Response — Republican National Committee v. Federal Election Commission

FILED

& JUN 2 - 2003

Nos. 02-1727 and 02-1733

RK

IN THE

Supreme Court of the United States

REPUBLICAN NATIONAL COMMITTEE, et al.,

Appellants,

v.

FEDERAL ELECTION COMMISSION, et al.,

Appellees.

. NATIONAL RIGHT TO LIFE COMMITTEE, INC., et al.,

Appellants,

Vv.

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 ERIC J. 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 r

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 F RFD 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 8S. PHILLIPS

MUNGER, TOLLES & TREVOR POTTER

OLSON LLP GLEN M. SHOR

855 South Grand Ave. CAMPAIGN LEGAL CENTER

25th 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

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QUESTIONS PRESENTED

1. Whether the Court should summarily dispose of ap-

pellants’ constitutional challenges to Sections 212, 214(b),

214(c), 304, 319, and 403(b) of the Bipartisan Campaign Re-

form Act of 2002 (BCRA), Pub. L. No. 107-155, 116 Stat. 81,

because those challenges are plainly nonjusticiable or insub-

stantial under settled law.

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

probable jurisdiction over appellants’ constitutional chal-

lenges to BCRA, and set the appeals on those issues for

briefing and oral argument.

(i)

QUESTIONS PRESENTED

TABLE OF AUTHORITIES

INTRODUCTION

TABLE OF CONTENTS

ARGUMENT ......=

I.

Il.

III.

IV.

SSS SE SEE EEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEE

THE RNC APPELLANTS FAIL TO RAISE ANY

JUSTICIABLE QUESTION WITH RESPECT TO

THE COORDINATION RULEMAKING PROVI-

SIONS OF BCRA SECTION 214(b}(€) ..........ccc0e000ee

THE RNC APPELLANTS LACK STANDING TO

CHALLENGE THE “MILLIONAIRES PROVI-

SIONS” OF BCRA SECTIONS 304 AND 319.............

THE NRLC APPELLANTS FAIL TO RAISE ANY

JUSTICIABLE OR SUBSTANTIAL QUESTION

WITH RESPECT To BCRA SECTION 212 ..............

THE NRLC APPELLANTS FAIL TO RAISE ANY

SUBSTANTIAL QUESTION WITH RESPECT TO

THE GEOGRAPHIC SCOPE OF THE DISTRICT

COURT'S INJUNCTIVE RELIEF ..........ccccssescsceseseees

THE NRLC APPELLANTS FAIL TO RAISE ANY

SUBSTANTIAL QUESTION WITH RESPECT TO

THE CONGRESSIONAL INTERVENORS’ STAND-

ING UNDER BCRA SECTION 403(b) ..................+.

CONCLUSION

APPENDIX

(ii)

SOSH EEE EEE EEE SESE EEEEEEEEE EE EEE HEED

iv

TABLE OF AUTHORITIES

CASES

Page(s)

Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam)............... 7,8

Clark v. Kimmitt, 431 U.S. 950 (1977)...........cccccccesseseeseseeees 2

Cook v. Gralike , 531 U.S. 510 (2001).........ccccscccsseeereeeneeeenenees 7

Don't Bankrupt Washington Committee v. Conti-

nental Illinois National Bank & Trust Co.,

GBD ULE, BOGE CIID ceceneccessssscessesecesscecssncesssssesssnnsssesssss0 2

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ..........++ 5

Marshall v. Meadows, 921 F. Supp. 1490

GERD. Ver, BR ccecccscsennsssnenssnsannsssssecsnsseseesemesnmssesssnsemeses 7

Meek v. Metropolitan Dade County, 985 F.2d 1471

tl ee 7

Nixon v. Shrink Missouri Government PAC,

OC 7

Raines v. Byrd, 521 U.S. 811 (1997)........ccseeseeeeerreeeneeneenees 7

Republican National Committee v. FEC,

GOB UB, GE Cia ccceccsccccecccsscesczscsscevsencecsssensenenssesssesenss 2

Vote Choice, Inc. v. DiStefano, 4 F.3d 26 (ist Cir.

