United States District Court for the District of Columbia
JIM SYKES, Plaintiff,
FEDERAL ELECTION COMMISSION, et al., Defendants.
The opinion of the court was delivered by: EMMET SULLIVAN, District Judge
Plaintiff's complaint alleges that provisions of the Federal
Election Campaign Act, 2 U.S.C. § 431 et seq. (the "Act" or
"FECA") "authorize an individual who is not an Alaskan resident
to make a campaign contribution (either individually or through a
political action committee or senatorial campaign committee) to a
candidate seeking election in the November 2, 2004 Alaska general
election as Alaska's United States Senator." Compl. ¶ 1.
Plaintiff alleges that FECA's authorization of these out-of-state
contributions violates his First and Fifth Amendment rights
because such interstate contributions result in "excessive
expenditures for candidate-voter communication" by plaintiff's
opponents which effectively "drown out" plaintiff's communication
with Alaska voters and "severely burden the plaintiff's exercise
of his right to associate politically with Alaska voters." Compl. ¶ 34.
Plaintiff seeks: (1) the convening of a three-judge court
pursuant to § 403 of the Bipartisan Campaign Reform Act and/or
certification of questions regarding the constitutionality of the
challenged portions of FECA to the United States Court of Appeals
for the District of Columbia Circuit, pursuant to
2 U.S.C. § 437(h); (2) a declaratory judgment that the provisions of FECA
which "authorize" non-Alaska residents to make campaign
contributions to candidates in Alaska's upcoming general election
violate plaintiff's First and Fifth Amendment rights; and (3) a
preliminary and permanent injunction enjoining defendants in this
action and the members of the classes they represent from making
campaign contributions to candidates in Alaska's upcoming general
election, and directing defendants to seek the return of any
contributions already made. Defendants, individually and
collectively, have moved to dismiss plaintiff's complaint for
lack of standing and frivolousness.
A. The Parties
Plaintiff Jim Sykes ("plaintiff" or "Sykes") is a founding
member of the Green Party of Alaska, an officially recognized
political party in the State of Alaska. Plaintiff ran unopposed
in the August 24, 2004, Alaska primary election for nomination as the Green Party's candidate for election to the
United States Senate. Plaintiff's name will appear on the
November 2, 2004, Alaska general election ballot. Compl. ¶ 5.
Plaintiff's principal opponents in the upcoming election are Lisa
Murkowski, the nominee of the Alaska Republican Party, and Tony
Knowles, the nominee of the Alaska Democratic Party. See Compl.
¶¶ 7-8; Pl.'s Opp. to FEC's Mot. at 1.
Defendant Federal Election Commission ("FEC") is the federal
agency, established by Congress, with exclusive jurisdiction to
administer, interpret, and enforce the Federal Election Campaign
Act of 1971, 2 U.S.C. §§ 431-55 (the "Act" or "FECA"). See
2 U.S.C. § 437c (creating the FEC and outlining its structure and
purpose); Compl. ¶ 6.
Defendants National Republican Senatorial Committee ("NRSC")
and Democratic Senatorial Campaign Committee ("DSCC") are
committees established, pursuant to FECA, by the National
Republican Party and National Democratic Party, respectively, to
provide support to each party's candidates seeking election to
the United States Senate. Very few individual contributors to
NRSC or DSCC are Alaska residents. To date, NRSC has contributed
$17,500 to the election campaign of Lisa Murkowski and DSCC has
contributed $11,910 to the election campaign of Tony Knowles.
Compl. ¶¶ 11-12.
Defendant Haliburton Company Political Action Committee is a political action committee organized pursuant to FECA though
which Haliburton Corporation employees may pool resources and
make campaign contributions to candidates they seek to support.
No Haliburton employee is a resident of Alaska. To date, HCPAC
has contributed $3,000 to Murkowski's campaign. Compl. ¶ 9.
Defendant Waste Management Employees' Better Government Fund is
a political action committee organized pursuant to FECA though
which Waste Management Company employees may pool resources and
make campaign contributions to candidates they seek to support.
No WMC employee is a resident of Alaska. To date, WMEBGF has
contributed $1,500 to each of Murkowski's and Knowles' campaigns.
Compl. ¶ 10.
