Response — McConnell v. Federal Election Commission

Supreme Court,

r , FILED

2)

Nos. 02-1674 and wpe 2 3 2003

RK

IN THE -

Supreme Court of the United States

SENATOR MITCH MCCONNELL, et al.,

Appellants,

Vv.

FEDERAL ELECTION COMMISSION, et al.,

Appellees.

NATIONAL RIFLE ASSOCIATION, ef 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 ERICJ. 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 MICHAEL D. LEFFEL

FREDERICK A.O. SCHWARZ, JR. A. KRISAN PATTERSON

BRENNAN CENTER FOR JENNIFER L. MUELLER

JUSTICE STACY E. BECK

161 Avenue of the Americas, JERROD C. PATTERSON

12th Floor WILMER, CUTLER &

New York, NY 10013 PICKERING

2445 M Street, N.W.

CHARLES G. CuRTIS, JR. Washington, D.C. 20037

DAVIDJ. HARTH

MICHELLE M. UMBERGER FRED WERTHEIMER

HELLER EHRMAN WHITE & ALEXANDRA EDSALL

MCAULIFFE LLP DEMOCRACY 21

One East Main Street, Suite 201 1825 Eye Street, N.W.

Madison, WI 53703 Suite 400

Washington, D.C. 20006

BRADLEY S. PHILLIPS

MUNGER, TOLLES & TREVOR POTTER

OLSON LLP GLEN M. SHOR

255 South Grand Ave. CAMPAIGN LEGAL CENTER

35th Floor 1101 Connecticut Ave., N.W.

Los Angeles, CA 90071 Suite 330

Washington, D.C. 20036

E. JOSHUA ROSENKRANZ

HELLER EHRMAN WHITE &

McCAULIFFE 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

QUESTIONS PRESENTED

1. Whether the Court should summarily dispose of the

McConnell appellants’ constitutional challenges to Sections

211,212, and 214 of the Bipartisan Campaign Reform Act of

2002 (BCRA), Pub. L. No. 107-155, 116 Stat. 81, because

those challenges were either waived below, or are plainly

nonjusticiable or insubstantial under settled law.

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

probable jurisdiction over the McConnell and NRA

appellants’ constitutional challenges to BCRA, and set the

appeals on those issues for briefing and oral argument.

(i)

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED....cccccccscsscssssesssssseees ses sssseeesen

TABLE OF CONTENTS .cccssccscsscocssscosssccsssccosssscosssscsssscsssese iii

TABLE OF AUTHORITIES. .....cccsccscsscsccssssscsssssessseceesssses iv

INTRODUCTION. cccecccosssccccssessccsssscccsssscsccssscesssssscesssssseseesee 1

ceric ha ticaineitctidaiisiicnieiaed 3

I. APPELLANTS FAIL TO RAISE JUSTICIABLE OR

SUBSTANTIAL QUESTIONS WITH RESPECT 'TO

ANY “ADVANCE NOTICE” REQUIREMENT IN

I Gi cries ieecitiiciiinnlaiatnsindadiinionaiendiiil 3

Il. APPELLANTS FAIL TO RAISE JUSTICIABLE OR

SUBSTANTIAL QUESTIONS WITH RESPECT TO

THE COORDINATION PROVISIONS OF BCRA

SIU MITT sisnisiitisncsnannininsinspademnenbintandinanennnesanel 5

CBI Ai etcrersacsessccesesnssncnsssenssnnsnsosneesonessnassssssoososonnenses 13

(iii)

iV

TABLE OF AUTHORITIES

CASES

Page(s)

Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam)............. 7,12

Clark v. Valeo, 559 F.2d 642 (D.C. Cir.), affd,

431 U.S. BGO (1977) ..ccccoccccceccecccssccceccccsoccsccsssscsssnsssccsseees 10

Colorado Republican Federal Campaign Com-

mittee v. FEC, 518 U.S. 604 (1996)............cccccsseeeeererees 11

Delta Air Lines, Inc. v. August, 450 U.S. 346 (1981)............ 6

Dothard v. Rawlinson, 433 U.S. 321 (1977)...........ccceseeeeeereees 6

FCC v. ITT World Communications, Inc.,

468 U.S. 468 (19BA)...cccorcrccccsscccsccccsccssceccsccsssecscccsssccsocees 10

FEC vy. Colorado Republican Federal Campaign

Committee, 583 U.S. 431 (2001) .........csccsseseeeeeeees 7,11, 12

Martin Tractor Co. v. FEC, 627 F.2d 375 (D.C.

