# Fulani v. League of Women Voters Education Fund

> Court of Appeals for the Second Circuit · August 2, 1989 · 882 F.2d 621

URL: https://www.frixlaw.com/law-library/cases/8972232

## Case

- **Full name:** Dr. Lenora B. FULANI, Lenora B. Fulani's Committee for Fair Elections, and Virginia Sinclair v. LEAGUE OF WOMEN VOTERS EDUCATION FUND, League of Women Voters of the United States, League of Women Voters of the City of New York Education Fund, Inc., James Baker, III, Secretary of the Treasury, and Roscoe Egger, Jr., Commissioner of Internal Revenue
- **Court:** Court of Appeals for the Second Circuit
- **Decided:** August 2, 1989
- **Citations:** 882 F.2d 621
- **Precedential status:** Published
- **Opinion:** Concurrence by Cardamone
- **Judges:** Cardamone, Graafeiland, Pierce
- **Cited by:** 11 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8972232

## How later opinions describe it (automated extraction)

- finding candidate's exclusion from debates traceable to government's refusal to revoke League's tax-exempt status, where "[b]ut for the government's refusal . . . the League, as a practical matter, would have been unable to sponsor [the debates]"

## Opinion text

CARDAMONE, Circuit Judge,
concurring:
Because appellant has not satisfied the Article III requirements for standing the district court lacked subject matter jurisdiction over this suit. Thus, I am unable to concur in the majority’s otherwise cogent discussion of the merits.
In my view, the majority has misapprehended the import of Allen v. Wright, 468 U.S. 737 , 104 S.Ct. 3315 , 82 L.Ed.2d 556 (1984) and Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26 , 96 S.Ct. 1917 , 48 L.Ed.2d 450 (1976) (Eastern Kentucky). It is undisputed that a plaintiff must satisfy each of the three requirements of injury in fact, traceability and redressability before the strictures of the Article III standing requirements are met. See Allen v. Wright, 468 U.S. at 751 , 104 S.Ct. at 3324 ; Eastern Kentucky, 426 U.S. at 41 , 96 S.Ct. at 1925 . Even assuming arguendo that Fulani has stated a judicially cognizable injury, she has nonetheless failed to establish standing’s causal prongs of traceability and redressability.
Traceability assesses the “causal connection between the assertedly unlawful conduct and the alleged injury....” Allen v. Wright, 468 U.S. at 753 n. 19, 104 S.Ct. at 3325 n. 19. In its discussion of the traceability requirement, the majority asserts that “[b]ut for the government's refusal to revoke the League’s tax-exempt status, then, the League, as a practical matter, would have been unable to sponsor the debates which caused the injury of which Fulani complains.” Supra at 628 (emphasis in original). Invocation of more than *631 the phrase “but for” is needed to link plaintiffs injury to the defendants’ conduct. Although § 501(c)(3) status is arguably a Federal Election Commission prerequisite to candidate debate sponsorship, that does not, in and of itself, connect the defendants’ putative violation of § 501(c)(3) to Fulani’s diminished ability to compete in the political arena. All Fulani’s complaint establishes is that the government’s assert-edly illegal conduct allowed the League to act in a way that may have injured her; she does not allege that the IRS has provided an incentive for the League to engage in partisan acts. To satisfy the traceability requirement, plaintiff must allege that the government’s conferral of the tax exemption caused the League to hold the debates from which Fulani was excluded, which was the source of her asserted injury. Cf. Eastern Kentucky, 426 U.S. at 42-43 , 96 S.Ct. at 1926 (stating that it did not follow from assertion that an IRS ruling “ ‘encouraged ’ hospitals to deny services to indigents” that “the denial of access to hospital services in fact resulted] from ” defendant’s conduct.) (emphasis added).
Further, appellant cannot attribute her injury to the defendants’ conduct because the recipient of the purportedly illegal governmental benefit — the League — is not in competition with Fulani; only the major party candidates compete with her in the political arena. Because whatever injury Fulani has suffered is traceable to the Democratic and Republican candidates, who are not defendants in this action, appellant has failed to meet the traceability requirement and has therefore no standing to bring suit. Cf. Eastern Kentucky, 426 U.S. at 41 , 96 S.Ct. at 1925 (“[Ijnjury at the hands of a hospital is insufficient by itself to establish a case of controversy in the context of this suit, for no hospital is a defendant.”).
Winpisinger v. Watson, 628 F.2d 133, 139 (D.C.Cir.) (per curiam), cert. denied, 446 U.S. 929 , 100 S.Ct. 1867 , 64 L.Ed.2d 282 (1980) is instructive. The court there held that supporters of Senator Edward Kennedy’s presidential nomination bid lacked standing to complain that members of President Jimmy Carter’s cabinet and reelection committee had promoted his reelection by allegedly illegally using federal funds and by abusing the power of incumbency. Fulani’s traceability argument is even more attenuated than that proffered by the Winpisinger appellants — litigants whose direct competitors were the same parties who had allegedly broken the law. Nonetheless, the court held that “[t]he endless number of diverse factors potentially contributing to the outcome of ... elections ... forecloses any reliable conclusion that voter support of a candidate is ‘fairly traceable’ to any particular event.” Id. Because standing was properly denied in Winpisinger , it follows, a priori, that it should also be denied here.