Defendant Jack Valenti is chairman, CEO, and registered
lobbyist of the Motion Picture Association of America (MPAA).
Valenti has contributed $1,000 to Murkowski's election campaign.
Valenti is not a resident of Alaska and may not vote in Alaska.
Compl. ¶ 7.
Defendant Michael Berman is a partner in The Duberstein Group,
a Washington, DC lobbying firm. Berman has contributed $2,000 to
Knowles' election campaign. Berman is not an Alaskan resident and
may not vote in Alaska. Compl. ¶ 8. B. The Federal Election Campaign Act
The Federal Election Campaign Act, as amended most recently by
the Bipartisan Campaign Reform Act ("BCRA"), limits and regulates
campaign contributions made by individuals and political
committees to candidates seeking Federal Office. See
2 U.S.C. § 441a. Under the limits of FECA, individuals can contribute no
more than $2,000 to a single candidate, $5,000 to political
action committees, and $25,000 to a political committee
established by a national political party (e.g. DSCC and NRSC).
§§ 441a(a)(1)(A)-(C). Political committees, under FECA, may
contribute up to $5,000 to a single candidate. § 441a(a)(2)(A).
In turn, national political party committees may contribute up to
$35,000 to a single senatorial candidate. § 441a(h).
FECA does not prohibit the giving or receipt of out-of-state
campaign contributions. FECA does not even mention out-of-state
campaign contributions. FECA does, however, specifically prohibit
campaign contributions from various other sources. See, e.g., §
441b (prohibiting and/or regulating campaign contributions from
national banks, corporations, and labor organizations); § 441e
(prohibiting contributions from foreign nationals who are not
lawfully admitted for permanent residence); see also Compl. ¶
FECA defines a campaign "contribution" as "any gift . . . made
. . . for the purpose of influencing an election." 2 U.S.C. § 431(8)(A). Campaign contributions are used by candidates to
facilitate candidate-voter communication (e.g. TV commercials,
C. Out-of-State Campaign Contributions
Both Murkowski and Knowles have received and accepted campaign
contributions from out-of-state donors. Compl. ¶ 31. As of the
date of plaintiff's suit, Murkowski has received $554,200 in
individual contributions from non-Alaska residents (including
defendant Valenti), $662,841 from political action committees
(including defendants Haliburton Company Political Action
Committee and Waste Management Employees' Better Government
Fund), $28,450 from Republican Party committees (including
defendant NRSC), and $401,819 in individual contributions from
Alaska residents. Knowles has received $100,050 from non-Alaska
residents (including defendant Berman), $138,977 from political
action committees (including Waste Management Employees' Better
Government Fund), $34,000 from Democratic Party committees
(including DSCC), and $182,703 from Alaska residents.
Plaintiff has not accepted any out-of-state contributions.
Plaintiff intends to receive $500,000 in campaign contributions from Alaska residents.*fn1 Plaintiff claims that "even if he
solicited them," he would receive few, if any, contributions from
defendants Valenti and Berman or other non-Alaska residents, no
contributions from HCPAC and WMEBGF or other political action
committees, and no contributions from defendants DSCC and NRSC.
See Compl. ¶ 32.
