Legal Library


John C. Bonifaz (JB-0987)
Law Offices of Cristobal Bonifaz
401 Commonwealth Avenue
Boston, Massachusetts 02215
(617) 424-7950

John W. Carroll (JWC-6810)
Wolfson and Carroll
233 Broadway, Suite 970
New York, New York 10279
(212) 233-0314

Attorneys for the Plaintiffs

UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF NEW YORK

SAL F. ALBANESE, et. al.,
Plaintiffs

v. Civil Action
File Number 94-3299
THE FEDERAL ELECTION COMMISSION,
SUSAN MOLINARI,
COMMITTEE TO RE-ELECT SUSAN MOLINARI,
Defendants.


FIRST AMENDED COMPLAINT

INTRODUCTION

1. This action is a challenge to the wealth primary (defined below) in federal elections. It is brought under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution (hereinafter "Constitution"), as incorporated by the Due Process Clause of the Fifth Amendment to the Constitution; the First Amendment to the Constitution; and Article I of the Constitution, requiring that the U.S. House of Representatives "shall be composed of Members chosen...by the people of the several states." Plaintiffs allege that Defendants have participated in and helped organize and continue to participate in and help organize the exclusionary wealth primary in violation of Plaintiffs' constitutional rights to vote, to participate meaningfully in the electoral process, and to run for political office as guaranteed by the Equal Protection Clause and by Article I and in violation of Plaintiffs' right to freedom of expression and freedom of association as guaranteed by the First Amendment. The wealth primary excludes and discourages candidates and voters on the basis of their lack of wealth and their lack of access to wealth. By participating in and helping to organize the wealth primary, Defendants, like those who engaged in the unconstitutional white primaries of the past, have denied Plaintiffs their rights to meaningful and equal participation in the electoral process.{1}

2. Plaintiffs define the wealth primary as the exclusionary campaign finance process in federal elections which heavily favors incumbents, wealthy candidates, and candidates backed by affluent supporters and monied interests and which, simultaneously, prevents potential office seekers lacking personal wealth or affluent backers from competing effectively for political office. The wealth primary is a critical two-part process which occurs during the electoral process leading up to any party primary and which continues during the electoral process leading up to the general election. In the wealth primary, wealthy donors, through their financial contributions, exercise inordinate and disproportionate influence over who wins a party primary's nomination for Congress and a congressional general election. In effect, wealthy donors select the candidates who almost invariably go on to win election in a process that excludes the vast majority of voters who lack wealth and access to wealth. The wealth primary has served and continues to serve as an integral part of the overall process for electing public officials in the United States Government, including the Member of the United States Congress representing the 13th district of the State of New York. As a challenge to the wealth primary, this action is, by definition, a challenge to the Federal Election Campaign Act of 1971, as amended, 2 U.S.C. Sect. 431 et seq. (hereinafter "FECA") and its resulting statutory regime which has brought the modern wealth primary into being and which authorizes the Federal Election Commission to monitor and oversee the wealth primary.

3. The wealth primary is infused with state action -- and, therefore, challengeable -- in the following ways:

3.1. The wealth primary is an integral part of the overall public election process; it is part of the machinery for choosing public officials in the United States Government. Candidates for the United States House of Representatives and the United States Senate who win the two-part wealth primary almost invariably go on to win the election.{2}

3.2. The wealth primary involves extensive conduct and participation by elected public officials in the federal government.{3}

3.3. Incumbent Members of the United States Congress running for re-election receive a public self-subsidy in the wealth primary which they use to help finance their re-election campaigns. This public subsidy includes: the public salary for each Member of Congress which is relied on as a or the source of personal income for the incumbent candidate during the re-election campaign; the financing of the congressional franking privilege; and office, staff, and other expenses used by the incumbent candidate for re-election purposes.

3.4 Incumbent Members of the United States Congress running for re-election receive a private subsidy in the wealth primary from campaign contributors seeking to influence their votes and from campaign contributors who have influenced their votes in the past.

3.5 Campaign contributors in the wealth primary receive rewards and benefits for their campaign support through the systemic enactment of legislation favoring their interests.

3.6 The Federal Election Campaign Act of 1971, as amended, 2 U.S.C. Sect. 431 et seq. has brought the modern wealth primary into being and authorizes the Federal Election Commission to monitor and oversee the wealth primary.

