same permitted uses in separately

enumerated paragraphs, except for the phrase “any other lawful

purpose,” referencing donations received by individuals as

support for their holding federal office, and providing a general

definition of conversion to personal use with a non-exclusive

list of examples. 2 U.S.C. § 439a (Supp. II 2002).2

Schonberg acknowledges the similarities and relation between

the FECA and BCRA versions of 2 U.S.C. § 439a in stating that

“[t]he list [of permitted uses] was created . . . from what was a

paragraph in the older FECA law,” while the list of prohibited

uses “perhaps ‘clarified’” rules on conversion. Pl.’s Resp. to

Comm’n’s Mot. to Dismiss at 24. The legislative history confirms

that the two versions are essentially the same. The purpose of

the BCRA amendment was to “specify which candidate expenditures

from campaign funds would be considered an unlawful conversion of

a contribution or donation to personal use” by “codify[ing] the

FEC’s current regulations on the use of campaign funds for

2

 The Consolidated Appropriations Act, 2005, Pub. L. No.

108-447, § 532, 118 Stat. 2809, 3272 (2004), reinserted the “any

other lawful purpose” language and permitted funds to be

transferred to state and local candidates, subject to the

provisions of state law. The section was amended once more in

2007 to restrict the use of campaign funds for flights on

noncommercial aircraft. See Honest Leadership and Open

Government Act of 2007, Pub. L. No. 110-81, § 601, 121 Stat. 735,

774-75.

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personal expenses,” while leaving unchanged the allowance for

candidates to transfer excess campaign funds to political

parties. 148 CONG. REC. S2143 (daily ed. Mar. 20, 2002)

(statement of Sen. Feingold on § 301 of the McCainFeingold/Shays-Meehan Campaign Finance Reform Bill); see also

H.R. REP. NO. 107-131, pt. 1, at 8 (2001), reprinted in 2002

U.S.C.C.A.N. 106, 113; 148 CONG. REC. S1993-94 (daily ed. Mar. 18,

2002) (reprinting section-by-section analysis). As such, the

change effected by BCRA § 301 is not materially greater than that

effected by BCRA § 307’s raising and indexing the contribution

limits at issue in McConnell. Accordingly, Schonberg’s claim

that BCRA § 301 is unconstitutional is actually a challenge to

FECA, which falls outside the jurisdiction of a three-judge

district court under BCRA § 403(a)(1) and must instead be

adjudicated by the Court of Appeals sitting en banc pursuant to 2

U.S.C. § 437h. See McConnell, 540 U.S. at 229. 

To the extent Schonberg’s second amended complaint is

directed at BCRA rather than FECA, the holding in McConnell on

standing requires dissolution of this court because he lacks

standing, failing to show redressability. See Lujan v. Defenders

of Wildlife, 504 U.S. 555, 561 (1992). Schonberg’s alleged

injury is based on his claim that BCRA unconstitutionally

provides incumbents with an advantage in federal elections. See,

e.g., Second Am. Compl. ¶¶ 16-44. As in McConnell, were this

court to hold that BCRA § 301 is unconstitutional, the

limitations imposed by FECA would remain in force. “An

unconstitutional act is not a law; it confers no rights; it

imposes no duties; it affords no protection; it creates no

office; it is, in legal contemplation, as inoperative as though

it had never been passed.” Norton v. Shelby County, 118 U.S.

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425, 442 (1886).3 Alternatively, assuming that holding BCRA §

301 unconstitutional would render 2 U.S.C. § 439a a legal nullity

in all its iterations, this result would not further Schonberg’s

goal of more stringent regulation of the federal campaign finance

system and elimination of the alleged competitive advantages for

incumbent federal candidates. Without a statute specifying

permissible and impermissible uses of federal campaign

contributions, the Constitution would be the only source for

controlling legal authority governing relevant conduct, see

United States v. Bounos, 730 F.2d 468, 472 (7th Cir. 1984), aside

from federal statutory prohibitions on bribery and the like and

various state laws regarding federal elections. Schonberg has

made no showing that federal candidates, free from the

constraints imposed by 2 U.S.C. § 439a, would be more restricted

in their use of campaign funds or that the Constitution itself

forbids the pecuniary evils of the federal campaign finance

system that he alleges persist. To the contrary, removing these

limits would exacerbate, rather than remedy, the perceived ills. 

Under either view of the state of the law were Schonberg to

prevail, he fails to meet constitutional standing requirements

with respect to his BCRA claim.

We, therefore, hold that this three-judge district court

lacks jurisdiction to consider Schonberg’s BCRA claim and we

grant the Commission’s motion to dissolve. The second amended

complaint fails to identify a constitutional BCRA claim over

which this court has jurisdiction under BCRA § 403(a); nor has

3

 See also United States v. Schmit, 881 F.2d 608, 614-15

(9th Cir. 1989); City of Cleveland v. United States, 166 F. 677,

680 (6th Cir. 1909); cf. McCoy v. Augusta Fiberglass Coatings,

Inc., 593 F.3d 737, 744 (8th Cir. 2010) (Arkansas law); Kovacs v.

First Union Home Equity Bank (In re Huffman), 408 F.3d 290, 294

(6th Cir. 2005) (Ohio law).

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Schonberg shown the injuries he alleges in the second amended

complaint would be redressed by a favorable decision of this

court holding BCRA § 301 unconstitutional. In the absence of

jurisdiction, this court cannot address Schonberg’s MRA claim

concurrently with his BCRA claim because, as he asserts, they are

inextricably intertwined. See Lake Carriers’ Ass’n v. MacMullan,

406 U.S. 498, 504 n.5 (1972) (holding that ancillary claims are

properly before three-judge district court “so long as there is a

nonfrivolous constitutional claim that constitutes a justiciable

controversy”). See generally Wright & Miller § 4235, at 222-23. 

Consideration of Schonberg’s motion to trifurcate and the motions

to dismiss filed by the Commission and the United States as to

his remaining claims are returned to the single-judge district

court.

__________/s/_____________________

JUDITH W. ROGERS

United States Court of Appeals for

the District of Columbia Circuit

__________/s/_____________________

COLLEEN KOLLAR-KOTELLY 

United States District Court for

the District of Columbia

__________/s/_____________________

RICHARD W. ROBERTS

United States District Court for 

the District of Columbia

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