III. Standard of Review
When considering a Motion to Dismiss, the Court construes the
facts in the complaint as true and construes all reasonable
inferences in the light most favorable to the plaintiff. See
Swierkiewicz v. Sorema, 534 U.S. 506, 508 (2002). A Motion to
Dismiss is granted and the complaint dismissed only if no relief
could be granted on those facts. See Sparrow v. United Air Lines
Inc., 216 F.3d 1111, 1114 (D.C. Cir. 2002) (stating that
complaints "need not plead law or match facts to every element of
a legal theory") (quoting Krieger v. Fadely, 211 F.3d 134, 136
(D.C. Cir. 2000)). IV. Discussion
Plaintiff's basic claim is that FECA authorizes out-of-state
campaign contributions which help Republican and Democratic
senatorial candidates in Alaska to "drown out" the campaign of
third-party candidates like plaintiff. Plaintiff alleges that
defendant FEC's authorization of these out-of-state campaign
contributions and the other defendants' making of those
contributions is "inflicting an actual, imminent, concrete, and
particularized injury on . . . [plaintiff's] legally cognizable
interest in having a fair opportunity to compete" in the November
2, 2004, Alaska general election. Pl.'s Opp. to FEC's Mot. at
10-11; see Compl. ¶¶ 33-34. Plaintiff seeks declaratory and
injunctive relief applicable to all out-of-state
contributors.*fn2 Defendants*fn3 move to dismiss
plaintiff's entire complaint, arguing (1) plaintiff lacks standing to bring the claim; (2) plaintiff's
claim is frivolous; and (3) this Court need not certify
plaintiff's questions to the Court of Appeals, pursuant to
2 U.S.C. § 437h, because plaintiff lacks standing and/or brings a
A. Plaintiff Is Unable to Establish Standing
Plaintiff lacks Article III standing to bring suit. In order to
invoke federal jurisdiction in this Court, plaintiff bears the
burden of establishing the three elements that constitute the
"irreducible constitutional minimum" of standing:
First, a plaintiff must demonstrate an `injury in
fact, which is `concrete,' `distinct and palpable,'
and `actual or imminent.' . . . Second, a plaintiff
must establish `a causal connection between the
injury and the conduct complained of the injury has
to be fairly traceable to the challenged action of
the defendant[s], and not the result of some third
party not before the court.' . . . Third, a plaintiff
must show the `substantial likelihood' that the
requested relief will remedy the alleged injury in
McConnell v. FEC, 124 S. Ct. 619
, 707 (2003) (citations
omitted); see Lujan v. Defenders of Wildlife, 504 U.S. 555
(1992). Plaintiff is unable to establish any of the three
requirements for standing. 1. No Injury in Fact
Plaintiff has not established an injury in fact. "[A]n `injury
in fact' [is] an invasion of a legally protected interest which
is (a) concrete and particularized . . . and (b) `actual or
imminent, not `conjectural' or `hypothetical.'" Lujan,
504 U.S. at 560 (citations omitted) (emphasis added); see McConnell,
124 S. Ct. at 708 ("[T]o satisfy our standing requirements, a
plaintiff's alleged injury must be an invasion of a concrete and
particularized legally protected interest."). Plaintiff claims
out-of-state campaign contributions and FECA's "authorization" of
such contributions constitute a particularized and ongoing injury
to his "legally cognizable interest in having a fair opportunity
to compete in the 2004 Alaska Senate election." Pl.'s Opp. to
FEC's Mot. at 10. The crux of plaintiff's claim is that
out-ofstate contributions enable his opponents to purchase more
"candidate-voter communication," which effectively "drowns out"
plaintiff's own communication with voters and decreases his
chances of prevailing at the election. A prohibition on
out-ofstate contributions, plaintiff argues, will reduce the
funds available to facilitate the speech of his opponents and
thereby enhance the effect of his own speech, and afford him "a
fair opportunity to compete."
Plaintiff cites no authority to support his claim of a legally
protected interest in either restricting the spending of candidates for election or in preventing individuals or
committees from contributing to the candidates of their choice.
Instead, plaintiff relies on Federal Election Commission v.
Massachusetts Citizens for Life, Inc. ("Mass. Citizens") to
argue that because the "availability of funds is a rough
barometer of public support," the impact of out-of-state
contributions will mislead Alaskan voters into thinking
plaintiff's opponents have more support than he does.
479 U.S. 238, 257 (1986); see Pl.'s Opp, to FEC's Mot. at 13-14.
However, the Court in Mass. Citizens did not declare that this
negative impact of campaign contributions constitutes an injury
for purposes of standing. Rather, the plaintiff in Mass.
Citizens had standing to challenge FECA because it was a
corporation that suffered direct injury to its First Amendment
rights due to FECA's prohibition of campaign contributions made
by corporations. The Court referred to the potential impact of
campaign contributions only in its discussion of whether a
legitimate governmental interest, as opposed to individual
interest, existed to justify the injurious prohibition on speech.
Id. As such, Mass. Citizens is inapposite to the present case
because plaintiff does not challenge any provision of FECA which
directly restricts his own activity.
