UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

REPUBLICAN NATIONAL COMMITTEE, ) 

 et al., ) 

 ) 

 Plaintiffs, ) Civ. No. 14-853 (CRC) 

 ) 

 ) 

 v. ) 

 ) 

 ) 

FEDERAL ELECTION COMMISSION, ) OPPOSITION 

 ) 

 Defendant. ) 

 ) 

DEFENDANT FEDERAL ELECTION COMMISSION’S OPPOSITION TO 

PLAINTIFFS’ APPLICATION FOR A THREE-JUDGE COURT 

Lisa Stevenson (D.C. Bar No. 457628) 

Deputy General Counsel — Law 

lstevenson@fec.gov 

 

Kevin Deeley 

Acting Associate General Counsel 

kdeeley@fec.gov 

Harry J. Summers

Assistant General Counsel 

hsummers@fec.gov 

Seth Nesin 

Greg J. Mueller (D.C. Bar No. 462840) 

Charles Kitcher (D.C. Bar No. 986226) 

 Attorneys 

 snesin@fec.gov 

gmueller@fec.gov 

 ckitcher@fec.gov 

 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

 Washington, DC 20463 

June 16, 2014 (202) 694-1650 

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TABLE OF CONTENTS 

 Page 

BACKGROUND .......................................................................................................................4 

I. The Federal Election Campaign Act ..............................................................................4 

II. Plaintiffs’ Claims ...........................................................................................................5 

III. BCRA’s Special Judicial Review Procedure .................................................................6 

ARGUMENT .............................................................................................................................7 

I. STANDARD OF SCRUTINY .......................................................................................7 

II. PLAINTIFFS ARE NOT ENTITLED TO A THREE-JUDGE COURT UNDER 

SECTION 403 ................................................................................................................7 

A. Plaintiffs’ Claims Are Insubstantial ...................................................................8 

B. Plaintiffs’ Claims Do Not Present a Justiciable Controversy ..........................13 

III. A THREE-JUDGE COURT COULD NOT EXERCISE SUPPLEMENTAL 

JURISDICTION OVER ANY OF PLAINTIFFS’ CLAIMS ......................................20 

IV. THE FACTFINDING AND SUBSTANTIALITY SCREENING PROCEDURES 

OF 2 U.S.C. § 437h APPLY TO SOME OF PLAINTIFFS’ CLAIMS .......................22 

 

CONCLUSION ........................................................................................................................25 

 

Case 1:14-cv-00853-CRC Document 17 Filed 06/16/14 Page 2 of 30
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TABLE OF AUTHORITIES 

Cases 

Bluman v. FEC, 766 F. Supp. 2d 1 (D.D.C. 2011) ..................................................................19 

Bread Political Action Comm. v. FEC, 455 U.S. 577 (1982) ..................................................24 

Buckley v. Valeo, 424 U.S. 1 (1976) ..........................................................................................4 

Carey v. FEC, 791 F. Supp. 2d 121 (D.D.C. 2011) .................................................................12 

Citizens United v. FEC, 558 U.S. 310 (2010) ............................................................................2 

Colo. Republican Fed. Campaign Comm. v. FEC, 518 U.S. 604 (1996) ................................12 

FEC v. Wis. Right to Life, Inc., 551 U.S. 449 (2007) ..............................................................11 

Feinberg v. Fed. Deposit Ins. Corp., 522 F.2d 1335 (D.C. Cir. 1975) ..............................7, 8, 9 

Goland v. United States, 903 F.2d 1247 (9th Cir. 1990) .........................................................24 

Goldstein v. Cox, 396 U.S. 471 (1970) ......................................................................................7 

Gonzalez v. Automatic Employees Credit Union, 419 U.S. 90 (1974) ......................................7 

Hassan v. FEC, 893 F. Supp. 2d 248 (D.D.C. 2012), aff’d, No. 12-5335, 2013 WL 

 1164506 (D.C. Cir. Mar. 11, 2013)..........................................................................7, 13 

Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713 (1962) ........................................7 

In re Cao, 619 F.3d 410 (5th Cir. 2010) ..................................................................................23

Libertarian Nat’l Comm., Inc. v. FEC, 930 F. Supp. 2d 154 (D.D.C. 2013), aff’d, 

 No. 13-5094, 2014 WL 590973 (D.C. Cir. Feb. 7, 2014) ............................................23 

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ..............................................................14

McConnell v. FEC, 540 U.S. 93 (2003) ........................................................................... passim

McConnell v. FEC, 251 F. Supp. 2d 176 (D.D.C. 2003) .............................................12, 14, 21 

McCutcheon v. FEC, 134 S. Ct. 1434 (2014) ....................................................7, 11, 12, 19, 24 

MTM, Inc. v. Baxley, 420 U.S. 799 (1975) ...................................................................................... 7 

Case 1:14-cv-00853-CRC Document 17 Filed 06/16/14 Page 3 of 30
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Nat’l Comm. of the Reform Party of the U.S. v. Democratic Nat’l Comm., 

168 F.3d 360 (9th Cir. 1999) .......................................................................................13 

Republican Nat’l Comm. v. FEC, 698 F. Supp. 2d 150 (D.D.C.), aff’d, 

 130 S. Ct. 3544 (2010) ...............................................................................2, 8, 9, 10, 11 

Rostker v. Goldberg, 453 U.S. 57 (1981) ..................................................................................7 

Schonberg v. FEC, 792 F. Supp. 2d 14 (D.D.C. 2011)............................................8, 17, 18, 20

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010) ...................................................12, 13 

Wagner v. FEC, 717 F.3d 1007 (D.C. Cir. 2013) ........................................................22, 23, 24 

Statutes and Regulations 

Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155 (“BCRA”), 116 Stat. 81 ......1 

BCRA § 102 ...................................................................................................................5, 18, 20 

BCRA §§ 307(a)(2), (d) .......................................................................................................4, 18 

BCRA § 307(b) ..................................................................................................................18, 19 

BCRA § 403(a) ......................................................................................................................5, 6 

BCRA § 403(d)(2) .....................................................................................................................6 

Federal Election Campaign Act, 2 U.S.C. §§ 431-57 ................................................................1 

2 U.S.C. § 431(4) .......................................................................................................................4 

2 U.S.C. § 431(17) ...................................................................................................................16 

2 U.S.C. § 437h ..............................................................................................................3, 22, 24 

2 U.S.C. § 441a(a)(1)(B)......................................................................................................5, 17 

2 U.S.C. § 441a(a)(1)(C)..........................................................................................................20 

2 U.S.C. § 441a(a)(1)(D) .....................................................................................................5, 17 

2 U.S.C. § 441i(a) ..........................................................................................................5, 16, 17 

2 U.S.C. § 441i(b)(1) .....................................................................................................5, 16, 17 

Case 1:14-cv-00853-CRC Document 17 Filed 06/16/14 Page 4 of 30
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2 U.S.C. § 441i(c) ................................................................................................................5, 17 

28 U.S.C. § 1331 ......................................................................................................................24 

28 U.S.C. § 1367 ......................................................................................................................21 

28 U.S.C. § 2284 ........................................................................................................................6 

Federal Election Campaign Act Amendments of 1974, Pub. L. No. 93-443, § 101(a), 

88 Stat. 1263 ..................................................................................................................4 

