Nos. 02-1727 and 02-1733 

IN THE 

Supreme Court of the United States

REPUBLICAN NATIONAL COMMITTEE, et al., 

Appellants, 

v. 

FEDERAL ELECTION COMMISSION, et al., 

Appellees. 

NATIONAL RIGHT TO LIFE COMMITTEE, INC., et al., 

Appellants, 

v. 

FEDERAL ELECTION COMMISSION, et al., 

Appellees. 

On Appeals from the


United States District Court


for the District of Columbia


INTERVENOR-APPELLEES’ RESPONSE 

TO JURISDICTIONAL STATEMENTS 

ROGER M. WITTEN SETH P. WAXMAN 

WILMER, CUTLER & Counsel of Record 

PICKERING RANDOLPH D. MOSS 

399 Park Avenue ERIC J. MOGILNICKI 

New York, NY 10022 EDWARD C. DUMONT 

PAUL R.Q. WOLFSON 

WILMER, CUTLER & 

PICKERING 

2445 M Street, N.W. 

Washington, D.C. 20037 

(202) 663-6000 

Additional Counsel Listed On Inside Cover 
BURT NEUBORNE


FREDERICK A.O. SCHWARZ, JR.


BRENNAN CENTER FOR


JUSTICE 

161 Avenue of the Americas, 

12th Floor 

New York, NY 10013 

CHARLES G. CURTIS, JR. 

DAVID J. HARTH 

MICHELLE M. UMBERGER 

HELLER EHRMAN WHITE & 

MCAULIFFE LLP 

One East Main Street, Suite 201 

Madison, WI 53703 

BRADLEY S. PHILLIPS 

MUNGER, TOLLES & 

OLSON LLP 

355 South Grand Ave. 

35th Floor 

Los Angeles, CA 90071 

E. JOSHUA ROSENKRANZ 

HELLER EHRMAN WHITE & 

MCAULIFFE LLP 

120 West 45th Street 

New York, NY 10036 

ALAN B. MORRISON


SCOTT L. NELSON


PUBLIC CITIZEN LITIGATION


GROUP 

1600 20th Street, N.W. 

Washington, D.C. 20009 

MICHAEL D. LEFFEL 

A. KRISAN PATTERSON 

JENNIFER L. MUELLER 

STACY E. BECK 

JERROD C. PATTERSON 

WILMER, CUTLER & 

PICKERING 

2445 M Street, N.W. 

Washington, D.C. 20037 

FRED WERTHEIMER


ALEXANDRA EDSALL


DEMOCRACY 21


1825 Eye Street, N.W. 


Suite 400


Washington, D.C. 20006


TREVOR POTTER


GLEN M. SHOR


CAMPAIGN LEGAL CENTER


1101 Connecticut Ave., N.W.


Suite 330


Washington, D.C. 20036

QUESTIONS PRESENTED 

1. Whether the Court should summarily dispose of appellants’ constitutional challenges to Sections 212, 214(b), 

214(c), 304, 319, and 403(b) of the Bipartisan Campaign Reform Act of 2002 (BCRA), Pub. L. No. 107-155, 116 Stat. 81, 

because those challenges are plainly nonjusticiable or insubstantial under settled law. 

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

probable jurisdiction over appellants’ constitutional challenges to BCRA, and set the appeals on those issues for 

briefing and oral argument. 

(i) 
TABLE OF CONTENTS 

Page 

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

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

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

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

I.	 THE RNC APPELLANTS FAIL TO RAISE ANY 

JUSTICIABLE QUESTION WITH RESPECT TO 

THE COORDINATION RULEMAKING PROVISIONS OF BCRA SECTION 214(b)-(c) ............................ 3 

II.	 THE RNC APPELLANTS LACK STANDING TO 

CHALLENGE THE “MILLIONAIRES PROVISIONS” OF BCRA SECTIONS 304 AND 319 .................... 4 

III. THE NRLC APPELLANTS FAIL TO RAISE ANY 

JUSTICIABLE OR SUBSTANTIAL QUESTION 

WITH RESPECT TO BCRA SECTION 212 ...................... 5 

IV. THE NRLC APPELLANTS FAIL TO RAISE ANY 

SUBSTANTIAL QUESTION WITH RESPECT TO 

THE GEOGRAPHIC SCOPE OF THE DISTRICT 

COURT’S INJUNCTIVE RELIEF ..................................... 6 

V.	 THE NRLC APPELLANTS FAIL TO RAISE ANY 

SUBSTANTIAL QUESTION WITH RESPECT TO 

THE CONGRESSIONAL INTERVENORS’ STANDING UNDER BCRA SECTION 403(b) ............................. 6 

CONCLUSION .................................................................... 8 

APPENDIX ....................................................................... 1a 

(iii) 
iv 

TABLE OF AUTHORITIES 

CASES 

Page(s) 

Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam)............... 7, 8


Clark v. Kimmitt, 431 U.S. 950 (1977)................................... 2


Cook v. Gralike , 531 U.S. 510 (2001)...................................... 7


Don’t Bankrupt Washington Committee v. Conti­


nental Illinois National Bank & Trust Co., 

460 U.S. 1077 (1983) ........................................................ 2


Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .............. 5


Marshall v. Meadows, 921 F. Supp. 1490


(E.D. Va. 1996)................................................................ 7


Meek v. Metropolitan Dade County, 985 F.2d 1471 


(11th Cir. 1993)................................................................ 7


Nixon v. Shrink Missouri Government PAC,


528 U.S. 377 (2000).......................................................... 7


Raines v. Byrd, 521 U.S. 811 (1997)...................................... 7


Republican National Committee v. FEC,


445 U.S. 955 (1980)......................................................... 2


Vote Choice, Inc. v. DiStefano, 4 F.3d 26 (1st Cir. 


1993) ............................................................................... 7


Whitmore v. Arkansas, 495 U.S. 149 (1990) ......................... 5


STATUTES 

Bipartisan Campaign Reform Act of 2002, Pub. L. 


No. 107-155, 116 Stat. 81


§ 212 .......................................................................... 5, 6


§ 214 .......................................................................... 3, 4


§ 304 .............................................................................. 4


§ 304(a) .......................................................................... 4


§ 316 .............................................................................. 4


§ 319 .............................................................................. 4


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


§ 403(a)(3), (4) ............................................................... 1


§ 403(b) ..................................................................... 6, 7

IN THE 

Supreme Court of the United States

NO. 02-1727 

REPUBLICAN NATIONAL COMMITTEE, et al., 

Appellants, 

v. 

FEDERAL ELECTION COMMISSION, et al., 

Appellees. 

NO. 02-1733 

NATIONAL RIGHT TO LIFE COMMITTEE, INC., et al., 

Appellants, 

v. 

FEDERAL ELECTION COMMISSION, et al., 

Appellees. 

INTERVENOR-APPELLEES’ RESPONSE 

TO JURISDICTIONAL STATEMENTS 

INTRODUCTION 

Although intervenor-appellees take issue with the positions taken on the merits by the Republican National Committee (RNC), et al., and the National Right to Life Committee (NRLC), et al., in their jurisdictional statements, we 

agree that many of the questions presented in their jurisdictional statements warrant plenary consideration by this 

Court.1 In light of Sections 403(a)(3) and (a)(4) of the Bipar1 Intervenor-appellees are Senator John McCain, Senator Russell 

Feingold, Representative Christopher Shays, Representative Martin 
2 

tisan Campaign Reform Act of 2002 (BCRA), Pub. L. No. 

107-155, 116 Stat. 81, which provide for direct and expedited 

review in this Court of any final decision of a three-judge 

district court hearing a challenge to the constitutionality of 

BCRA, and in light of the importance of the issues to the nation, intervenor-appellees submit that the Court should note 

probable jurisdiction over these appeals and set the cases for 

briefing and oral argument. 

Some of the questions presented in the RNC and NRLC 

jurisdictional statements, however, do not warrant plenary 

consideration by this Court. Those questions raise challenges to BCRA that are either clearly nonjusticiable under 

well-settled principles of constitutional and administrative 

law, or otherwise so insubstantial as not to justify further 

briefing and argument. It is entirely appropriate for the 

Court to summarily dispose of appeals by dismissal or affirmance, insofar as they seek to raise issues that are nonjusticiable or insubstantial.2 Summary disposition of such issues 

is especially appropriate in complex cases such as these, 

which present challenges by 77 separate parties to nearly 

two dozen separate provisions. See Supplemental Appendix 

to Jurisdictional Statement (JSSA) 10-15sa (“Chart of the 

Court’s Rulings”), 76-77sa n.55 (per curiam). Through summary disposition, the Court can focus briefing and argument 

on those issues that warrant plenary review. Such summary 

disposition would promote the orderly and expedited resolution of the various pending challenges to BCRA. 

