Amicus Curiae Brief — Federal Election Commission, Appellant v. Ted Cruz for Senate, et al.

No. 21-12

IN THE

Supreme Court of the United States

FEDERAL ELECTION COMMISSION,

Appellant,

v.

TED CRUZ FOR SENATE, et al.,

Appellees.

On Appeal from the U.S. District Court

for the District of Columbia

BRIEF AMICUS CURIAE OF THE

NEW CIVIL LIBERTIES ALLIANCE

IN SUPPORT OF APPELLEES

Richard A. Samp

Counsel of Record

Sheng Li

Mark Chenoweth

NEW CIVIL LIBERTIES ALLIANCE

1225 19th St. NW, Suite 450

Washington, DC 20036

(202) 869-5210

rich.samp@ncla.legal

December 22, 2021

QUESTIONS PRESENTED

Amicus curiae addresses only the first of the two

Questions Presented:

Whether Appellees have Article III standing to

challenge 52 U.S.C. § 30116(j)’s limit on the amount of

post-election contributions that an election campaign

may use to repay the debt owed to the candidate.

iii

TABLE OF CONTENTS

Page

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

INTERESTS OF AMICUS CURIAE . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . 2

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 5

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

I.

II.

A PPELLEES’ I NJURIES ARE F AIRLY

TRACEABLE TO SECTION 304 AND ARE

LIKELY TO BE REDRESSED BY A FAVORABLE

DECISION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

A.

Appellees Establish Traceability by

Showing that Section 304 Was at

Least a But-for Cause of Their

Injury. . . . . . . . . . . . . . . . . . . . . . . . . . . 8

B.

Adopting FEC’s Theory of Standing

Would Significantly Restrict

Judicial Challenges to Unlawful

Federal Government Action . . . . . . . . 12

APPELLEES’ INTENTIONAL DELAY OF

REPAYMENT DOES NOT DEFEAT THEIR

STANDING . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

iv

TABLE OF AUTHORITIES

Page(s)

Cases:

Bridge v. Phoenix Bond & Indemnity Co.,

553 U.S. 639 (2008) . . . . . . . . . . . . . . . . . . . . . . . . 11

Brown v. Bd. of Ed. of Topeka, Shawnee Cty., Kan.,

347 U.S. 483 (1954) . . . . . . . . . . . . . . . . . . . . . . . . 16

California v. Texas,

141 S. Ct. 2104 (2021) . . . . . . . . . . . . . . . . . . . 11, 12

Clapper v. Amnesty International,

568 U.S. 398 (2013) . . . . . . . . . . . . . . . . . . 17, 18, 19

Cochran v. SEC,

2021 WL5876747

(5th Cir., Dec. 13, 2021) (en banc) . . . . . . . . . . . . 14

Collins v. Yellen,

141 S. Ct. 1761 (2021) . . . . . . . . . . . . . . . . . . . . . . 12

Comcast Corp. v. Nat’l Assoc. of African

American-Owned Media,

140 S. Ct. 1009 (2020) . . . . . . . . . . . . . . . . . . . . . . 11

Evers v. Dwyer,

358 U.S. 202 (1958) . . . . . . . . . . . . . . . . . . . . . . . 16

Gavit v. Alexander,

477 F. Supp. 1035 (D.D.C. 1979) . . . . . . . . . . . . . . 4

Havens Realty Corp. v. Coleman,

455 U.S. 363 (1982) . . . . . . . . . . . . . . . . . . . . . . . . 15

Houston v. Marod Supermarkets, Inc.,

733 F.3d 1323 (11th Cir. 2013) . . . . . . . . . . . . . . 15

Kuehl v. Sellner,

887 F.3d 845 (8th Cir. 2018). . . . . . . . . . . . . . . . . 15

Lexmark Int’l, Inc. v. Static Control Components,

Inc., 572 U.S. 118 (2014). . . . . . . . . . . . . . . . . . . . 11

Libertarian National Committee, Inc. v. FEC,

924 F.3d 533 (D.C. Cir. 2019) . . . . . . . . . . . . . . . 20

v

Page(s)

Lucia v. SEC,

138 S. Ct. 2044 (2018) . . . . . . . . . . . . . . . . . . . . . . 14

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) . . . . . . . . . . . . . . . . . . . . . . 6, 17

