# Response — National Rifle Assn. v. Federal Election Commission

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0665%3A05

## Record

- **Collection:** Supreme Court brief
- **Document type:** Response
- **Published:** January 1, 2003
- **Citation:** 539 U.S. 939

## Text

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Nos. 02-1674 and 02-167¢MAY 2 3 2003

IN THE 4

Supreme Court of the United States

SENATOR MITCH MCCONNELL, et al.,
Appellants,

v.

FEDERAL ELECTION COMMISSION, et al.,
Appellees.

NATIONAL RIFLE ASSOCIATION, et al.,
Appellants,
v.

FEDERAL ELECTION COMMISSION, et al.,
Appellees.

On Appeals from the
United States District Court
for the District of Columbia

INTERVENOR-APPELLEES’ RESPONSE
TO JURISDICTIONAL STATEMENTS

ROGER M. WITTEN SETH P. WAXMAN

WILMER, CUTLER & Counsel of Record
PICKERING RANDOLPH D. Moss

399 Park Avenue 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
LS

BURT NEUBORNE

FREDERICK A.O. SCHWARZ, JR.

BRENNAN CENTER FOR
JUSTICE

161 Avenue of the Americas,

12th Floor
New York, NY 10013

CHARLES G. CURTIS, JR.
DAVIDJ. HARTH
MICHELLE M. UMBERGER
HELLER EHRMAN WHITE &
MCAULIFFE LLP

One East Main Street, Suite 201

Madison, WI 53703

BRADLEY S. PHILLIPS

MUNGER, TOLLES &
OLSON LLP

355 South Grand Ave.

35th Floor

Los Angeles, CA 90071

E. JOSHUA ROSENKRANZ

HELLER EHRMAN WHITE &
MCAULIFFE LLP

120 West 45th Street

New York, NY 10036

ALAN B. MORRISON

ScoTT L. NELSON

PUBLIC CITIZEN LITIGATION
GROUP

1600 20th Street, N.W.

Washington, D.C. 20009

MICHAEL D. LEFFEL

A. KRISAN PATTERSON

JENNIFER L. MUELLER

STACY E. BECK

JERROD C. PATTERSON

WILMER, CUTLER &
PICKERING

2445 M Street, N.W.

Washington, D.C. 20037

FRED WERTHEIMER
ALEXANDRA EDSALL
DEMOCRACY 21

1825 Eye Street, N.W.
Suite 400

Washington, D.C. 20006

TREVOR POTTER

GLEN M. SHOR

CAMPAIGN LEGAL CENTER
1101 Connecticut Ave., N.W.
Suite 330

Washington, D.C. 20036

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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
yt Fs, ; | i
po RT Le,
TABLE OF AUTHORITIEG........:c:ceccsscssosssssssssesssesessessees iv
I ieircriettenitintrentnentinniniatihiemniieiiiiel 1
[EC 3

I. APPELLANTS FAIL TO RAISE JUSTICIABLE OR
SUBSTANTIAL QUESTIONS WITH RESPECT TO
ANY “ADVANCE NOTICE” REQUIREMENT IN
Se Cette ecinnsrcsnennsnetesnsninsnennindmienimpeaseienees 3

II. APPELLANTS FAIL TO RAISE JUSTICIABLE OR
SUBSTANTIAL QUESTIONS WITH RESPECT TO
THE COORDINATION PROVISIONS OF BCRA
SECTIONS 211 AND 214.........c.ccccssssosssssssssereserersesesesesesees 5

CIE ee eecncrssnssersecsnsssesessssessunecsnscassesevesnasnsenssscsensensest 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,

ee 10
Colorado Republican Federal Campaign Com-

mittee v. FEC, 518 U.S. 604 (1996).........ccccceeeseeeeeeeeees 11
Delta Air Lines, Inc. v. August, 450 U.S. 346 (1981)............. 6
Dothard v. Rawlinson, 433 U.S. 321 (1977).........cccccccccereeeees 6
FCC v. ITT World Communications, Inc.,

GBB UB, GBB (BBO nccccccccscesscsscscvescssssessssssssssssscsssssssessses 10
FEC v. Colorado Republican Federal Campaign

Committee, 533 U.S. 431 (2001) ......cccceerseereeerees 7,11, 12
Martin Tractor Co. v. FEC, 627 F.2d 375 (D.C.