Meehan, Senator Olympia Snowe, and Senator James Jeffords. The intervenors are also appellants in No. 02-1702, McCain v. McConnell. 

2 See S. Ct. R. 18.6 and 18.12; see also Don’t Bankrupt Wash. Comm. 

v. Continental Ill. National Bank & Trust Co., 460 U.S. 1077 (1983) 

(summary dismissal for want of jurisdiction, “it appearing appellant lacks 

standing to bring this appeal”); Republican National Comm. v. FEC, 445 

U.S. 955 (1980) (summary affirmance of lower court decisions rejecting 

various constitutional challenges to campaign finance laws on the merits); 

Clark v. Kimmitt, 431 U.S. 950 (1977) (summary affirmance of D.C. Circuit’s dismissal of various challenges to campaign finance laws as nonjusticiable). 
3 

ARGUMENT 

I. THE RNC APPELLANTS FAIL TO RAISE ANY JUSTICIABLE QUESTION WITH RESPECT TO THE COORDINATION RULEMAKING PROVISIONS OF BCRA SECTION 

214(b)-(c) 

Like the McConnell appellants, the RNC appellants 

challenge the coordination rulemaking provisions of BCRA 

Section 214(b)-(c). See RNC J.S. Question Presented 2 and 

pp. 15-16. The RNC appellants contend that Section 214 directed the Federal Election Commission (FEC) to promulgate coordination rules that will necessarily encompass conduct that is truly independent of a candidate, and will make 

political parties responsible for independent expenditures by 

persons or entities with whom the parties have little if any 

relationship. See RNC J.S. 4, 6, 15-16. 

For the reasons set forth at pages 7-12 of our response 

to the McConnell and NRA jurisdictional statements (Nos. 

02-1674 and 02-1675, respectively), these challenges to Section 214 fail under well-established principles of justiciability 

and subject-matter jurisdiction. Appellants have no basis 

for a facial challenge to Section 214, for there is nothing in 

that provision that requires the FEC to issue regulations 

that would conflict with any constitutional principle that this 

Court has articulated with respect to independent expenditures. To the extent the RNC appellants are dissatisfied 

with the outcome of the FEC’s rulemaking, they may challenge the Commission’s coordination rules in an action for 

judicial review under the Administrative Procedure Act, in 

which they may raise both constitutional and statutory challenges to those rules. The district court was therefore 

clearly correct in holding these claims to be nonjusticiable 

and beyond the subject-matter jurisdiction of the special 

three-judge district court conferred by BCRA Section 

403(a). See JSSA 134-56sa (per curiam). 
4

II. THE RNC APPELLANTS LACK STANDING TO CHALLENGE THE “MILLIONAIRES PROVISIONS” OF BCRA 

SECTIONS 304 AND 319 

The third question presented in the RNC’s jurisdictional statement is whether BCRA’s so-called “Millionaires 

Provisions” violate constitutional equal protection principles. 

The challenged provisions in BCRA Sections 304 and 319 

allow a Senate or House candidate, respectively, to raise 

hard money in increased amounts if his or her opponent 

spends large sums of personal money on the campaign. The 

contribution limits increase depending on the amount of personal funds expended by the self-financed opponent. The 

statutory formula takes into account funds amassed by candidates (not including contributions from personal funds), so 

that an incumbent candidate with a sizable war chest will not 

benefit unless his or her self-financed opponent devotes a 

much larger amount of personal funds to the campaign. See 

BCRA § 316. A candidate whose opponent spends a “personal funds amount” more than a certain sum may also accept increased coordinated expenditures from his or her 

state or national party. See BCRA § 304(a) (Senate), 

§ 319(a) (House). A candidate’s ability to accept contributions and party coordinated expenditures under these increased limits is subject to an overall cap tied to the amount 

spent by the self-financed opponent. Id. 