McConnell v. FEC,

540 U.S. 93 (2003) . . . . . . . . . . . . . . . . . . . . . . 17, 19

Pennsylvania v. New Jersey,

426 U.S. 660 (1976) . . . . . . . . . . . . . . . . . . 17, 18, 19

Plessy v. Ferguson,

163 U.S. 537 (1896) . . . . . . . . . . . . . . . . . . . . . . . . 16

Seila Law LLC v. Consumer Financial Protection

Bureau, 140 S. Ct. 2183 (2020). . . . . . . . . . . . . . . 14

Steel Co. v. Citizens for a Better Environment,

523 U.S. 83 (1998) . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

United States v. Arthrex, Inc.,

141 S. Ct. 1970 (2021) . . . . . . . . . . . . . . . . . . . . . . 14

United States v. Students Challenging

Regulatory Agency Procedures (SCRAP),

412 U.S. 669 (1973) . . . . . . . . . . . . . . . . . . . . . . . . 12

West Virginia v. EPA,

No. 20-1530, cert. granted (Oct. 29, 2021) . . . . . . 12

Whitmore v. Arkansas,

495 U.S. 149 (1990) . . . . . . . . . . . . . . . . . . . . . . . . 12

Warth v. Seldin,

422 U.S. 490 (1975) . . . . . . . . . . . . . . . . . . . . . . . . 19

Statutes and Constitutional Provisions:

U.S. Const., Art. I, § 1 (Vesting Clause) . . . . . . . . . 13

U.S. Const., Art. II, § 2 (Appointments Clause) . . . 14

vi

Page(s)

U.S. Const., Art. III . . . . . . . . . . . . . . 2, 10, 11, 13, 18

U.S. Const., Art. III, § 2 . . . . . . . . . . . . . . . . . . . . . . . 6

U.S. Const., amend i . . . . . . . . . . . . . . . . . . . . . . . . . 4

Bipartisan Campaign Reform Act of 2002

(BCRA). . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 8, 9, 17

Section 304, 52 U.S.C. § 30116(j) . . . . . passim

Clean Air Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Foreign Intelligence Surveillance Act (FISA) . . . . . 18

Miscellaneous:

Charles Alan Wright, et al., Federal Practice

and Procedure § 3531.5 (2008). . . . . . . . . . . . 15, 16

Charles Alan Wright, et al., Federal Practice

and Procedure § 3531.5 (2019) . . . . . . . . . . . . . . . 15

FEC, “Increased Contribution and Coordinated

Party Expenditure Limits for Candidates

Opposing Self-Financed Candidates—Interim

Final Rules,” 68 Fed. Reg. 3970 (Jan. 27, 2003) . . 9

11 C.F.R. § 116.11 . . . . . . . . . . . . . . . . . . . . . . . . . 2, 7

11 C.F.R. § 116.11(c)(1) . . . . . . . . . . . . . . . . . . passim

11 C.F.R. § 116.11(c)(2) . . . . . . . . . . . . . . . . . . . . . . . 3

INTERESTS OF AMICUS CURIAE

The New Civil Liberties Alliance (NCLA) is a

nonpartisan, nonprofit civil-rights organization

devoted to defending constitutional freedoms from

violations by the administrative state.1 The “civil

liberties” of the organization’s name include rights at

least as old as the U.S. Constitution itself, such as jury

trial, due process of law, the right to be tried in front of

an impartial and independent judge, freedom of

speech, and the right to live under laws made by the

nation’s elected lawmakers through constitutionally

prescribed channels. Yet these self-same rights are

also very contemporary—and in dire need of renewed

vindication—precisely because Congress, federal

administrative agencies, and even sometimes the

courts have neglected them for so long.

NCLA aims to defend civil liberties—primarily

by asserting constitutional constraints on the

administrative state. Although Americans still enjoy

the shell of their Republic, there has developed within

it a very different sort of government—a type, in fact,

that the Constitution was designed to prevent. This

unconstitutional administrative state within the

Constitution’s United States is the focus of NCLA’s

concern.

1

Pursuant to Supreme Court Rule 37.6, NCLA states that

no counsel for a party authored this brief in whole or in part; and

that no person or entity, other than NCLA and its counsel, made

a monetary contribution intended to fund the preparation and

submission of this brief. All parties have consented to the filing.

2

NCLA is particularly disturbed by the Solicitor

General’s contention—on behalf of Appellant Federal

Election Commission (FEC)—that Appellees lack

Article III standing to challenge the constitutionality

of Section 304 of the Bipartisan Campaign Reform Act

of 2002 (BCRA), 52 U.S.C. § 30116(j). FEC asserts that

the injuries they incurred are not fairly traceable to

Section 304 but rather arose by operation of 11 C.F.R.

§ 116.11, the regulation FEC adopted to implement

Section 304.

FEC Br. 16-20.

