Motion — American Civil Liberties Union v. Federal Election Commission

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IN THE

Supreme Court of the United

AMERICAN CIVIL LIBERTIES UNION,

Appellant,

Vv.

FEDERAL ELECTION COMMISSION, et al.,

Appellees.

AMERICAN FEDERATION OF LABOR AND

CONGRESS OF INDUSTRIAL ORGANIZATIONS, et al.,

Appellants,

v.

FEDERAL ELECTION COMMISSION, et al.,

Appellees.

CHAMBER OF COMMERCE OF THE UNITED STATES, 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 ERIC J. MOG!ILNICKI

New York, NY 10022 EDWARD ©. DUMONT

PAULR.Q@ We.FSON

WILMER, UUTLER &

PICKERING

2445 M Street, N.W.

Washington, D.C. 20037

(202) 663-6000

Additional Counsel Listed On Inside Cover

a A LE A ST RE A RY

BURT NF UBORNE

FREDER: “kK 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 &

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

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., NW

Suite 330

Washington, D.C. 20036

ters

QUESTIONS PRESENTED

1. Whether the Court should summarily dispose of

appellants’ constitutional challenges to Sections 214(a),

214(b), and 214(c) of the Bipartisan Campaign Reform Act of

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

those challenges are plainly nonjusticiable or insubstantial

under settled law.

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

probable jurisdiction over appellants’ constitutional

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

briefing and oral argument.

(i)

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...........sssssssssssssssssessseesnecenesenes i

OO 2, — iv

RII ...siscscriiinatuiilithtsinbibitinaumieaiadinennintieiniennn 1

I. THe AFL-CIO AND CHAMBER APPELLANTS

FAIL To RAISE SUBSTANTIAL QUESTIONS

WITH RESPECT To BCRA SECTION 214@) .............00++ 1

Il. THE ACLU AND CHAMBER APPELLANTS

FAIL To RAISE JUSTICIABLE OR SUBSTAN-

TIAL QUESTIONS WITH RESPECT To THE

COORDINATION RULEMAKING PROVISIONS OF

BCRA SECTION 214(D)(C) ....ccccccccccccccccccccccerssssenseesenenes 2

i 5

(mi)

iv

TABLE OF AUTHORITIES

CASES

Page(s)

Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam).............. 2,5

Colorado Republican Federal Campaign Commit-

tee v. FEC, 518 U.S. G04 (1996) ...........cccccccssssssreecseeeseees 5

FEC vy. Christian Coalition, 52 F. Supp. 2d 45

CN ee 5

FEC v. Colorado Republican Federal Campaign

Committee, 533 U.S. 431 (2001) ........cccsesseeesereeeeeesees 2,5

CONSTITUTIONAL AND STATUTORY PROVISIONS

B UBC. 6 Coat T IED cccscccsssecsscccscszssssssssmsssesessnssessrssssees 5

Bipartisan Campaign Reform Act of 2002, Pub. L.

OQ) yy 1

ee 1,2

a 2,3, 5

Oe 2,3,4

ee 3

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

| 1,2,5

REGULATIONS

BB CIP TR. 6 BURG ED ccnrccsesssssssscccrccsszszsssescsssnsssesessssscens 5

(OEE 3,5

LEGISLATIVE MATERIALS

148 Cong. Rec. S2145 (daily ed. Mar. 20, 2002) ............00+ 3,4

INTERVENOR-APPELLEES’ RESPONSE

TO JURISDICTIONAL STATEMENTS

Although intervenor-appellees take issue with the

positions taken on the merits by the American Civil

Liberties Union (ACLU), the American Federation of Labor

and Congress of Industrial Organizations (AFL-CIO), et al.,

and the Chamber of Commerce of the United States

(Chamber), et al., in their jurisdictional statements, we

agree that many of the questions presented in their

jurisdictional statements warrant plenary consideration by

this Court. Some of the questions presented in these

jurisdictional statements, however, do not warrant plenary

consideration by this Court, because they 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. As we have

shown in our prior responses to other jurisdictional

statements filed in these cases, it is entirely appropriate for

the Court to summarily dispose of appeals by dismissal or

affirmance, insofar as they seek to raise issues that are

nonjusticiable or insubstantial. Such summary dispositions

would focus the briefing in this Court on those issues that do

warrant the Court’s plenary consideration, and would

promote the orderly and expedited resolution of the various

pending challenges to the Bipartisan Campaign Reform Act

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

ARGUMENT

I. THE AFL-CIO AND CHAMBER APPELLANTS FAIL TO

RAISE SUBSTANTIAL QUESTIONS WITH ResPpECT TO

BCRA SECTION 214a)