4. With this action, Plaintiffs seek declaratory relief (1) invalidating, as unconstitutional, the wealth primary in the 13th Congressional District for the State of New York; (2) invalidating, as unconstitutional, FECA insofar as it allows for the wealth primary to occur by allowing for the solicitation and use of private money in federal elections without creating a public financing system for qualified congressional candidates which protects the constitutional rights of all candidates and voters who lack wealth and access to wealth; and (3) invalidating, as unconstitutional, the spending of public funds by incumbent Members of Congress through the use of the franking privilege and other politically-related uses unless and until equal funds are appropriated to all declared congressional challengers.

PARTIES

5. Plaintiff Sal F. Albanese is a five-term elected member of the City Council of New York City, representing the 150,000 residents of the 43rd city council district of Brooklyn, New York. Plaintiff Albanese was the 1992 Democratic Party candidate for the congressional seat representing the 13th District of the State of New York, which includes the 43rd city council district of Brooklyn, New York. Plaintiff Albanese is a resident of the 13th Congressional District of the State of New York, is registered to vote in the 13th Congressional District of the State of New York, and is eligible to vote for the office of President of the United States.

6. Plaintiff Tim Carl is a registered Independent voter who lives on Staten Island, New York. Plaintiff Carl works as a self-employed travel agent. In 1992, Plaintiff Carl seriously considered running as an Independent candidate for Congress for the 13th Congressional District of New York, but decided not to do so because he lacked the wealth and access to wealth necessary for participating in the decisive wealth primary. Plaintiff Carl served as the coordinator for the 13th Congressional District of New York for the Independent candidate Ross Perot's initial campaign in 1992 for President of the United States. He has served as a member of the Republican Party's Richmond County (NY) Executive Committee. Plaintiff Carl voted for Plaintiff Albanese for Congress in 1992.

7. Plaintiff Loretta Carl is a registered Independent voter who lives on Staten Island, New York. Plaintiff Loretta Carl works as a head clerk on the floor of the New York Stock Exchange. She has served on the Republican Party's Richmond County (NY) Executive Committee. Plaintiff Loretta Carl voted for Plaintiff Albanese for Congress in 1992.

8. Plaintiff Joseph Carolei is a registered Democratic voter who lives on Staten Island, New York. Plaintiff Carolei works as a corrections officer for the City of New York. Plaintiff Carolei voted for Plaintiff Albanese for Congress in 1992 and volunteered time for his campaign.

9. Plaintiff John Castelli is a registered Democratic voter who lives on Staten Island, New York. Plaintiff Castelli is a second-year law student at the City of New York's Queens College. Plaintiff Castelli voted for Plaintiff Albanese for Congress in 1992 and worked on his campaign.

10. Plaintiff Stephen Clinton is a registered Democratic voter who lives on Staten Island, New York. Plaintiff Clinton works as a public school teacher for the City of New York. Plaintiff Clinton voted for Plaintiff Albanese for Congress in 1992 and volunteered time for his campaign.

11. Plaintiff Gregory Glover is a registered Democratic voter who lives on Staten Island, New York. Plaintiff Glover works as the owner and manager of a martial arts school and teaches at the John J. College of Criminal Justice in Manhatten. Plaintiff Glover voted for Plaintiff Albanese for Congress in 1992.

12. Plaintiff Tinamarie Lambiasi is a registered Republican voter who lives on Staten Island, New York. Plaintiff Lambiasi works as a substance abuse counselor for the Staten Island University Hospital. Plaintiff Lambiasi voted for Plaintiff Albanese for Congress in 1992 and volunteered time for his campaign.

13. Plaintiff John O'Donnell is a registered Democratic voter who lives on Staten Island, New York. Plaintiff O'Donnell works as a lieutenant for the New York City transit police. Plaintiff O'Donnell voted for Plaintiff Albanese for Congress in 1992 and volunteered time for his campaign.

14. Plaintiff Elaine Polenini is a registered Republican voter who lives in Brooklyn, New York. Plaintiff Polenini works as a family assistant for the New York City Board of Education. Plaintiff Polenini voted for Plaintiff Albanese for Congress in 1992 and volunteered time for his campaign.