Cir.), cert. denied, 449 U.S. 954 (1980) .......csccssseeeeees 10

New Mexicans for Bill Richardson v. Gonzales,

64 F.3d 1495 (10th Cir. 1995)..........ccccccseesrreeereeeereeeees 10

Nixon v. Administrator of General Services,

GBB UB, Ga I ceccccncsccnvtnneccsncscsrsesescscsssssessenvenscsseseent 9

Perez v. Ledesma, 401 U.S. 82 (1971)...........cccscssesrrreeseseeeeenees 3

Public Citizen Health Research Group v. FDA,

740 F.2d 21 (D.C. Cir. 1984) .......sccccsccssreeereeerseeereeeenees 10

Public Service Commission v. Brashear Freight

Lines, Inc., 306 U.S. 204 (1939)........csscccsscreerreeereeeesees 3

Renne v. Geary, 501 U.S. 312 (1991) .......cccseereerseeseeeenes 4,10

United States v. United Foods, Inc., 533 U.S. 405

GI accncccusennseneenssensansssinesenmieneemcnseninienimaninpnnanancnmennen 6

Virginia v. American Booksellers Association,

4B4 UB. SEB (19GB) ...cccccccccccceccescocececssoccsosccsccsssosssocsscoseces 4

Wisconsin Right to Life, Inc. v. Paradise,

138 F.3d 1183 (7th Cir. 1998).......ccsseeseereereeeseeseeeseneees 4-

CONSTITUTION, STATUTES AND REGULATIONS

Bipartisan Campaign Reform Act of 2002, Pub. L.

V

TABLE OF AUTHORITIES—Continued

nee Page(s)

SenTITIssdtsicsnisdtieideaiieeiienapiiiinanetitittdinnittainaeitaiicatatis

a 2.8, 1

SaAseiaiiesibenchiiiniabesiasiiilabidaiiaiaaiiatinbeineaiactiaisataateataieaes: 3

rat iceeietcintetenecnenceccaniieniiisidantiintncutsinedosentasieiaeisinttassinadaete 10

SEIT issesecscdnicheiianiinandistentiieiinedtntinedibadiasentitingiiianmesiie 2

Sassi 2

SEERA eae O oon ODD ene ee eT l

Federal Election Campaign Act of 1971, Pub. L. No.

92-225, 86 Stat. 3 a

ho ce 3

BS UAL. © aR cseccccccsccccnccecscvecesnssscnioscescsesecs 12

Administrative Procedure Act, Pub. L. No. 103-272,

80 Stat. 392

i Le ee 8,9

11 C.F LR. § 100.23 (2002) ..cccccssssssssssssssnvssseoresonecee, snsssseeee

65 Fed. Reg. 76138 (Dec. 6, 2000). .......cccsccssssssessecesesescscececerees 7

66 Fed. Reg. 23537 (May 9, 2001)........sccccsscssssssssesesesesesesececees 7

68 Fed. Reg. 404 (Jan. 3, 2003) (to be codified at 11

XE SAILS A Re 4

68 Fed. Reg. 421 (Jan. 3, 2008)..........scscscssssssssssssecssesesrscececees 8

68 Fed. Reg. 455 (Jan. 3, 2008).........scsssesssesesssssseseseseseseeeeees 12

148 Cong. Rec. $2144 (daily ed. Mar. 20, 2002).............cccc0000- 8

148 Cong. Rec. S2145 (daily ed. Mar. 20, 2002)................ 8, 12

ot 8 REIT Ee 1

MISCELLANEOUS

Statement of Reasons of Commissioner Thomas &

Chairman McDonald in In re The Coalition, et

al., MUR 4624 (FEC Sept. 7, 2001)...........ccccccccscessesesceees 8

Statement of Reasons of Commissioners Thomas

and McDonald in In re Republicans for Clean

Air, MUR 4982 (FEC Apr. 23, 2002) ..0.......ccccccssecsecceeees 8

IN THE

Supreme Court of the United States

No. 02-1674

SENATOR MITCH MCCONNELL, et al.,

Appellants,

Vv.

