No. 95-1195 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER, 1995 JONI WHITMORE, ET AL., PETITIONERS v. FEDERAL ELECTION COMMISION, ET AL. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BRIEF FOR THE FEDERAL RESPONDENT IN OPPOSITION DREW S. DAYS, III Solicitor General Department of Justice Washington, D.C. 20530 (202)514-2217 LAWRENCE M. NOBLE General Counsel RICHARD B. BADER Associate General Counsel VIVIEN CLAIR Attorney Federal Election Commission Washington, D.C. 20463 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether petitioners have standing to challenge the constitutionality of the Federal Election Campaign Act of 1971,2 U.S.C. 431 et seq., on the ground that it does not prohibit contributions to congressional can- didates from citizens outside the candidates' con- gressional district. (I) ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Page Opinions below . . . . 1 Jurisdiction . . . . 1 Statement . . . . 2 Argument . . . . 9 Conclusion . . . . 12 TABLE OF AUTHORITIES Cases: Albanese v. FEC, N0. 95-6099, 1996 WL 115382 (2d Cir. Mar. 12, 1996) . . . . 10, 11 Allen v. Wright, 468 U.S. 737 (1984) . . . . 9 Buckley v. Valeo, 424 U. S. 1 (1976) . . . . 2, 12 California Medical Ass's v. FEC, 641 F.2d 619 (9th Cir. 1980), aff'd, 453 U.S. 182(1981) . . . . 8, 11 Demarest v. Manspeaker, 498 U. S. 184(1991) . . . . 11 Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469 (1992) . . . . 11 Flagg Bros. v. Brooks, 436 U.S. 149(1978) . . . . 10 Froelich v. FEC, 855 F. Supp. 868 (E.D. Va. 1994), aff'd, 57 F.3d 1066 (4th Cir. 1995) . . . . 10 Linda R.S. v. Richard D., 410 U.S. 614(1973) . . . . 9 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) . . . . 7, 9, 10 Pennsylvania Dep't of Public Welfare v. Davenport, 495 U.S. 552(1990) . . . . 11 Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26(1976) . . . . 10 United States v. Hays, 115 S. Ct. 2431 (1995) . . . . 9 Constitution and statutes: U.S. Const.: Art. I . . . . 4, 10 Art. II, 2, Cl. 2(Appointments Clause) . . . . 2 Art. III . . . . 7, 8, 9 Art. v . . . . 10 (III) ---------------------------------------- Page Break ---------------------------------------- IV Statutes-Continued: Page Amend. I . . . . 2, 4, 5 Amend. V . . . . 4 Amend. XVII . . . . 10 Federal Election Campaign Act Amendments of 1976, Pub. L. No. 94-283, 10l(a), 90 Stat. 475 . . . . 3, 12 Federal Election Campaign Act of 1971, 2 U.S.C. 431 et seq . . . . 2 2 U.S.C. 437c(b)(l) . . . . 3 2 U.S.C. 437d(a) . . . . 3 2 U.S.C. 437d(e) . . . . 3 2 U.S.C, 437f . . . . 3 2 U.S.C. 437g . . . . 3 2 U.S.C. 437g(a)(l) . . . . 3 2 U.S.C. 437g(a)(2) . . . . 3 2 U.S.C. 437h . . . . 3, 7, 8 2 U.S.C. 441a . . . . 2 2 U.S.C 441a(a) . . . . 3 2 U.S.C. 441b(a) . . . . 3 2 U.S.C. 441c(a) . . . . 3 2 U.S.C. 441e . . . . 3 2 U.S.C. 441f . . . . 3 2 U.S.C. 441g . . . . 3 28 U.S.C. 1331 . . . . 6 Miscellaneous: S. Rep. No. 689, 93d Cong., 2d Sess. (1974) . . . . 11 ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1995 No. 95-1195 JONI WHITMORE, ET AL., PETITIONERS v. FEDERAL ELECTION COMMISSION, ET AL. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BRIEF FOR THE FEDERAL RESPONDENT IN OPPOSITION OPINIONS BELOW The October 26, 1995, opinion of the court of ap- peals, as amended per the court's January 10, 1996, order (Pet. App. 1-18), is reported at 68 F.3d 1212. The opinion of the district court (Pet. App. 19-40) is not reported. JURISDICTION The judgment of the court of appeals was entered on October 26, 1995. The petition for a writ of certiorari was filed on January 23, 1996. The jurisdiction oft his Court is invoked under 28 U.S.C. 1254(1). (1) ---------------------------------------- Page Break ---------------------------------------- 2 STATEMENT 1. Congress enacted the Federal Election Cam- paign Act (FECA) of 1971,2 U.S.C. 431 et seq., primar- ily in order to `limit the actuality and appearance of corruption resulting from large individual financial contributions." Buckley v. Valeo, 424 US. 1, 26 (1976). Congress achieved that goal chiefly by limit- ing the amount of money that any individual or politi- cal committee may contribute to a candidate for fed- eral office or to a political committee. 2 U.S.C. 441a. That limitation "focuses precisely on the problem of large campaign contributions-the narrow aspect of political association where the actuality and potential for corruption have been identified-while leaving persons free * * * to assist to a limited but nonetheless substantial extent in supporting candi- dates and committees with financial resources." Buckley v. Valeo, 424 U.S. at 28. This Court has held that the FECA'S specific limitations on the size of campaign contributions serve the compelling gov- ernmental purpose of preventing the "actuality and appearance of corruption" without unnecessary in- fringement of First Amendment rights. 