That novel reinterpretation of Article III standing requirements is

unsound; any injury traceable to the FEC regulation is

also traceable to Section 304, because FEC would have

lacked authority to issue the regulation in the absence

of Section 304. At least as importantly from NCLA’s

perspective, FEC’s position—if adopted by the

Court—would substantially impair the ability of NCLA

and like-minded critics of government overreach to

challenge unconstitutional federal statutes.

NCLA also disagrees with FEC’s alternative

grounds for challenging Appellees’ standing: that

Appellees’ injuries do not create Article III standing

because they allegedly were self-inflicted. FEC Br. 2026. NCLA takes no position on the underlying

constitutional issue: whether the loan-repayment limit

imposed by Section 304 of the BCRA violates the First

Amendment.

STATEMENT OF THE CASE

Federal law imposes no limits on the amount of

money that candidates for federal office may provide to

their own campaigns. Such self-financing often takes

the form of loans, which a campaign committee may

3

repay using contributions received either before or

after the election. Section 304 of the BCRA, 52 U.S.C.

§ 30116(j), however, states that campaigns may repay

no more than $250,000 of pre-election loans with postelection contributions. Appellees Ted Cruz for Senate,

et al., allege that Section 304’s limitation on loan

repayments violates their First Amendment rights.

FEC has issued regulations designed to

implement Section 304’s loan-repayment limitation.

The regulations provide that if a campaign wishes to

repay a loan of the candidate’s personal funds using

pre-election contributions, “it must do so within 20

days of the election.” 11 C.F.R. § 116.11(c)(1). After

that date, such loans may be repaid only with postelection contributions, and any such repayments are

subject to Section 304’s $250,000 limitation. Any

remaining balance of the personal loan that exceeds

$250,000 is treated “as a contribution by the

candidate.” 11 C.F.R. § 116.11(c)(2).

In his 2018 campaign for reelection to the U.S.

Senate from Texas, Appellee Ted Cruz loaned his

campaign committee (Appellee Ted Cruz for Senate)

$260,000, $10,000 more than Section 304 permitted

him to be repaid using post-election contributions.

Believing that he had a right to be repaid with such

funds, Cruz declined to have the committee repay him

with available pre-election funds and instead used preelection funds to pay other creditors. J.S. App. 51a.

After the 20-day period specified in 11 C.F.R.

§ 116.11(c)(1) had elapsed, the campaign committee

repaid Cruz the $250,000 statutory maximum using

post-election contributions, but Section 304 barred the

4

committee from repaying the final $10,000 balance. Id.

Appellees filed suit against FEC in federal

district court, seeking declaratory and injunctive relief

against enforcement of Section 304 and its

implementing regulations. FEC filed a motion to

dismiss, asserting that Appellees lacked Article III

standing. FEC contested standing based solely on its

“self-inflicted” injury theory: it contended that Senator

Cruz’s injury was not fairly traceable to Section 304

and its implementing regulations because he brought

about the injury deliberately through his own actions.

The district court denied the motion. J.S. App.

50a-57a. It held that an individual does not forfeit his

Article III standing “merely because he is a ‘test’

plaintiff.” Id. at 52a (quoting Gavit v. Alexander, 477

F. Supp. 1035, 1040 (D.D.C. 1979)). It explained,

“Because the parties’ interests here are plainly

adverse, the fact that Senator Cruz may have made the

two loans fully expecting that the Loan Repayment

Limit would inhibit his ability to be fully repaid has no

bearing on his standing to challenge the law.” Id. at

53a. Rejecting FEC’s claim that Appellees should have

taken (but failed to take) steps that could have avoided

the injury, the court stated that no case law “supports

the notion that to avoid causing her own injury a

plaintiff must do the very thing she claims she has a

right not to do.” Id. at 55a.

A three-judge federal district court panel later

granted summary judgment to Appellees, ruling that

Section 304’s loan repayment limit violates the First

Amendment and enjoined its enforcement. J.S. App.

5a-37a. The panel did not address Appellees’ standing,

5

other than to note that a district judge had previously

denied FEC’s motion to dismiss for lack of standing.

J.S. App. 9a.

SUMMARY OF ARGUMENT

Congress adopted Section 304 of the BCRA in

2002 to restrict the right of congressional candidates to

recover funds they loan to their candidate committees.

Very soon thereafter, FEC adopted 11 C.F.R.

§ 116.11(c)(1), a regulation designed to implement that

statutory restriction. FEC said at the time that the

regulation was “mandated” by the statute. It is

uncontested that the restrictions on loan repayment

resulted in Appellees suffering a $10,000 loss. FEC

argues that the loss is “fairly traceable” only to the

FEC regulation, not to the enabling statute, and thus

that Appellees lack Article III standing to challenge

the statute. But given the extremely close relationship

between Section 304 and § 116.11(c)(1), and given that

FEC’s authority to issue the regulation derives solely

from Section 304, Appellees’ loss must also be deemed

“fairly traceable” to Section 304.