Like the McConnell appellants, the AFL-CIO and

Chamber appellants challenge BCRA Section 214(a), which

extends the Federal Election Campaign Act’s (FECA)

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. See AFL-CIO J.S. Question Presented 2 and pp. 7-8,

2

14-18; Chamber J.S. Question Presented 2 and pp. 2, 12, 25.

As we have explained in our response to the McConnell

jurisdictional statement (at 12-13), that challenge is plainly

insubstantial. In Section 214(a), Congress simply took the

same definition that has governed expenditures coordinated

with political candidates for more than 25 years, and applied

it to coordination with parties. Congress did so to prevent

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 the record to set aside this

congressional judgment. As the district court majority

emphasized, appellants “have provided no explanation as to

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.” Supplemental Appendix to Jurisdictional

Statement (JSSA) 137sa (per curiam).”

Il. THe ACLU AND CHAMBER APPELLANTS FAIL TO

RAISE JUSTICIABLE OR SUBSTANTIAL QUESTIONS

WirH Respect TO THE COORDINATION RULEMAKING

PROVISIONS OF BCRA SECTION 214(b)-(c)

Like the McConnell and RNC appellants, the ACLU

and Chamber appellants challenge the coordination

rulemaking provisions of BCRA Section 214(b)-(c). See

ACLU J.S. Question Presented 2 and pp. 23-24; Chamber

' See FEC v. Colorado Republican Fed. Campaign Comm., 583 US.

431, 447, 464 (2001); Buckley v. Valeo, 424 U.S. 1, 46-47 & n.53, 78 (1976)

(per curiam); 2 U.S.C. § 441a(aX7)( Bi).

“The AFL-CIO now seeks to supply this missing explanation by

reasoning that the coordination formula was tolerable so long as it was

limited to agreements and formal collaborations, but that once Section

214(c) was enacted, al! rules dealing with coordination were rendered

unconstitutional. See AFL-CIO JS. 14 n.5, 15-16. This is not an argument

against Section 214(a), but against Section 214(c). There are no

substantial constitutional issues with respect to Section 214(a) itself.

3

J.5. Question Presented 2 and pp. 20-31. As we have

explained in our response to the McConnell jurisdictional

statement (at 7-12), these challenges to Section 214(b)-¢e) fail

under well-established principles of justiciability and

subject-matter jurisdiction. There is no basis for a facial

challenge to Sections 214(b) and (c), for those provisions

merely repeal the Federal Election Commission’s (FEC)

prior rules on coordination and direct the FEC to

promulgate new rules that “shall address” certain factors.

Further, the special jurisdiction that Congress vested in the

three-judge district court to entertain constitutional

challenges to BCRA does not reach constitutional or

statutory challenges to the FEC’s new coordination

regulations. Thus, if appellants are dissatisfied with the new

rules on coordination, they must challenge those rules in an

action for judicial review under the “Administrative

Procedure Act (APA), in which they may raise both

constitutional and statutory challenges to the 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).

The ACLU maintains that its routine legislative

activities on issues will somehow be jeopardized under the

coordination provisions of BCRA, even though the ACLU

“does not, and never has, coordinated its activities with

elected officials for the purpose of influencing elections.”

ACLU J.S. 14. As we explain in our response to the

McConnell jurisdictional statement (at 12 n.15), however, the

new FEC rules contain an express safe harbor for legislative

activity and lobbying. 11 C.F.R. § 109.21(f). That safe

harbor is consistent with clear congressional intent not to

reach routine legislative and lobbying activities, but rather

to reach only campaign communications. See 148 Cong. Rec.

$2145 (daily ed. Mar. 20, 2002) (statement of Sen. McCain).

