Response — National Right to Life Committee, Inc. v. Federal Election Commission

FILED

wv JUN 2 - 2003

Nos. 02-1727 and 02-1733

ee

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

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

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

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 8S. PHILLIPS

MUNGER, TOLLES & TREVOR POTTER

OLSON LLP GLEN M. SHOR

355 South Grand Ave. CAMPAIGN LEGAL CENTER

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

Suite 330

Los Angeles, CA 90071

Washington, D.C. 20036

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

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)

TABLE OF CONTENTS

Page

EEE ERLE eR ea eS a i

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

NN i i es 1

| EEE Eee ee ee tee een 3

I. THE RNC APPELLANTS FAIL To RAISE ANY

JUSTICIABLE QUESTION WITH RESPECT TO

THE COORDINATION RULEMAKING PROVI-

SIONS OF BCRA SECTION 214( D(C) ........ccccecceeesseeeeeees 3

Il. THE RNC APPELLANTS LACK STANDING TO

CHALLENGE THE “MILLIONAIRES PROVI-

SIONS” OF BCRA SECTIONS 304 AND 319.................... 4

III. THE NRLC APPELLANTS FAIL TO RAISE ANY

JUSTICIABLE OR SUBSTANTIAL QUESTION

WITH RESPECT TO BCRA SECTION 212 .........ccseeseeeees 5

IV. THE NRLC APPELLANTS FAIL TO RAISE ANY

SUBSTANTIAL QUESTION WITH RESPECT TO

THE GEOGRAPHIC SCOPE OF THE DISTRICT

COURT'S INJUNCTIVE RELIEF .............cccsscssssssssssessseees 6

V. THE NRLC APPELLANTS FAIL TO RAISE ANY

SUBSTANTIAL QUESTION WITH RESPECT TO

THE CONGRESSIONAL INTERVENORS’ STAND-

ING UNDER BCRA SECTION 403(D) ..........ccssesseeeeeeeeeees 6

CFU IGS crcssssssvecssesscssnesscsessnssnsssssnsscnseremmnesvenusnsssvente 8

BPP TRRCIIER, crcsssssscessssssecssssssessssssssssssssesssvessssssessssseessesseesses la

(iti)

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)..........cccccesssceersseeeeeseees 2

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

Don’t Bankrupt Washington Committee v. Conti-

nental Illinois National Bank & Trust Co.,

GD ae Be Ce crertremnnsnemneenne 2

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ..........0++ 5

Marshall v. Meadows, 921 F. Supp. 1490

GS Wei, Siete nceesensnsssnscesmsesnemensntusenmeenenienmeinmennenn 7

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

et a 7

Nixon v. Shrink Missouri Government PAC,

ee Ce ee ee rnsencnenscsemecsesremmmensemnneemee 7

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

Republican National Committee v. FEC,

GE Be Ge ee renrennstentetemme 2

Vote Choice, Inc. v. DiStefano, 4 F.3d 26 (1st Cir.

a senepenegpensemempensumspnesnapequsenensuenegene 7

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

STATUTES

Bipartisan Campaign Reform Act of 2002, Pub. L.

No. 107-155, 116 Stat. 81

OGSEED cxnssmsemnnnsseinenestemnenieemeenns 5, 6

§ BIG. ...........-cecsvessssssssvsvsvsssvsvsvsesseesssesesssssvsesessssssoosesese 3,4

SOUEEET? cenecnsessumusesssrenessentersetsnntemnsnesesnennentaangsnanieuapntens 4

UEP ccncmnsesensmniemnnnntieemmmnieiaabnitennenten 4

TOUTED conuunennmecenemnenemempennsaenisensnineseumtenmnmannindendsitinnniends 4

DGD cunnnunssbmensmemmesmemeimene 4

III ccnnsnspeememepaneitueuemienmepeenmmmnmueineeniais 3

GED cenunsnnesenessssmnne 1

STR ccessessnssscsssseseesresnssessnssnssnssnssnssnesseesesunenessormnes 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 COORDINA-

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 JUST

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 GBD-

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.