DI cececeassnsonecnsnennnssenennssssssmmnemnsmnnnannmmennsmenses 7

Whitmore v. Arkansas, 495 U.S. 149 (1990) ...........cccccccceeees 5

STATUTES

Bipartisan Campaign Reform Act of 2002, Pub. L.

No. 107-155, 116 Stat. 81

a 5, 6

Se 3,4

Re 4

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Re 4

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DID cccrrcsreemsnsmmemnenemmememnmmennemn 3

MITT ns sinsitateiieninennenenbanassusianeumiaaiabbaineesaentts l

yp ERR NRL EE 6,7

IN THE

Supreme Court of the United States

NO. 02-1727

REPUBLICAN NATIONAL COMMITTEE, et al.,

Appellants,

v.

FEDERAL ELECTION COMMISSION, et al.,

Appellees.

No. 02-1733

NATIONAL RIGHT TO LIFE COMMITTEE, INC., et al.,

Appellants,

v.

FEDERAL ELECTION COMMISSION, et al.,

Appellees.

INTERVENOR-APPELLEES’ RESPONSE

TO JURISDICTIONAL STATEMENTS

INTRODUCTION

Although intervenor-appellees take issue with the posi-

tions taken on the merits by the Republican National Com-

mittee (RNC), et al., and the National Right to Life Commit-

tee (NRLC), et al., in their jurisdictional statements, we

agree that many of the questions presented in their jurisdic-

tional statements warrant plenary consideration by this

Court.’ In light of Sections 403(a)(3) and (a)(4) of the Bipar-

, Intervenor-appellees are Senator John McCain, Senator Russell

Feingold, Representative Christopher Shays, Representative Martin

2

tisan 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 na-

tion, intervenor-appellees submit that the Court should note

probable jurisdiction over these appeals and set the cases for

briefing and oral argument.

Some of the questions presented in the RNC and NRLC

jurisdictional statements, however, do not warrant plenary

consideration by this Court. Those questions raise chal-

lenges to BCRA that are either clearly nonjusticiable under

well-settled principles of constitutional and administrative

law, or otherwise so insubstantial as not to justify further

briefing and argument. It is entirely appropriate for the

Court to summarily dispose of appeals by dismissal or affir-

mance, insofar as they seek to raise issues that are nonjusti-

ciable or insubstantial.” Summary disposition of such issues

is especially appropriate in complex cases such as these,

which present challenges by 77 separate parties to nearly

two dozen separate provisions. See Supplemental Appendix

to Jurisdictional Statement (JSSA) 10-15sa (“Chart of the

Court’s Rulings”), 76-77sa n.55 (per curiam). Through sum-

mary disposition, the Court can focus briefing and argument

on those issues that warrant plenary review. Such summary

disposition would promote the orderly and expedited resolu

tion of the various pending challenges to BCRA.

Meehan, Senator Olympia Snowe, and Senator James Jeffords. The inter-

venors are also appellants in No. 02-1702, McCain v. McConnell.

® See S. Ct. R. 18.6 and 18.12; see also Don't Bankrupt Wash. Comm.

v. Continental Ill. National Bank & Trust Co., 460 U.S. 1077 (1983)

(summary dismissal for want of jurisdiction, “it appearing appellant lacks

standing to bring this appeal”); Republican National Comm. v. FEC, 445

U.S. 955 (1980) (summary dfirmance of lower court decisions rejecting

various constitutional challenges to campaign finance laws on the merits);

Clark v. Kimmitt, 431 U.S. 950 (1977) (summary affirmance of D.C. Cir-

cuit’s dismissal of various challenges to campaign finance laws as nonjusti-

ciable).