As the district court majority concluded, appellants’ claim

that their lobbying activities are imperiled is therefore

4

speculative at best, end are insufficient to meet Article II]

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

The ACLU also contends that Section 214(c) “broadly

deems any ‘substantial discussion’ about public

communication between a candidate and an issue group as a

basis for a finding of ‘coordination,’” and maintains that a

“substantial discussion” standard will act “as a continuing

prior restraint which bars the ACLU from engaging in core

First Amendment speech for [a] lawmaker’s entire term of

office.” ACLU J.S. 23-24. That reading of Section 214(c)

however, is plainly incorrect. Section 214(c)(4) merely

provides that the new regulations to be promulgated by the

FEC “shall address” the subject of “payments for

communications made by a person after substantial

discussion about the communication with a candidate or

political party.” A congressional instruction that an agency

“address” an issue in rulemaking imposes no injury upon

anyone. Any argument that the FEC’s rules might have

exceeded constitutional or statutory bounds on this point

may and must be raised in an APA challenge to those rules.

The Chamber appellants argue that Congress’s

instruction to the FEC, in Section 214(c), that the new

coordination rules “shall not require agreement or formal

collaboration to establish coordination” is so broad that “(njo

element of agreement, formal or informal, express or

implied, can be required” as a condition of finding

coordination. Chamber J.S. 26. That argument was

correctly rejected by the district court majority. Relying on

familiar canons of statutory construction, the majority ruled

that the term “agreement,” when followed by the phrase “or

formal collaboration,” means only that the new FEC rules

may not require “formal agreements” to establish

coordination. JSSA 146-47sa n.94 (per curiam). That

reading is faithful to Congress’s intent to ensure that the

new rules would reach “de facto and informal coordination”

5

as well as formal arrangements. Jd.’ Section 214(c) is thus

entirely consistent with this Court’s recognition that

coordination ncludes “general . . . understanding{s]” and

“wink or nod” arrangements. Colorado Republican Fed.

Campaign Comm. v. FEC, 518 U.S. 604, 614 (1996)

(plurality opinion); see FEC v. Colorado Republican Fed.

Campaign Comm., 533 U.S. 431, 442 (2001).

The Chamber appellants also seek to broaden these

cases to encompass the validity of the FEC’s new

coordination regulations. Chamber J.S. 14, 26-30. As noted

above, any challenge to those rules must be brought before a

single-judge district court in an action under the APA. The

Chamber’s challenge to the rules is also insubstantial on the

merits. The principal challenged rule is new 11 C.F.R.

§ 109.21(d)(1), which, the Chamber complains, “continues to

include as ‘coordinated’ any independent speech ‘at the

request or suggestion of a candidate or an authorized

committee, political party committee, or agent.’” Chamber

J.S. 30 (emphasis added). In Buckley v. Valeo, 424 U.S. 1, 47

n.53 (1976) (per curiam), this Court approved a “request or

suggestion” standard for coordination reflected in the

legislative history of the 1974 FECA amendments, and

Congress expressly adopted that standard in 1976 in reliance

on Buckley (see 2 U.S.C. § 441a(a)(7)(B)(i)).*

CONCLUSION

The Court should summarily dispose of the ACLU,

AFL-CIO, and Chamber appellants’ challenges to Sections

* See 148 Cong. Rec. $2145 (daily ed. Mar. 20, 2002) (statement of

Sen. McCain) (intent is to reach “{iJnformal understandings and de facto

arrangements [that] can result in actual coordination as effectively as

explicit agreement or formal -collaboration”); id. (statement of Sen.

Feingold) (FEC’s prior rule “sets too high a bar” and “would miss many

cases of coordination that result from de facto understandings”).

‘That standard was approved again in the Christian Coalition

district court decision upon which appellants otherwise rely, and indeed

was part of the prior FEC rules that appellants are seeking to restore.

See FEC v. Christian Coalition, 52 F. Supp. 2d 45, 91 (D.D.C. 1999); 11

C.F.R. § 100.23(c)(2)(i) (2002), repealed by BCRA § 214(b).

6

214(a), 214(b), and 214(c). In all other respects, the Court

should note probable jurisdiction of the appeals in these

cases and set the cases for plenary review.

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

ERIC J. MOGILNICKI

EDWARD C. DUMONT

PAUL R.Q. WOLFSON

WILMER, CUTLER &

PICKERING

2445 M Street, N.W.

Washington, D.C. 20037

(202) 663-6000