The RNC appellants contend that these provisions “effectively punish any Senate or House candidate who uses 

more than specified amounts of personal assets to fund his or 

her campaign,” thereby violating such candidates’ “First 

Amendment-protected rights to spend their own resources.” 

RNC J.S. 4, 6. The district court unanimously and correctly 

held, however, that none of the RNC appellants has standing 

to challenge those provisions in this litigation. See JSSA 8sa 

(per curiam), 475-77sa (Henderson). As Judge Henderson 

explained, none of the RNC appellants claims to be a candidate or even a potential candidate for the House or Senate 

who might spend more than the specified amounts of personal funds on a campaign. See JSSA 477sa. Accordingly, a 
5 

claim that any of the RNC appellants would suffer disadvantage because of the challenged provisions is entirely theoretical at this point. 

The RNC appellants also argue that political parties 

have standing to challenge Sections 304 and 319 on equal 

protection grounds because those provisions supposedly require parties to treat their own similarly situated candidates 

differently, with respect to making coordinated expenditures. See RNC J.S. Question Presented 3 and pp. 16-17. As 

Judge Henderson explained, that reading of BCRA is plainly 

wrong: “even in circumstances where the provisions permit 

a party committee to engage in unlimited coordinated spending [subject to the overall cap], they do not require a committee to do so.” JSSA 477sa. 

Moreover, whether the party coordinated-expenditure 

limits are altered in any given instance will depend on a 

large number of highly conjectural variables: the party’s 

candidate must face a wealthy opponent; the opponent must 

decide to spend a “personal funds amount” over a certain 

sum; the relative campaign funds available to the respective 

candidates must exceed a certain ratio; and a candidate who 

otherwise qualifies to benefit from increased party coordinated expenditures must request them. This string of variables confirms that the RNC appellants fail to meet the Article III requirement of injury that is “actual or imminent, 

not conjectural or hypothetical.” Whitmore v. Arkansas, 495 

U.S. 149, 155 (1990) (internal quotation marks and citation 

omitted); see also Lujan v. Defenders of Wildlife, 504 U.S. 

555, 601 (1992). 

III. THE NRLC APPELLANTS FAIL TO RAISE ANY JUSTICIABLE OR SUBSTANTIAL QUESTION WITH RESPECT 

TO BCRA SECTION 212 

Like the McConnell appellants, the NRLC appellants 

seek to challenge what they maintain is a requirement in 

BCRA Section 212 that “advance notice” be given of independent expenditures. See NRLC J.S. Question Presented 5 

and p. 22. As we have explained in our response to the 

McConnell and NRA jurisdictional statements, at pp. 3-5, 
6 

the FEC has unambiguously construed Section 212 not to 

require any such advance notice. Accordingly, as the district 

court concluded (see JSSA 130-34sa (per curiam)), there is no 

credible threat that Section 212 will be enforced against 

anyone in the manner that the NRLC appellants fear, and so 

any challenge to Section 212 on the ground that it unconstitutionally requires “advance notice” is clearly nonjusticiable 

and without merit. 

IV. THE NRLC APPELLANTS FAIL TO RAISE ANY SUBSTANTIAL QUESTION WITH RESPECT TO THE GEOGRAPHIC SCOPE OF THE DISTRICT COURT’S INJUNCTIVE RELIEF 

The NRLC appellants ask this Court to decide 

“[w]hether [the] District Court injunction should extend to 

activities outside the District of Columbia.” NRLC J.S. 

Question Presented 6; see also id. at 22-24. That question 

presents no issue appropriate for this Court’s consideration. 

The district court stayed its injunction on May 19, pending 

this Court’s final disposition of the appeals from the district 

court’s final judgment. On May 23, the Chief Justice denied 

the NRLC appellants’ application to vacate the district 

court’s stay. Thus, there is no injunction presently in effect, 

let alone one that is only being honored within the District of 

Columbia. This Court’s final disposition of the appeals, of 

course, will have nationwide force. The question presented 

is thus plainly insubstantial. 