FEDERAL ELECTION COMMISSION, et al.,

Appellees.

No. 02-1675

NATIONAL RIFLE ASSOCIATION, 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 Senator McConnell, et al.,

and the National Rifle Association, et al., in their

jurisdictional statements, we agree that most of the

questions presented in their jurisdictional statements

warrant plenary consideration by this Court.' In light of

, Intervenor-appellees are Senator John McCain, Senator Russell

Feingold, Representative Christopher Shays, Representative Martin

Meehan, Senator Olympia Snowe, and Senator James Jeffords. They were

granted leave to intervene as of right in the proceedings below pursuant

to BCRA § 403(b) and Fed. R. Civ. P. 24(a)(1). See Orders of May 3 and

May 10, 2002 (granting intervention). The intervenors are also appellants

in No. 02-1702, McCain v. McConnell. See 02-1702 J.S. 15 & n.17.

2

Sections 403(a)(3) and (a)(4) of the Bipartisan 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 agree with the McConnell and NRA

appellants that the Court should note probable jurisdiction

over these appeals and set the case for briefing and oral

argument.

Some of the questions presented in Senator McConnell’s

jurisdictional statement (No. 02-1674), however, do not

warrant plenary consideration by this Court. Those

questions seek (in whole or in part) to raise challenges to

BCRA that were unequivocally waived below, or are clearly

nonjusticiable under well-settled principles of constitutional

and administrative law, or are otherwise so insubstantial as

not to justify further briefing and argument (particularly

given the number and complexity of the other issues

properly before the Court). Summary disposition of those

issues at this stage of the case would focus the briefing on

the remaining issues that do warrant this Court’s plenary

review, and may assist in the orderly resolution of these

appeals. Accordingly, the Court may wish to consider

summarily disposing of the following issues:

First, the Court should summarily dispose of Senator

McConnell’s challenge to a provision in BCRA Section 212

requiring disclosure of contracts to make disbursements

with respect to independent expenditures. See McConnell

J.S. Question Presented 3 and pp. 14-15. Under settled law,

that challenge is clearly nonjusticiable.

Second, the Court should summarily dispose of all

challenges to the “independent” and “coordinated” expendi-

ture provisions in BCRA Sections 211 and 214. See

McConnell J.S. Question Presented 4 and pp. 15-16.

Appellants waived all claims with respect to Section 211;

their challenges to Section 214(b) and (c) are clearly

ne ee wee

3

nonjusticiable; and their other challenges to Section 214 are

insubstantial under settled law.

ARGUMENT

I. APPELLANTS FAR TO RAISE JUSTICIABLE OR

SUBSTANTIAL QUESTIONS WITH RESPECT TO ANY

“ADVANCE NOTICE” REQUIREMENT IN BCRA

SECTION 212

The third question presented in Senator McConnell’s

jurisdictional statement is “[wJhether the district court

erred by holding nonjusticiable challenges to, and upholding,

portions of the ‘advance notice’ provisions of BCRA.. .

because they violate the First Amendment.” The targeted

provisions are disclosure requirements in BCRA Section 212

applicable to “independent expenditures.” Appellants

contend that, because the statutory language refers to the

disclosure not only of disbursements but also of contracts to

make such disbursements, the statute must be read as

requiring disclosure in advance of any actual independent

* Senator McConnell has also presented a constitutional challenge to

the “advance notice” requirement of BCRA § 201 in his jurisdictional

statement, see McConnell J.S. Question Presented 3 and pp. 14-15. In fact,

Senator McConnell prevailed on that challenge in the district court.