Plaintiff also cites to McConnell and Buckley v. Valeo,
424 U.S. 1 (1976), for the proposition that candidates for elective
office have standing to challenge FECA. However, plaintiff's reliance on McConnell and Buckley is misguided. Like the
plaintiff in Mass. Citizens, Buckley challenged portions of
FECA which directly restricted his own campaign activity, as
opposed to plaintiff's claim of indirect impact on his campaign
by FECA's failure to restrict out-of-state contributions. See
Buckley, 424 U.S. at 45-58 (invalidating a variety of
expenditure ceilings of FECA which directly restricted the amount
a candidate could spend on her campaign). Furthermore, in
McConnell, the Supreme Court specifically held that McConnell
and other candidates lacked standing to challenge certain
provisions of FECA that did not imminently restrict their own
activities. See McConnell, 124 S. Ct. at 707-09. As such,
plaintiff's argument that any candidate for election
automatically has standing to challenge FECA is unsupported by
precedent and unpersuasive. Cf. Whitmore v. FEC, 68 F.3d 1212,
1215 (9th Cir. 1996) (holding that whether a congressional
candidate has standing to challenge FECA "depends on what claim
Plaintiff's only alleged injury is his inability to compete
equally against opponents with more money (some of which was
obtained from out-of-state contributions). Plaintiff cites no
authority holding that such a disparity in campaign resources
constitutes an injury in fact. Furthermore, as defendants
correctly assert, Supreme Court precedent plainly foreclose
plaintiff's argument. In McConnell, the Court addressed this
very issue, noting "that `political free trade does not necessarily
require that all who participate in the political marketplace do
so with exactly equal resources.'" 124 S. Ct. at 708 (quoting
Mass. Citizens, 479 U.S. at 257); see also Buckley,
424 U.S. at 48 (rejecting the asserted governmental interest of
"equalizing the relative ability of individuals and groups to
influence the outcome of elections" to justify regulation of
campaign spending). Unable to cite any supporting precedent or to
refute the apparently contrary views of the Supreme Court,
plaintiff is unable to establish that the disparity in campaign
resources caused by out-of-state contributions constitutes an
injury in fact sufficient for standing.
2. No Causal Connection Between the Act and Plaintiff's
Plaintiff is unable to show his alleged injury "is fairly . . .
trace[able] to the challenged action of the defendant[s], and not
. . . th[e] result [of] independent action of some third party
not before the court." Lujan, 504 U.S. at 560 (quoting Simon
v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 41-42
(1976)). "[P]laintiff's asserted injury arises from the
government's allegedly unlawful regulation (or lack of
regulation) of someone else." Id. at 562 (emphasis in
original). "Standing is not precluded [in such a situation], but
it is ordinarily `substantially more difficult' to establish."
Id. Here, plaintiff is unable to meet his difficult burden.
Plaintiff attempts to establish the requisite causal connection
by arguing that FECA "authorizes" out-of-state contributions and,
therefore, "causes" the injurious disparity in campaign
resources. However, FECA is silent on the subject of out-of-state
contributions and can only be interpreted to "authorize" such
contributions insofar as it does not prohibit them. Plaintiff's
argument that whatever FECA does not prohibit, it authorizes, is
unpersuasive and has been squarely rejected by at least two
In Whitmore v. Federal Election Commission, a case involving
a strikingly similar challenge made by an Alaska Green party
candidate for the House of Representatives, the Ninth Circuit
held that because FECA "neither prohibits nor authorizes
out-of-state contributions. . . . it cannot be the cause of
plaintiffs' claimed injuries." 68 F.3d 1212, 1215 (9th Cir.
1995), cert. denied, 517 U.S. 1155 (1955). In Albanese v.
Federal Election Commission, the Second Circuit rejected a
similar claim that FECA's campaign finance system excluded
plaintiffs from the electoral process because they did not have
adequate funds to effectively participate. 78 F.3d 66, 68 (2d
Cir. 1996), cert. denied, 519 U.S. 819 (1996). The court in
Albanese held that because "FECA does not require that
contributions be made to any candidate," but only "limits the
amounts of contributions that may be made, . . . any injury claimed . . . is not attributable to FECA." Id.