Federal Election Campaign Act Amendments of 1974, Pub. L. No. 93-443, § 101(b)(3), 

 88 Stat. 1263 ...............................................................................................................18 

Federal Election Campaign Act Amendments of 1974, Pub. L. No. 93-443, § 208(a), 

88 Stat. 1263, 1285-86 .................................................................................................23 

Federal Election Campaign Act Amendments of 1976, Pub. L. No. 94-283, § 112, 

90 Stat. 475, 487 ............................................................................................................4

Pub. L. No. 98-620, § 402(1)(B), 98 Stat. 3335, 3357 (1984) .................................................23 

Pub. L. No. 100-352, § 6(a), 102 Stat. 662, 663 (1988) ..........................................................23 

Legislative Materials 

120 Cong. Rec. 10,562 (1974) (statement of Sen. Buckley) ...................................................23 

147 Cong. Rec. S3189 (daily ed. Apr. 2, 2001) (statement of Sen. Hatch) ...............................6 

148 Cong. Rec. S2142 (daily ed. Mar. 20, 2002) (statement of Sen. Feingold) ........................6 

Miscellaneous 

Price Index Adjustments for Contribution and Expenditure Limitations and Lobbyist 

Bundling Disclosure Threshold, 78 Fed. Reg. 8530-32 (Feb. 6, 2013) .........................4 

RNC v. FEC, No. 08-1953, Compl. for Declaratory and Injunctive Relief, Nov. 13, 2008 

(Docket No. 1) .............................................................................................................10 

RNC v. FEC, No. 08-1953, Pls.’ Mem. in Supp. of Pls.’ Mot. for Summ. J., Jan. 26, 2009 

(Docket No. 21) ...........................................................................................................10 

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Plaintiffs’ request for a three-judge court should be denied because their claims do not 

qualify for that extraordinary review procedure. First, the Supreme Court has twice rejected 

similar constitutional claims some of these plaintiffs have raised before. The political party 

activity permitted to be regulated in those earlier cases was less clearly federal and electoral in 

nature than plaintiffs’ proposed conduct here, which involves independent expenditures 

expressly advocating for or against the election of federal candidates. Plaintiffs’ far more easily 

dispatched claims are accordingly too insubstantial to merit the use of a special expedited 

procedure with mandatory Supreme Court jurisdiction. Second, and equally dispositive of 

plaintiffs’ application, plaintiffs are challenging provisions of federal law that are nearly forty 

years old, not provisions enacted twelve years ago for which Congress created the requested 

three-judge court procedure. The Supreme Court has squarely held that such claims are not 

redressable with the review procedure plaintiffs seek to use here. 

As explained below, in a 1976 amendment to the Federal Election Campaign Act, 2 

U.S.C. §§ 431-57 (“FECA”), Congress enacted limits on contributions made to political party 

committees to influence federal elections. After political parties began to use unlimited 

donations to fund nominally state and local activity or mixed state/federal activity that influenced 

federal elections, Congress amended FECA by passing the Bipartisan Campaign Reform Act of 

2002, Pub. L. No. 107-155, 116 Stat. 81 (“BCRA”). BCRA limited contributions to national 

parties for all purposes and to state parties when engaged in federal election activities. Through 

BCRA, Congress also increased the limits on contributions to political party committees and 

indexed the limit on contributions to national party committees for inflation. 

To quickly resolve new constitutional questions raised by BCRA, Congress created a 

special judicial procedure involving a three-judge district court, expedition, and direct appeal to 

Case 1:14-cv-00853-CRC Document 17 Filed 06/16/14 Page 6 of 30
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the Supreme Court. The ban on unlimited, nominally nonfederal donations was challenged — 

including by plaintiff Republican National Committee (“RNC”) — and facially upheld by the 

Supreme Court, which found that such donations posed a danger of corruption or its appearance 

no matter the intended use of the funds. McConnell v. FEC, 540 U.S. 93, 142-73 (2003),

overruled in part by Citizens United v. FEC, 558 U.S. 310 (2010). 

The Supreme Court later refined the types of corruption or its appearance that may 

permissibly be relied on in defense of campaign finance restrictions. Citizens United, 558 U.S. 

at 359-60. Before Citizens United was decided, several political party committees, including the 

RNC, had filed another challenge to BCRA on the theory that contribution limits were 

unconstitutional when funds would be used for independent nonfederal activities. Republican 

Nat’l Comm. v. FEC, 698 F. Supp. 2d 150, 154-56 (D.D.C. 2010) (“RNC”). Following issuance 

of the decision in Citizens United, a three-judge court rejected the party committees’ pending 

challenge because, inter alia, McConnell had held that large contributions to political party 

committees pose a danger of corruption regardless of how the funds are spent, and that holding 

remained valid under Citizens United’s conception of corruption. Id. at 157-60. The Supreme 

Court affirmed the judgment in RNC. 130 S. Ct. 3544 (2010). 

Having twice tried and failed to accomplish what they want through the back door, the 

RNC and its co-plaintiffs are now attempting to come through the front door, asking this Court to 

convene a third three-judge court in order to determine whether contribution limits to political 

party committees are permissible based on the intended use of the contributed funds. In addition 

to the RNC and its chairman, Reince Priebus, plaintiffs are a state committee of the Republican 

party, the Republican Party of Louisiana (“LAGOP”), its chairman, Roger Villere, Jr., and two 

local committees of the Republican party, the Jefferson Parish Republican Executive Committee 

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(“JPGOP”) and the Orleans Parish Republican Executive Committee (“OPGOP”). Plaintiffs now 

seek to invalidate the limits on amounts individuals may contribute to national, state, and local 

party committees as applied to proposed expenditures that would involve expressly advocating 

for federal candidates, including on behalf of the Republican nominee for president in the 2016 

election. But this Court need not approve yet another three-judge court to weigh whether those 

limits are unconstitutional as applied to particular intended uses of contributed funds. Even if the 

nature of plaintiffs’ proposed activities mattered, plaintiffs’ claims based on express federal 

candidate advocacy would be obviously insubstantial and far easier to reject than the claims the 

RNC brought in the two prior cases. 

In addition, the Court cannot grant plaintiffs’ request to proceed before a three-judge 

court because they lack standing under the special BCRA review procedure they invoke. 

Plaintiffs’ challenge is a naked attack on FECA contribution limits that existed prior to BCRA. 

Because the limits on contributions intended to influence federal elections have existed without 

interruption since the 1970s, and they were only raised or indexed for inflation by BCRA, the 

Supreme Court in McConnell found that standing did not exist under BCRA’s special judicial 

review procedures for a constitutional challenge to those limits. 540 U.S. at 229. Under 

McConnell and its progeny, constitutional challenges to FECA are required to proceed through 

other procedures, including in some circumstances FECA’s own special review provision. See 2 

U.S.C. § 437h. For that reason, plaintiffs’ challenge to the same limits here cannot proceed 

under BCRA’s special judicial review procedures. 

Accordingly, the Court should deny plaintiffs’ application for a three-judge court. 

During the Rule 26(f) conference for this matter, the parties can negotiate a proposed schedule 

for further proceedings, including record development in advance of the Court’s determination 

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regarding the other judicial review procedures available for plaintiffs’ claims and likely 

subsequent ruling on the merits of plaintiffs’ claims. 