Section 201 of BCRA amended 2 U.S.C. § 434(f) to add disclosure

requirements with respect to disbursements for “electioneering

communications” “if the person has executed a contract to make the

disbursement.” The district court ruled that appellants’ constitutional

challenge to Section 201 was ripe, see Supplemental Appendix to

Jurisdictional Statement (JSSA) 109-11sa (per curiam), and ruled in their

favor on the merits as well, JSSA 115sa (per curiam). The government

has appealed from that aspect of the district court’s decision. See No. 02-

1676, Gov’t J.S. 26-27. Senator McConnell, however, may not appeal from

the district court’s ruling in his favor on that point. See Perez v. Ledesma,

401 U.S. 82, 87 n.3 (1971); Public Serv. Comm'n v. Brashear Freight

Lines, Inc., 306 U.S. 204, 206 (1939).

The district court also held that the challenged “advance notice”

requirement of BCRA § 201 is severable from the remainder of that

section. JSSA 115-l6sa (per curiam); see BCRA § 401 (severability

provision). Senator McConnell’s jurisdictional statement does not men-

tion, let alone contest, that severability ruling, which applied well-

established law.

4

expenditures. That requirement, they assert, “will chill the

exercise of free speech by forcing would-be speakers to

disclose their plans in advance.” McConnell J.S. 15.

That challenge warrants summary disposition. The

FEC’s regulations implementing Section 212 unambiguously

construe the statute not to require such advance disclosure.

See 68 Fed. Reg. 404, 452 (Jan. 3, 2003) (to be codified at 11

C.F.R. § 109.10). The district court therefore found no

current threat that appellants, or anyone else, will have an

advance-notice requirement enforced against them under

Section 212. See Supplemental Appendix to Jurisdictional

Statement (JSSA) 130-34sa (per curiam).°

Nowhere in Senator McConnell’s Jurisdictional

Statement is there any argument explaining why appellants

think the district court’s opinion was wrong on this point.

Nor is there any apparent argument to be offered. It is

black-letter law that “an actual and well-founded fear that

the law will be enforced” is a prerequisite to a finding of a

case or controversy when a plaintiff seeks pre-enforcement

review of the constitutionality of a statute on First

Amendment grounds. Virginia v. American Booksellers

Ass'n, 484 U.S. 383, 393 (1988).* In light of the FEC’s

regulations, there can be no credible threat that Section 212

* In the district court, another of the parties challenging Section 212

on this basis argued that the FEC regulations offered no assurance

against enforcement of an “advance notice” requirement because the

regulations “may not be approved by Congress” or the Commission might

later change its mind. JSSA 134sa (per curiam). The congressional

review period has now passed, however, and the regulations remain in

effect. And the FEC could not, of course, change its mind without notice-

and-comment rulemaking. If it did so, a case or controversy might then be

presented, but that purely speculative possibility does not create a

present threat that the statute will be construed in the manner the

challengers claim to fear.

* See also Renne v. Geary, 50 U.S. 312, 323 (1991); Wisconsin Right

to Life, Inc. v. Paradise, 138 F.3d 1183, 1185 (7th Cir. 1998) (holding that a

challenge to a state election law did not present a case or controversy

where an opinion of the state attorney general and a regulation of the

state elections board precluded application of the law to the challenger).

5

will be enforced to require appellants to give “advance

notice” of their disbursements as they have contended. The

district court therefore correctly concluded that appellants’

challenge to Section 212 is nonjusticiable, and this Court

should summarily dispose of that challenge.

Il. APPELLANTS FAIL TO RAISE JUSTICIABLE OR

SUBSTANTIAL QUESTIONS WITH RESPECT TO THE

COORDINATION PROVISIONS OF BCRA SECTIONS 211

AND 214

The fourth question presented in Senator McConnell’s

jurisdictional statement is “[w]Jhether the dstrict court

erred by holding nonjusticiable challenges to, and upholding,

the ‘coordination’ provisions of BCRA (sections 202, 211, and

214), because they violate the First Amendment.” The

Court should summarily dispose of appellants’ challenges to

Sections 211 and 214 because (a) appellants expressly

waived all challenges to Section 211; and (b) the rulemaking

provisions of Section 214 present no justiciable issues, and

the remaining provisions raise no substantial issue

warranting plenary consideration.”