Plaintiff attempts to distinguish Whitmore and Albanese by
noting that in those cases plaintiffs sued the FEC and their
political opponents, but not the actual out-of-state
contributors. In the present case, plaintiff has joined the
actual contributors in an attempt to avoid the virtually fatal
precedent of Whitmore and Albanese. However, plaintiff's
argument draws a distinction without a difference. Standing was
not lacking in Whitmore and Albanese because the campaign
contributors were not joined, it was lacking because the
challenged statute did not cause the alleged injury. Plaintiff is
not arguing that the named defendant contributors are properly
before the court because they violated the law. Rather,
plaintiff claims that the law itself is unconstitutional. The
present case does not ask whether plaintiff has standing to sue
the named contributors, but only whether he has standing to
challenge the constitutionality of FECA. As such, the analyses of
Whitmore and Albanese remains informative.
Unable to successfully distinguish the facts or holdings of
Whitmore or Albanese, plaintiff is forced to rely on his
declaration that the Whitmore "panel's decision reflected
ideology, rather than analysis." Pl.'s Opp. to FEC's Mot. at 15.
In support of this assertion, plaintiff provides a lengthy
history of campaign finance law and a detailed examination of the
language and legislative history of FECA in an effort to
demonstrate a Congressional intent to authorize out-of-state contributions to
federal candidates in FECA. See Pl.'s Opp. to FEC's Mot. at
15-26. Plaintiff offers a virtually word-by-word analysis of
FECA, but is able to identify no language that approves of (or
even mentions) contributions across state lines. See FEC's
Reply at 4 n. 4. Furthermore, the majority of the language in the
portions of FECA plaintiff challenges is restrictive, not
permissive. See, e.g., 2 U.S.C. § 441a(a)(1) ("No person
shall make contributions . . . which, in the aggregate, exceed
$2000") (emphasis added); § 441a(a)(2) ("No multicandidate
political committee shall make contributions . . . which, in
the aggregate, exceed $5000") (emphasis added).
The crux of plaintiff's argument that FECA "authorizes"
outof-state contributions focuses on the language in § 441a(h)
which states "amounts totaling not more than $35,000 may be
contributed . . . by the national committee of a political
party." Plaintiff argues that the language "may be contributed"
indicates an intent to authorize such contributions. Plaintiff
asserts that this intent should control interpretation of the
entire statute and any apparently restrictive language in other
portions of the Act is the result of bad drafting, not
congressional intent. See Pl.'s Opp. to FEC's Mot. at 18-19.
Plaintiffs argument is ultimately unpersuasive. As noted above,
two circuit courts have squarely held that FECA "restricts
certain campaign conduct, but authorizes nothing." Whitmore, 68 F.3d at 1215; accord Albanese,
78 F.3d at 68. Furthermore, the title of the FECA section challenged by
plaintiff is "Limitations on contributions and expenditures,"
clearly indicating the intent of the Act is to restrict, not
authorize, campaign contributions. See 2 U.S.C. § 441a. In
addition, FECA makes no mention whatsoever of contributions
across state lines. As such, even if some of the language used in
FECA can be said to "authorize" particular campaign
contributions, no language exists which can be read to authorize
the interstate campaign contributions plaintiff challenges.
Regardless, plaintiff fails to establish the requisite causal
connection between this "authorization" and his alleged injury
because the actual activity which allegedly caused plaintiff's
injury, out-of-state donors making contributions, could have
occurred regardless of FECA authorization. "[A] federal court may
find that a party has standing to challenge governmental action
that permits or authorizes third-party conduct that would
otherwise be illegal in the absence of the Government's action."
National Wrestling Coaches Assn. v. Dept. of Education,
366 F.3d 930, 940 (D.C. Cir. 2004). Here, plaintiff concedes that,
prior to enactment of federal campaign legislation, no
restrictions were placed on campaign contributions. See Pl.'s
Opp. to FEC's Mot. at 20. Accordingly, in the absence of FECA,
out-of-state contributions would be equally permissible. As such,
FECA's failure to restrict out-of-state contributions did not
"authorize" an activity*fn4 which would otherwise be
illegal, and therefore FECA cannot be deemed to have "caused"
Finally, plaintiff is unable to distinguish his causal
connection argument from a theory previously rejected by the
Supreme Court. In McConnell, the plaintiffs-candidates claimed
to have suffered a competitive injury because they were put at a
"fundraising disadvantage" because they "[did] not wish to
solicit or accept large campaign contributions permitted by"
federal campaign finance legislation. McConnell,
124 S. Ct. at 709. The Supreme Court rejected the argument that the increased
contribution limits, which allowed the plaintiffs' opponents to
raise more money, diminished the plaintiffs' "ability to compete
or participate in the electoral process." Id. Plaintiff's
causation argument in the present case is indistinguishable from
that rejected in McConnell and, therefore, fails for the same
reasons. Plaintiff simply cannot establish the requisite causal
connection to establish standing. FECA "did not cause the
out-ofstate contributions which [he] claims [make] it harder for
[him] to win." Whitmore, 68 F.3d at 1215. Rather, plaintiff's
"alleged inability to compete stems not from the operation of
[the Act], but from [his] own personal `wish' not to solicit or
accept [out-of-state] contributions, i.e. [his] personal choice.