Vv. 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 NRLC J.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 divect 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 personal stake—as

candidates and potential candidates—in the outcome of a

constitutional challenge to a law regulating the processes by

which they may attain office.” Jd. 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 au-

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) (stariding to intervene in de-

fense of election law); Marshall v. Meadows, 9%. #’. Supp. 1490, 1492 (E.D.

Va. 1996) (candidate standing to defend electiw sew); 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 >enefit 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 44 17, 18.

ROGER M. WITTEN

WILMER, CUTLER &

PICKERING

399 Park Avenue

New York, NY 10022

JUNE 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

APPENDIX

——— a oe lL eee

PS “ie ee

la

APPENDIX

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

SENATOR MITCH

McCONNELL, et al.,

Plaintiffs,

Vv.

FEDERAL ELECTION

COMMISSION, et al.,

Defendants.

Civ. No. 02-582

(CKK, KLH, RJL)

NRA, et al.,

Plaintiffs,

v.

FEDERAL ELECTION

COMMISSION, et al.,

Defendants.

Civ. No. 02-581

(CKK, KLH, RJL)

ECHOLS, et al.,

Plaintiffs,

Vv.

FEDERAL ELECTION

COMMISSION, et al.,

Defendants.

Civ. No. 02-633

(CKK, KLH, RJL)

2a

CHAMBER OF COMMERCE

OF THE UNITED STATES, et al.,

Plaintiffs,

v. Civ. No. 02-751

(CKK, KLH, RJL)

FEDERAL ELECTION

COMMISSION, et al.,

Defendants.

NATIONAL ASSOCIATION OF

BROADCASTERS,

Plaintiffs,

v. Civ. No. 02-753

(CKK, KLH, RJL)

FEDERAL ELECTION

COMMISSION, et al.,

Defendants.

AFL-CIO, et al.,

Plaintiffs, :

v. Civ. No. 02-754

(CKK, KLH, RJL)

FEDERAL ELECTION

COMMISSION, et al.,

Defendants.

3a

CONGRESSMAN RON PAUL, et al.,

Plaintiffs,

v. Civ. No. 02-781

(CKK, KLH, RJL)

FEDERAL ELECTION

COMMISSION, et al.,

Defendants.

ORDER GRANTING MOTION TO INTERVENE

(May 3, 2002)

Pursuant to Rule 24(a)(1) of the Federal Rules of Civil

Procedure and section 403(b) of the Bipartisan Campaign

Reform Act of 2002 (BCRA or Act), Senators John McCain,

Russell Feingold, Olympia Snowe and James Jeffords and

Representatives Christopher Shays and Martin Meehan

(movants) move to intervene in these consolidated actions to

defend BCRA’s constitutionality. While the defendants do

not object to the motion, several of the plaintiffs (objectors)!

oppose it on the ground that the movants “do not have the

requisite Article Il] standing” to support intervention.

Opp’n at 3 (capitalization altered). We disagree.

Accordingly, and for the following reasons, the motion to

intervene is granted.

. Specifically, Representative Mike Pence, Alabama Attorney

General Bill Pryor, Libertarian National Committee, Inc.,

Alabama Republican Executive Committee, Libertarian Party of

Illinois, DuPage Political Action Council, Jefferson County

Republican Executive Committee, Christian Coalition of America,

Inc., Club for Growth, Indiana Family Institute, National Right to

Life Committee, Inc., National Right to Life Educational Trust

Fund, National Right to Life Political Action Committee, Martin J.

Connors and Barret Austin O’Brock oppose the movants’

intervention.

4a

Rule 24(a)(1) provides that “{uJpon timely application

anyone shall be permitted to intervene in an action ... when

a statute of the United States confers an unconditional right

to intervene.” Fed. R. Civ. P. 24(a)(1). Section 403(b) of the

Act, in turn, provides that

[ijn any action in which the constitutionality of any

provision of this Act or any amendment made by

this Act is raised . . . any member of the House of

Representatives . . . or Senate shall have the right to

intervene either in support of or Opposition to the

position of a party to the case regarding the

constitutionality of the provision or amendment.

