Fulani v. Brady

MIKVA, Chief Judge,

dissenting:

The law of standing deserves no prizes for clarity, nor for certainty. But ambiguity in controlling precedents does not excuse the majority’s three-fold departure from them. First, the majority pays only lip service to the injury alleged by the appellants, ignoring the Supreme Court’s command to base standing analysis on the allegations actually made by a party seeking judicial redress. Second, it misreads seminal decisions in the standing area, adopting a constricted reading inconsistent with judicial practice. And third, the majority spins out a novel theory of redressability that, if taken seriously, would send legitimate suitors away from federal courts in droves. I dissent.

I.

Under Federal Election Commission (“FEC”) regulations, only media organizations and non-partisan, tax-exempt organizations may stage debates between candidates for federal office. See 11 C.F.R. § 110.13 (1991). With this in mind, the Democratic and Republican National Committees orchestrated establishment of the Commission on Presidential Debates (the “Commission”), a private, non-profit corporation dedicated to sponsoring and publicizing debates between contenders for the Presidency and Vice-Presidency of the United States.

Dr. Lenora Fulani, a candidate for President in the 1988 election, sought inclusion in debates sponsored by the Commission. Her campaign committee informed the Commission that Fulani was constitutionally eligible to serve as President, that she “fully expect[ed] to be listed on the general election ballots of all 50 states” (as in fact she was), and that she had qualified for federal primary matching funds. Letter from Gary Sinawski to Frank J. Fahrenkopf, Jr. and Paul G. Kirk, Jr. (Aug. 5, 1988). After exchanges of correspondence, the Commission denied Fulani’s request, citing its policy of inviting only candidates “with a realistic chance of being elected” to the Presidency or Vice-Presidency, whatever their party affiliation. Letter from Janet H. Brown to Gary Sinawski (Sept. 19, 1988).

Dr. Fulani, her campaign organization, and a supporter (collectively, “Fulani”) then filed suit against the Secretary of the Treasury and the Commissioner of the Internal Revenue Service (“IRS”), seeking relief including an order requiring the defendants to revoke the Commission’s tax exemption under section 501(c)(3) of the Internal Revenue Code, 26 U.S.C. § 501 (c)(3) (1988). They alleged that the federal defendants’ failure to revoke the Commission’s tax exemption constituted unconstitutional discrimination against Fulani based on her race and political affiliation. Fulani initially named the Commission as a co-defendant; after the district court declined to order the Commission to include *213 Fulani in its debates, however, Fulani dropped her claims against the Commission. See Fulani v. Brady, 729 F.Supp. 158 , 160 & n. 3 (D.D.C.1990).

In the 1988 election, Fulani received 0.24 percent of the popular vote. Later, the district court dismissed her claims against the government defendants for want of constitutional standing, finding that Fulani had not satisfactorily alleged injury, causation, or redressability. See id. at 160-65 . The district court specifically disagreed with the reasoning of Fulani v. League of Women Voters Education Fund, 882 F.2d 621 (2d Cir.1989), in which the Second Circuit found that Fulani had standing to challenge the tax-exempt status of the sponsor of primary election debates from which she was excluded. This appeal followed.

II.

Fulani’s allegations were set out most clearly in an affidavit sworn prior to the 1988 election by Fred Newman, Fulani’s campaign manager. Newman averred that Fulani’s candidacy “presents the Black community (as well as other disenfranchised population sectors) an historic opportunity to exert power in national politics by becoming a swing vote that can determine the outcome of the election.” Moreover, he asserted that the presidential debates “confer legitimacy, credibility, [and] recognition” on candidates and their ideas. Thus:

By excluding Dr. Fulani from debates reserved for the major party candidates, the Commission profoundly undermines her credibility with an electorate which has not been equipped to comprehend why she does not appear alongside the other two national presidential candidates on national television. Her absence from these forums casts doubt on her veracity.

Verified Statement of Fred Newman (Sept. 19, 1988). Another member of Fulani’s campaign organization cast the injury in similar terms: “If [a] debate is held without Dr. Fulani, then people who viewed the debate or heard about it will be even more cautious when our canvassers knock on their doors. The exclusion will have a delegitimizing impact on her candidacy. Verified Statement of Jeffrey Aron (Sept. 19, 1988).