BACKGROUND 

I. The Federal Election Campaign Act 

Since 1974, FECA has limited the amount that individuals can contribute to national, 

state, and local political party committees. The 1974 amendments to FECA established an 

overall ceiling of $25,000 on the amount an individual could contribute to federal elections. 

Federal Election Campaign Act Amendments of 1974, Pub. L. No. 93-443, § 101(a), 88 Stat. 

1263 (“FECA 1974 Amendments”). In 1976, Congress revised FECA to include an annual limit 

of $20,000 on contributions specifically to “political committees established and maintained by a 

national political party” and a $5,000 limit on contributions to any “other” political committee, 

including state and local party committees. Federal Election Campaign Act Amendments of 

1976, Pub. L. No. 94-283, § 112, 90 Stat. 475, 487. A “political committee” is a group that 

raises or spends more than $1,000 during a calendar year for the purpose of influencing federal 

elections, 2 U.S.C. § 431(4) (referencing “contributions” and “expenditures” under FECA), and 

has as its “major purpose . . . the nomination or election of a candidate,” Buckley v. Valeo, 424 

U.S. 1, 79 (1976) (per curiam). These limits have remained in force since the mid-1970s with 

only slight modification. In 2002, as part of BCRA, Congress increased the national party 

contribution limit from $20,000 to $25,000 and indexed it for inflation. BCRA §§ 307(a)(2), (d), 

116 Stat. at 102-03 (“Modification of Contribution Limits”). For the current election cycle, the 

annual limit is $32,400. Price Index Adjustments for Contribution and Expenditure Limitations 

and Lobbyist Bundling Disclosure Threshold, 78 Fed. Reg. 8530-32 (Feb. 6, 2013). In BCRA, 

Congress also increased the limit for state and local party committees from $5,000 to $10,000 

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but did not index that limit. BCRA § 102, 116 Stat. at 86-87 (“Increased Contribution Limit for 

State Committees of Political Parties”). 

II. Plaintiffs’ Claims 

Plaintiffs seek declaratory and injunctive relief against these longstanding limits on 

contributions to political party committees, and related solicitation, spending, and fundraising 

restrictions. The contribution limits plaintiffs seek to have declared unconstitutional are: 

(1) FECA’s limit on the amount an individual can contribute to national political party 

committees, 2 U.S.C. § 441a(a)(1)(B); and (2) FECA’s limit on the amount an individual can 

contribute to state and local political party committees, id. § 441a(a)(1)(D). (Verified Compl. for 

Declaratory and Injunctive Relief (Docket No. 1) (“Compl.”) ¶ 42, Prayer for Relief, ¶ 3 (third 

bullet).) Plaintiffs also seek to have declared unconstitutional three additional provisions they 

believe restrict their ability to collect unlimited funds to use for independent expenditures: (1) 

FECA’s restrictions limiting the amounts the RNC may spend or solicit from individuals, 

including through its agents, see 2 U.S.C. § 441i(a); (2) FECA’s requirement that state and local 

party committees not spend money for federal election activity unless such funds are subject to 

FECA’s requirements and restrictions, see id. § 441i(b)(1); and (3) FECA’s requirement that 

fundraising costs for the foregoing activities be drawn from funds subject to FECA’s 

requirements and restrictions, see id. § 441i(c). (Compl. ¶¶ 39-40, 43-54.) Plaintiffs have 

applied to have their claim be adjudicated by a three-judge court pursuant to the special review 

procedure established in section 403 of BCRA, 116 Stat. at 113-14. (Pls.’ Am. Appl. for ThreeJudge Court and Mem. in Supp. (Docket No. 5) (“Pls.’ Appl.”).) 

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III. BCRA’s Special Judicial Review Procedure 

As part of the passage of BCRA in 2002, Congress established special judicial review 

procedures for the new constitutional questions likely to arise. Section 403 of BCRA permits 

special procedures for actions brought on constitutional grounds challenging “any provision” of 

BCRA or “any amendment made by” it. BCRA § 403(a), 116 Stat. at 113-14. Section 403’s 

procedure required that all such actions initiated before December 31, 2006 were to be filed in 

the United States District Court for the District of Columbia and heard by a three-judge district 

court convened pursuant to 28 U.S.C. § 2284, which provides that “[a] district court of three 

judges shall be convened when . . . required by Act of Congress.” Section 403 further provides 

that final decisions of such three-judge courts are reviewable only by direct appeal to the 

Supreme Court. BCRA § 403(a)(3), 116 Stat. at 114. The special procedural rules do not apply 

to actions filed after December 31, 2006, “unless the person filing such action elects such 

provisions to apply to the action.” Id. § 403(d)(2), 116 Stat. at 114. 

BCRA’s legislative history suggests that Congress’s primary purpose in enacting BCRA 

§ 403 was to ensure that the serious constitutional issues initially raised by BCRA would be 

resolved promptly. See 148 Cong. Rec. S2142 (daily ed. Mar. 20, 2002) (statement of Sen. 

Feingold) (BCRA’s expedited judicial review rules will “assist [in] an orderly transition from the 

old system to the new system” of campaign finance through a “prompt and efficient resolution of 

the litigation”); 147 Cong. Rec. S3189 (daily ed. Apr. 2, 2001) (statement of Sen. Hatch) (BCRA 

“supporters and opponents alike[] stand to gain by a prompt and definite determination of the 

constitutionality of many of the bill’s controversial provisions”; “it is imperative that we afford 

the Supreme Court the opportunity to pass on the constitutionality of this legislation as soon as 

possible”). 

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ARGUMENT 

I. STANDARD OF SCRUTINY 

 The Supreme Court has no discretion to refuse adjudication on the merits in direct appeal 

cases. McCutcheon v. FEC, 134 S. Ct. 1434, 1444 (2014). The Court has thus instructed that 

courts should employ an “overriding policy . . . of minimizing the mandatory docket of [the 

Supreme] Court in the interests of sound judicial administration.” Gonzalez v. Automatic 

Employees Credit Union, 419 U.S. 90, 98 (1974); see also Goldstein v. Cox, 396 U.S. 471, 478 

(1970) (“This Court has more than once stated that its jurisdiction under the Three-Judge Court 

Act is to be narrowly construed since any loose construction of the requirements of [the Act] 

would defeat the purposes of Congress . . . to keep within narrow confines our appellate docket.” 

(internal quotation marks omitted)); accord MTM, Inc. v. Baxley, 420 U.S. 799, 804 (1975) (per 

curiam). Consistent with that narrow construction mandate, applications for three-judge courts 

under 2 U.S.C. § 2284 should not be granted unless plaintiffs 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); Hassan v. FEC, 893 F. Supp. 2d 248, 257-58 

(D.D.C. 2012) (“A three-judge court is not required . . . when the Court lacks jurisdiction over a 

plaintiff’s claims. As the D.C. Circuit has stated, an individual district court judge may consider 

threshold jurisdictional challenges prior to convening a three-judge panel.” (internal quotation 

marks omitted)), aff’d, No. 12-5335, 2013 WL 1164506 (D.C. Cir. Mar. 11, 2013). 