Accordingly, the [plaintiff] fail[s] here to allege an injury in
fact that is `fairly traceable' to [FECA]." McConnell,
124 S. Ct. at 709. As such, plaintiff is unable to establish a causal
connection between his alleged injury and the challenged
provisions of FECA.
3. Plaintiff's Alleged Injury is Not Likely to be Redressed by
a Favorable Decision
Plaintiff has not demonstrated that it is "`likely,' as opposed
to merely `speculative,' that the injury will be `redressed by a
favorable decision'" by the Court. Lujan, 504 U.S. at 561
(quoting Simon, 426 U.S. at 38, 43). Plaintiff seeks a
declaratory judgment that the portions of FECA which authorize
interstate campaign contributions, by not prohibiting them, are
unconstitutional. In addition, plaintiff seeks both a preliminary
and permanent injunction enjoining the individual and committee
defendants and the "classes" they represent from making
contributions to candidates in Alaska's general election and to
seek the return of any contributions already given. Neither of
these remedies will redress plaintiff's alleged injury.
A declaratory judgment that portions of FECA are
unconstitutional would do nothing to ensure that plaintiff has "a fair opportunity to compete" in the upcoming election or to
remedy the alleged inequalities in "candidate-voter
communication" that have already occurred. Plaintiff does not
enumerate how a declaratory judgment will relieve any competitive
disadvantage. In fact, plaintiff acknowledges that "if such a
judgment is entered, Congress can do with that information what
it wishes, including doing nothing." Pl.'s Opp. to FEC's Mot.
at 32 (emphasis in original). This admission suggests that a
declaratory judgment may have no effect on plaintiff's situation
and therefore will not "redress" plaintiff's alleged injury. See
id. In fact, declaring FECA unconstitutional may actually
aggravate plaintiff's alleged injury. "[S]ince FECA limits the
amounts of contributions that are permissible, the elimination of
those ceilings could well place candidates whose constituencies
do not include a plethora of wealthy supporters at an even
greater disadvantage." Albanese, 78 F.3d at 69. In other words,
the effect of declaring FECA unconstitutional would not make
interstate campaign contributions illegal, but would only render
FECA's regulation of campaign contributions unlawful. As such,
defendants would remain free to contribute to plaintiff's
opponents, but would no longer have to abide by FECA's
contribution limits. Thus, a declaratory judgment is not "likely"
to remedy plaintiff's claimed injury.