3

ARGUMENT

I. THERNC APPELLANTS FAIL TO RAISE ANY JUSTICIA-

BLE QUESTION WITH RESPECT TO THE COORDIN A-

TION RULEMAKING PROVISIONS OF BCRA SECTION

214(b)-(c)

Like the McConnell appellants, the RNC appellants

challenge the coordination rulemaking provisions of BCRA

Section 214(b)-(c). See RNC J.S. Question Presented 2 and

pp. 15-16. The RNC appellants contend that Section 214 di-

rected the Federal Election Commission (FEC) to promul-

gate coordination rules that will necessarily encompass con-

duct that is truly independent of a candidate, and will make

political parties responsible for independent expenditures by

persons or entities with whom the parties have little if any

relationship. See RNC J.S. 4, 6, 15-16.

For the reasons set forth at pages 7-12 of our response

to the McConnell and NRA jurisdictional statements (Nos.

02-1674 and 02-1675, respectively), these challenges to Sec-

tion 214 fail under well-established principles of justiciability

and subject-matter jurisdiction. Appellants have no basis

for a facial challenge to Section 214, for there is nothing in

that provision that requires the FEC to issue regulations

that would conflict with any constitutional principle that this

Court has articulated with respect to independent expendi-

tures. To the extent the RNC appellants are dissatisfied

with the outcome of the FEC’s rulemaking, they may chal-

lenge the Commission’s coordination rules in an action for

judicial review under the Administrative Procedure Act, in

which they may raise both constitutional and statutory chal-

lenges to those rules. The district court was therefore

clearly correct in holding these claims to be nonjusticiable

and beyond the subject-matter jurisdiction of the special

three-judge district court conferred by BCRA Section

403(a). See JSSA 134-56sa (per curiam).

4

Il. THE RNC APPELLANTS LACK STANDING TO CHAL-

LENGE THE “MILLIONAIRES PROVISIONS” OF BCRA

SECTIONS 304 AND 319

The third question presented in the RNC’s jurisdic-

tional statement is whether BCRA’s so-called “Millionaires

Provisions” violate constitutional equal protection principles.

The challenged provisions in BCRA Sections 304 and 319

allow a Senate or House candidate, respectively, to raise

hard money in increased amounts if his or her opponent

spends large sums of personal money on the campaign. The

contribution limits increase depending on the amount of per-

sonal funds expended by the self-financed opponent. The

statutory formula takes into account funds amassed by can-

didates (not including contributions from personal funds), so

that an incumbent candidate with a sizable war chest will not

benefit unless his or her self-financed opponent devotes a

much larger amount of personal funds to the campaign. See

BCRA § 316. A candidate whose opponent spends a “per-

sonal funds amount” more than a certain sum may also ac-

cept ncreased coordinated expenditures from his or her

state or national party. See BCRA § 304(a) (Senate),

§ 319(a) (House). A candidate’s ability to accept contribu-

tions and party coordinated expenditures under these in-

creased limits is subject to an overall cap tied to the amount

spent by the self-financed opponent. /d.

The RNC appellants contend that these provisions “ef-

fectively punish any Senate or House candidate who uses

more than specified amounts of personal assets to fund his or

her campaign,” thereby violating such candidates’ “First

Amendment-protected rights to spend their own resources.”

RNC JS. 4,6. The district court unanimously and correctly

held, however, that none of the RNC appellants has standing

to challenge those provisions in this litigation. See JSSA 8sa

(per curiam), 475-77sa (Henderson). As Judge Henderson

explained, none of the RNC appellants claims to be a candi-

date or even a potential candidate for the House or Senate

who might spend more than the specified amounts of per-

sonal funds on a campaign. See JSSA 477sa. Accordingly, a

5

claim that any of the RNC appellants would suffer disadvan-

tage because of the challenged provisions is entirely theo-

retical at this point.

