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Steve Schonberg v. Federal Election Commission et al

June 23, 2011


The opinion of the court was delivered by: Richard W. Roberts United States District Judge


Pro se plaintiff Steve Schonberg brings this action against the Federal Election Commission ("FEC") and the United States, challenging the constitutionality of provisions of the Federal Election Campaign Act of 1971 ("FECA") and the Bipartisan Campaign Reform Act of 2002 ("BCRA"); the statute governing representational allowances for Members of the House of Representatives ("MRA"), codified at 2 U.S.C. § 57; and legislation commonly referred to as "earmarks." Schonberg has moved to trifurcate the proceedings, and the defendants have each moved to dismiss. Schonberg has not shown that he has standing to bring his FECA and BCRA claims, the United States has not waived its sovereign immunity with respect to his MRA and earmarks claims, and even if the United States had waived its sovereign immunity, Schonberg has failed to establish that the MRA or earmarks violate the Constitution. Therefore, the defendants' motions to dismiss will be granted, and Schonberg's motion to trifurcate will be denied.


The background of this case is discussed fully in Schonberg v. FEC, Civil Action No. 10-2040, 2011 WL 2441313 (D.D.C. May 12, 2011) (per curiam). Briefly, Schonberg is a Florida resident who ran unsuccessfully for the House of Representatives in Florida's Sixth Congressional District and who has expressed his intention to run again for the seat in 2012. Id. at *1. Schonberg's second amended complaint claims that FECA, BCRA, the MRA,*fn1 and legislation earmarking*fn2 funds for the College of Central Florida and the University of Florida provided the incumbent, Congressman Cliff Stearns, an unconstitutional competitive advantage in 2010 and will continue to provide that advantage to him in the 2012 election. (2d Am. Compl. ¶¶ 17, 32-44, 166-75, 186-89, 203, 219-23, 229, 233, 248.) When he filed his original complaint, Schonberg also filed an application for a three-judge court to adjudicate his claims, which was granted. After the three-judge court was convened, Schonberg amended his complaint and filed a motion to trifurcate his claims, arguing that his BCRA claims were properly before the three-judge court, but that the Court of Appeals sitting en banc should adjudicate his FECA claims and that a single district judge should adjudicate his MRA and earmark claims. Schonberg then filed a second amended complaint, the FEC moved to dissolve the three-judge court and to dismiss the complaint, and the United States moved to dismiss the complaint. The three-judge court granted the FEC's motion to dissolve the three-judge court and returned the motions to dismiss and to trifurcate to this Court. The FEC moves under Federal Rule of Civil Procedure 12(b)(1) to dismiss arguing that there is no subject-matter jurisdiction over Schonberg's FECA and BCRA claims because he lacks standing. The United States moves under Rules 12(b)(1) and 12(b)(6) to dismiss arguing that there is no subject-matter jurisdiction over Schonberg's MRA and earmarks claims because the United States has not waived its sovereign immunity from suit, and that Schonberg has failed to state a claim.


I. FECA AND BCRA CLAIMS "On a motion to dismiss for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1), the plaintiff bears the burden of establishing that the court has subject-matter jurisdiction." Larsen v. U.S. Navy, 486 F. Supp. 2d 11, 18 (D.D.C. 2007); see also Moms Against Mercury v. FDA, 483 F.3d 824, 828 (D.C. Cir. 2007). A court "must accept as true the allegations in the complaint and consider the factual allegations of the complaint in the light most favorable to the non-moving party." Short v. Chertoff, 526 F. Supp. 2d 37, 41 (D.D.C. 2007). Although a court is to construe liberally a pro se complaint, Howerton v. Ogletree, 466 F. Supp. 2d 182, 183 (D.D.C. 2006), "[p]ro se plaintiffs are not freed from the requirement to plead an adequate jurisdictional basis for their claims." Gomez v. Aragon, 705 F. Supp. 2d 21, 23 (D.D.C. 2010).

"[A] showing of standing 'is an essential and unchanging' predicate to any exercise of [a court's] jurisdiction." Fla. Audubon Soc'y v. Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). In order for a plaintiff to establish standing to bring a constitutional claim, Article III requires the plaintiff to show an injury in fact, that the conduct complained of caused the injury, and that it is likely, and not merely speculative, that the relief the plaintiff seeks would redress the injury. See Ariz. Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436, 1442 (2011) (citing Lujan, 504 U.S. at 560-61). "[W]hen the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily 'substantially more difficult' to establish." Lujan, 504 U.S. at 562 (quoting Allen v. Wright, 468 U.S. 737, 758 (1984)).

With respect to Schonberg's FECA and BCRA claims, the injuries of which he complains are that the campaign finance regime as currently enacted unfairly advantages incumbents in federal elections and has prevented the United States from enacting universal, affordable health care. (2d Am. Compl.

¶¶ 16-29, 33, 37, 89-104.) However, even if FECA and BCRA were to be found to be a legal nullity in all [their] iterations, this result would not further Schonberg's goal of more stringent regulation of the federal campaign finance system and elimination of the alleged competitive advantages for incumbent federal candidates. Without a statute specifying permissible and impermissible uses of federal campaign contributions, the Constitution would be the only source for controlling legal authority governing relevant conduct, see United States v. Bounos, 730 F.2d 468, 472 (7th Cir. 1984), aside from federal statutory prohibitions on bribery and the like and various state laws regarding federal elections. Schonberg has made no showing that federal candidates, free from the constraints imposed by [FECA or BCRA] would be more restricted in their use of campaign funds, or that the Constitution itself forbids the pecuniary evils of the federal campaign finance system that he alleges persist. To the contrary, removing these limits would exacerbate, rather than remedy, the perceived ills.

Schonberg, 2011 WL 2441313, at *4. Accordingly, holding FECA or BCRA unconstitutional is not likely to redress Schonberg's claimed injuries.*fn3 He therefore has failed to establish standing over his FECA and BCRA claims, and the FEC's motion to dismiss will be granted.*fn4


Schonberg also challenges the constitutionality of the MRA

and legislative earmarks. He claims that the MRA disadvantages him as a challenger by providing the incumbent member of Congress against whom he is running with taxpayer funding for a website and staff, which aids the incumbent's prospects for re-election. (2d Am. Compl. ΒΆΒΆ 30-32, 36, 38-40, 42, 44, 105-32.) Schonberg also claims that the two earmarks he challenges provided the incumbent with an unfair advantage relative to challengers, in violation of the Equal Protection Clause, and with "unconstitutional compensation" by encouraging others to provide job ...

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