# Response — Republican National Committee v. Federal Election Commission

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Response
- **Published:** January 1, 2003
- **Citation:** 539 U.S. 912

## Text

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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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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0670%3A04. Public record. Not legal advice.