The RNC appellants also argue that political parties

have standing to challenge Sections 304 and 319 on equal

protection grounds because those provisions supposedly re-

quire parties to treat their own similarly situated candidates

differently, with respect to making coordinated expendi-

tures. See RNC J.S. Question Presented 3 and pp. 16-17. As

Judge Henderson explained, that reading of BCRA is plainly

wrong: “even in circumstances where the provisions permit

a party committee to engage in unlimited coordinated spend-

ing [subject to the overall cap], they do not require a com-

mittee to do so.” JSSA 477sa.

Moreover, whether the party coordinated-expenditure

limits are altered in any given instance will depend on a

large number of highly conjectural variables: the party’s

candidate must face a wealthy opponent; the opponent must

decide to spend a “personal funds amount” over a certain

sum; the relative campaign funds available to the respective

candidates must exceed a certain ratio; and a candidate who

otherwise qualifies to benefit from increased party coordi-

nated expenditures must request them. This string of vari-

ables confirms that the RNC appellants fail to meet the Ar-

ticle III requirement of injury that is “actual or imminent,

not conjectural or hypothetical.” Whitmore v. Arkansas, 495

U.S. 149, 155 (1990) (internal quotation marks and citation

omitted); see also Lujan v. Defenders of Wildlife, 504 U.S.

555, 601 (1992).

Ill. THE NRLC APPELLANTS FAIL TO RAISE ANY JUSTI-

CIABLE OR SUBSTANTIAL QUESTION WITH RESPECT

To BCRA SECTION 212

Like the McConnell appellants, the NRLC appellants

seek to challenge what they maintain is a requirement in

BCRA Section 212 that “advance notice” be given of inde-

pendent expenditures. See NRLC J.S. Question Presented 5

and p. 22. As we have explained in our response to the

McConnell and NRA jurisdictional statements, at pp. 3-5,

6

the FEC has unambiguously construed Section 212 not to

require any such advance notice. Accordingly, as the district

court concluded (see JSSA 130-34sa (per curiam)), there is no

credible threat that Section 212 will be enforced against

anyone in the manner that the NRLC appellants fear, and so

any challenge to Section 212 on the ground that it unconsti-

tutionally requires “advance notice” is clearly nonjusticiable

and without merit.

IV. THE NRLC APPELLANTS FAIL TO RAISE ANY SUB-

STANTIAL QUESTION WITH RESPECT TO THE GBO-

GRAPHIC SCOPE OF THE DISTRICT COURT’S INJUNC-

TIVE RELIEF

The NRLC appellants ask this Court to decide

“(whether [the] District Court injunction should extend to

activities outside the District of Columbia.” NRLC JS.

Question Presented 6; see also id. at 22-24. That question

presents no issue appropriate for this Court’s consideration.

The district court stayed its injunction on May 19, pending

this Court’s final disposition of the appeals from the district

court’s final judgment. On May 23, the Chief Justice denied

the NRLC appellants’ application to wcate the district

court’s stay. Thus, there is no injunction presently in effect,

let alone one that is only being honored within the District of

Columbia. This Court’s final disposition of the appeals, of

course, will have nationwide force. The question presented

is thus plainly insubstantial.

V. THE NRLC APPELLANTS FAIL TO RAISE ANY SUB-

STANTIAL QUESTION WITH RESPECT TO THE CON-

GRESSIONAL INTERVENORS’ STANDING UNDER BCRA

SECTION 403(b)

Finally, the NRLC appellants ask this Court to decide

whether BCRA Section 403(b), which permits Members of

Congress to intervene in any action brought to challenge the

constitutionality of BCRA, violates Article III standing

principles. See NLRC J.S. Question Presented 7 and pp. 24-

7

27.° The NRLC argues that a party who seeks to intervene

as a defendant must establish Article III standing, and con-

tends that the courts of appeals have reached conflicting

conclusions on that point. That question, however, is not

presented by this case, because the district court assumed

that a party seeking to intervene as a defendant must estab-

lish Article III standing, and then unanimously concluded

that the intervenors in this case had done so. See App.., in-

fra, 4a-6a.