II. PLAINTIFFS ARE NOT ENTITLED TO A THREE-JUDGE COURT UNDER 

SECTION 403 

Plaintiffs are not entitled to proceed before a three-judge court pursuant to section 403 of 

BCRA because their claims are neither substantial nor justiciable. Feinberg, 522 F.2d at 1338. 

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Plaintiffs’ claims are too insubstantial because they are foreclosed by precedents that plaintiff 

RNC itself helped to establish. See Schonberg v. FEC, 792 F. Supp. 2d 14, 17 (D.D.C. 2011). 

McConnell, 540 U.S. at 142-73, and RNC, 698 F. Supp. 2d at 157-60, aff’d, 130 S. Ct. 3544 

(2010), establish that the underpinnings of plaintiffs’ claims have already been rejected twice by 

the Supreme Court. And even if plaintiffs’ claims were not foreclosed, they are non-justiciable 

before a three-judge court because their challenge is to FECA’s longstanding limits on 

contributions to political parties, not to BCRA’s increases and indexes of those limits. A threejudge court would thus have no power to redress plaintiffs’ purported injury.

A. Plaintiffs’ Claims Are Insubstantial

This Court’s consideration of whether a three-judge court may be established to hear this 

case turns on far more than whether plaintiffs are bringing “(a) a constitutional challenge to (b) a 

BCRA provision/amendment,” the glib standard they propose. (Pls.’ Appl. at 2 (footnote 

omitted).) Plaintiffs’ challenge must be not merely constitutional but also substantial. Feinberg, 

522 F.2d at 1338 (“A single district judge need not request that a three-judge court be convened 

if a case raises no substantial claim or justiciable controversy.”); Schonberg, 792 F. Supp. 2d at 

17. Even “[c]onstitutional claims may be regarded as insubstantial if they are obviously without 

merit, or if their unsoundness so clearly results from the previous decisions of (the Supreme 

Court) as to foreclose the subject and leave no room for the inference that the question sought to 

be raised can be the subject of controversy.” Feinberg, 522 F.2d at 1339 (internal quotation 

marks omitted). Therefore, contrary to plaintiffs’ suggestion that the Court merely consider 

whether their challenges are constitutional (Pls.’ Appl. at 2-4), the D.C. Circuit has recognized 

that “there may be considerable room for argument over whether particular constitutional claims 

are so frivolous, or so foreclosed by prior decisions, as to be too insubstantial for jurisdiction. . . . 

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[T]his determination of substantiality is rarely mechanical and often demands of the district 

judge an exceedingly close analysis of petitioner’s constitutional claims vis-a-vis prior case law.” 

Feinberg, 522 F.2d at 1339. 

Although plaintiffs make no effort to show that their claims are substantial, no 

“exceedingly close analysis” is required to determine that their claims fall well short. That is 

evident both from FECA’s forty-year history precluding the relief plaintiffs seek here and the 

RNC’s two failed previous legal challenges, both of which also focused on funds to be used for 

independent party activity. Congress “has long limited contributions to political parties to the 

extent the contributions are made for the purpose of influencing federal elections.” RNC, 698 F. 

Supp. 2d at 153. Before BCRA was passed, the national parties accepted donations of unlimited 

amounts for “mixed” activities purportedly affecting both federal and state elections, including 

advertising that “did not expressly advocate the election or defeat of a federal candidate” but 

influenced federal elections. Id. BCRA was passed to ban use of these funds, referred to as “soft 

money,” by national party committees and by state and local party committees when engaged in 

federal election activity. Id. For activities that met “the express advocacy test that courts used 

pre-McConnell,” however, parties had to fund the activity with money raised within FECA’s 

contribution limits, known as “hard money.” Id. at 157. 

The RNC, its then-chairman, several Republican state and local parties, and numerous 

others challenged the soft money ban immediately after Congress passed it, arguing in part that it 

failed to serve the government interest in deterring actual and apparent corruption because the 

funds at issue were ostensibly given for nonfederal purposes and in some cases spent on purely 

state and local elections. McConnell, 540 U.S. at 145, 154. The Supreme Court disagreed, 

finding that “large soft-money contributions to national parties are likely to create actual or 

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apparent indebtedness on the part of federal officeholders, regardless of how those funds are 

ultimately used.” Id. at 155 (emphasis added). That was due in part to “the close relationship 

between federal officeholders and the national parties”; indeed, the national parties were 

“inextricably intertwined with federal officeholders and candidates.” Id. at 154-55. 

More recently, the RNC, along with state and local Republican parties, advanced another 

similar challenge, contending that contribution limits were unconstitutional for activities that 

lacked a “sufficient connection to a federal election.” RNC, 698 F. Supp. 2d at 155. That case, 

like this one, was brought as an “as-applied” challenge. Id. at 153. The plaintiffs also submitted 

evidence indicating that, as here, the spending would be independent, and they provided 

assurances that federal candidates and officeholders would not be involved in soliciting 

contributions for the funds raised. Id. at 155; RNC v. FEC, No. 08-1953, Compl. for Declaratory 

and Injunctive Relief, Nov. 13, 2008 (Docket No. 1) ¶¶ 25-26; RNC v. FEC, No. 08-1953, Pls.’ 

Mem. in Supp. of Pls.’ Mot. for Summ. J., Jan. 26, 2009 (Docket No. 21) at 22-23 (contending 

that “because no federal officeholders or candidates will solicit, receive, direct, transfer, or spend 

non-federal/state funds. . . . any potential appearance of the corruption of federal candidates or 

officeholders is proportionally reduced”). The plaintiffs argued that Citizens United narrowed a 

key governmental interest properly served by campaign finance restrictions to “quid pro quo

corruption,” making the soft money ban unconstitutional as applied to them. RNC, 698 F. Supp. 

2d at 158. The RNC three-judge court rejected that argument. The court held that McConnell

had already determined that unlimited funds posed a danger of corruption however the recipient 

party committee may use those funds. Id. at 157. Further, it held that McConnell had upheld the 

soft money ban not just on the basis of an interest in deterring preferential access, a theory later 

rejected by Citizens United, but also due to the danger of quid pro quo corruption and its 

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appearance inherent in the close relationship between federal candidates and officeholders and 

political party committees. Id. at 158-59. The Supreme Court affirmed the three-judge court’s 

judgment. 130 S. Ct. 3544. Both McConnell and RNC remain controlling on this issue. 

McCutcheon, 134 S. Ct. at 1451 n.6 (expressly noting that “[o]ur holding about the 

constitutionality of the aggregate limits clearly does not overrule McConnell’s holding about 

‘soft money’” (emphasis added)). 

The RNC’s unsuccessful previous challenges to Congress’s closure of the back door (i.e., 

BCRA’s soft money ban) foreclose plaintiffs’ new challenge to FECA’s longstanding hard 

money limits on individual contributions to party committees. Throughout the forty-year history 

of campaign finance jurisprudence, it has been undisputed that the constitutionality of limiting 

the size of contributions to political parties for expenditures that expressly advocate for or 

against federal candidates is an easier question than the limits related to nonfederal and less 

expressly federal spending that have been challenged. See McConnell, 540 U.S. at 167 

(explaining that the contributions to state and local parties “that pose the greatest risk” of 

corruption are those “that can be used to benefit federal candidates directly”); RNC, 698 F. Supp. 