Cir.), cert. denied, 449 U.S. 954 (1980)........ceceeereeeenes 10
New Mexicans for Bill Richardson v. Gonzales,

64 F.3d 1495 (LOth Cir. 1995)..........cccceseeereeereeeeneeeneennes 10
Nixon v. Administrator of General Services,

GBB UB, GBB (BDF) cccccccccscssccsnccssccssccsscssssssessnssssssssccssssesss 9
Perez v. Ledesma, 401 U.S. 82 (1971)...........cseccscesesseeeseesenenes 3
Public Citizen Health Research Group v. FDA,

740 F.2d 21 (D.C. Cir. 1984)...........crsssseerssenssenrseenses 10
Public Service Commission v. Brashear Freight

Lines, Inc., 306 U.S. 204 (1939)........cccsererseerseerseereeenees 3
Renne v. Geary, 501 U.S. 312 (1991) .......cccccerrserreeerneeneee 4,10
United States v. United Foods, Inc., 533 U.S. 405

| 6
Virginia v. American Booksellers Association,

4B4 UB. SEB (2BBE) ..cccccccccssccesessccssseccsscsesscssssssssrssssesssseese 4
Wisconsin Right to Life, Inc. v. Paradise,

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

CONSTITUTION, STATUTES AND REGULATIONS

Bipartisan Campaign Reform Act of 2002, Pub. L.
No. 107-155, 116 Stat. 81

Vv

TABLE OF AUTHORITIES—Continued
Page(s)
Se a eT passim
_§$_ STD passim
pair eibersersuteiiinseaseiiiasienaraiinattaiaiiinemestmaansttastiseaiatatinaas passim
Senay ae a ee 12
a ee 2,7,9
Ran een Ee 2,8, 11
_,___ EEE SE NSE Ona ee ee ES aD 3
___ Sn evnTeN eee 10
_, , LN eT eS 2
SP eaTETTETE ietosciniiletiaiiiaiaiaiaeaatiaaaanat iia 2
i are esticiesieneuieicstencisarensiseataminiattiniasaitatnaaainaialiasitiatiiaiiasas l

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

92-225, 86 Stat. 3

ch Ne a E 3
a TTT 12

Administrative Procedure Act, Pub. L. No. 103-272,
80 Stat. 392

a 8,9
vl NS 7
65 Fed. Reg. 76138 (Dec. 6, 2000). .........c.cecssssesesesesssesesenesceees 7
66 Fed. Reg. 23537 (May 9, 2001).........c.sssssesssesssssssesesesereees 7
68 Fed. Reg. 404 (Jan. 3, 2003) (to be codified at 11

ns a enrieteeearhaatticcitacattcarintiittaenttataaneaes 4
GB PO, Theme, GB Clam, B, BIG occccccccccsccccccssccccscccscsscscsscnscsseens 8
68 Fed. Reg. 455 (Jan. 3, 2008)..........cccccscssseserecesseseressseesees 12
148 Cong. Rec. 82144 (daily ed. Mar. 20, 2002)...........ccecesseeee 8
148 Cong. Rec. S2145 (daily ed. Mar. 20, 2002)................ 8, 12
Fe is eh I icesincinsitiiehtiitiiaerirrtstemerartaemeenes 1

MISCELLANEOUS

Statement of Reasons of Commissioner Thomas &
Chairman McDonald in In re The Coalition, et
al., MUR 4624 (FEC Sept. 7, 2001)..........ccccccccccescescoceees 8
Statement of Reasons of Commissioners Thomas
and McDonald in In re Republicans for Clean
Air, MUR 4982 (FEC Apr. 23, 2002) .0........cccceccecceseeseeee s

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—— >

IN THE

Supreme Court of the United States

No. 02-1674
SENATOR MITCH MCCONNELL, et al.,
Appellants,
v.
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 prcvision 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

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
cor.tend 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 McConneil 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 FAR TO RAISE JUSTICIABLE OR
SUBSTANTIAL QUESTIONS WITH RESPECT TO THE
COORDINATION PROVISIONS OF BCRA S&CTIONS 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] candidate, 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. In the
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).” Jd. at 341.
Following a 15-minute recess during which plaintiffs’ counsel conferred
among themselves, Mr. Baran reported back that “[wje 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 II); 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)
“(a]jt 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 In re Republicans for Clean Air, MUR 4982, at 910 (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 ofa
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 prucedures
for resolving an issue by seeking to litigate that issue
directiy 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-CV-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) (“[l]itigants may not evade” statutory
procedures for judicial review of matters committed t
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. FEC, 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).

8 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

= a

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 wach “general . . . understanding{s]"); Colorado I], 583 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 afe-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).

"© See Colorado II, 533 U.S. at 447, 464; Buckley, 424 U.S. at 46-47 &
n.53, 78; 2 U.S.C. § 441a(aX7BXi).

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

JUNE 2003

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0665%3A05. Public record. Not legal advice.