15. Plaintiff Rochelle Puglisi is a registered Republican voter who lives in Brooklyn, New York. Plaintiff Puglisi works as a secretary for a public school in Brooklyn. Plaintiff Puglisi voted for Plaintiff Albanese for Congress in 1992 and volunteered time for his campaign.

16. Plaintiff Tobias Russo is a registered Democratic voter who lives in Brooklyn, New York. Plaintiff Russo works as a self-employed carpenter. Plaintiff Russo voted for Plaintiff Albanese for Congress in 1992 and volunteered time for his campaign.

17. Plaintiff Terry Silveira is a registered Republican voter who lives on Staten Island, New York. Plaintiff Silveira works as a mortgage broker. Plaintiff Silveira voted for Plaintiff Albanese for Congress in 1992.

18. Plaintiff Victor M. Suarez is a registered Democratic voter who lives on Staten Island, New York. Plaintiff Suarez works as a bus driver for the New York City transit authority. Plaintiff Suarez is the financial secretary-treasurer of Division 726 of the Amalgamated Transit Union. Plaintiff Suarez voted for Plaintiff Albanese for Congress in 1992 and volunteered time for his campaign.

19. Plaintiffs Tim Carl, Loretta Carl, Joseph Carolei, John Castelli, Stephen Clinton, Gregory Glover, Tinamarie Lambiasi, John O'Donnell, Elaine Polenini, Rochelle Puglisi, Tobias Russo, Terry Silveira, and Victor M. Suarez, (hereinafter referred to as "Plaintiffs Carl, et. al.") are all residents of the 13th Congressional District of New York, are registered to vote in the 13th Congressional District of the State of New York, are eligible to vote for the office of President, and are supporters of Plaintiff Albanese. All of the Plaintiffs lack the wealth and access to wealth necessary for participating in the ongoing wealth primary in the congressional elections for the 13th Congressional District of the State of New York.

20. Defendant Federal Election Commission (hereinafter "Commission") is a federal government agency established by FECA and is responsible for interpreting and enforcing FECA.

21. Defendant Susan Molinari is a Member of the United States Congress representing the 13th Congressional District of the State of New York. Defendant Molinari is a candidate as defined under FECA as of only candidate defined under is a resident of the 13th Congressional District of the State of New York and was the Republican Party's 1992 incumbent candidate for Congress for the 13th Congressional District of the State of New York. Defendant Molinari was first elected to Congress in a special election in 1990 after her father, former Congressman Guy Molinari, vacated the seat, to run for borough president of Staten Island. Based on information and belief, Defendant Molinari is running for re-election to Congress in 1994 for a third full term, is continuing to participate in and help organize the wealth primary, and intends to be such a decisive victor in the wealth primary that all potential opponents will be either discouraged from running or have their speech effectively drowned out during the campaign.

22. Defendant Committee to Re-Elect Susan Molinari (hereinafter "Committee") is Defendant Molinari's principal campaign committee as defined in FECA, 2 U.S.C. Sect. 431(5). Defendant Committee is headquartered in Staten Island, New York. Defendant Committee participated in and helped organize the wealth primary in the 1992 race for the congressional seat representing the 13th Congressional District of the State of New York, is continuing to participate in and help organize the wealth primary for the 1994 race for the same office, and intends to be such a decisive victor in the wealth primary that all potential opponents will be either discouraged from running or have their speech effectively drowned out during the campaign.

JURISDICTION

23. Jurisdiction is proper under 28 U.S.C. Sect. 1331, 2201, and 2202; and FECA, 2 U.S.C. Sect. 437h(a):

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 immediately shall certify all questions of constitutionality of this Act to the United States court of appeals for the circuit involved, which shall hear the matter sitting en banc.

24. Venue is proper under 28 U.S.C. Sect. 1391(b) and (e).

FACTS

25. In 1992, Plaintiff Albanese was the Democratic Party's candidate for the United States Congress for the 13th Congressional District for the State of New York. Plaintiff Albanese raised a total of $267,248 in his electoral campaign for Congress. That total included $88,000 from contributions by political action committees, $49,000 from individual contributions in the amounts of $200 or more, and $86,000 from individual contributions in the amounts of less than $200. Plaintiff Albanese decisively lost the wealth primary, by a margin of almost two-to-one, and went on to lose the election, receiving 39% of the vote in the general election in November 1992.