2d at 162 (tying the danger of corruption to “whether the activity would provide a direct benefit 

to federal candidates”); cf. FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 471 (2007) (explaining 

in the context of a former expenditure ban that advertisements expressly advocating the election 

or defeat of a candidate were more regulable); McCutcheon, 134 S. Ct. at 1442 (“This case does 

not involve any challenge to the base limits, which we have previously upheld as serving the 

permissible objective of combating corruption.”).1

 Indeed, the RNC and other plaintiffs 

 

1

 In striking down the aggregate limits on individual contributions, McCutcheon expressly 

relied on the presence of “another layer of base contribution limits” that addressed the risk of 

quid pro quo corruption: the challenged limits on contributions to non-candidate committees 

Case 1:14-cv-00853-CRC Document 17 Filed 06/16/14 Page 16 of 30
12 

conceded in McConnell that contributions to fund party independent expenditures could be 

corrupting and thus are subject to FECA’s contribution limits. See McConnell v. FEC, 251 F. 

Supp. 2d 176, 765 & n.24 (D.D.C. 2003) (Leon, J.) (noting that the RNC’s brief conceded “that 

contributions to a party may be regulated and subjected to a federal contribution limit ‘only to 

the extent the entity uses the contributions for regulable activity,’ which includes ‘independent 

expenditures expressly advocating the election or defeat of federal candidates,’” and “that money 

political parties receive for express advocacy ‘may constitutionally be subjected to a federal 

contribution limit’”). And though he was overruled, Judge Leon struck down all of the soft 

money restrictions except as to contributions to fund independent expenditures and 

communications that promote, support, attack, or oppose federal candidates. Id. at 758-59, 763-

68. Plaintiffs thus attack the limits as applied to some of the party committees’ most clearly 

regulable contributions. 

Plaintiffs argue that they should be permitted to accept and receive unlimited 

contributions for independent expenditures in the same way that entities which are not political 

parties may. (Compl. ¶¶ 18-23.) But limits on contributions to those entities were held 

unconstitutional precisely because they did not intend to involve candidates or political party

committees in their activity. See SpeechNow.org v. FEC, 599 F.3d 686, 696 (D.C. Cir. 2010) (en 

banc); Carey v. FEC, 791 F. Supp. 2d 121, 125-26 (D.D.C. 2011). Indeed, the D.C. Circuit in 

SpeechNow.org specifically distinguished Colorado Republican Fed. Campaign Comm. v. FEC, 

518 U.S. 604 (1996), by noting that that case concerned expenditures by political parties. 599 

 

such as party committees. 134 S. Ct. at 1446. Far from suggesting that these limits are 

unnecessary or fail to serve the government’s interests, the McCutcheon plurality found that 

these limits remain integral to FECA’s anticorruption purpose, in contrast to the aggregate limits 

that were invalidated. Id. at 1451 (explaining that FECA’s “base limits remain the primary 

means of regulating campaign contributions” in order to combat corruption). 

Case 1:14-cv-00853-CRC Document 17 Filed 06/16/14 Page 17 of 30
13 

F.3d at 695. Plaintiffs’ claims reflect no recognition of the special status of party committees 

vis-à-vis other committees. See McConnell, 540 U.S. at 188 (explaining that parties enjoy 

special relations with officeholders and that parties’ legislative power vastly exceeds that of 

interest groups, which do not select slates of candidates for election or decide who will serve on 

legislative committees or in leadership positions). 

FECA’s contribution limits are thus on even firmer footing in the context of plaintiffs’ 

proposed independent expenditures — involving express advocacy on behalf of federal 

candidates, including the 2016 Republican nominee for president — than in the contexts of less 

express advertising and other expenditures at issue in prior court reviews of the soft money ban. 

The more difficult constitutional question entailed in expenditures of the latter sort has twice 

been resolved by the Supreme Court with the contribution limits being upheld. Consequently, 

plaintiffs’ claims fail to present a substantial question worthy of convening a three-judge court. 

Hassan, 893 F. Supp. 2d at 258 n.10 (“[T]hat five other district courts have reached the identical 

conclusion on the merits of [plaintiff’s] challenge, based on nearly identical reasoning, persuades 

the Court that this case does not present issues that are sufficiently substantial or appropriate to 

occupy the judicial resources of three judges in this jurisdiction.”); Nat’l Comm. of the Reform 

Party of the U.S. v. Democratic Nat’l Comm., 168 F.3d 360, 367 (9th Cir. 1999) (“A single 

district court judge should not certify to a three-judge panel constitutional questions that have 

already been resolved because, as with FECA, the district court may dismiss frivolous or nonjusticiable claims.”). 

B. Plaintiffs’ Claims Do Not Present a Justiciable Controversy 

Plaintiffs are not entitled to a three-judge court under BCRA § 403 for the separate 

reason that the Supreme Court’s decision in McConnell squarely forecloses their request. In 

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14 

McConnell, certain plaintiffs challenged BCRA § 307 on the grounds that the FECA contribution 

limits Congress updated through BCRA violated the Freedom of the Press Clause of the First 

Amendment. 540 U.S. at 228-29. On direct appeal from a three-judge court, the Supreme Court 

observed that BCRA § 307 “merely increased and indexed for inflation certain FECA 

contribution limits.” 540 U.S. at 229. Citing 2 U.S.C. § 437h, FECA’s special review provision, 

the Court further explained that it had “no power to adjudicate” a challenge to FECA’s 

contribution limits because challenges to FECA’s pre-existing provisions, including the 

challenged contribution limits, were not subject to review pursuant to BCRA § 403’s three-judge 

district court procedure with direct appeal to the Supreme Court. Id. The Court thus held that it 

could not redress plaintiffs’ alleged injuries even if it were to rule on the amendments BCRA 

§ 307 made to the pre-existing contribution limits. “[I]f the Court were to strike down the 

increases and indexes established by BCRA § 307,” the Court reasoned, it would not remedy the 

plaintiffs’ alleged injury because the limits imposed by FECA “would remain unchanged.” Id. 

“A ruling in the . . . plaintiffs’ favor, therefore, would not redress their alleged injury, and they 

accordingly lack standing.” Id.; see Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) 

(irreducible constitutional minimum of standing requires (1) injury in fact, (2) a causal 

connection between the injury and the conduct complained of, and (3) a likelihood that the injury 

will be redressed by a favorable decision).2

 

2

 Certain of the plaintiffs in McConnell also challenged the increases to the state and local 

party contribution limit effected by BCRA § 102. McConnell, 251 F. Supp. 2d at 293 & n.52 

(Henderson, J., concurring in the judgment in part and dissenting in part). The district court’s 

finding that plaintiffs’ challenges to BCRA § 307 were non-justiciable, which the Supreme Court 

affirmed, evidently encompassed the similar challenges to § 102. Id. at 186 (per curiam) (citing 

Judge Henderson’s opinion explaining why “plaintiffs do not have standing to challenge Section 

307, which increases and indexes contribution limits”); id. at 429-31 (Henderson, J.) (finding no 

standing for challenges to Sections 102 and 307). 

