IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

Benjamin Bluman, et al.

 Plaintiffs, 

v. 

Federal Election Commission, 

 

Defendant. 

Civil Action No. 10-1766 (RMU) 

THREE JUDGE COURT 

PLAINTIFFS’ REPLY IN SUPPORT OF 

APPLICATION FOR THREE-JUDGE COURT 

 Section 403 of BCRA provides that in any case challenging “the constitutionality of any 

provision of this Act or any amendment made by this Act,” the party filing the action may elect 

to have it heard by a three-judge court. The Federal Election Commission cannot—and does 

not—dispute that Plaintiffs here are challenging the constitutionality of 2 U.S.C. § 441e(a), 

which was enacted into law in its entirety by a provision of BCRA (namely, § 303). And 

Plaintiffs have indisputably elected, as is their right, to have the action adjudicated by a threejudge court. That should be the end of the matter. Nonetheless, the Commission is resisting, on 

two principal grounds, the application for appointment of such a court.1

 Neither of their 

arguments has merit, and a three-judge court must therefore be appointed. 

 1

 The Commission also argues that the application should be rejected “to the extent it asks for claims 

regarding the Commission’s regulations to be referred to such court.” (Opp. at 10.) But Plaintiffs have not brought 

any independent challenge to the Commission’s regulations, which simply parrot the statutory provision enacted by 

§ 303 of BCRA. Of course, if Plaintiffs’ challenge succeeds, the regulations will necessarily fall along with the 

statute, but that hardly deprives the three-judge court of jurisdiction to hear the challenge to the statute. 

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I. A THREE-JUDGE COURT WOULD HAVE AUTHORITY TO REDRESS 

PLAINTIFFS’ INJURIES.

The Commission’s first argument is that, even though Plaintiffs are plainly challenging a 

provision of law enacted by BCRA, a three-judge court would be unable to redress their injuries. 

The argument appears to rest on two premises: (i) that, “even if plaintiffs were to obtain a 

favorable ruling on their challenges to BCRA § 303, the prohibitions on foreign nationals’ 

activity in pre-BCRA § 441e would remain in place” (Opp. at 5 (emphasis added)); and (ii) that, 

if those prior prohibitions “remain in place,” a three-judge court would have “no authority to 

address” them (Opp. at 5), thus leaving Plaintiffs’ injuries intact. Each of these necessary 

premises is wrong, and so the Commission’s argument fails doubly. 

A. If the three-judge court concludes that 2 U.S.C. § 441e(a) cannot constitutionally 

be applied to Plaintiffs, that hardly means that the prohibitions of “pre-BCRA § 441e”—which 

were repealed over eight years ago—would somehow be revived. The only extant law 

prohibiting the conduct Plaintiffs seek to engage in is the current version of 2 U.S.C. § 441e(a), 

which was enacted into law by § 303 of BCRA. If the court were to conclude that the statute 

violates the First Amendment as applied to Plaintiffs, that would not resuscitate a predecessor 

statute that has been off the books for nearly a decade. 

The Commission’s argument to the contrary appears to assume that Plaintiffs seek the 

invalidation of § 303 on its face, and that such relief would cause the “pre-BCRA” version of 

§ 441e(a) to spring back into being in the United States Code. Neither is true. Plaintiffs simply 

seek to enjoin the Government from applying § 441e(a) to them; they have not asked to have the 

law facially invalidated. And they certainly have not challenged the repeal of the predecessor 

version of § 441e(a). Thus, granting Plaintiffs the relief they seek would not strike § 441e(a) 

from the United States Code. Moreover, even if it did, that would not cause the long-repealed, 

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pre-BCRA analogue to § 441e(a) to suddenly spring back into law. Cf. 1 U.S.C. § 108 

(providing that the repeal of a repealing statute does not revive the original law). Therefore, a 

ruling that § 441e(a) may not constitutionally be applied to Plaintiffs would free them to engage 

in the prohibited speech, fully redressing their injuries. 

The only case cited by the Commission, McConnell v. FEC, 540 U.S. 93 (2003), is easily 

distinguishable. There, the plaintiffs sought to challenge “the contribution limits imposed by 

BCRA § 307, together with the individual and political action committee contribution limitations 

of FECA § 315” and exemptions granted by FECA to the “institutional media.” Id. at 228 

(emphasis added). The Government asked the Court to dismiss the challenge because the 

plaintiffs’ injury derived not from BCRA, but rather from FECA’s separate “contribution limit 

applicable to political committees other than political parties,” which BCRA had “left . . . 

unchanged.” Brief for the FEC et al. at 126 n.53, McConnell, 540 U.S. 93 (2003) (No. 02-1674). 

The Court agreed that even if it struck down the cited provision of BCRA, “the limitations 

imposed by FECA and the exemption for news media would remain unchanged.” Id. at 229. In 

other words, there were other, extant provisions of law—i.e., “the limitations imposed by FECA 

and the exemption for news media”—that were causing the plaintiffs’ alleged injury, and which 

could not be remedied by a decision on the constitutionality of the BCRA provision. 