26. In 1992, Defendant Molinari was the Republican Party's incumbent candidate for Congress for the 13th Congressional District for the State of New York. Defendant Committee was Defendant Molinari's principal campaign committee. Defendant Molinari and Defendant Committee raised a total of $524,112 in Molinari's re-election campaign for Congress in 1992. That total included $225,690 from contributions by political action committees, $189,680 from individual contributions in the amounts of $200 or more, and $87,343 from individual contributions in the amounts of less than $200. Defendant Molinari and Defendant Committee won the wealth primary for the 13th Congressional District for the State of New York in 1992, outraising and outspending Plaintiff Albanese's campaign by approximately two to one. Defendant Molinari won re-election, receiving 55% of the vote in the general election in November 1992.

27. The 13th Congressional District for the State of New York includes Staten Island and Mr. Albanese's city council district in Brooklyn. As the incumbent candidate, Ms. Molinari enjoyed significant name recognition throughout the congressional district. As a member of the New York City Council, Mr. Albanese had name recognition in his city council district in Brooklyn but was relatively unknown to the voters of that portion of the congressional district covering Staten Island. In the Brooklyn portion of the congressional district, where both Ms. Molinari and Mr. Albanese were known to the voters, Mr. Albanese received 52% of the vote in 1992 to Ms. Molinari's 44% of the vote. In the Staten Island portion of the congressional district, where only Ms. Molinari had name recognition and where 400,000 of the district's 535,000 voters live, Ms. Molinari received 62% of the vote to Mr. Albanese's 34% of the vote.

28. Mr. Albanese announced his candidacy in early 1992. For several months leading to the general election, Mr. Albanese campaigned 14 hours each day, meeting thousands of people by standing at subway and ferry stops, visiting senior centers and community groups, attending community meetings, knocking on doors, canvassing neighborhoods, and visiting people's homes for coffee "kloches." In an unsuccessful effort to compete with Ms. Molinari in the wealth primary, Mr. Albanese spent three to four hours each day making phone calls to potential campaign contributors, pleading for money.

29. Mr. Albanese never had nor raised enough money in his campaign to purchase advertising on New York cable television stations which reach more than 50% of the homes on Staten Island. Ms. Molinari repeatedly ran several campaign commercials on the stations during her campaign.

30. Mr. Albanese never had nor raised enough money in his campaign to purchase full page advertising in the local newspapers reaching the 13th Congressional District for the State of New York. Ms. Molinari ran several full page advertisements in the local newspapers throughout her campaign.

31. Mr. Albanese never had nor raised enough money to finance a district-wide mailing to the voters of the 13th Congressional District of the State of New York. Ms. Molinari's campaign financed several district-wide mailings to the voters of the 13th District and Ms. Molinari's congressional office in Washington, D.C., sent several pieces of franked mail to the voters of the 13th District during the 1991-92 election cycle, spending a total of $166,953 of taxpayer money.

32. Mr. Albanese never had nor raised enough money during his campaign to finance advertising on billboards in the 13th Congressional District. Such advertising is particularly essential for candidates trying to build name recognition in the sprawling land mass of Staten Island, the largest land mass borough in the city of New York. Ms. Molinari's campaign financed several advertisements on billboards throughout the 13th District during her campaign.

33. Due to limited resources, Mr. Albanese had a limited campaign staff with a paid campaign manager, a paid fundraiser, and three campaign staff members who were each paid nominal sums. As a result of her large campaign chest, Ms. Molinari had a significant campaign staff, with pollsters, fundraisers, media consultants, and two field offices. As an incumbent, Ms. Molinari also was able to rely on her large congressional office staff for assistance in her re-election campaign.

34. Mr. Albanese differed significantly from Ms. Molinari on a number of issues of concern to the voters of the 13th Congressional District, including health care, labor issues, the environment, and economic issues. The voters of the 13th Congressional District, however, were never able to become sufficiently informed about these differences due to Mr. Albanese's limited resources and due to Ms. Molinari's expenditure of vast sums of money to drown out the speech of Mr. Albanese and of Mr. Albanese's supporters.