The heightened standing standard proposed by

FEC would, if adopted, severely restrict the ability of

NCLA and others to challenge unlawful government

action. NCLA urges the Court to carefully consider

that impact when deciding whether to adopt FEC’s

novel restrictions on standing.

Nor does the allegedly self-inflicted nature of

Appellees’ injury defeat their Article III standing

claims. Regardless of whether Appellees’ injury is

“self-inflicted” because they intentionally delayed

6

repayment following the 2018 election, it is still fairly

traceable to FEC’s repayment restrictions. According

to FEC’s own account, Appellees’ intentional delay did

not displace Section 304 from the causal chain but

rather triggered Section 304's loan-repayment

restrictions to inflict the injury-in-fact that is the basis

for this lawsuit. Under this Court’s longstanding

precedent, such deliberate provocation of litigation

does not defeat standing and instead is a critically

important tool in challenging unlawful and

unconstitutional government conduct.

ARGUMENT

I.

APPELLEES’ INJURIES ARE FAIRLY TRACEABLE

TO SECTION 304 AND ARE LIKELY TO BE

REDRESSED BY A FAVORABLE DECISION

Article III, § 2 of the Constitution extends the

“judicial Power” of the United States only to “Cases”

and “Controversies,” terms intended to confine courts

to addressing matters “traditionally amenable to, and

resolved by, the judicial process.” Steel Co. v. Citizens

for a Better Environment, 523 U.S. 83, 102 (1998).

Standing to sue “is part of the common understanding

of what it takes to make a justiciable case.” Ibid.

The three elements that constitute the

“irreducible constitutional minimum of standing,”

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560

(1992), are well understood. The plaintiff must

demonstrate: (1) “an injury in fact—a harm suffered by

the plaintiff that is concrete and actual or imminent,

not conjectural or hypothetical”; (2) “causation—a

fairly traceable connection between the plaintiff’s

7

injury and the complained of conduct”; and (3)

“redressability—a likelihood that the requested relief

will redress the alleged injury.” Citizens for a Better

Environment, 523 U.S. at 103 (citations omitted).

FEC does not dispute that Senator Cruz has met

the first standing requirement. His principal injury is

both concrete and actual: he has been unable to secure

repayment of all the funds he loaned to his campaign

committee, thereby incurring a $10,000 loss. FEC’s

challenge to standing focuses primarily on the second

requirement; it contends that Appellees’ injuries are

not fairly traceable to Section 304’s $250,000 limitation

but rather are traceable only to 11 C.F.R. § 116.11, the

regulation FEC adopted to implement Section 304.

FEC Br. 16-20.2

Appellees convincingly argue that FEC’s

traceability argument is based on a faulty factual

premise. FEC alleges that: (1) all or most of the

$250,000 repaid by Senator Cruz’s campaign

committee must have consisted of funds raised prior to

the November 2018 general election because the

campaign received very few contributions between

election day and the repayment date; (2) because the

committee has not used post-election contributions to

2

FEC also challenges redressability, alleging that the

relief he seeks (a declaration that Section 304 violates his First

Amendment rights and an injunction against its enforcement)

would not redress his injuries. FEC’s redressability claim is

insubstantial. FEC has never contended that if the district court’s

injunction is upheld by this Court, it would have any authority to

interfere with repayment of the final $10,000 of Senator Cruz’s

loan.

8

repay the loan, Section 304’s repayment limitation

does not stand as an impediment to repayment of the

final $10,000; and thus (3) any injury suffered by

Appellees is not fairly traceable to Section 304.

Appellees have explained that, contrary to FEC’s

allegation, the Committee received substantially more

than $250,000 in contributions in the two months after

the election—funds sufficient to repay $250,000 of

Senator Cruz’s loans and thereby sufficient to exhaust

the $250,000 cap on the use of post-election funds.

Brief for Appellees at 24-29.

NCLA is not filing this brief to address that

factual dispute, however. Rather, NCLA writes

separately to explain why Appellees have

demonstrated traceability—and thus Article III

standing—without regard to the source of funds the

campaign used to repay $250,000 of Senator Cruz’s

loan.

A. A p p ellees E s t ab li sh Tr ac ea b i lit y b y

Showing that Section 304 Was at Least a

But-for Cause of Their Injury

FEC does not contest that Appellees have been

injured by one of its regulations, 11 C.F.R.