424 U.S. at 26. 1. ___________________(footnotes) 1. The Court in Buckley also upheld the FECA's reporting" requirements. 424 U.S. at 66-68. The Court struck down pro- visions of the FECA that limited expenditures by candidates from their own personal funds, limited total expenditures by candidates on their campaigns, and limited the amount of independent expenditures. The Court aIso found the FEC'S composition to violate the Appointments Clause with regard to the Commission's exercise of enforcement and rulemaking powers. In 1976, Congress amended the FECA to remedy the constitutional infirmities identified in the Buckley decision. ---------------------------------------- Page Break ---------------------------------------- 3 As relevant here, the FECA (1) places dollar limi- tations on the size of contributions by individuals and multicandidate political committees to candidates for federal office and their political committees, 2 U. S.C. 441a(a); (2) prohibits congressional campaign contri- butions by national banks, corporations, and labor organizations, 2 U.S.C. 441b(a); (3) prohibits political contributions by certain government contractors, 2 U.S.C. 441c(a); (4) prohibits contributions by foreign nationals, 2 U.S.C. 441e; (5) prohibits a person from making a contribution in the name of another, 2 U.S.C. 441f; and (6) limits the size of contributions made in cash, 2 U.S.C. 441g. The FECA neither requires candidates and their committees to accept, nor prohibits them from accepting, contributions from persons residing outside the district from which a candidate seeks election. Respondent Federal Election Commission (FEC or Commission) is an independent federal agency charged with the administration, interpretation, and civil enforcement of the FECA. See 2 U.S.C. 437c(b)(l), 437d(a) and (e), 437f, and 437g. Congress has authorized the FEC to "formulate policy" under the Act, 2 U.S.C. 437c(b)(l), to institute investi- gations of possible violations of the Act, 2 U.S.C. 437g(a)(l) and (2), to initiate civil actions in the federal courts to obtain judicial enforcement of the Act, 2 U.S.C. 437c(b)(l) and 437d(e), and to initiate actions in the federal courts to determine the consti- tutionality of any provision of the Act, 2 U.S.C. 437h. 2. Petitioner Joni Whitmore was the Green Party's candidate in the 1994 congressional election ___________________(footnotes) See Federal Election Campaign Act Amendments of 1976, Pub. L. No. 94-283, 10l(a), 90 Stat. 475. ---------------------------------------- Page Break ---------------------------------------- 4 for Alaska's single seat in the United States House of Representatives. Pet. App. 6. In her campaign for office, Whitmore chose not to solicit or accept contributions from contributors residing outside of Alaska's congressional district. Id. at 72-73. Peti- tioner James Quinlan is an Alaska resident and a registered voter. Id. at 7. On June 30, 1994, peti- tioners filed this action against the FEC and the Republican and Democratic Party candidates for Alaska's congressional district, along with those candidates' principal campaign committees (collec- tively, the candidate respondents). Id. at 41-92. In their complaint, petitioners alleged that unspecified provisions of the FECA violate Article I and the First and Fifth Amendments to the Constitution by "authorizing" non-Alaskans, either individually or through multicandidate political committees, to make campaign contributions to candidates for Alaska's seat in the House of Representatives. Pet App. 41-42, 69. Whitmore alleged that the "campaign finance sys- tem" (Pet App. 68) established by the Act injured her, as a candidate for Alaska's congressional seat, be- cause her opponents' expenditure of contributions from non-Alaskans to finance communications with Alaska's voters would "preclude any possibility of [her] winning election" (id. at 45) and would "drown out" her communications with Alaska's voters. Id. at 74. She further alleged that the Act violated her Fifth Amendment right to equal protection by dis- criminating between two "classes" of candidates- those who receive contributions from non-Alaskans and those who do not. Pet App. 86. Both Whitmore and Quinlan alleged that the Act injured them as residents of, and registered voters in, ---------------------------------------- Page Break ---------------------------------------- 5 Alaska's congressional district. They alleged that the expenditure by the candidate respondents of con- tributions from non-Alaskans infringed petitioners' First, "Amendment right of political association with other Alaska voters (Pet. App. 78-80), and deprived them of their right to a House of Representatives that is "republican in form." Id. at 81. 