35. Many voters in the 13th Congressional District, including the Plaintiffs in this action, could not afford to participate in the wealth primary in the 1992 congressional race. Despite this fact, the wealth primary was an integral part of the overall process for electing the Member of Congress representing the 13th District. The winner of the wealth primary, Defendant Susan Molinari, went on to win re-election. Defendant Molinari and Defendant Committee's ability to outspend Plaintiff Albanese served as a determinant factor in the electoral race.

36. Defendant Molinari and other public officials in the federal government were deeply involved in the wealth primary.

37. As an incumbent Member of Congress, Defendant Molinari benefitted from a public self-subsidy which she used, in part, to help finance her campaign. This subsidy included her franking privilege, her scheduler, her policy and research assistants, and her speechwriters. As a challenger, Plaintiff Albanese did not have access to this public subsidy.

38. The campaign contributors who participated in the wealth primary and who financed Defendant Molinari's campaign are able to exercise enormous influence with Defendant Molinari and her congressional office staff, seeking legislative and regulatory favors and benefits in their areas of economic interest. This influence, wielded by many who do not live in the 13th Congressional District, is vastly disproportionate to the influence of the average voters in the 13th District, thereby undermining the fundamental principle of "one person, one vote," and threatening the basic integrity of the democratic process.

39. FECA allowed for the wealth primary in the 1992 congressional race in the 13th District to occur. The Federal Election Commission monitored and oversaw the wealth primary.

40. Plaintiffs Carl, et. al. supported and voted for Plaintiff Albanese for Congress in 1992. Plaintiffs Carl, et. al. were unable to participate in and were thereby effectively excluded from the wealth primary due to their lack of wealth and their lack of access to wealth.

41. The wealth primary occurred in all of the 1992 electoral races for the U.S. House of Representatives and for the U.S. Senate. As in the electoral race for Congress for the 13th District of the State of New York, the wealth primary was an integral part of the overall process in these other electoral races. In 388 of 435 House races in 1992, the candidate who won the wealth primary went on to win the election. In 31 of the 36 Senate races, the candidate who won the wealth primary went on to win the election, 24 of those winners outspending their opponents by a margin of 2:1 or more.

42. In 1992, a seat in the U.S. House of Representatives cost, on average, $543,000 to win. A seat in the United States Senate cost, on average, $3.9 million to win.

43. Eighty-one percent of all money raised for House and Senate races in 1992 came from less than one percent of the nation's population and in amounts of $200 or more. In other words, fewer than one in a hundred citizens provided eight out of ten dollars paying for congressional election campaigns in 1992. The vast majority of Americans cannot afford to participate in this wealth primary. They are effectively excluded from this decisive process in congressional elections because they lack the necessary wealth and access to wealth.

44. FECA authorizes this wealth primary in the electoral races for the U.S. House of Representatives and for the U.S. Senate. The Federal Election Commission monitors and oversees this wealth primary for all of these races.

45. Plaintiff Albanese would be a 1994 candidate for Congress for the 13th District of the State of New York but for the wealth primary which prevents his meaningful and equal participation as a candidate in the electoral process. Plaintiffs Carl, et. al. remain supporters of Plaintiff Albanese as a candidate for Congress. By preventing Plaintiff Albanese's meaningful and equal participation as a candidate in the electoral process, the 1994 wealth primary is preventing their meaningful and equal participation as voters in the electoral process. Further, as voters in the 13th District, all of the Plaintiffs are being effectively excluded from the 1994 wealth primary, as they were with the 1992 wealth primary, due to their lack of wealth and their lack of access to wealth. This exclusion will continue beyond the 1994 elections and into future congressional elections so long as the wealth primary is allowed to continue.

46. Defendant Molinari is running as the Republican Party's incumbent candidate for re-election for Congress in 1994. Defendant Committee is Defendant Molinari's principal campaign committee for the 1994 race, as it was for the 1992 race. As in 1992, Defendant Molinari and Defendant Committee are participating in and helping to organize the wealth primary in the 1994 race. Should Defendant Molinari win re-election in 1994, she will continue, as an incumbent Member of Congress, to receive the public subsidy as described in paragraph 3.3 for use in helping to finance another re-election campaign.