§ 116.11(c)(1). That regulation prohibits the campaign

committee from paying Senator Cruz the final $10,000

installment on his pre-election loan, because more than

20 days have elapsed since the election. The FEC

contends that the injury is entirely traceable to that

regulation and not at all traceable to Section 304 of the

BCRA.

9

But that contention ignores the source of

§ 116.11(c)(1). FEC adopted that regulation in 2003 in

the immediate aftermath of enactment of the BCRA.

Section 304 was adopted as part of the so-called

“Millionaires’ Amendment,” a portion of the BCRA

designed to protect incumbent Members of Congress

and others being challenged by wealthy, self-financed

candidates. The Millionaires’ Amendment eased

fundraising restrictions on a candidate whose

challenger injected very large amounts of his own

funds into the campaign, and also limited (by means of

Section 304) the ability of such challengers (and other

congressional candidates) to obtain repayment of large

loans they made to their campaign committees.

When it adopted § 116.11(c)(1) as part of

“interim final rules,” FEC explained that it was doing

so “to implement the various provisions of the

Millionaires’ Amendment including ... repayment of

personal loans.” FEC, “Increased Contribution and

Coordinated Party Expenditure Limits for Candidates

Opposing Self-Financed Candidates—Interim Final

Rules,” 68 Fed. Reg. 3970 (Jan. 27, 2003). FEC

explained that it was issuing interim final rules

(rather than following notice-and comment rulemaking

procedures) in part because it had determined that

§ 116.11(c)(1) and the other new regulations were

“mandated by BCRA.” Id. at 3994. In light of that

history, FEC cannot seriously contend that

§ 116.11(c)(1) is not directly traceable to Section 304, or

that it derived authority to issue the regulation from

any source other than Section 304.

Given that direct relationship between the

regulation and the statute, the injury inflicted on

10

Appellees by § 116.11(c)(1) is also “fairly traceable” to

Section 304. Without Section 304, FEC would not have

issued § 116.11(c)(1) (indeed, it would have had no

authority to do so), and thus Senator Cruz would not

have incurred a $10,000 loss. Section 116.11(c)(1)’s

existence as an intervening step in the causal chain

does not prevent the loss from being “fairly traceable”

to Section 304.

Indeed, the Court has found the traceability

requirement to have been met in cases in which the

causal chain includes multiple links. For example, the

Court deemed standing to have been adequately

pleaded by plaintiffs who alleged: (1) the Interstate

Commerce Commission issued an order allowing

railroads to collect surcharges on freight rates; (2) the

increased freight rates would increase the costs (and

thus prices) for recyclable goods; (3) the increased

prices of recyclable goods would cause consumers to

purchase more nonrecyclable goods; and (4) increased

production of nonrecyclable goods would injure the

plaintiffs by increasing litter in national parks

frequented by the plaintiffs. United States v. Students

Challenging Regulatory Agency Procedures (SCRAP),

412 U.S. 669, 688 (1973). While the Court later

described the SCRAP decision as having gone “to the

very outer limits of the law” of standing, Whitmore v.

Arkansas, 495 U.S. 149, 159 (1990), SCRAP well

illustrates that the existence of intervening steps in

the causal chain is not an impediment to establishing

Article III standing.

An injury is “fairly traceable” to a challenged

action so long as the action is a but-for cause of the

injury. “Proximate causation is not a requirement of

11

Article III standing, which requires only that the

plaintiff's injury be fairly traceable to the defendant's

conduct.”

Lexmark Int’l, Inc. v. Static Control

Components, Inc., 572 U.S. 118, 134 n.6 (2014). The

but-for causation standard is satisfied whenever, as

here, “but for the defendant's unlawful conduct, [the

plaintiff’s] alleged injury would not have occurred.”

Comcast Corp. v. Nat’l Assoc. of African AmericanOwned Media, 140 S. Ct. 1009, 1014 (2020). But for

the adoption of Section 403, FEC would not have

adopted 11 C.F.R. § 116.11(c)(1), and Appellees would

not have suffered an injury.3

FEC’s reliance on California v. Texas, 141 S. Ct.

