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Benjamin Bluman et al v. Federal Election Commission

January 7, 2011

BENJAMIN BLUMAN ET AL., PLAINTIFFS,
v.
FEDERAL ELECTION COMMISSION, DEFENDANT.



The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Re Document No.: 2

MEMORANDUM OPINION GRANTING IN PART AND DENYING IN PART THE PLAINTIFFS'APPLICATION FOR A THREE-JUDGE COURT

I. INTRODUCTION

The plaintiffs applied to have a three-judge court review their constitutional challenge to a provision of the Bipartisan Campaign Reform Act of 2002 ("BCRA") and its implementing regulation. The defendant, the Federal Election Commission ("FEC"), opposes the application, arguing that under a three-judge court would lack the authority to adjudicate the plaintiffs' claims. For the reasons discussed below, the court grants in part and denies in part the plaintiffs' application for a three-judge court.

II. BACKGROUND

A. Statutory Framework

Since 1976, the Federal Election Campaign Act ("FECA") has prohibited foreign nationals from contributing money or "other thing[s] of value . . . in connection with an election to any political office or in connection with any primary election, convention, or caucus held to select candidates for any office." FECA, Pub. L. No. 94-283, § 324, 90 Stat. 493 (1976), previously codified at 2 U.S.C. § 441e(a). In 2002, Congress enacted § 303 of the BCRA, which repealed the previous foreign national prohibition provision codified at 2 U.S.C. § 441e(a) and replaced it with 2 U.S.C. § 441e(a)(1). Like its predecessor, § 441e(a)(1) makes it unlawful for a foreign national to make

(A) a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election

(B) a contribution or donation to a committee of a political party; or

(C) an expenditure, independent expenditure, or disbursement for an electioneering communication[.]

2 U.S.C. § 441e(a)(1).

When an action is commenced challenging the constitutionality of "any [BCRA] provision," "[s]pecial rules" set forth in § 403 of the BCRA must be followed. BCRA, Pub. L. No. 107-155, § 403, 116 Stat. 81, 113-14 (2002). More specifically, the BCRA provides that such an action must be filed in this district and "shall be heard by a [three]-judge court." Id. Local Civil Rule 9.1 governs the procedure involved with an application for a three-judge court. See LCvR 9.1.

B. Factual & Procedural History

The plaintiffs, two foreign nationals who lawfully reside and work in the United States, seek to contribute funds to political candidates and committees of political parties as well as to "independently spend[] money to advocate for their preferred candidates." Compl. ¶ 2. These activities, the plaintiffs contend, are prohibited by § 303 of the BCRA, codified at 2 U.S.C. § 441e(a)(1), and its implementing regulation, 11 C.F.R § 110.20. Id. ¶¶ 2-3. Believing that this prohibition violates the First Amendment, the plaintiffs have commenced this action against the FEC, seeking a judgment declaring that § 303 of the ...


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