Moreover, appellant has not satisfied the final requirement of standing inquiry, that of redressability. This prong focuses on the causal connection between the injury plaintiff alleges and the judicial relief sought. Allen v. Wright, 468 U.S. at 753 n. 19, 104 S.Ct. at 3325 n. 19. Fulani’s asserted injury is her competitive disadvantage as a candidate vis-a-vis major-party candidates who — unlike her — were invited to participate in the League’s televised debates. The principal relief she seeks is injunctive: Restraining the League from conducting a debate to which she is not invited, or ordering the IRS to revoke the League’s tax exempt status. Neither of these remedies will cure the alleged injury. Consequently, it would violate core values underlying Article III standing requirements and separation of powers doctrine to allow her to invoke the power of the judiciary to right a wrong that does not flow from defendants’ actions. This is particularly true where, as here, we are asked to tell the executive branch whom it should prosecute for tax violations; in essence, advise it how it should implement the laws. See Allen v. Wright, 468 U.S. at 759-60 , 104 S.Ct. at 3328-29 ; Linda R.S. v. Richard D., 410 U.S. 614, 619 , 93 S.Ct. 1146, 1149 , 35 L.Ed.2d 536 (1973).
The relief sought appears to redress Fulani’s injury only if one ignores the Article III “aspect of standing [that] reflects a due regard for the autonomy of those persons *632 likely to be most directly affected by a judicial order.” Valley Forge Christian College v. Americans United For Separation of Church and State, Inc., 454 U.S. 464, 473 , 102 S.Ct. 752, 759 , 70 L.Ed.2d 700 (1982). It seems to me that Fulani has underestimated the autonomy that the League would retain regardless of our holding in this case, and that she has overestimated the coercive powers that would flow from her requested relief. Additionally, as is the case whenever a plaintiff complains about the IRS’ tax treatment of another person or entity, appellant’s prospects for redress from a judicial order are diminished by the independent actions of parties not before us. Therefore, even were appellant were to obtain the remedy she seeks, the League could exercise options other than inviting her to its debates, and her injury would therefore remain un-redressed.
For example, rather than abide by the terms of our injunction, the League might decide to discontinue its hosting of Presidential debates and stop such sponsorship altogether. Cf. Eastern Kentucky, 426 U.S. at 43 , 96 S.Ct. at 1926 (stating that rather than treating more indigents and thereby redressing plaintiffs’ injury, “it is just as plausible that the hospitals to which respondents may apply for service would elect to forgo favorable tax treatment to avoid the undetermined financial drain of an increase in the level of uncompensated services.”). If the League ceases sponsoring debates, Fulani would still be denied the media exposure she seeks. Of course, the major party candidates — Fulani’s competitors — would also lose the free television time the debates provide and would thereby seem to be placed at a similar disadvantage with her. But those candidates already have the legitimacy that she seeks, and those were the criteria employed when the League invited them to debate in the first place. The point is that the playing field remains tilted regardless of what we do because, as indicated in the traceability discussion, it was not the League that tilted it.
The speculative nature of the majority’s inquiry is of concern because even were Fulani’s preferred scenario to come true and the League were to sponsor a debate to which she would be invited, the Democratic and Republican Parties — who as non-parties to this litigation are beyond the scope of the court’s remedial powers— could decline the League’s invitation. Cf. Allen v. Wright, 468 U.S. at 759 , 104 S.Ct. at 3328-29 (stating that how the parents of children in the private schools whose tax status was at issue would respond to a change in the school’s tax status was speculative). In fact, during the last general presidential election, the Democratic and Republican Parties did supplant the League by forming the “Commission on Presidential Debates,” that is, a bipartisan organization which undertook the sponsorship and staging functions heretofore carried out by the League. Thus, the credibility that Fulani seeks from debating with better-known candidates falls beyond the scope of relief that we have the power to grant.
Finally, there are those third-parties for whose votes appellant competes: Television viewers and voters. With due respect to appellant, it strikes me as sheer conjecture to attribute their apparent rejection of her candidacy to any actions taken by the defendants. 1 See Winpisinger, 628 F.2d at 139 ; see also Allen v. Wright, 468 U.S. at 759 , 104 S.Ct. at 3329 (holding that the causal connection was too weak to support standing because it “involves numerous third parties ... whose independent decisions may not collectively have a significant effect” on achieving plaintiff’s goal of desegregated education).
The foregoing hypotheticals are con-cededly speculative, but the majority also *633 engages in conjecture when it posits what results might flow from its holding, “practically speaking.” Such conjecture, the Supreme Court teaches, is fatal to plaintiffs standing to maintain this action. See Allen v. Wright, 468 U.S. at 758-59 , 104 S.Ct. at 3328 ; Linda R.S. v. Richard D., 410 U.S. at 618, 93 S.Ct. at 1149 . The minimum requirements of Article III are not satisfied by the “remote possibility” that Fulani’s opportunity for election would have been better had defendants acted differently, and might improve if a court rules in her favor. See Warth v. Seldin, 422 U.S. 490, 507 , 95 S.Ct. 2197, 2209 , 45 L.Ed.2d 343 (1975).
Accordingly, though I concur with the disposition of this appeal, it is on the separate grounds that Fulani’s complaint should be dismissed for lack of subject matter jurisdiction for lack of standing.
. Fulani might respond by asserting that winning is not the issue, and that she merely wants the IRS and the League to stop breaking the law and thereby to cease distorting the political process. But if Fulani so conflates her injury to rectify the attenuated nature of her causation arguments, then my assumption for purposes of discussion of causation that Fulani had stated a judicially cognizable injury would be untenable. See Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 217 , 94 S.Ct. 2925, 2930 , 41 L.Ed.2d 706 (1974).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8972232. Public record. Not legal advice.