2104 (2021), is misplaced. The plaintiffs in that case

sought to establish standing to challenge one provision

of the Patient Protection and Affordable Care Act (the

minimum essential coverage provision) by showing

that they had been injured by totally separate

provisions of the Act. In the absence of any allegation

that their injury was fairly traceable to the minimum

essential coverage provision, the Court held that the

plaintiffs lacked Article III standing. 141 S. Ct. at

2120. In sharp contrast to the facts in California v.

3

Although Appellees are not required to establish

proximate causation, they very likely satisfy that more exacting

standard as well. Generally, A is deemed a proximate cause of B

if B is a “natural and foreseeable result” of A. Bridge v. Phoenix

Bond & Indemnity Co., 553 U.S. 639, 658 (2008) (construing the

“proximate cause” necessary to state a cause of action for fraud

under the federal RICO statute). In light of FEC’s statement that

Section 403 “mandated” adoption of § 116.11(c)(1), Appellees’

injury was a “natural and foreseeable result” of enactment of

Section 403.

12

Texas, Appellees have demonstrated a close

relationship between Section 304 and 11 C.F.R.

§ 116.11(c)(1). Hence, California v. Texas is wholly

inapposite.

B. Adopting FEC’s Theory of Standing Would

Significantly Restrict Judicial Challenges

to Unlawful Federal Government Action

FEC is asking the Court to adopt a new,

heightened standard for establishing that an injury is

“fairly traceable” to complained-of conduct. It asserts

that a plaintiff lacks standing to challenge an allegedly

unconstitutional statute when his injury is most

directly attributable to an agency regulation adopted

to implement the challenged statute rather than the

statute itself.

That assertion finds no support in the Court’s

case law. See, e.g., Collins v. Yellen, 141 S. Ct. 1761,

1779 (2021) (“for purposes of [determining whether

plaintiffs have established] traceability, the relevant

inquiry is whether the plaintiffs’ injury can be traced

to ‘allegedly unlawful conduct’ of the defendant, not to

the provision of the law that is challenged”). But more

importantly from NCLA’s perspective, FEC’s proposed

heightened standard would significantly restrict

challenges to unlawful government action. NCLA’s

litigation activity focuses on challenges to regulatory

actions that violate people’s civil liberties, including

actions that ignore separation-of-powers principles

central to the U.S. Constitution. If adopted by this

Court, FEC’s novel proposed standard would seriously

hamper NCLA’s—and everyone else’s—ability to raise

13

separation-of-powers and

constitutional challenges.

similar

structural

For example, the Court recently agreed to hear

four consolidated cases that address EPA’s authority to

issue sweeping climate-change regulations under the

Clean Air Act. See West Virginia v. EPA, No. 20-1530,

and consolidated cases. Petitioners in those cases

argue that EPA regulations issued in 2015 exceeded

the scope of its delegated authority under the Clean

Air Act; and if the Clean Air Act really does grant EPA

its claimed sweeping authority, they argue

alternatively that the Act is an unconstitutional

delegation of Congress’s legislative powers. NCLA has

filed an amicus curiae brief in support of the

Petitioners’ nondelegation claims. But if FEC is

correct, then all Petitioners lack Article III standing to

raise their unconstitutional-delegation claims because

their injuries are “fairly traceable” only to EPA’s 2015

regulations, not to the Clean Air Act’s unconstitutional

delegation of legislative powers.

Indeed, FEC’s heightened standing standard

would thwart all nondelegation doctrine challenges,

regardless of who brings them. In every such case, the

adoption of the complained-of legislation does not by

itself directly inflict injury; the legislation merely

invites a federal agency to exercise open-ended,

delegated legislative powers. Only when the agency

begins to exercise those unlawful powers by adopting

regulations do individuals incur injuries. Under FEC’s

heightened standing standard, those individuals would

lack standing to challenge the underlying statute as a

violation of Article I, § 1 (which vests legislative power

in Congress alone) because (according to FEC) their

14

injuries are fairly traceable only to the agency

regulations, not to the unconstitutional statute that

authorized the regulations.

FEC’s heightened standard would similarly

thwart other types of structural claims that NCLA

regularly asserts. NCLA has frequently challenged

actions by Executive Branch officials appointed to their

positions in violation of the Appointments Clause. U.S.

Const., Art. II, § 2. See, e.g., Lucia v. SEC, 138 S. Ct.

2044 (2018); United States v. Arthrex, Inc., 141 S. Ct.

1970 (2021). Similar Appointments Clause challenges

in the future may be thrown out of court for lack of

standing if FEC prevails; under FEC’s heightened

standard, any injury might be deemed “fairly

traceable” only to the acts of the appointed official, not

to the improper appointment made at an earlier date

by other officials. NCLA would anticipate similar

standing problems were it to raise constitutional

challenges to tenure protection afforded to Executive

Branch officials, as it has frequently in the past. See,

e.g., Cochran v. SEC, __ F.4th __, 2021 WL 5876747

(5th Cir., Dec. 13, 2021) (en banc); Seila Law LLC v.