By contrast, the only law being challenged here, and the only law prohibiting Plaintiffs’ 

proposed conduct, is 2 U.S.C. § 441e(a), which was enacted in full by BCRA § 303. There is no 

other extant provision of law causing or contributing to their injury. The only other provision to 

which the Commission points is the predecessor to § 441e(a), which—as the Commission 

concedes—was “struck” by BCRA in its entirety (Opp. at 4) and no longer exists. See BCRA 

§ 303. A repealed statute is hardly a barrier to the redress of Plaintiffs’ injuries. 

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B. Even if finding the current, BCRA-enacted 2 U.S.C. § 441e(a) unconstitutional as 

applied to Plaintiffs could somehow revive the pre-BCRA version of the same statute, the threejudge court would have the power to apply its constitutional holding to that law too. Nothing in 

BCRA § 403 limits the jurisdiction of the three-judge court, or its remedial authority. See Allee 

v. Medrano, 416 U.S. 802, 812 & n.8 (1974) (holding that three-judge court has jurisdiction to 

grant ancillary relief); see also Philbrook v. Glodgett, 421 U.S. 707, 712 n.8 (1975) (affirming 

that three-judge court may decide, and Supreme Court may review by direct appeal, 

supplemental claims not independently entitled to review by a three-judge court).

The only reason why the Supreme Court in McConnell could not consider challenges to 

the constitutionality of the FECA provisions responsible for the plaintiffs’ injury was “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.” 540 U.S. at 229. Section 

437h requires that certain challenges to FECA “shall” be referred to the “appropriate en banc 

court of appeals.” The existence of that mandatory, alternative review scheme precluded the 

three-judge court (and the Supreme Court) in McConnell from considering the challenges to 

FECA in the ordinary course of its own review. However, as the Commission itself admits, 

“Plaintiffs here are not eligible to elect section 437h as that provision may be invoked only by 

the Commission, national party committees, or eligible United States voters.” (Opp. at 8 n.8.) 

Accordingly, there would be no mandatory alternative procedure preventing the three-judge 

court from considering the ancillary issue (were it even to arise) of whether the repealed version 

of 2 U.S.C. § 441e(a) violated the First Amendment. 

Both premises of the Commission’s argument are necessary to support its position, yet 

both are erroneous. A three-judge court should therefore be appointed to hear this action. 

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II. PLAINTIFFS HAD NO DUTY TO CONFER WITH THE COMMISSION.

The Commission also complains that Plaintiffs failed to comply with this Court’s Local 

Rule 7(m), which requires a party filing a nondispositive motion to confer with opposing counsel 

beforehand. But there was no such duty in the context of this application. 

Plaintiffs’ application for a three-judge court was filed pursuant to Local Rule 9.1, which 

refers to such a request as an “application,” not a “motion.” And the Local Rules reinforce the 

commonsense notion that these distinct terms are to be treated separately. See LCrR 6.1 

(referring to a “motion or application filed in connection with a grand jury subpoena” (emphasis 

added)). Therefore, the duty imposed by Rule 7(m)—which applies only to “motions”—is 

inapplicable. 

Nor is any other interpretation tenable, given that Rule 9.1 requires the application for 

three-judge court to be filed contemporaneously with the Complaint. At that point in time, of 

course, no opposing counsel has yet made an appearance, because no defendant has yet been 

served. There could not possibly be any duty to confer with unknown counsel about a yet-to-befiled lawsuit—which is presumably why similar applications in other cases have likewise 

omitted any statement of compliance with Rule 7(m), apparently without consequence. E.g., 

Dkt. #2, Nw. Austin Mun. Utility Dist. No. One v. Mukasey, No. 06 Civ. 1384 (D.D.C. Aug. 4, 

2006); Dkt. #2, Davis v. FEC, No. 06 Civ. 01185, 501 F. Supp. 2d 22 (D.D.C. June 28, 2006); 

Dkt. #2, Augusta County, Virginia v. Gonzales, No. 05 Civ. 1885 (D.D.C. Sept. 23, 2005).2

* * * 

 2

 Even if this Court were to conclude for the first time in this case that a Rule 9.1 “application” should be 

treated as a “motion” under Rule 7(m), it would be inequitable to impose the heavy sanction of a denial for 

Plaintiffs’ failure to anticipate such a holding. 

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 The creative lengths to which the Commission has gone in its opposition make clear that 

it does not believe the appointment of a three-judge court would be desirable in this case. But 

Congress has given Plaintiffs the right to elect such a court, and they have done so. This is not 

the Commission’s decision to make. 

Dated: November 9, 2010 Respectfully submitted, 

/s/ Warren Postman____ 

Warren Postman 

 D.C. Bar No. 995083 

Jacob M Roth 

 D.C. Bar No. 995090 

JONES DAY 

51 Louisiana Avenue N.W. 

Washington, DC 200001 

Telephone: (202) 879-3939 

Facsimile: (202) 626-1700 

wpostman@jonesday.com 

yroth@jonesday.com 

Counsel for Plaintiffs 

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