A. Section 211 amends FECA to include, in the

definition of “independent expenditure,” any expenditure

that is “not made in concert or cooperation with or at the

request or suggestion of [a] tandidate, the candidate’s

authorized political committee, or their agents, or a political

party or its agents.” Senator McConnell now seeks to

. Appellants’ constitutional challenge to the coordination provisions

of Section 202, although flawed, does present a substantial question

insofar as that section is linked to the “electioneering communications”

provisions of BCRA that are before the Court. See McConnell J.S. 16. As

the district court majority noted, however, some of the Section 202

arguments made below also “challenge[] the scope of activities covered by

BCRA’s definition of ‘coordination’ ”; the majority concluded that those

arguments “are not ripe given the statutory construction of Section 214

and the recent promulgation of final regulations by the FEC.” JSSA

130sa (per curiam). If any appellant presses such arguments in this Court,

the Section 202 questions are to that extent nonjusticiable and

insubstantial for all the reasons set forth in this response with respect to

appellants’ claims regarding Section 214.

6

challenge Section 211 on First Amendment grounds. See

McConnell J.S. Question Presented 4 and pp. 7, 15-16. Inthe

district court, however, Senator McConnell and other

plaintiffs challenging BCRA waived all challenges to Section

211. Neither the Per Curiam opinion’s “Chart of the Court’s

Rulings” nor Judge Henderson’s comprehensive “catalogue”

of all challenges to BCRA’s provisions contains any

reference to Section 211. See JSSA 10-15sa (per curiam);

JSSA 186-214sa (Henderson). The reason for this omission

is spelled out on page 128sa, note 81 of the Per Curiam

opinion:

Although Plaintiffs ask for judgment as to BCRA’s

Section 211, ...at oral argument they stated that

they were not challenging the provision. See Tr. at

341-42 (Judge Henderson: Mr. Starr, I’ve got down

that you all are challenging [Section] 211. Am I

wrong about that? ... [Mr.] Baran: We are not

challenging section 211[.]). Furthermore, other

than a description of the provision, .. . Plaintiffs’

briefs are silent on the provision. (Second

alteration in original.)

It is difficult to imagine a more plain case of waiver.°

See, e.g., United States v. United Foods, Inc., 533 U.S. 405,

417 (2001) (declining to allow a challenger “to assert new

substantive arguments attacking . . . the judgment when

those arguments were not pressed in the court whose

opinion we are reviewing, or at least passed upon by it”);

Delta Air Lines, Inc. v. August, 450 U.S. 346, 362 (1981);

Dothard v. Rawlinson, 433 U.S. 321, 323 n.1 (1977).

° The waiver at oral argument was carefully considered. Judge

Henderson had earlier asked an attorney from the FEC a question about

BCRA § 211, and he responded: “They haven’t challenged that. There’s

been no briefing on that. That’s not part of their lawsuit.” Tr. at 316 (Mr.

Kolker). In response to Judge Henderson’s question quoted above, Mr.

Starr responded: “I need to double-check our list of provisions .... If it

deserves to be challenged, we will challenge it. (Laughter).” /d. at 341.

Following a 15-minute recess during which plaintiffs’ counsel conferred

among themselves, Mr. Baran reported back that “[wle are not

challenging section 211[.}” Jd. at 342.

7

B. The heart of Section 214 is Congress’s repeal of what

it deemed to be an errant FEC rule defining “coordination”

between a candidate or party and an outside spender, with

instructions to the agency to go back to the drawing board

and prepare new regulations. This Court and Congress have

long recognized that, to prevent evasion of the campaign

finance laws through “wink or nod” arrangements,

“coordination” must be defined in a broad and realistic

manner. FEC v. Colorado Republican Fed. Campaign

Comm., 533 U.S. 431, 442 (2001) (Colorado I1); see also

Buckley v. Valeo, 424 U.S. 1, 46-47 & n.53, 78 (1976) (per

curiam).

In December 2000, however, a divided FEC promul-

gated new regulations redefining “coordination” much more

narrowly in the context of “general public political

communications.” See 65 Fed. Reg. 76138 (Dec. 6, 2000); see

also 66 Fed. Reg. 23537 (May 9, 2001) (final rule and

effective date); 11 C.F.R. § 100.23 (2002), repealedby BCRA

§ 214(b). The FEC’s December 2000 rules provided in

material part that coordination could be found between a

candidate and a third party only where the third party’s

communication was “created, produced or distributed” (1)

“[{ajt the request or suggestion of the candidate,” (2) after

the candidate “has exercised control or decision-making

authority” with respect to the communication, or (3) “[a]fter

substantial discussion or negotiation ... the result of which

is collaboration or agreement” between the third party and

the candidate. 11 C.F.R. § 100.23(c)(2)(i)-(iii) (emphasis

added).