V. THE NRLC APPELLANTS FAIL TO RAISE ANY SUBSTANTIAL QUESTION WITH RESPECT TO THE CONGRESSIONAL INTERVENORS’ STANDING UNDER BCRA 

SECTION 403(b) 

Finally, the NRLC appellants ask this Court to decide 

whether BCRA Section 403(b), which permits Members of 

Congress to intervene in any action brought to challenge the 

constitutionality of BCRA, violates Article III standing 

principles. See NLRC J.S. Question Presented 7 and pp. 24-
7

27.3 The NRLC argues that a party who seeks to intervene 

as a defendant must establish Article III standing, and contends that the courts of appeals have reached conflicting 

conclusions on that point. That question, however, is not 

presented by this case, because the district court assumed 

that a party seeking to intervene as a defendant must establish Article III standing, and then unanimously concluded 

that the intervenors in this case had done so. See App., infra, 4a-6a. 

In challenging the intervenors’ standing, the NRLC 

errs in analogizing this case to Raines v. Byrd, 521 U.S. 811, 

829 (1997), and similar cases involving the standing of legislators who sought to vindicate various institutional interests. 

See NRLC J.S. 26. As the district court correctly explained, 

the intervenors in this case “do not seek to vindicate a ‘sponsorship’ interest in the Act.” App., infra, 7a. Rather, the 

intervenors have Article III standing as direct individual 

participants in the electoral process, with respect to the laws 

governing the processes by which they seek and retain their 

offices. Thus, “as opposed to members of the general public, 

[intervenors] have a concrete, direct, and personal stake—as 

candidates and potential candidates—in the outcome of a 

constitutional challenge to a law regulating the processes by 

which they may attain office.” Id. at 6a.4 

3 The NRLC appellants acknowledge that Section 403(b), by providing for intervention of right by Members of Congress, removes any prudential standing concerns that might otherwise exist. See NRLC J.S. 25; 

see also Raines v. Byrd, 521 U.S. 811, 820 n.3 (1997). 

4 See also Buckley v. Valeo, 424 U.S. 1, 7-8, 12 n.11 (1976) (per curiam); Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 383 (2000); Vote 

Choice, Inc. v. DiStefano, 4 F.3d 26, 37 (1st Cir. 1993) (“[A]n impact on the 

strategy and conduct of an office-seeker’s political campaign constitutes 

an injury of a kind sufficient to confer standing.”); Meek v. Metropolitan 

Dade County, 985 F.2d 1471 (11th Cir. 1993) (standing to intervene in defense of election law); Marshall v. Meadows, 921 F. Supp. 1490, 1492 (E.D. 

Va. 1996) (candidate standing to defend election law); cf. Cook v. Gralike, 

531 U.S. 510, 531 (2001) (Rehnquist, C.J., concurring in the judgment) (“no 

one questions the standing” of candidates with respect to ballot-access 

provisions). 
8 

Moreover, it is far from clear how the NRLC appellants 

could benefit from their challenge to the intervenors’ standing in this Court. Even if the NRLC appellants persuaded 

this Court that the intervenors lacked standing, that would 

not provide a basis for reversal or vacatur of any aspect of 

the district court’s decision that was adverse to them, for 

they would still have to prevail on the merits against the 

Executive Branch defendants. The situation in this case is 

therefore closely analogous to that in Buckley v. Valeo, 424 

U.S. 1, 12 (1976) (per curiam), in which this Court decided 

not to linger over questions of individual party standing 

given that “at least some” parties had standing with respect 

to each challenged statutory provision. 

CONCLUSION 

The Court should summarily dispose of the RNC and 

NRLC appellants’ challenges to Sections 212, 214(b), 214(c), 

304, 319, and 403(b). In all other respects, the Court should 

note probable jurisdiction of the appeals in these cases and 

set the cases for plenary review. 

It is, moreover, highly ironic that the NRLC appellants would challenge the standing of the intervenor-appellees, given that two of the objecting appellants, Representative Mike Pence and Alabama Attorney 

General Bill Pryor, base their own standing on precisely the same kinds of 

interests in the electoral process. See McConnell, et al., Second Amended 

Complaint ¶¶ 17, 18. 
9 

ROGER M. WITTEN 

WILMER, CUTLER & 

PICKERING 

399 Park Avenue 

New York, NY 10022 

JUNE 2003 

Respectfully submitted, 

SETH P. WAXMAN 

Counsel of Record 

RANDOLPH D. MOSS 

ERIC J. MOGILNICKI 

EDWARD C. DUMONT 

PAUL R.Q. WOLFSON 

WILMER, CUTLER & 

PICKERING 

2445 M Street, N.W. 

Washington, D.C. 20037 

(202) 663-6000 
APPENDIX

1a 

APPENDIX 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

_____________________________ 

SENATOR MITCH 

McCONNELL, et al., 

Plaintiffs, 

v. 