Consumer Financial Protection Bureau, 140 S. Ct. 2183

(2020). Under FEC’s novel heightened standard, any

injury might be deemed “fairly traceable” only to the

acts of the official who enjoys tenure protection, not to

the statute or regulation that unconstitutionally

granted the official such tenure protection.

FEC’s heightened standard for establishing that

an injury is “fairly traceable” to complained-of conduct

would have a devastating impact on the ability of

individuals to raise judicial challenges to unlawful

action by federal officials. NCLA urges the Court to

15

carefully consider that negative impact when deciding

whether to adopt FEC’s proposed standard.

II.

A PPELLEES ’ I NTENTIONAL D ELAY OF

REPAYMENT DOES NOT DEFEAT THEIR

STANDING

FEC also argues that Appellees’ $10,000 injury

is not traceable to the loan-repayment limit because it

was in some sense “self-inflicted.” FEC Br. at 20.

According to FEC, because repayment “was

intentionally delayed … to establish the factual basis

for this challenge,” the “inability to repay the final

$10,000 of Senator Cruz’s loan is … ‘so completely due

to [appellees’] own fault as to’ defeat standing.” Id. at

23 (quoting 13A Charles Alan Wright, et al., Federal

Practice and Procedure § 3531.5 (2008) (Wright &

Miller 2008)).

This argument, however, is foreclosed by the

very legal treatise upon which FEC relies to make it:

Wright & Miller’s treatise explicitly explains that

“deliberate provocation of litigation does not defeat the

existence of a controversy.” Charles Alan Wright, et al.,

Federal Practice and Procedure § 3531.5 (2019).

Wright & Miller’s conclusion reflects this Court’s

longstanding reasoning in Havens Realty Corp. v.

Coleman, 455 U.S. 363, 373-74 (1982), which ruled that

housing applicants had standing to sue a realty

company even when the applicants’ sole purpose in

applying for housing was to uncover racial

discrimination. Thus, “when an individual searches for

and finds a violation of the law, it is the violation

itself—not the search—that causes the plaintiff

16

injury.” Kuehl v. Sellner, 887 F.3d 845, 851 (8th Cir.

2018) (citing Coleman, 455 U.S. at 373-74); see also

Houston v. Marod Supermarkets, Inc., 733 F.3d 1323,

1332-33 (11th Cir. 2013).

The same logic applies where, as here, a plaintiff

“searches for and finds a violation of the law” by

intentionally flouting a legal requirement to create an

injury-in-fact for a lawsuit. Cf. Evers v. Dwyer, 358

U.S. 202, 204 (1958) (“That the appellant may have

boarded this particular bus for the purpose of

instituting this litigation is not significant.”). FEC

quotes but fails to grasp Wright & Miller’s explanation

that “[s]tanding is not defeated merely because the

plaintiff has in some sense contributed to his own

injury”—rather “the injury [must be] so completely due

to the plaintiff’s own fault as to break the causal

chain.” FEC Br. at 21 (quoting Wright & Miller 2008

§ 3531.5). An injury is “completely due to the

plaintiff’s own fault” only if it fully displaces all other

causes. Such displacement does not occur where a

plaintiff intentionally violates a law to challenge its

constitutionality because the entire point is to preserve

the causal chain by ensuring that the challenged law

causes the injury. This strategy has been a keystone

in the effort to protect constitutional rights through

litigation since at least the time of Plessy v. Ferguson,

163 U.S. 537, 538-39 (1896), overruled by Brown v. Bd.

of Ed. of Topeka, Shawnee Cty., Kan., 347 U.S. 483

(1954).

The fact that Senator Cruz “has in some sense

contributed to his own injury” by intentionally

delaying repayment does not break the causal chain

17

between Section 304’s loan-repayment limit and the

injury-in-fact. Rather, as FEC acknowledges, the

intentional “delay had … been essential to trigger the

regulatory requirement that $10,000 of the total loan

amount be recharacterized as a contribution,” and thus

not repayable. FEC Br. at 24. In other words, far from

displacing Section 304’s repayment limit as a

superseding cause, Appellees’ intentional delay was

designed to and had the effect of inserting that

loan-repayment limit as the final domino in the causal

chain that directly inflicted the $10,000 injury-in-fact.

The injury is therefore indisputably “fairly traceable”

to the challenged repayment limit. Lujan, 504 U.S. at

560.

Cases cited by FEC in support of its

“self-inflicted injury argument” do not alter this

conclusion. See Clapper v. Amnesty International, 568

U.S. 398 (2013); McConnell v. FEC, 540 U.S. 93 (2003);

and Pennsylvania v. New Jersey, 426 U.S. 660 (1976)

(per curiam), cited at FEC Br. at 21-23. Unlike here,

the statutory provisions challenged in FEC’s cases did

not directly inflict the plaintiffs’ alleged injuries.