2 U.S.C. § 437h note. Because the plaintiffs have challenged

numerous provisions of the Act on constitutional grounds,

section 403(b) plainly confers upon each and every one of the

movants an unconditional statutory right to intervene in the

consolidated actions now before us.

The objectors argue that the standing inquiry does not

end with the satisfaction of Rule 24(a(1). Under Article Ill

of the United States Constitution, our “judicial Power”

extends only to live “Cases” or “Controversies.” U.S. Const.

art. Ill. The D.C. Circuit has long held that “because an

intervenor participates on equal footing with the original

parties to a suit, a movant for leave to intervene .. . must

satisfy the same Article Il] standing requirements as original

parties.” Bldg. & Constr. Trades Dep't v. Reich, 40 F.3d

1275, 1282 (D.C. Cir. 1994); see S. Christian Leadership

Conf. v. Kelley, 747 F.2d 777, 779 (D.C. Cir. 1984); see also

Mausolf v. Babbitt, 85 F.3d 1295, 1300 (8th Cir. 1996) (“An

Article III case or controversy is one where all parties have

standing, and a would-be intervenor, because he seeks to

participate as a party, must have standing as well. my?

2 In Diamond v. Charles, 476 U.S. 54 (1986), the United

States Supreme Court held that an intervenor seeking to continue

its suit in the absence of the party on whose side intervention was

permitted must demonstrate that it fulfills the standing

5a

Building & Construction Trades and Kelley address the

question of Artiele II] standing under Rule 24(a)(2) as

opposed to Rule 24(a)(1). To date, neither the Supreme

Court nor the D.C. Circuit has specifically addressed

whether an Article III standing analysis is as appropriate in

the Rule 24(a)(1) context as it is in the Rule 24(a)(2) context.

The movants suggest that “(t]he argument for a relaxed rule

of standing where the intervenor has an unconditional

statutory right to participate seems ... stronger than the

argument for relaxed standing in the (a)(2) context.”

Movants’ Reply at 5 n.3. However, we see no need in this

case to address that distinction or to resolve the question

whether the movants must satisfy the constitutional

requirements of standing—i.e., that they have suffered or

will suffer “an injury in fact” which is “concrete and

particularized,” “actual or imminent,” “fairly .. . trace[able]}

to the challenged action” and “redress[able] by a favorable

decision,” Lujan v. Defenders of Wildlife, 504 US. 555, 560-

61 (1992) (internal quotations omitted)—because we believe,

as discussed below, that the movants have satisfied those

requirements in any event.

The movants allege that

{als federal officeholders and candidates for, or

potential candidates for, election to federal office,

they are among those whose conduct the Act

regulates, and among those whom the Act seeks to

insulate from the actual or apparent corrupting

influence of special interest money. They want to

run in elections, participate in a political system,

and serve in a government in which all participants

requirements of Article III. See id. at 68. Nonetheless, the Court

reserved for another day the broader question of whether an

intervenor must have Article III standing where the party on

whose side intervention is sought remains in the litigation. See id.

at 68-69. The circuits are split on that issue. See Ruiz v. Estelle,

161 F.3d 814, 831-32 (5th Cir. 1998) (D.C., Seventh and Eighth

Circuits require intervenors to have Article III] standing while

Second, Fifth, Sixth, Ninth and Eleventh Circuits do not).

6a

comply with. the reasonable contribution

restrictions and other federal campaign finance

regulations that the Act imposes in order to stop

evasion and to prevent actual and apparent

corruption. If any of the reforms embodied in the

Act are struck down, . . . [the] movants will once

again be forced to attempt to discharge their public

responsibilities, raise money, and campaign in a

system that [they believe to be] significantly

corrupted by special-interest money.

Mem. in Supp. of Mot. to Intervene at 3-4; see Lujan, 504

U.S. at 561 (“At the pleading stage, general factual

allegations of injury. . . may suffice, for on a motion to

dismiss we presume that general allegations embrace those

specific facts that are necessary to support the claim.”