For standing purposes, this court must accept each of these allegations as true. Warth v. Seldin, 422 U.S. 490, 501 , 95 S.Ct. 2197, 2206 , 45 L.Ed.2d 343 (1975). So taken, Fulani’s allegations will support a finding of Article III standing only if they demonstrate “personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen v. Wright, 468 U.S. 737, 751 , 104 S.Ct. 3315, 3324 , 82 L.Ed.2d 556 (1984). When read fairly and in light of guiding precedents, they meet this test.

A. Injury

Although the majority does not dispute the constitutional sufficiency of Fulani’s alleged injury, it fails to fully comprehend the nature of this injury, and consequently errs in later aspects of its standing analysis. For this reason, I address the injury question in some detail.

Fulani does not assert that she could have won the 1988 election if she had participated in the presidential debates. Instead, she claims 1) that her credibility as a ‘spoiler’ and public advocate was undermined by the Commission’s refusal to invite her, and 2) that allowing then-Vice President Bush and Governor Dukakis to debate alone boosted their campaigns in comparison to hers.

It follows from Fulani’s allegations that whatever advantage major-party candidates have going into two-candidate presidential debates is exaggerated by the debates themselves, and that such debates disadvantage minor-party candidates. See Johnson v. FCC, 829 F.2d 157 , 165 (D.C.Cir.1987) (inclusion of Citizens Party presidential and vice-presidential candidates in televised debates “undoubtedly would have benefited their campaign”); League of Women Voters, 882 F.2d at 626 (“It is beyond dispute that participation in [primary] debates bestowed on the candidates who appeared in them some competitive advantage over their non-participating *214 peers.”). This disadvantage constitutes sufficient injury to support a finding of standing. See League of Women Voters, 882 F.2d at 626 (“[T]he loss of competitive advantage flowing from the League’s exclusion of Fulani from the national debates constitutes sufficient ‘injury’ for standing purposes, because such loss palpably impaired Fulani’s ability to compete on an equal footing with other significant presidential candidates.”); cf. Anderson v. Celebrezze, 460 U.S. 780, 792 , 103 S.Ct. 1564, 1571 , 75 L.Ed.2d 547 (1983) (cognizable harm of early candidate filing deadline is that “[vjolunteers are more difficult to recruit and retain, media publicity and campaign contributions are more difficult to secure, and voters are less interested in the campaign.”); Common Cause v. Bolger, 512 F.Supp. 26, 30 (D.D.C.1980) (three-judge court) (finding challengers for occupied congressional seats injured by franking statute because they will have to spend additional money to “neutralize” campaign advantage of franking privilege), affd, 461 U.S. 911 , 103 S.Ct. 1888 , 77 L.Ed.2d 280 (1983).

The majority’s failure to come to terms with Fulani’s injury — so critical to its misapplication of the causation and redressability issues discussed below — is revealed by a baffling reliance on Justice Stewart’s concurrence in Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 46 , 96 S.Ct. 1917, 1928 , 48 L.Ed.2d 450 (1976). See Maj.Op. at 207-208. Dr. Fulani’s core allegation is that she will be unlawfully burdened in seeking to make her political message known, while the Democratic and Republican candidates for President would be advantaged in advancing their rival political views. Whatever the merits of Fulani’s claim, it suggests restriction of “classically political speech,” and so goes to the core of the First Amendment. Boos v. Barry, 485 U.S. 312, 318 , 108 S.Ct. 1157, 1162 , 99 L.Ed.2d 333 (1988). See Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 186 , 99 S.Ct. 983, 991 , 59 L.Ed.2d 230 (1979) (“[A]n election campaign is a means of disseminating ideas, as well as attaining political office.”). Justice Stewart took pains in his concurrence to distinguish suits that implicate First Amendment rights from other legal claims, confining his skepticism about standing to challenge the tax status of others to cases “outside the First Amendment area.” Simon, 426 U.S. at 46 , 96 S.Ct. at 1928 .

Far from supporting the majority’s hostility to Fulani’s claim, Justice Stewart’s concurrence joins the decisions of this and other courts in suggesting that Fulani’s allegations are justiciable. Indeed, the majority’s contrary claim, see Maj.Op. at 207-208 n. 2, is misguided on two counts. When Justice Stewart suggested the particular justiciability of First Amendment claims, he surely did not have any “exception” pretaining to the religion clauses in mind; no such “exception” existed then, see Doremus v. Board of Educ., 342 U.S. 429 , 72 S.Ct. 394 , 96 L.Ed. 475 (1952), and certainly none exists now, see Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464 , 102 S.Ct. 752 , 70 L.Ed.2d 700 (1982). Perhaps even more disturbing as a general matter is the majority’s insistence that Justice Stewart did not mean what he plainly said. Expressive freedom is not so obscure a part of “the First Amendment area” that a Justice of the United States Supreme Court should be presumed to have overlooked it.