Case 1:14-cv-00853-CRC Document 17 Filed 06/16/14 Page 19 of 30
15 

For the same reasons, any three-judge court convened here could not redress plaintiffs’ 

alleged injuries, because that court would have no authority to address FECA’s pre-BCRA 

limitations on the amounts individuals may contribute to national, state, and local party 

committees. Plaintiffs seem to acknowledge the controlling nature of the analysis in McConnell

by devoting several pages to arguing — precisely to the contrary of the Supreme Court’s actual 

holding — that the decision should be understood to establish that a three-judge court would

have jurisdiction to consider their challenge to the contribution limits that BCRA updated. (Pls.’ 

Appl. at 6-9.) This is nonsense. Although plaintiffs quote McConnell’s statement that “the 

Court has jurisdiction to hear a challenge to § 307” no less than five times (id. at 3 n.3, 8, 9, 11, 

13 (quoting 540 U.S. at 229)), they ignore the fact that the limited scope of that jurisdiction 

causes the redressability problem that is fatal to their application. 

McConnell held that, even if the Court had jurisdiction to hear a challenge to BCRA’s 

“increases and indexes,” invalidating those changes to the statute “would not remedy the . . . 

alleged injury” caused by the contribution limits themselves. 540 U.S. at 229. There, as here, if 

plaintiffs were to succeed (and regardless of whether their challenge is “as applied” or not), the 

individual contribution limit for national party committees would decrease from the current 

amount of $32,400 to the pre-BCRA amount of $20,000, and the state and local party committee 

limit would drop from $10,000 to the pre-BCRA amount of $5,000.3

 Thus, even if plaintiffs 

were to obtain a favorable ruling on their challenges to the BCRA provisions, the contribution 

limits about which they complain would remain in place — and at lower levels — and plaintiffs’ 

 

3

 That plaintiffs characterize their challenge as “as applied” does not change the analysis. 

Plaintiffs’ ruminations on the particular metaphysics of resurrecting FECA provisions (e.g., Pls.’ 

Appl. at 6-7 n.6, 11-14) are irrelevant for the simple reason that, to the extent a three-judge court 

would have jurisdiction to hear their claims, that jurisdiction would be limited to considering a 

challenge — whether facial or as applied — to BCRA’s increases and indexes of the contribution 

limits, not to the underlying limits themselves. McConnell, 540 U.S. at 229. 

Case 1:14-cv-00853-CRC Document 17 Filed 06/16/14 Page 20 of 30
16 

alleged injuries would not be redressed. Plaintiffs therefore would “lack standing” in a threejudge court. McConnell, 540 U.S. at 229. 

The activity plaintiffs seek to engage in was simply not permitted before the passage of 

BCRA. As described in their complaint, plaintiffs’ contemplated “non-contribution accounts” 

would exist to receive contributions and make independent expenditures, including in upcoming 

federal presidential and congressional races. (Compl. ¶¶ 1, 24, 26-30.) FECA defines 

independent expenditures to mean expenditures “expressly advocating the election or defeat of a 

clearly identified candidate” and which are “not made in concert or cooperation with or at the 

request or suggestion of such candidate, the candidate’s authorized political committee, or their 

agents, or a political party committee or its agents.” 2 U.S.C. § 431(17). Put another way, 

plaintiffs seek permission to fund express advocacy without regard to FECA’s hard money 

contribution limits. But as the Supreme Court explained in McConnell, Buckley established that 

“[e]xpress advocacy was subject to FECA’s limitations and could be financed only using hard 

money. The political parties, in other words, could not use soft money to sponsor ads that used 

any magic words . . . .” McConnell, 540 U.S. at 126. 

Thus, although plaintiffs attempt to disguise their challenge as falling within BCRA 

§ 403 by including ancillary challenges to certain of BCRA’s soft money provisions (e.g., 

Compl. ¶¶ 43-54 (Counts 2-3)), the activity they seek to engage in was prohibited by FECA as it 

existed prior to BCRA. Plaintiffs’ challenge to BCRA’s solicitation ban codified in § 441i(a) 

(Count 2), like their challenge to the requirement that state and local committee funds expended 

for federal election activity be subject to FECA’s restrictions, codified in § 441i(b)(1) (Count 3), 

is dependent upon their foundational contribution limits challenge. Their challenge to those 

provisions is accordingly a challenge to prohibitions predating BCRA, which BCRA’s soft 

Case 1:14-cv-00853-CRC Document 17 Filed 06/16/14 Page 21 of 30
17 

money prohibitions incidentally “reinforce[d]” as a byproduct of expanding the statute’s reach. 

Cf. McConnell, 540 U.S. at 133. 

In contrast to McConnell and RNC, which actually challenged BCRA’s soft money 

provisions, the core of plaintiffs’ suit is their request to invalidate FECA’s limits on contributions 

to party committees. Without relief from the contribution limits of §§ 441a(a)(1)(B) and (D) 

plaintiffs will gain nothing, because even if a three-judge court were to invalidate §§ 441i(a), 

(b)(1), and (c), plaintiffs would still be limited in the contributions they could receive and what 

they could do with those contributions. Critically, plaintiffs are seeking to raise unlimited funds 

to be used on express advocacy. McConnell, 540 U.S. at 126 (express advocacy is subject to 

FECA’s hard money limitations). As a consequence, the only way plaintiffs can succeed is by 

having the party committee contribution limits invalidated as to their contemplated partyindependent-expenditure accounts. Accordingly, allowing plaintiffs to proceed under BCRA 

§ 403 on the basis of their challenges to §§ 441i(a), (b)(1), or (c) would be to let the tail wag the 

dog. 

McConnell’s progeny confirm the Commission’s position. In Schonberg v. FEC, 792 F. 

Supp. 2d 14 (D.D.C. 2011) (per curiam), a three-judge court convened pursuant to BCRA § 403 

granted the Commission’s motion to dissolve itself because it found that the plaintiff’s 

challenges were analogous to the BCRA § 307 challenges the Supreme Court had earlier 

addressed. Although plaintiffs spend several pages ostensibly discussing this decision (Pls.’ 

Appl. at 9-14), this discussion focuses on plaintiffs’ irrelevant notions of how FECA provisions 

might or might not “spring” back to life. Id. at 11-14; see supra p. 15 n.3. The relevance of 

Schonberg is hardly so subtle. The plaintiff there challenged provisions of BCRA § 301, which 

set forth the permissible and impermissible uses of campaign contributions accepted by 

Case 1:14-cv-00853-CRC Document 17 Filed 06/16/14 Page 22 of 30
18 

successful candidates for federal office. Id. at 15-16, 18. Although section 301 had replaced an 

earlier FECA provision regulating the same conduct, the court concluded that “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.” Id. at 19. For that reason, 

Schonberg held that the claim “that BCRA § 301 is unconstitutional [was] 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.” Id.

Plaintiffs observe that McCutcheon proceeded pursuant to BCRA’s § 403 procedure. 

(Pls.’ Appl. at 5-6.) But McCutcheon is of no help to their application because the BCRA 

aggregate limits at issue in McCutcheon were quite different from the original FECA provision 

they replaced. When Congress updated the individual contribution limits through BCRA, what it 

changed was nothing more than the dollar amounts individuals could contribute to these 

committees. The limit on contributions to national committees that had been $20,000 was raised 

to $25,000 and indexed. BCRA § 307(a)(2), (d), 116 Stat. at 102-03. The limit on contributions 

to state and local committees that had been $5,000 was raised to $10,000. BCRA § 102, 116 

Stat. at 86-87. That is all. 