2. Quinlan alleged in addition that his right to vote for Alaska's representative "embodies the right * * * to have an ability to influence the legislative acts of members of the United States House of Represen- tatives that is equal to, and the same as, the influence [of] every other registered voter in the United States." Pet. App. 82. He asserted that the FECA violates this purported right by discriminating in favor of voters who influence members of the House by both voting in their own congressional districts and making or withholding campaign contributions to candidates in other congressional districts. Id. at 82- 85. 3. In their complaint, petitioners sought a declaratory judgment: ___________________(footnotes) 2. The complaint describes a House of Representatives that is "republican in form" as one in which the person elected as Alaska's representative "is exclusively dependent for his or her election and reelection on registered voters who reside in Alaska[] * * * and is exclusively accountable to such voters for his or her legislative acts." Pet. App. 80. 3. Quinlan purported to assert this claim on his own behalf and on behalf of all registered voters in Alaska who do not make campaign contributions. Pet. App. 49-51. The district court did not certify the case as a class action, and petitioners did not challenge that determination on appeal. Id. at 8. The complaint also includes a fifth claim (id. at 88-89), directed solely toward the candidate respondents. We do not address that claim. ---------------------------------------- Page Break ---------------------------------------- 6 [T]hat to the extent the [FECA] authorizes candidates seeking election as Alaska's repre- sentative in the United States House of Repre- sentatives, and their principal campaign and other authorized committees, to solicit and accept campaign contributions made * * * by persons who are not residents of Alaska's at-large con- gressional election district, and to finance cam- paign-related `communications with registered voters who reside in such district with monies derived from such contributions, the Act violates Article I and the First and Fifth Amendments of the United States Constitution. Pet. App. 91. They also sought a permanent injunc- tion prohibiting the candidate respondents from soliciting or accepting campaign contributions from persons who are not residents of Alaska's at-large congressional election district. Id. at 92. petitioners invoked the district court's jurisdiction under both 28 U.S.C. 1331 and 2 U.S.C. 437h-a provision of the FECA that permits certification of questions regarding the constitutionality of provi- sions of the FECA to the court of appeals, Pet. App. 42, "which shall hear the matter sitting `en bane.'" ___________________(footnotes) 4. Section 437h provides: The Commission, the national committee of any political party, or any individual eligible to vote in any election for the office of President may institute such actions in the appropriate district court of the United States, including actions for declaratory judgment, as may be appropriate to construe the constitutionality of any provision of this Act. The district court immed- iately shall certify all questions of constitutionality of this Act to the United States court of appeals for the ---------------------------------------- Page Break ---------------------------------------- 7 2 U.S.C. 437h. Pursuant to Section 437h, petitioners requested that the district court certify their constitutional claims to the en bane court of appeals. Pet App. 90. 3. The district court refused to certify petitioners' proffered constitutional questions to the court of appeals, and on December 8, 1994, the court dismissed the complaint for lack of standing. 