B. Traceability

The majority holds that the link between the federal defendants’ refusal to revoke the Commission’s tax-exempt status and Fulani’s political disadvantage is too speculative to make her injury “fairly traceable” to the defendants’ failure to act. It correctly notes that FEC regulations and the Commission’s role as sponsor of the debates are intervening factors tying the IRS’s actions to Fulani’s alleged injury. But the majority then goes critically awry by saying that “an injury will not be ‘fairly traceable’ to the defendant’s challenged conduct ... where the injury depends ... on independent intervening or additional causal factors.” Maj.Op. at 210. This is not, and has never been, the law.

*215 The presence of intervening actors in a chain of events that leads from the alleged legal violation to the alleged harm will not necessarily defeat standing. Warth v. Seldin, 422 U.S. 490, 504-05 , 95 S.Ct. 2197, 2208 , 45 L.Ed.2d 343 (1975) (“The fact that the harm to petitioners may have resulted indirectly does not in itself preclude standing.”). See, e.g., Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 72-78 , 98 S.Ct. 2620, 2630-33 , 57 L.Ed.2d 595 (1978); United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 688-90 , 93 S.Ct. 2405, 2416-17 , 37 L.Ed.2d 254 (1973); Association of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150 , 90 S.Ct. 827 , 25 L.Ed.2d 184 (1970); Competitive Enter. Inst. v. National Highway Traffic Safety Admin., 901 F.2d 107 , 113-14 (D.C.Cir.1990); Center for Auto Safety v. National Highway Traffic Safety Admin., 793 F.2d 1322 , 1334-35 (D.C.Cir.1986). Rather, causation has been found lacking only where “multiple, tenuous links” connect the challenged conduct and the asserted injury. Center for Auto Safety, 793 F.2d at 1335.

The paradigmatic case is Allen v. Wright, where the Supreme Court found a chain of causation between the federal tax-exempt status of racially discriminatory private schools and integration of public schools to be “attenuated at best.” 468 U.S. at 757 , 104 S.Ct. at 3328 . The claimed causation in that case involved “numerous third parties (officials of racially discriminatory schools receiving tax exemptions and the parents of children attending such schools) who may not even exist in respondents’ communities and whose independent decisions may not collectively have a significant effect on the ability of public school students to receive a desegregated education.” Id. at 759 , 104 S.Ct. at 3329 .

Establishing a causal nexus between the Commission’s tax exemption and Fulani’s injury requires no similar guesswork. The Commission’s tax exemption enabled it to sponsor presidential debates, see 11 C.F.R. § 110.13 , and the Commission had pledged to do so. If those debates went forward as head-to-head affairs, Fulani alleged, the media would focus public attention on the Bush and Dukakis candidacies, thereby setting back her campaign. Only two links in the causal chain between federal tax policy and Fulani’s injury are even arguably uncertain: Fulani’s claims that 1) barring judicial intervention, the media would cover Bush-Dukakis debates without publicizing Fulani’s campaign in an equivalent way, and 2) voters would respond by discounting Fulani’s campaign^ But media coverage has focused public attention on similar debates at least since 1960, see Commission on National Elections, Electing the President: A Program for Reform 41-43 (April 1986), and this court has already acknowledged that television debates allow candidates who appear in them “to gain publicity and credibility with the citizenry,” thereby benefitting their campaigns, see Johnson v. FCC, 829 F.2d at 164, 165.

Fulani’s claim is similarly distinguishable from that presented in Simon , where the Court determined that it was “purely speculative” whether an IRS ruling concerning treatment of indigent patients had resulted in a denial of hospital services to the poor. 426 U.S. at 42 , 96 S.Ct. at 1926 . It was perfectly possible, in the Court’s view, that hospitals decided whether or not to serve indigent persons “without regard to the tax implications.” Id. at 43 , 96 S.Ct. at 1926 . By contrast, Commission sponsorship of presidential debates depends on the challenged tax exemption; as the majority concedes, the Commission could not lawfully have acted “without regard” to its tax status. Maj.Op. at 210; see League of Women ■ Voters, 882 F.2d at 628 n. 5 (causal nexus alleged by Fulani “far more clearly drawn” than in Simon “because in practice the interlocking frameworks of Internal Revenue Code provisions and FEC regulations severely narrow the League’s latitude of discretion”).