FEDERAL ELECTION 

COMMISSION, et al., 

Defendants. 

_____________________________ 

_____________________________ 

NRA, et al., 

Plaintiffs, 

v. 

FEDERAL ELECTION 

COMMISSION, et al., 

Defendants. 

_____________________________ 

_____________________________ 

ECHOLS, et al., 

Plaintiffs, 

v. 

FEDERAL ELECTION 

COMMISSION, et al., 

Defendants. 

_____________________________ 

Civ. No. 02-582 

(CKK, KLH, RJL) 

Civ. No. 02-581 

(CKK, KLH, RJL) 

Civ. No. 02-633 

(CKK, KLH, RJL) 
2a 

_____________________________ 

CHAMBER OF COMMERCE


OF THE UNITED STATES, et al.,€

Plaintiffs, 

v. 

FEDERAL ELECTION 

COMMISSION, et al., 

Defendants. 

_____________________________ 

_____________________________ 

NATIONAL ASSOCIATION OF 

BROADCASTERS, 

Plaintiffs, 

v. 

FEDERAL ELECTION 

COMMISSION, et al., 

Defendants. 

_____________________________ 

_____________________________ 

AFL-CIO, et al., 

Plaintiffs, 

v. 

FEDERAL ELECTION 

COMMISSION, et al., 

Defendants. 

Civ. No. 02-751 

(CKK, KLH, RJL) 

Civ. No. 02-753 

(CKK, KLH, RJL) 

Civ. No. 02-754 

(CKK, KLH, RJL) 

______________________________
3a 

______________________________ 

CONGRESSMAN RON PAUL, et al., 

Plaintiffs, 

v. Civ. No. 02-781 

(CKK, KLH, RJL) 

FEDERAL ELECTION 

COMMISSION, et al., 

Defendants. 

_____________________________ 

ORDER GRANTING MOTION TO INTERVENE 

(May 3, 2002) 

Pursuant to Rule 24(a)(1) of the Federal Rules of Civil 

Procedure and section 403(b) of the Bipartisan Campaign 

Reform Act of 2002 (BCRA or Act), Senators John McCain, 

Russell Feingold, Olympia Snowe and James Jeffords and 

Representatives Christopher Shays and Martin Meehan 

(movants) move to intervene in these consolidated actions to 

defend BCRA’s constitutionality. While the defendants do 

not object to the motion, several of the plaintiffs (objectors)1 

oppose it on the ground that the movants “do not have the 

requisite Article III standing” to support intervention. 

Opp’n at 3 (capitalization altered). We disagree. 

Accordingly, and for the following reasons, the motion to 

intervene is granted. 

1 Specifically, Representative Mike Pence, Alabama Attorney 

General Bill Pryor, Libertarian National Committee, Inc., 

Alabama Republican Executive Committee, Libertarian Party of 

Illinois, DuPage Political Action Council, Jefferson County 

Republican Executive Committee, Christian Coalition of America, 

Inc., Club for Growth, Indiana Family Institute, National Right to 

Life Committee, Inc., National Right to Life Educational Trust 

Fund, National Right to Life Political Action Committee, Martin J. 

Connors and Barret Austin O’Brock oppose the movants’ 

intervention. 
4a 

Rule 24(a)(1) provides that “[u]pon timely application 

anyone shall be permitted to intervene in an action . . . when 

a statute of the United States confers an unconditional right 

to intervene.” Fed. R. Civ. P. 24(a)(1). Section 403(b) of the 

Act, in turn, provides that 

[i]n any action in which the constitutionality of any 

provision of this Act or any amendment made by 

this Act is raised . . . any member of the House of 

Representatives . . . or Senate shall have the right to 

intervene either in support of or opposition to the 

position of a party to the case regarding the 

constitutionality of the provision or amendment. 