(internal quotations and alteration omitted)); 7C Charles

Alan Wright et al., Federal Practice and Procedure § 1914,

at 418 (2d ed. 1986) (intervention pleading “is construed

liberally in favor of the pleader and the court will accept as

true the well-pleaded allegations” therein). These allegations

are sufficient to support Article III standing.

The objectors’ contrary position that (1) the movants

“have not shown that they have an interest distinct from

that of every other citizen,” Opp’n at 8; (2) the movants have

no legally protected interest “as sponsors and supporters” of

the Act or “in upholding an unconstitutional statute,” id at 8,

10; and (3) any injury the movants suffer cannot be

redressed by a favorable decision, see id. at 12, is, simply

stated, without merit.

First, as opposed to members of the general public, the

movants have a concrete, direct, and personal stake-as

candidates and potential candidates—in the outcome of a

constitutional challenge to a law regulating the processes by

which they may attain office. See Buchanan v. FEC, 112 F.

Supp. 2d 58, 65 (D.D.C. 2000) (“Precluding candidates from

challenging [election] rules under the FECA would leave

few others to doso.... [I]t is relatively self-evident that

the people who have the most to gain and lose from the

7a

criteria governing [the electoral process] are the candidates

themselves.”); see also Vote Choice, Inc. v. DiStefano,4F 3d

26, 37 (Ist 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.” (citing

Buckley v. Valeo, 424 U.S. 1, 12 & n.10 (1976) (per curiam))).

The objectors have cited no case law to the contrary.

Second, notwithstanding the objectors’ assertions, see

Opp’n at 8-9, the movants do not seek to vindicate a

“sponsorship” interest in the Act. Nor are they precluded

from intervening to defend (rather than challenge) the Act.

In arguing that “no litigant has a legally protected interest

in upholding an unconstitutional statute,” id. at 10, the

objectors conflate the threshold issue of standing with the

merits of the case and ignore the fact that the BCRA

provisions the movants seek to defend are presumed

constitutional until proven otherwise. See United States v.

Morrison, 529 U.S. 598, 607 (2000) (“Due respect for the

decisions of a coordinate branch of Government demands

that we invalidate a congressional enactment only upon a

plain showing that Congress has exceeded its constitutional

bounds”). Moreover, a movant may intervene in support of

government defendants where “it will be injured in fact by

the setting aside of the government’s action it seeks to

defend,” the “injury will have been caused by that

invalidation” and “the injury would be prevented if the

government action is upheld.” Am. Horse Prot. Ass'n v.

Veneman, 200 F.R.D. 153, 156 (D.D.C. 2001); see also Meek

v. Metro. Dade County, 985 F.2d 1471, 1480 (11th Cir. 1993)

(movants seeking to intervene in defense of “election system

that governed their exercise of political power” sufficiently

“alleged a tangible actual or prospective injury” under

Lujan); Marshall v. Meadows, 921 F. Supp. 1490, 1492 (E. D.

Va. 1996) (U.S. Senator seeking intervention to defend

constitutionality of state election law permitted to intervene

because he had “a vital interest in a procedure through

which he [sought] election”).

8a

Finally, the injury the movants allege here—that they

will be forced to raise money in a corrupt system in the event

the Act is struck down—plainly would be redressed by a

favorable decision upholding the Act’s provisions.

Accordingly, because it is clear from the face of the

pleadings that the movants have an unconditional statutory

right-and Article III standing—to seek such a decision, it is

this 3rd day of May, 2002 hereby

ORDERED that the objectors’ request for an oral

hearing on the motion to intervene is denied, see Sam For

Publ’g Co. v. United States, 366 U.S. 683, 693-94 (1961)

(district court had discretion to decide motion to intervene

without hearing when result was clear from face of

application); and it is further

ORDERED that the motion to intervene is granted.

SO ORDERED.

KAREN LeCRAFT HENDERSON

United States Circuit Judge

COLLEEN KOLLAR-KOTELLY

United States District Judge

RICHARD J. LEON

United States District Judge