C. Redressability

The final question with regard to constitutional standing requirements is whether or not there is a “substantial likelihood” that Fulani’s injury would be redressed by a favorable decision on the merits. See Duke Power, 438 U.S. at 75 n. 20, 98 S.Ct. *216 at 2631 n. 20. The majority holds that there is not, arguing that the FEC might change its regulations and that the Commission “might decline to sponsor presidential debates altogether” if faced with alternatives of opening its debates to more candidates or losing its tax exemption. See Maj.Op. at 210, 211.

The majority’s first concern cannot afford a basis for denying standing. Failing to take legally binding federal regulations as a given when evaluating redressability flies in the face of the Supreme Court’s instruction that a party seeking to invoke federal jurisdiction need not negate all “speculative and hypothetical possibilities” that might frustrate the effectiveness of judicial relief. Duke Power Co., 438 U.S. at 78 , 98 S.Ct. at 2633 . Just as it was not necessary for the plaintiffs in Duke Power to rebut claims about what might have happened had Congress not enacted legislation limiting liability for nuclear accidents, id. at 77-78 , 98 S.Ct. at 2632-33 , it should not be necessary for Fulani to answer the majority’s hypothesizing that the FEC might void regulations that have stood without amendment for more than a decade.

Taken to its logical end, moreover, the majority’s approach would preclude any suit to force compliance with a statute or administrative regulation. Because Congress or an administrative agency might alter any federal mandate, it is always speculative that legislative or regulatory action will not preempt a judicial declaration of law. For example, a case might be mooted by legislative enactments prior to judgment, or Congress might overturn a particular court decision by statute. However real or ethereal in a given instance, such possibilities have never precluded Article III jurisdiction in the past; they cannot do so now.

The majority’s speculation about how the Commission might react to a judgment in Fulani’s favor is equally misguided. Fulani sued not to attain some “level and quality of media exposure,” Maj.Op. at 211, but to avoid the prejudice to her candidacy that would inevitably result from a one-on-one debate between rival candidates Bush and Dukakis. Thus, Fulani’s injury would be redressed by any lawful response at all. If the Commission invited Fulani to their debate, and the media covered that event, Fulani’s goals would of course be realized. But her political disadvantage would likewise be removed if the Commission included Fulani in a debate ignored by the press or if the Commission decided against holding a debate altogether. Either eventuality would eliminate the unique publicity boost that Bush and Dukakis would otherwise receive from the debate, as well as Fulani’s correlative loss of political legitimacy.

D. Prudential Considerations

The majority does not connect its discussion of the statutory scheme surrounding section 501(c)(3) to any aspect of Article III standing. See Maj.Op. at 207-208. This discussion has no relevance to prudential standing considerations either, notwithstanding the majority’s implicit suggestion to the contrary. Dr. Fulani and her co-plaintiffs have brought constitutional claims, alleging violations of their own First Amendment rights of free speech and free association, as well as of their Fifth Amendment right to equal treatment regardless of race or political affiliation. See Complaint at 17, 19. Under these circumstances, none of the three prudential limitations on standing identified in Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 474-75 , 102 S.Ct. 752, 759-60 , 70 L.Ed.2d 700 (1982), applies. This is not a case where the plaintiffs assert constitutional rights of others. Nor is Fulani’s injury merely a “ ‘generalized grievance,’ pervasively shared.” Id. at 475 , 102 S.Ct. at 760 . Finally, the Supreme Court has suggested that the “zone of interests” test, developed in the context of the Administrative Procedure Act, has no utility in the context of First and Fifth Amendment claims. See Clarke v. Securities Industry Ass’n, 479 U.S. 388 , 400 n. 16, 107 S.Ct. 750 , 757 n. 16, 93 L.Ed.2d 757 (1987). The majority has cited no authority, and I am aware of none, suggesting that the court should gauge the justiciability of appel *217 lants’ constitutional causes of action by looking to statutory enforcement schemes. See Ukrainian-American Bar Ass’n v. Baker, 893 F.2d 1374 , 1380 n.* (D.C.Cir. 1990) (“Since the UABU asserts only the constitutional right to contact immediate action detainees, and makes no claim under any statute ..., there is no question of prudential standing in this case.”).

III.