The new rules drew immediate and extensive criticism

both on and off the Commission. A recurrent complaint was

that the rules were “far too narrowly drafted and [would]

make evasion of [FECA] commonplace”—for example,

through the use of inside information by consultants and

employees who could achieve de facto coordination through

informal means while purporting to avoid the more formal

arrangements that triggered coverage under the FEC

8

rules.’ Section 214 followed directly from these criticisms.

Section 214(a) repeals the Commission’s former rules,

effective December 22, 2002; (b) provides that the

Commission “shall promulgate new regulations on

coordinated communications” addressing at a minimum four

specific situations;’ and (c) directs that the new rules “shall

not require agreement or formal collaboration to establish

coordination.”

Rather than await the product of the mandated FEC

rulemaking (which would, of course, be subject to judicial re-

view under the Administrative Procedure Act (APA), 5

U.S.C. §§ 701 et seq.), appellants flocked directly to the

three-judge district court to insist that it would be

impossible for the new, not-yet-drafted coordination rules

ever to comply with the First Amendment. Meanwhile, the

Commission proceeded with its coordination rulemaking, as

directed by Congress. The FEC issued its Notice of Pro-

posed Rulemaking on September 24, 2002, received written

comments and held a public hearing in October, and adopted

its replacement rules on December 5—the very day of oral

argument on appellants’ challenge to Section 214 in the

district court. The Commission transmitted its new rules to

Congress on December 18 and published them in the

Federal Register on January 3, 2003. See 68 Fed. Reg. 421

(detailing rulemaking history). Many of the appellants

" Statement of Reasons of Commissioner Thomas and Chairman

McDonald in Jn re The Coalition, et al., MUR 4624, at 8, 12 (FEC Sept. 7,

2001); see also Statement of Reasons of Commissioners Thomas and

McDonald in Jn re Republicans for Clean Air, MUR 4982, at $10 (FEC

Apr. 23, 2002); 148 Cong. Rec. 2144-45 (daily ed. Mar. 20, 2002) (statement

of Sen. Feingold).

* Section 214(c) directs the Commission to address (a) “payments for

the republication of campaign materials”; (b) “payments for the use of a

common vendor”; (c) “payments for communications directed or made by

persons who previously served as an employee of a candidate or a political

party”; and (d) “payments for communications made by a person after

substantial discussion about the communication with a candidate or a

political party.”

9

participated actively in the rule-making (as did many of the

intervenor-appellees).”

The district court correctly held appellants’ challenge to

the rulemaking mandate of Section 214 to be nonjusticiable.

See JSSA 144-56sa (per curiam). Whether evaluated under

principles of standing, ripeness, finality pursuant to 5 U.S.C.

§ 704, exhaustion of administrative remedies, or subject-

matter jurisdiction, appellants’ challenges to Section 214’s

rulemaking provisions were not properly before the three-

judge district court.'” To begin, appellants lack Article III

standing, for they can have suffered no “specific objective

harm” from a mere congressional instruction to the FEC to

rewrite its coordination rules. JSSA 145sa (per curiam); see

generally JSSA 145-48sa (per curiam). Until final rules were

in place, it was entirely speculative whether any particular

conduct in which an appellant wished to engage might be

covered by the revised rules or not.

It is also well-settled under principles of ripeness,

finality, and exhaustion that litigants may not attempt to

end-run congressionally established rulemaking procedures

for resolving an issue by seeking to litigate that issue

directly in court. See JSSA 148-56sa (per curiam); Nixon v.

Administrator of Gen. Servs., 433 U.S. 425, 430, 437-39

(1977) (matters subject to pending rulemaking were “not

ripe for review,” because final rules might “eliminate, limit,

or cast [the constitutional claims] in a different light”)

* Portions of the new coordination rules have been challenged under

the APA by Reps. Shays and Meehan. See Shays v. FEC, Civ. Action No.