5. Pet. App. 19-40. The court held that petitioners had failed to allege facts demonstrating the Article III requirements of injury in fact, causation, and redressability, as required by this Court's standing cases. Pet. App. 26 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992)). The court found petitioners' alleged injury to be inadequate to satisfy Article III because, among other things, "the [FECA] itself does not affect the ability of a candidate to campaign or to seek contributions for that campaign from any individual." Pet. App. 33-34. Similarly, petitioners failed to show that their alleged injuries were "fairly traceable to the challenged action of the defendant, and not the result of some third party" (id. at 37, quoting Lujan, 504 U.S. at 560), because the complaint "alleges no facts indicating that * * * government action has either caused non-Alaskans to contribute to [Whitmore's] opponents, prevented her from soliciting such contri- ___________________(footnotes) circuit involved, which shall hear the matter sitting en bane. 2 U.S.C. 437h. 5. The court had earlier dismissed petitioners' claims against two unsuccessful primary candidates and those candidates' political committees, and had denied petitioners' motion for a preliminary injunction. See Pet. App. 21. ---------------------------------------- Page Break ---------------------------------------- 8 butions, or prevented non-Alaskans from contributing to her." Pet App. 37-38. Finally, the court held that the redressability requirement was not met because declaring the FECA unconstitutional would not stop out-of-state political contributions, and "because the effect of [such] contributions is wholly speculative." Id. at 39. 4. The court of appeals affirmed. The court held that a district court's failure to certify constitutional questions under section 437h of the FECA is not error where a plaintiff lacks standing or raises frivo- lous claims. Pet. App. 10 (citing California Medical Ass'n v. FEC, 453 U.S. 18.2, 193 n.14 (1981)). Here, petitioners' case suffered from both defects. Pet. App. 11,14,18. Observing that "[t]he Act neither prohibits nor authorizes out-of-state campaign contributions" (Pet. App. 12), and that "[t]he harms alleged [by petitioners] derive from the acts of other citizens, not from the Act" (id. at 14), the court concluded that "[t]he ab- sence of a causal relationship between the Act, which [petitioners] challenge, and their injury, necessarily deprives them of standing to challenge the Act." Id. at 1.2-13.6 The court also held that petitioners' claims were legally frivolous. Pet. App. 15. Noting that petition- ers cited no published judicial authority in support of their legal theory (ibid.), and that the relief peti- tioners sought-enjoining the acceptance of dona- tions from out-of-state contributors who are not parties to the litigation-might abridge the rights of ___________________(footnotes) 6. Because the court held that petitioners had failed to satisfy the causation requirement, it did not address the other criteria for standing under Article 111. Pet. App. 13. ---------------------------------------- Page Break ---------------------------------------- 9 third parties (id, at 17), the court found petitioners' claims to be untenable. ARGUMENT 1. In order to establish standing, a plaintiff must show (1) an "injury in fact" that is "concrete and particularized," not "conjectural" or "hypothetical"; (2) that there is a "causal connection between the in- jury and the conduct complained of"; and (3) that it is "likely," as opposed to "merely speculative," that the injury will be "redressed by a favorable decision," Lujan v. Defenders of Wildlife, 504 U.S. 555,560-561 (1992) (internal quotations marks and citations omit- ted). See also United States v. Hays, 115 S. Ct. 2431, 2435 (1995); Allen v. Wright, 468 U.S. 737,751 (1984). The court below correctly held that petitioners could not demonstrate causation under Article III. Assuming, arguendo, that petitioners satisfied the injury-in-fact requirement by alleging that out-of- state contributions diminished Whitmore's ability to compete against the candidate respondents, petition- ers have failed to allege that any provision of the FECA caused that result. See Linda R.S. v. Richard D., 410 U.S. 614, 618 (1973).7 Rather, it is evident from the face of the complaint (see, e.g., Pet. App. 71- 73) that the alleged electoral disadvantage to petition- ers sprang from the private decisions of non-Alaskans to support" the candidate respondents, and from peti- tioner Whitmore's decision not to seek or accept such ___________________(footnotes) 7 Petitioners fail to identify any particular provision of the FECA that they contend violates the Constitution. Instead, they rely on the conclusory allegation that "the operation of the FECA campaign finance system violates the petitioners' exercise of [First and Fifth Amendment] rights." Pet. 10 see also id. at 16. ---------------------------------------- Page Break ---------------------------------------- 10 support. Accordingly, petitioners have not alleged facts showing that their purported injury is "fairly traceable to the challenged action of the defendant, and not the result of some third party." Lujan, 504 U.S. at 560-561 (quoting Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26,41-42 (1976)). Petitioners contend (Pet. 17-18) that, because the FECA regulates the amount and form of certain campaign contributions (whether from intradistrict or extradistrict sources), it affirmatively authorizes contributions by donors residing outside of a candi- date's district. As the court of appeaIs observed (pet. App. 12), however, that contention rests on the incor- rect premise that a statute necessarily authorizes or requires all private action that it does not affirma- tively prohibit. See Flagg Bins. v. Brooks, 436 U.S. 149, 164-165 (1978) (private conduct does not become unconstitutional governmental action "by the simple device of characterizing the [government's] inaction as `authorization' or `encouragement.' "). The FECA neither requires candidates to accept, nor prohibits them from accepting, out-of-state contributions. See Albanese v. FEC, No. 95-6099, 1996 WL 115382 (2d Cir. Mar. 12, 1996?), slip op. 2188. 8. Nor would such ___________________(footnotes) 8. In Albanese, the court followed the decision below in rejecting on standing grounds a constitutional challenge to the FECA. The court in Albanese concluded that, because the "FECA does not require that contributions be made to any candidate * , any injury claimed by these plaintiffs is not attributable to [the] FECA." Slip op. 2188. See also Froelich v. FEC, 855 F. Supp. 868 (E.D. Va. 1994) (dismissing for lack of standing complaint that challenged out-of-state campaign contributions under Article I, Article V, the Seventeenth Amendment, and the Separation of Powers doctrine), aff'd, 57 F.3d 1066 (4th Cir. 1995). ---------------------------------------- Page Break ---------------------------------------- 11 contributions be prohibited in the absence of the FECA. Id. at 2-3; see also California Medical Ass'n v. FEC, 641 F.2d 619, 623 n.2 (9th Cir; 1980) (en bane) (contributions by individuals to political committees were not limited before passage of the FECA), aff'd, 453 U.S. 182 (1981). The court below thus concluded (Pet. App. 14) that "[t]he harms alleged [by peti- tioners] derive from the acts of other citizens, not from the Act." Petitioners also complain (Pet. 24-25) that "[t]he methodology the Court of Appeals employed to dis- cern the intent of Congress embodied in [the] FECA so far departed from the accepted and usual course of judicial proceedings that this Court's review [is warranted]." The court below, however, looked di- rectly to the text of the FECA (see, e.g., Pet. App. 11- 12), which clearly does not regulate the location within the United States from which a campaign con- tribution may be made. "[W]hen a statute speaks with clarity to an issue judicial inquiry into the statute's meaning, in all but the most extraordinary circum- stances, is finished." Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469,475 (1992); see also Dem- arest v. Manspeaker, 498 U.S. 184, 187 (1991); Penn- sylvania Dep`t of Public Welfare v. Davenport, 495 U.S. 552, 557-558 (1990). Petitioners identify no "extraordinary circumstances" that would justify a departure from established rules of statutory con- struction in this case. 9. ___________________(footnotes) 9. Petitioners rely primarily (Pet. 24) on a 1974 legislative report, S. Rep. No. 689, 93d Cong., 2d Sess. 1, to argue that Congress intended the FECA completely to control campaign contributions and expenditures. Congress, however, did not adopt the provisions for public financing of congressional elections that were proposed by that report. The report's ---------------------------------------- Page Break ---------------------------------------- 12 2. Petitioners contend that review should be granted because the court of appeals "gratuitous[ly] pronounced]" their claims to be frivolous and thereby rendered a forbidden "advisory opinion]." Pet. 25. The question whether petitioners'. constitutional claims are frivolous was, however, properly before the court of appeals, see Gov't C.A. Br. 2, 31-34, and the court's decision to address that question in the alter- native does not warrant this Court's review. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. DREW S. DAYS, III Solicitor General LAWRENCE M. NOBLE General Counsel . RICHARD B. BADER Associate General Counsel VIVIEN CLAIR Attorney Federal Election Commission MARCH 1996 ___________________(footnotes) proposed limit on campaign expenditures, which Congress did enact, was invalidated by this Court in Buckley v. Valeo, 424 U.S. at 54-58, and deleted from the Act by Congress in 1976. See Federal Election Campaign Act Amendments of 1976, Pub. L. No. 94-283, 10l(a), 90 Stat. 475.