Since I believe that the appellants have standing to bring their claims, the question of mootness becomes relevant: Is this case moot because the appellants’ interest in Commission policies arises solely from Dr. Fulani’s candidacy in the 1988 election? Such a defense apparently was not raised before the district court, and it was summarily rejected by the Second Circuit on the analogous facts of League of Women Voters. See 882 F.2d at 628 . Although the law on this point is not altogether consistent, I believe that the case is not moot.

A case otherwise moot is justiciable when it presents issues “capable of repetition, yet evading review.” See Southern Pac. Terminal Co. v. ICC, 219 U.S. 498, 515 , 31 S.Ct. 279, 283 , 55 L.Ed. 310 (1911). Outside of the class action context, however, this exception applies only where: “(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subject to the same action again.” Murphy v. Hunt, 455 U.S. 478, 482 , 102 S.Ct. 1181, 1183 , 71 L.Ed.2d 353 (1982) (quoting Weinstein v. Bradford, 423 U.S. 147, 149 , 96 S.Ct. 347, 348 , 46 L.Ed.2d 350 (1975)) (emphasis added).

If literally applied, this rule would prevent courts from hearing election cases after ballots are east unless the prospective candidates or voters allege that they will seek to run for office or vote the next time around. Nonetheless, we have said without reservation that “[cjontroversies that arise in election campaigns áre unquestionably among those saved from mootness under the exception for matters ‘capable of repetition, yet evading review.’ ” Branch v. FCC, 824 F.2d 37 , 41 n. 2 (D.C.Cir.1987), cert. denied, 485 U.S. 959 , 108 S.Ct. 1220 , 99 L.Ed.2d 421 (1988). Moreover, the Supreme Court and this court often have ignored the same-party requirement in the election context. See Anderson v. Celebrezze, 460 U.S. at 784 n. 3, 103 S.Ct. at 1567 n. 3 (ballot access); Storer v. Brown, 415 U.S. 724 , 737 n. 8, 94 S.Ct. 1274 , 1282 n. 8, 39 L.Ed.2d 714 (1974) (obstacles to independent candidacies); Moore v. Ogilvie, 394 U.S. 814, 816 , 89 S.Ct. 1493, 1494 , 23 L.Ed.2d 1 (1969) (“one man one vote” context); Johnson v. FCC, 829 F.2d at 159 n. 7 (constitutional and statutory claims that minority candidates have right to appear in televised debates). But see Meyer v. Grant, 486 U.S. 414 , 417 n. 2, 108 S.Ct. 1886, 1890, n. 2 , 100 L.Ed.2d 425 (1988) (finding same-party requirement satisfied); First Nat’l Bank v. Bellotti, 435 U.S. 765, 774-75 , 98 S.Ct. 1407, 1414-15 , 55 L.Ed.2d 707 (1978) (same).

Justice Scalia has noted a degree of tension between election cases and certain abortion cases, on one hand, and mootness doctrine on the other. See Honig v. Doe, 484 U.S. 305, 335-36 , 108 S.Ct. 592, 610-611 , 98 L.Ed.2d 686 (1988) (Scalia, J., dissenting); see also Moore v. Ogilvie, 394 U.S. at 819 , 89 S.Ct. at 1496 (Stewart, J., dissenting). Yet the law of this circuit, as expressed in Branch v. FCC, compels the conclusion that this dispute is not moot.

IV.

The problems of conducting national elections through the electronic media have become nigh impossible to solve. The “simple” difficulty of reaching voters, the more complicated difficulty of substantively informing them, and the need for huge sums to fund such communications all drive an engine of chaos in the national campaign regimen. Congress and the courts have struggled with this urgent matter, often with frustration. See, e.g., Buckley v. Valeo, 424 U.S. 1 , 96 S.Ct. 612 , 46 L.Ed.2d 659 (1976). But whatever its proper role in correcting imbalances and imperfections in the status quo, govern *218 ment certainly must not abandon its posture of nonpartisanship. The government of any democracy, let alone one shaped by the values of our Constitution’s First Amendment, must avoid tilting the electoral playing field, lest the democracy itself become tarnished.

The majority’s decision precludes judicial inquiry into allegations that the field has been tilted in favor of the major political parties, and seems to rationalize its result by dismissing Dr. Fulani’s candidacy as mere grandstanding. Yet the First Amendment requires government neutrality regardless of candidates’ supposed motives. I therefore dissent from a decision that insulates from review federal complicity in keeping minor political parties off the national stage.