In contrast, whereas the pre-BCRA $25,000 FECA aggregate limit was a single aggregate 

amount that governed any configuration of individuals’ contributions, which could all be of the 

same type, see FECA 1974 Amendments, § 101(b)(3), 88 Stat. 1263 (adding $25,000 aggregate 

limit applying simply to “contributions”), BCRA created a more complex series of aggregate 

limits and sub-limits that applied to particular categories of contributions, BCRA § 307(b), 116 

Stat. at 102-03. Indeed, one of Congress’s changes to the structure of the aggregate limits in 

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19 

BCRA was expressly for the purpose of directing contributions to the national party committees 

like the RNC. See id. § 307(b)(3)(B) (setting aside a portion of one sub-limit for sole receipt by 

the national party committees). So, for example, in the pre-BCRA regime a contributor could 

use all of her aggregate limit on contributions to candidates. BCRA changed that by requiring 

her to give to the national parties in order to similarly maximize her total contributions. Thus, in 

contrast to BCRA’s changes to the base contribution limits, which the Supreme Court has found 

to be modest, McConnell, 540 U.S. at 228-29, BCRA’s revision of the aggregate limit created a 

“different statutory regime,” McCutcheon, 134 S. Ct. at 1446. Accordingly, the challenge in 

McCutcheon was appropriate for a three-judge court, unlike plaintiffs’ challenge here. 

Although plaintiffs cite Bluman v. FEC, 766 F. Supp. 2d 1 (D.D.C. 2011), that case 

actually supports the Commission. In Bluman, a single judge of this Court granted an 

application to have a three-judge court hear plaintiffs’ challenge to BCRA § 303, prohibiting 

contributions by foreign nationals. The court explained that, “[u]nlike McConnell, if a threejudge court were to strike down § 303 as unconstitutional, then no other law (or at least none 

which the defendant has identified) would prohibit the plaintiffs from engaging in their desired 

conduct.” Id. at 4. However, the Bluman court expressly contrasted the challenged provision in 

that case, BCRA § 303, with one challenged here, BCRA § 307, explaining that “although § 307 

of the BCRA increased and indexed for inflation certain FECA contribution limits, it was the 

FECA provisions that actually imposed the contested contribution limits.” Id. at 3 (internal 

quotation marks omitted) (emphasis added). 

As explained above, a successful challenge to BCRA § 307 (i.e., to its increases and 

indexes) would reduce the individual contribution limit to national party committees by 

reinstating the pre-BCRA lower contribution limit. Striking BCRA § 102 would likewise 

Case 1:14-cv-00853-CRC Document 17 Filed 06/16/14 Page 24 of 30
20 

remove the specific, higher contribution limit for state and local party committees as well as the 

parenthetical reference to party committees added to 2 U.S.C. § 441a(a)(1)(C), returning the 

applicable limit to the lower “other” political committee limit. 2 U.S.C. § 441a(a)(1)(C). 

Although plaintiffs characterize § 102 of BCRA as adding “an entirely new base contribution 

limit” to FECA’s regulatory scheme (Pls.’ Appl. at 3 n.3), that is just not so. The “increased 

contribution limit” for state and local parties provided in § 102 is in both form and substance 

precisely the “increased” special limit § 102’s heading describes. 116 Stat. at 86 (emphasis 

added). That is because, prior to BCRA, state and local party committees were limited to the 

$5,000 “other” political committee limit. To the extent plaintiffs suggest that previously state 

and local party committees could have received unlimited contributions, or that striking that 

provision would create a void in which these committees could receive unlimited contributions 

in the future, due to the absence of any “older FECA provision that could spring into effect” 

(Pls.’ Appl. at 11), these arguments fare no better than plaintiffs’ meritless suggestion that the 

Court rewrite McConnell’s redressability holding by turning it on its head. 

In sum, if a three-judge court were to invalidate the provisions plaintiffs challenge 

pursuant to its limited grant of authority, FECA as it existed before BCRA would still proscribe 

all of plaintiffs’ intended activities. This Court thus should not approve a three-judge court 

because any such court would not be able to redress plaintiffs’ alleged injuries. McConnell, 540 

U.S. at 229; Schonberg, 792 F. Supp. 2d at 19. 

III. A THREE-JUDGE COURT COULD NOT EXERCISE SUPPLEMENTAL 

JURISDICTION OVER ANY OF PLAINTIFFS’ CLAIMS 

Plaintiffs amended their application for a three-judge court to add an argument that, 

should the Court find that any aspect of their challenge does not qualify for BCRA’s special 

review provisions, those portions of the case may still be heard by the three-judge court pursuant 

Case 1:14-cv-00853-CRC Document 17 Filed 06/16/14 Page 25 of 30
21 

to its supplemental jurisdiction authority, 28 U.S.C. § 1367. (Pls.’ Appl. at 14-16.) Whether a 

three-judge court would have supplemental jurisdiction is an unnecessary consideration, 

however, since a three-judge court would not have jurisdiction over any part of this case, as the 

foregoing analyses of substantiality and justiciability demonstrate. See supra pp. 7-20. 

But even if plaintiffs had asserted some claims that could be brought before a three-judge 

court pursuant to BCRA § 403, the exercise of supplemental jurisdiction would be contrary to 

McConnell. In McConnell, the plaintiffs challenging the unredressable contribution limits also 

brought other, redressable challenges to BCRA that were ruled on. Compare, e.g., McConnell, 

251 F. Supp. 2d at 293 n.52 (Henderson, J., concurring in the judgment in part and dissenting in 

part) (noting that these plaintiffs challenged BCRA’s failure “‘to raise . . . and to index 

[contribution] limits with respect to political committees functioning independently from 

candidates, their authorized campaign committees, or political parties,’”), with, e.g., id. at 291 

n.47 (noting that these same plaintiffs also claimed that section 101 of BCRA, restricting use of 

non-federal funds, “abridge[d] their freedom of the press ‘by exercising editorial control of their 

press activities’”). Although these plaintiffs’ redressable challenges to BCRA provisions were 

heard and decided, id. at 265 (per curiam) (finding these plaintiffs’ challenges “without merit”), 

neither the three-judge district court nor the Supreme Court exercised supplemental jurisdiction 

in order to reach their challenge to the FECA hard money contribution limits, id. at 186-87 

(finding plaintiffs’ challenges to contribution limits non-justiciable); 540 U.S. at 229 (same). 

And to the extent any portion of this case presents a constitutional challenge to FECA by 

a national party committee or individual eligible to vote in presidential elections, not only must it 

not proceed under BCRA § 403 but controlling Circuit law provides that it must proceed 

according to FECA’s own special review provision, as discussed in the next section. See infra

Case 1:14-cv-00853-CRC Document 17 Filed 06/16/14 Page 26 of 30
22 

pp. 22-24. Thus, even if supplemental jurisdiction might otherwise be properly exercised before 

any three-judge court, this Circuit has foreclosed any such jurisdiction by providing that 

challenges to FECA be brought pursuant to section 437h exclusively. 