02-C V-1984 (D.D.C.). To our knowledge, that is the only challenge that

has been brought against the new coordination rules.

' Some of these challenges are also now moot. For example, appel-

lants argued below that Section 214(b), which repealed the FEC’s former

rules, “substantially aggravated the constitutional violation” by creating a

period when there were no definitional rules in place. See JSSA 144sa

(per curiam). As the district court majority held, the Commission’s

promulgation of new rules rendered this “aggravation” claim moot. JSSA

136sa n.88, 144sa (per curiam).

10

(internal quotation marks omitted).'' These ripeness prin-

ciples apply fully in the First Amendment context. See

JSSA 145sa, 149-55sa (per curiam); Renne v. Geary,510 US.

312, 320-324 (1991)."°

In addition, any challenge to the outcome of the FEC

rulemaking on coordination must be brought in a single-

judge district court in an action for judicial review under the

APA. BCRA’s special jurisdictional grant “does not extend

to the consideration of FEC regulations.” JSSA 144sa (per

curiam); see JSSA 155-56sa (per curiam). The special

jurisdictional provisions of BCRA Section 403(a) for a three-

judge district court are limited to “any action. . . brought for

declaratory or injunctive relief to challenge the

constitutionality of any provision of this Act or any

amendment made by this Act.” Those provisions do not

extend the subject-matter jurisdiction of the three-judge

district court to challenges to administrative rules

promulgated pursuant to BCRA. Thus, there is no basis for

challenging such rules outside the usual APA framework.

See also FCC v. ITT World Communications, Inc., 466 U.S.

463, 468 (1984) (“[llitigants may not evade” statutory

procedures for judicial review of matters committed to

agency’s rulemaking process by commencing de novo actions

in district court).’®

' See also New Mexicans for Bill Richardson v. Gonzales, 64 F.3d

1495, 1504 n.5 (10th Cir. 1995); Public Citizen Health Research Group v.

FDA, 740 F.2d 21, 29 (D.C. Cir. 1984).

'? See also Martin Tractor Co. v. FE€, 627 F.2d 375, 378 (D.C. Cir.)

(affirming dismissal of First Amendment challenges to allegedly

ambiguous FECA language as “nonjusticiable as a constitutional matter

and inappropriate for adjudication as a prudential matter,” given the

opportunities for clarification through the FEC), cert. denied, 449 U.S. 954

(1980); Clark v. Valeo, 559 F.2d 642, 647 (D.C. Cir.) (per curiam) (judicial

review of various FECA issues inappropriate “because the unripeness of

the action is so pervasive”), aff'd, 431 U.S. 950 (1977).

= Judge Henderson appears to have concluded that BCRA’s

jurisdiction should be extended to the FEC’s rules on the theory that

“extreme” hardship would otherwise result “because ordinary APA

review of the regulations could take several months or even years.” JSSA

Appellants have argued that they are not required to

await the outcome of the FEC’s rulemaking because (they

contend) the First Amendment requires an outright

“agreement” for any expenditure to be treated as

“coordinated,” whereas Section 214(c) prohibits the FEC

from requiring an agreement to demonstrate “coordination.”

See JSSA 136-37sa & n.89, 146sa (per curiam); McConnell

J.S. 16. The district court majority dissected this argument

at length and correctly found it to be “inconsistent with the

holdings of Buckley and its progeny.” JSSA 146sa (per

curiam); see alsoJSSA 138-43sa (per curiam). As the district

court stressed, Buckley expressly endorsed treating

expenditures made “‘at the request or suggestion of the

candidate or his agent{ |’ ” as “coordinated,” a standard that

clearly does not “equate to agreement.” JSSA 139sa (per

curiam) (quoting Buckley, 424 U.S. at 47 n.53) (internal

citations omitted); 143sa (per curiam)."*

It is therefore untenable to assert that any provision of

Section 214 requires the FEC to violate any constitutional

principle articulated in this Court’s decisions applicable to

coordinated expenditures. Accordingly, appellants have no

basis for disregarding the rulemaking procedures

established by Congress, which may well have resolved

many if not all of their practical concerns without the need

for litigation on this issue. See JSSA 148sa, 150-52sa, 155-

56sa (per curiam). Of course, if appellants are dissatisfied

with the outcome of the FEC’s rulemaking, they can

challenge the Commission’s coordination rules in an action

396sa. As the majority explained, that position does not take account of

the fact that expedition and interim relief are available in APA challenges.