With respect to plaintiff's request for an injunction, the Court is without power to grant the relief requested. Even
assuming this Court were willing to declare the challenged
portions of FECA unconstitutional, this decision does not create
a prohibition on interstate campaign contributions. As noted
above, declaring FECA unconstitutional would simply remove the
limits currently placed on campaign contributions and return
campaign finance to its nascent unregulated state, freeing
defendants and everyone else to contribute unlimited amounts of
money to any candidate of their choice. Yet, plaintiff asks this
Court to use its injunctive powers to fill this legislative void
by effectively legislating. Plaintiff cites no authority
affording this Court such expansive authority. While this Court
has the power to interpret the Constitution and declare an
existing law unconstitutional, it does not have the power to
create new laws. "The proper institution for consideration of
electoral reform to alleviate disparity [in campaign resources]
is the legislature, not the judiciary." Kaplan v. City of Los
Angeles, 894 F.2d 1076, 1082 (9th Cir. 1990), cert denied,
496 U.S. 907 (1990). In short, this Court is simply without power to
prohibit interstate campaign contributions by means of an
In addition to the concern of usurping the constitutional power
of the legislative branch, granting the injunctive relief sought
by plaintiff would impermissibly "abridge people's
constitutionally protected liberty to contribute to the
candidates of their choice." Whitmore, 68 F.3d at 1216. "Neither the
voting rights cases nor the fairness doctrine cases support the
position that the First Amendment permits [the Court] to abridge
the rights of some persons to engage in political expression in
order to enhance the relative voice of other segments of our
society." Buckley, 424 U.S. at 49 n. 55. In effect, plaintiff
seeks an unprecedented limitation on constitutional freedom in
order to enforce a law prohibiting interstate campaign
contributions that does not yet exist. To the extent plaintiff is
arguing that the Constitution itself prohibits interstate
campaign contributions by private individuals and entities,
plaintiff cites no language in the Constitution which supports
his theory and offers no argument why his alleged constitutional
right to prevent his political opponents from accepting
interstate campaign contributions would trump the constitutional
rights of everyone else to freely participate in the electoral
In sum, plaintiff is unable to establish that this Court has
the power to issue the injunctive relief he seeks. Further, even
if the Court did possess this power, strong constitutional and
prudential interests caution against such a far-reaching and
unprecedented remedy. Finally, even if the Court were inclined to
grant injunctive relief, it would not remedy the alleged injury
already incurred by plaintiff as the result of interstate
campaign contributions already spent. As such, plaintiff is
unable to establish that either a declaratory judgment or injunctive relief
are likely to remedy his alleged injury.
B. Plaintiff's Claim May Be Frivolous
Defendants also allege that plaintiff's claim is frivolous
because he "provides no arguable legal basis for the substance of
his claim that § 441a of FECA is unconstitutional because it does
not prohibit contributions across state lines." FEC's Reply at 9.
In Whitmore, a case remarkably similar to the present case, the
Ninth Circuit held that a Green Party candidate's challenge to
out-of-state contributions and request for injunctive relief
prohibiting such contributions was frivolous because plaintiffs
provided "no published precedent in any judicial decision [to
support] their novel propositions." 68 F.3d at 1216. As shown
above, the present case is nearly impossible to distinguish from
Whitmore, and the Ninth Circuit's holding of frivolousness is
persuasive. However, in the present case, plaintiff has provided
additional theories and named different types of defendants in
what may well be a good faith effort to present a viable claim.
As such, and because the case will be dismissed for lack of
standing regardless, it is not necessary for this Court to decide
whether plaintiff's claim is frivolous as well. C. This Court Has Jurisdiction To Dismiss Plaintiff's Claim
Plaintiff asks this Court to convene a three-judge panel or to
certify his constitutional questions to the United States Court
of Appeals for the District of Columbia Circuit. Section 437h of
FECA states: "The district court immediately shall certify all
questions of constitutionality of this Act [FECA] to the United
States court of appeals for the circuit involved, which shall
hear the matter sitting en banc." 2 U.S.C. § 437h. However, "[n]o
such certification should be made if the plaintiff lacks standing
or the case is frivolous." Whitmore, 68 F.3d at 1214; see
Calif. Med. Ass'n v. FEC, 453 U.S. 182, 193 n. 14 (1981) ("A
party seeking to invoke § 437h must have standing to raise the
constitutional claim. . . . We do not construe § 437h to require
certification of constitutional claims that are frivolous.").
Because plaintiff is unable to establish standing and his claim
may well be frivolous, this Court has proper jurisdiction to
dismiss the complaint and need not certify plaintiff's questions
to the Court of Appeals. Whitmore, 68 F.3d at 1214.
Upon consideration of the Motions to Dismiss, the Response, the
Replies thereto, the governing statutory and case law, and for
all the reasons stated herein, Defendant FEC's motion to dismiss
shall be GRANTED. To the extent that other defendants' motions
to dismiss join in Defendant FEC's motion, those Motions to Dismiss
shall be GRANTED as well. The Court need not reach the
remaining arguments advanced by defendants. Plaintiff's claim
shall be dismissed in its entirety, and there is no need to
either convene a three-judge panel or to certify plaintiff's
questions to the Court of Appeals.
An appropriate Order and Judgment accompanies this Memorandums