In McConnell, which also concerned BCRA, a

group of politicians challenged BCRA’s campaign

contribution limits as being too high. 540 U.S. at 228.

They asserted a supposed “competitive injury” in

elections because, unlike opposing candidates, they did

not “wish to solicit or accept large campaign

contributions as permitted by BCRA.” Id. The Court

rejected this standing argument, observing that

politicians’ “inability to compete stems not from the

operation of [BCRA], but from their own personal ‘wish’

18

not to solicit or accept large contributions.” Id.

(emphasis added). In other words, the final link in the

causal chain to the “competitive injury” was not the

allegedly high contribution limit, but rather the

politicians’ independent choice not to seek higher

contributions.

The statute challenged in Clapper, 568 U.S. at

417, likewise lacked a direct relationship with the

injury alleged in that case. Plaintiffs challenged

provisions of the Foreign Intelligence Surveillance Act

authorizing surveillance of certain international

electronic communications.

Id. at 401.

They

attempted to establish Article III standing by alleging

they took “costly and burdensome measures to protect

the confidentiality of their communications,” such as

“travel so that they can have in-person conversations.”

Id. at 415. This Court rejected that argument because

the costly measures were not the direct product of any

surveillance authorized by FISA, but rather “the

product of their fear of surveillance.” Id. at 417.

Injuries sustained based on “such a fear [are]

insufficient to create standing” because they were

entirely the result of plaintiffs’ own decisions, rather

than the operation of FISA. Id.

The same is true of Pennsylvania, 426 U.S. 660.

There, the Court held that the decisions by a group of

States to reimburse their own residents for taxes levied

by other States was not a basis for standing. Id. at

661-62. Notably, nothing in the challenged taxes

forced the plaintiff States to offer reimbursements. As

such the reimbursements were the independent

decisions that broke any possible causal chain

19

connecting the taxes and injury to the fisc of the

plaintiff States.

In contrast to the independent actions taken by

plaintiffs in McConnell, Clapper, and Pennsylvania,

Appellees’ decision to delay repayment was not an

independent response to the operation of Section 304’s

loan-repayment limit—quite the opposite. Application

of the loan-repayment limit was triggered by Appellees’

delay and was the final link in the causal chain that

led to Appellees’ $10,000 injury. FEC’s argument that

Appellees’ intentional delay somehow broke the chain

of causation thus fails, and there is no option but to

conclude that the injury-in-fact in this case is fairly

traceable to the loan-repayment limit.

FEC’s second “self-inflicted” argument—that

Appellees could easily have taken lawfully available

steps to avoid the $10,000 injury, see FEC Br. at

23-24—is likewise unavailing. According to FEC,

Appellees could have avoided application of the

loan-repayment limit simply by repaying Senator Cruz

with $10,000 in pre-election contributions. Id. at 24.

By choosing not to do so, Appellees voluntarily

subjected Senator Cruz to the $10,000 injury caused by

application of the loan-repayment limit. Id. This logic,

however, would require Appellees to avoid an injury by

subjecting themselves to the loan-repayment

framework they contend is unconstitutional. For

standing purposes, the Court must accept Senator

Cruz’s claim that Section 304’s loan-repayment

limitation unconstitutionally burdens free speech.

Warth v. Seldin, 422 U.S. 490, 501 (1975). If so, then

Senator Cruz had a First Amendment right to repay

the loan using post-election rather than pre-election

20

contributions. Mandating that Senator Cruz instead

use pre-election funds, as FEC urges, therefore would

require him to forfeit a right he is assumed to have,

and to subject himself to the very framework that is

assumed to unconstitutionally burden his free speech.

Such a “heads I win, tails you lose” principle has no

place in the law. See Libertarian National Committee,

Inc. v. FEC, 924 F.3d 533, 536 (D.C. Cir. 2019)

(rejecting FEC’s argument that political committee

lacked standing because it did not subject itself to

statutory requirements that, it contended, violated the

First Amendment).

CONCLUSION

The Court should affirm the district court’s

holding that Appellees possess standing to challenge

the constitutionality of Section 304 of the BCRA.

Respectfully submitted,

Richard A. Samp

Counsel of Record

Sheng Li

Mark Chenoweth

NEW CIVIL LIBERTIES ALLIANCE

1225 19th St. NW, Suite 450

Washington, DC 20036

(202) 869-5210

rich.samp@ncla.legal

Dated: December 22, 2021