JSSA 155-56sa & n.98-99 (per curiam). In any event, that argument

cannot supply subject-matter jurisdiction to review rulemaking issues

where no such jurisdiction has been granted by Congress.

'4 See also Colorado Republican Fed. Campaign Comm. v. FEC,

518 U.S. 604, 614 (1996) (plurality opinion) (Colorado I); (recognizing need

to rach “general . . . understanding[s]”); Colorado II, 533 U.S. at 442

(same, with respect to “wink or nod” arrangements) .

12

under the APA, in which they may raise both constitutional

and statutory challenges to those rules.”

C. Section 214 makes two other minor changes to

FECA outside the rulemaking context. Any challenges to

those provisions that might be raised by appellants are

insubstantial.

First, Section 214(a) extends FECA’s longstanding

regulation of coordination with candidates and candidate

committees to include coordination with any “national, State,

or local committee of a political party” as well. As the

district court majority explained, Congress simply took the

“same definition [that] has been applied to expenditures

coordinated with political candidates for over 25 years,” and

applied it to coordination with parties. JSSA 135sa (per

curiam). In doing so, Congress acted on the need to avoid

circumvention of FECA’s contribution limits, a necessity

long recognized by both this Court and Congress.”

Congress has found that, to enforce those contribution limits

effectively, it is necessary to apply the coordination

regulations to coordination with both candidates and parties.

There is no basis in law or in the record to set aside this

congressional judgment. As the district court majority

concluded, “[appellants] have provided no explanation as to

” Judge Henderson expressed the view that vague coordination

standards could threaten to interfere with protected lobbying and

information-gathering activities. See JSSA 280-86sa, 386-96sa. Again,

that point is a question for APA review of the FEC’s coordination

regulations rather than this litigation. Moreover, the sponsors of BCRA

repeatedly emphasized that any rule that sought to find “coordination”

based on genuine lobbying activities would be contrary to Congress’s

intent. See, e.g., 148 Cong. Rec. $2145 (daily ed. Mar. 20, 2002) (statement

of Sen. McCain). Consistent with that legislative intent, the FEC’s new

rules contain a safe-harbor provision for “responses to inquiries about

legislative or policy issues.” 68 Fed. Reg. at 455 (quoting new 11 C.F.R.

§ 109.21(f)). Thus, as the district court majority explained, appellants’

claims that their genuine lobbying activities could be in jeopardy are

speculative at best, and are insufficient to meet Article III standing

requirements. See JSSA 147sa n.95. (per curiam).

'6 See Colorado II, 533 U.S. at 447, 464; Buckley, 424 U.S. at 46-47 &

n.53, 78; 2 U.S.C. § 441a(a)(7(BY(i).

13

why the application of this coordination formula to the

context of political parties chills political speech any more

than when applied to expenditures coordinated with political

candidates.” JSSA 137sa (per curiam).

Second, appellants may raise a First Amendment

constitutional challenge to BCRA Section 214(d). As the

district court majority explained, however, that provision

simply amends 2 U.S.C. § 441b to bring its definitions into

alignment with other sections of FECA. JSSA 156-57sa (per

curiam). Thus, any challenge to Section 214(d) is likewise

insubstantial and does not warrant this Court’s plenary

consideration.

CONCLUSION

In No. 02-1674, the Court should summarily dispose of

appellants’ challenges to Sections 211,212, and 214. In other

respects, the Court should note probable jurisdiction of the

appeals in No. 02-1674 and No. 02-1675 and set those cases

for plenary review.

Respectfully submitted,

ROGER. M. WITTEN SETH P. WAXMAN

WILMER, CUTLER & Counsel of Record

PICKERING RANDOLPH D. Moss

399 Park Avenue ERICJ. 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

J UNE 2003