2 U.S.C. § 437h note. Because the plaintiffs have challenged 

numerous provisions of the Act on constitutional grounds, 

section 403(b) plainly confers upon each and every one of the 

movants an unconditional statutory right to intervene in the 

consolidated actions now before us. 

The objectors argue that the standing inquiry does not 

end with the satisfaction of Rule 24(a)(1). Under Article III 

of the United States Constitution, our “judicial Power” 

extends only to live “Cases” or “Controversies.” U.S. Const. 

art. III. The D.C. Circuit has long held that “because an 

intervenor participates on equal footing with the original 

parties to a suit, a movant for leave to intervene . . . must 

satisfy the same Article III standing requirements as original 

parties.” Bldg. & Constr. Trades Dep’t v. Reich, 40 F.3d 

1275, 1282 (D.C. Cir. 1994); see S. Christian Leadership 

Conf. v. Kelley, 747 F.2d 777, 779 (D.C. Cir. 1984); see also 

Mausolf v. Babbitt, 85 F.3d 1295, 1300 (8th Cir. 1996) (“An 

Article III case or controversy is one where all parties have 

standing, and a would-be intervenor, because he seeks to 

participate as a party, must have standing as well.”)2 

2 In Diamond v. Charles, 476 U.S. 54 (1986), the United 

States Supreme Court held that an intervenor seeking to continue 

its suit in the absence of the party on whose side intervention was 

permitted must demonstrate that it fulfills the standing 
5a 

Building & Construction Trades and Kelley address the 

question of Article III standing under Rule 24(a)(2) as 

opposed to Rule 24(a)(1). To date, neither the Supreme 

Court nor the D.C. Circuit has specifically addressed 

whether an Article III standing analysis is as appropriate in 

the Rule 24(a)(1) context as it is in the Rule 24(a)(2) context. 

The movants suggest that “[t]he argument for a relaxed rule 

of standing where the intervenor has an unconditional 

statutory right to participate seems . . . stronger than the 

argument for relaxed standing in the (a)(2) context.” 

Movants’ Reply at 5 n.3. However, we see no need in this 

case to address that distinction or to resolve the question 

whether the movants must satisfy the constitutional 

requirements of standing—i.e., that they have suffered or 

will suffer “an injury in fact” which is “concrete and 

particularized,” “actual or imminent,” “fairly . . . trace[able] 

to the challenged action” and “redress[able] by a favorable 

decision,” Lujan v. Defenders of Wildlife, 504 US. 555, 560-

61 (1992) (internal quotations omitted)—because we believe, 

as discussed below, that the movants have satisfied those 

requirements in any event. 

The movants allege that 

[a]s federal officeholders and candidates for, or 

potential candidates for, election to federal office, 

they are among those whose conduct the Act 

regulates, and among those whom the Act seeks to 

insulate from the actual or apparent corrupting 

influence of special interest money. They want to 

run in elections, participate in a political system, 

and serve in a government in which all participants 

requirements of Article III. See id. at 68. Nonetheless, the Court 

reserved for another day the broader question of whether an 

intervenor must have Article III standing where the party on 

whose side intervention is sought remains in the litigation. See id. 

at 68-69. The circuits are split on that issue. See Ruiz v. Estelle, 

161 F.3d 814, 831-32 (5th Cir. 1998) (D.C., Seventh and Eighth 

Circuits require intervenors to have Article III standing while 

Second, Fifth, Sixth, Ninth and Eleventh Circuits do not). 
6a 

comply with the reasonable contribution 

restrictions and other federal campaign finance 

regulations that the Act imposes in order to stop 

evasion and to prevent actual and apparent 

corruption. If any of the reforms embodied in the 

Act are struck down, . . . [the] movants will once 

again be forced to attempt to discharge their public 

responsibilities, raise money, and campaign in a 

system that [they believe to be] significantly 

corrupted by special-interest money. 

Mem. in Supp. of Mot. to Intervene at 3-4; see Lujan, 504 

U.S. at 561 (“At the pleading stage, general factual 

allegations of injury. . . may suffice, for on a motion to 

dismiss we presume that general allegations embrace those 

specific facts that are necessary to support the claim.” 

(internal quotations and alteration omitted)); 7C Charles 

Alan Wright et al., Federal Practice and Procedure § 1914, 

at 418 (2d ed. 1986) (intervention pleading “is construed 

liberally in favor of the pleader and the court will accept as 

true the well-pleaded allegations” therein). These allegations 

are sufficient to support Article III standing. 