IV. THE FACTFINDING AND SUBSTANTIALITY SCREENING PROCEDURES OF 

2 U.S.C. § 437h APPLY TO SOME OF PLAINTIFFS’ CLAIMS 

Plaintiffs’ application fails to address whether FECA’s special judicial review provision, 

2 U.S.C. § 437h, applies to any of their claims. Because a Court must make findings of fact and 

determine whether certain plaintiffs’ constitutional challenges to provisions of FECA are 

insubstantial, the Commission addresses that provision here. 

Section 437h of FECA provides that the FEC, “the national committee of any political 

party, or any individual eligible to vote in any election for the office of President may institute 

such actions . . . , including actions for declaratory judgment, as may be appropriate to construe 

the constitutionality of any provision of this Act.” 2 U.S.C. § 437h. “The district court 

immediately shall certify all questions of constitutionality of this Act to the United States court 

of appeals for the circuit involved, which shall hear the matter sitting en banc.” Id. In Wagner v. 

FEC, a panel of the Court of Appeals concluded that the text and legislative purpose of section 

437h make clear that “the parties therein enumerated” — the Commission, the national party 

committees, and individuals eligible to vote in any election for the office of President — “may 

bring actions challenging FECA’s constitutionality only under that section.” 717 F.3d 1007, 

1016 (D.C. Cir. 2013) (per curiam). Thus, Wagner held that section 437h mandates that any 

substantial constitutional challenges to FECA brought by the enumerated parties “must” be heard 

by the court of appeals sitting en banc. Id. at 1015. Because plaintiffs RNC, Priebus, and 

Villere are enumerated parties (Compl. ¶¶ 11-12, 14), any constitutional challenges to FECA 

they raise must proceed under the section 437h procedure. 

Case 1:14-cv-00853-CRC Document 17 Filed 06/16/14 Page 27 of 30
23 

Section 437h was originally enacted as part of the 1974 Amendments to FECA. FECA 

1974 Amendments, § 208(a), 88 Stat. 1263, 1285-86. It was added by an amendment offered by 

Senator Buckley to ensure that the constitutional questions he raised could be expeditiously 

resolved. See 120 Cong. Rec. 10,562 (1974) (statement of Sen. Buckley). As originally enacted, 

the provision contained two additional subsections: “Subsection (b) provided for direct appeal to 

the Supreme Court. . . . Subsection (c) required both the courts of appeals and the Supreme Court 

‘to advance on the docket and to expedite to the greatest possible extent’ any matter certified 

under section 437h.’” Wagner, 717 F.3d at 1010 (citations omitted). Congress deleted these 

subsections in 1988 and 1984, however. See id. (citing Pub. L. No. 98-620, § 402(1)(B), 98 Stat. 

3335, 3357 (1984); Pub. L. No. 100-352, § 6(a), 102 Stat. 662, 663 (1988)). Thus, while actions 

challenging the constitutionality of FECA that are instituted by the FEC, the national party 

committees, or individuals eligible to vote in presidential elections are required to follow the 

certification and en banc procedures of section 437h, Congress no longer requires such actions to 

proceed with heightened speed. 

It is well-established that, “[u]nder section 437h, a district court should perform three 

functions. First, it must develop a record for appellate review by making findings of fact.” 

Wagner, 717 F.3d at 1009. Gathering and presenting the factual record is a well-established part 

of the section 437h review procedure. Libertarian Nat’l Comm., Inc. v. FEC, 930 F. Supp. 2d 

154 (D.D.C. 2013) (preparing factual record and certifying question to en banc court of appeals), 

aff’d, No. 13-5094, 2014 WL 590973 (D.C. Cir. Feb. 7, 2014); In re Cao, 619 F.3d 410, 414 (5th 

Cir. 2010) (en banc) (“The district court, abiding by its proper role in addressing a 2 U.S.C. 

§ 437h challenge, identified the constitutional issues in the complaint, held evidentiary hearings 

concerning those issues, and made necessary findings of fact.” (footnote omitted)). “Second, the 

Case 1:14-cv-00853-CRC Document 17 Filed 06/16/14 Page 28 of 30
24 

district court must determine whether the constitutional challenges are frivolous or involve 

settled legal questions.” Wagner, 717 F.3d at 1009. Only once it has performed these important 

threshold tasks is the district court to “certify the record and all non-frivolous constitutional 

questions to the en banc court of appeals.” Id.

Here, the Commission plans to argue at the conclusion of discovery, as contemplated by 

the section 437h procedure, that any constitutional questions plaintiffs may offer pursuant to 

§ 437h are too insubstantial to be certified to the en banc court of appeals for the same reason 

that they are too insubstantial for a three-judge court to be convened. See supra pp. 8-13;

Goland v. United States, 903 F.2d 1247, 1257 (9th Cir. 1990) (“[N]ot every sophistic twist that 

arguably presents a ‘new’ question should be certified. Once the statute has been thoroughly 

reviewed by the Court, questions arising under ‘blessed’ provisions understandably should meet 

a higher threshold.”). Those legal arguments should occur at the certification stage after 

discovery, however. It is possible that appellate courts may revisit existing precedent, see 

McCutcheon, 134 S. Ct. at 1446-47, and any appellate review should be decided on a full record. 

Finally, in contrast with plaintiffs RNC, Priebus, and Villere, plaintiffs LAGOP, JPGOP, 

and OPGOP, state and local party committees, are not among the entities subject to the special 

procedures of section 437h. 2 U.S.C. § 437h; Bread Political Action Comm. v. FEC, 455 U.S. 

577, 581 (1982) (jurisdiction under section 437h is explicitly limited to the three classes of 

plaintiffs enumerated in the statute). All of these committees’ claims must be reviewed by a 

single-judge district court pursuant to regular federal question jurisdiction, 28 U.S.C. § 1331.4

 

4

 The parties’ Rule 26(f) report can set forth the product of negotiations regarding (1) a 

schedule for discovery and record development, (2) a briefing schedule following discovery on 

the substantiality of claims by plaintiffs RNC, Priebus, and Villere, and (3) a dispositive briefing 

schedule for the claims of the other plaintiffs. 

Case 1:14-cv-00853-CRC Document 17 Filed 06/16/14 Page 29 of 30
25 

CONCLUSION 

For the foregoing reasons, the Court should deny plaintiffs’ application and decline to 

convene a three-judge court pursuant to BCRA § 403. 

 Respectfully submitted, 

Lisa Stevenson (D.C. Bar No. 457628) 

Deputy General Counsel — Law 

lstevenson@fec.gov 

 

Kevin Deeley 

Acting Associate General Counsel 

kdeeley@fec.gov 

Harry J. Summers

Assistant General Counsel 

hsummers@fec.gov 

Seth Nesin 

Greg J. Mueller (D.C. Bar No. 462840) 

/s/ Charles Kitcher 

Charles Kitcher (D.C. Bar No. 986226) 

 Attorneys 

 snesin@fec.gov 

gmueller@fec.gov 

 ckitcher@fec.gov 

 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

 Washington, DC 20463 

June 16, 2014 (202) 694-1650 

Case 1:14-cv-00853-CRC Document 17 Filed 06/16/14 Page 30 of 30