In challenging the intervenors’ standing, the NRLC

errs in analogizing this case to Raines v. Byrd, 521 U.S. 811,

829 (1997), and similar cases involving the standing of legis-

lators who sought to vindicate various institutional interests.

See NRLCJ.S. 26. As the district court correctly explained,

the intervenors in this case “do not seek to vindicate a ‘spon-

sorship’ interest in the Act.” App., infra, 7a. Rather, the

intervenors have Article III standing as direct individual

participants in the electoral process, with respect to the laws

governing the processes by which they seek and retain their

offices. Thus, “as opposed to members of the general public,

{intervenors] have a concrete, direct, and pei sonal stake—as

candidates and potential candidates—in the outcome of a

constitutional challenge to a law regulating the prucesses by

which they may attain office.” Id. at 6a.*

* The NRLC appellants acknowledge that Section 403(b), by provid-

ing for intervention of right by Members of Congress, removes any pru-

dential standing concerns that might otherwise exist. See NRLC J.S. 25;

see also Raines v. Byrd, 521 U.S. 811, 820 n.3 (1997).

* See also Buckley v. Valeo, 424 U.S. 1, 7-8, 12 n.11 (1976) (per cu-

riam); Nixon v. Shrink Missouri Gov't PAC, 528 U.S. 377, 383 (2000); Vote

Choice, Inc. v. DiStefano, 4 F.3d 26, 37 (1st Cir. 1993) (“{AJn impact on the

strategy and conduct of an office-seeker’s political campaign constitutes

an injury of a kind sufficient to confer standing.”); Meek v. Metropolitan

Dade County, 985 F.2d 1471 (11th Cir. 1993) (standing to intervene in de-

fense of election law); Marshall v. Meadows, 921 F.. Supp. 1490, 1492 (E.D.

Va. 1996) (candidate standing to defend election law); cf. Cook v. Gralike,

531 U.S. 510, 531 (2001) (Rehnquist, C.J., concurring in the judgment) (“no

one questions the standing” of candidates with respect to ballot-access

provisions).

8

Moreover, it is far from clear how the NRLC appellants

could benefit from their challenge to the intervenors’ stand-

ing in this Court. Even if the NRLC appellants persuaded

this Court that the intervenors lacked standing, that would

not provide a basis for reversal or vacatur of any aspect of

the district court’s decision that was adverse to them, for

they would still have to prevail on the merits against the

Executive Branch defendants. The situation in this case is

therefore closely analogous to that in Buckley v. Valeo, 424

U.S. 1, 12 (1976) (per curiam), in which this Court decided

not to linger over questions of individual party standing

given that “at least some” parties had standing with respect

to each challenged statutory provision.

CONCLUSION

The Court should summarily dispose of the RNC and

NRLC appellants’ challenges to Sections 212, 214(b), 214(c),

304, 319, and 403(b). In all other respects, the Court should

note probable jurisdiction of the appeals in these cases and

set the cases for plenary review.

It is, moreover, highly ironic that the NRLC appellants would chal-

lenge the standing of the intervenor-appellees, given that two of the ob-

jecting appellants, Representative Mike Pence and Alabama Attorney

General Bill Pryor, base their own standing on precisely the same kinds of

interests in the electoral process. See McConnell, et al., Second Amended

Complaint 14 17, 18.

ROGER M. WITTEN

WILMER, CUTLER &

PICKERING

399 Park Avenue

New York, NY 10022

J UNE 2003

Respectfully submitted,

SETH P. WAXMAN

Counsel of Record

RANDOLPH D. Moss

ERICJ. MOGILNICKI

EDWARD C. DUMONT

PAUL R.Q. WOLFSON

WILMER, CUTLER &

PICKERING

2445 M Street, N.W.

Washington, D.C. 20037

(202) 663-6000

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