The objectors’ contrary position that (1) the movants 

“have not shown that they have an interest distinct from 

that of every other citizen,” Opp’n at 8; (2) the movants have 

no legally protected interest “as sponsors and supporters” of 

the Act or “in upholding an unconstitutional statute,” id at 8, 

10; and (3) any injury the movants suffer cannot be 

redressed by a favorable decision, see id. at 12, is, simply 

stated, without merit. 

First, as opposed to members of the general public, the 

movants have a concrete, direct, and personal stake-as 

candidates and potential candidates—in the outcome of a 

constitutional challenge to a law regulating the processes by 

which they may attain office. See Buchanan v. FEC, 112 F. 

Supp. 2d 58, 65 (D.D.C. 2000) (“Precluding candidates from 

challenging [election] rules under the FECA would leave 

few others to do so . . . . [I]t is relatively self-evident that 

the people who have the most to gain and lose from the 
7a 

criteria governing [the electoral process] are the candidates 

themselves.”); see also Vote Choice, Inc. v. DiStefano, 4 F.3d 

26, 37 (1st Cir. 1993) (“[A]n impact on the strategy and 

conduct of an office-seeker’s political campaign constitutes 

an injury of a kind sufficient to confer standing.” (citing 

Buckley v. Valeo, 424 U.S. 1, 12 & n.10 (1976) (per curiam))). 

The objectors have cited no case law to the contrary. 

Second, notwithstanding the objectors’ assertions, see 

Opp’n at 8-9, the movants do not seek to vindicate a 

“sponsorship” interest in the Act. Nor are they precluded 

from intervening to defend (rather than challenge) the Act. 

In arguing that “no litigant has a legally protected interest 

in upholding an unconstitutional statute,” id. at 10, the 

objectors conflate the threshold issue of standing with the 

merits of the case and ignore the fact that the BCRA 

provisions the movants seek to defend are presumed 

constitutional until proven otherwise. See United States v. 

Morrison, 529 U.S. 598, 607 (2000) (“Due respect for the 

decisions of a coordinate branch of Government demands 

that we invalidate a congressional enactment only upon a 

plain showing that Congress has exceeded its constitutional 

bounds”). Moreover, a movant may intervene in support of 

government defendants where “it will be injured in fact by 

the setting aside of the government’s action it seeks to 

defend,” the “injury will have been caused by that 

invalidation” and “the injury would be prevented if the 

government action is upheld.” Am. Horse Prot. Ass’n v. 

Veneman, 200 F.R.D. 153, 156 (D.D.C. 2001); see also Meek 

v. Metro. Dade County, 985 F.2d 1471, 1480 (11th Cir. 1993) 

(movants seeking to intervene in defense of “election system 

that governed their exercise of political power” sufficiently 

“alleged a tangible actual or prospective injury” under 

Lujan); Marshall v. Meadows, 921 F. Supp. 1490, 1492 (E. D. 

Va. 1996) (U.S. Senator seeking intervention to defend 

constitutionality of state election law permitted to intervene 

because he had “a vital interest in a procedure through 

which he [sought] election”). 
8a 

Finally, the injury the movants allege here—that they 

will be forced to raise money in a corrupt system in the event 

the Act is struck down—plainly would be redressed by a 

favorable decision upholding the Act’s provisions. 

Accordingly, because it is clear from the face of the 

pleadings that the movants have an unconditional statutory 

right-and Article III standing—to seek such a decision, it is 

this 3rd day of May, 2002 hereby 

ORDERED that the objectors’ request for an oral 

hearing on the motion to intervene is denied, see Sam Fox 

Publ’g Co. v. United States, 366 U.S. 683, 693-94 (1961) 

(district court had discretion to decide motion to intervene 

without hearing when result was clear from face of 

application); and it is further 

ORDERED that the motion to intervene is granted. 

SO ORDERED. 

_____________________________ 

KAREN LeCRAFT HENDERSON 

United States Circuit Judge 

_____________________________ 

COLLEEN KOLLAR-KOTELLY 

United States District Judge 

_____________________________ 

RICHARD J. LEON 

United States District Judge