47. As in 1992, FECA allows for the wealth primary in the 1994 congressional race for the 13th District for the State of New York, and, unless it is invalidated insofar as it allows for the solicitation and use of private money in federal elections without creating a public financing system for qualified congressional candidates which protects the constitutional rights of all candidates and voters who lack wealth and access to wealth, FECA will continue to allow for the wealth primary in future congressional elections in the 13th District for the State of New York and in all other future congressional elections. As in 1992, the Federal Election Commission is monitoring and overseeing the wealth primary in the 1994 race, and, unless FECA is invalidated insofar as it allows for the solicitation and use of private money in federal elections without creating a public financing system for qualified congressional candidates which protects the constitutional rights of all candidates and voters who lack wealth and access to wealth, the Federal Election Commission will continue to monitor and oversee the wealth primary in future congressional elections in the 13th District for the State of New York and in all other future congressional elections.

48. Defendant Molinari was first elected to Congress in a special election in 1990, having first won the wealth primary that year. In her two subsequent electoral races for Congress since then, Defendant Molinari has, each time, won the wealth primary and has gone on to win election.

COUNT I

49. Plaintiffs reallege and incorporate as if fully set forth herein the allegations contained in paragraphs 1 through 48 above.

50. By engaging in the exclusionary wealth primary, Defendants have denied and continue to deny Plaintiffs their equal protection rights as guaranteed by the Equal Protection Clause of the Fourteenth Amendment to the Constitution and as incorporated by the Due Process Clause of the Fifth Amendment to the Constitution. Defendants have denied and continue to deny Plaintiff Albanese his constitutional right to meaningful and equal participation as a candidate in the electoral process and Defendants have denied and continue to deny Plaintiffs Albanese, Carl, et. al. their constitutional right to meaningful and equal participation as voters in the electoral process.

51. By engaging in the exclusionary wealth primary and allowing wealthy campaign donors to exercise disproportionate influence over Defendant Molinari and her congressional office, Defendants have denied and continue to deny Plaintiffs their constitutional right to "one person, one vote," and their right to be heard on an equal basis in the electoral and legislative process.

COUNT II

52. Plaintiffs reallege and incorporate as if fully set forth herein the allegations contained in paragraphs 1 through 48 above.

53. By engaging in the exclusionary wealth primary, Defendants have denied and continue to deny Plaintiffs their constitutional right under Article I of the Constitution which requires that the U.S. House of Representatives "shall be composed of Members chosen...by the people of the several States." (emphasis supplied)

COUNT III

54. Plaintiffs reallege and incorporate as if fully set forth herein the allegations contained in paragraphs 1 through 48 above.

55. By engaging in the exclusionary wealth primary, Defendants have denied and continue to deny Plaintiffs their constitutional rights to freedom of expression and freedom of association as guaranteed by the First Amendment to the Constitution. Defendants' participation and involvement in the wealth primary, which excludes Plaintiffs on the basis of their lack of wealth and their lack of access to wealth, has resulted in the denial of Plaintiffs' right to speak freely and to associate freely in an integral part of the electoral process. In addition, Defendant's use of enormous sums of money in the electoral process has caused a drowning out of Plaintiffs' speech, in further violation of Plaintiffs' First Amendment rights.

COUNT IV

56. Plaintiffs reallege and incorporate as if fully set forth herein the allegations contained in paragraphs 1 through 48 above.

57. Because FECA allows for the exclusionary wealth primary in the 13th Congressional District for the State of New York without creating a public financing system which protects the constitutional rights of the Plaintiffs, FECA, as currently written, is unconstitutional in violation of Plaintiffs' constitutional rights as protected by the Equal Protection Clause, Article I, and the First Amendment.

RELIEF

Based on the above counts, Plaintiffs pray for the following relief:

A. A declaratory judgment that the wealth primary, the exclusionary campaign finance process in federal elections, is unconstitutional in violation of the Equal Protection Clause of the Fourteenth Amendment to the Constitution, as incorporated by the Due Process Clause of the Fifth Amendment; Article I of the Constitution; and the First Amendment to the Constitution; and that by engaging in the wealth primary, Defendants have denied Plaintiffs their constitutional rights under the Equal Protection Clause, Article I, and the First Amendment to the Constitution.

B. A declaratory judgment that the Federal Election Campaign Act of 1971, as amended, 2 U.S.C. Sect 431 et seq., is unconstitutional insofar as it allows for the solicitation and use of private money in federal elections without creating a public financing system for qualified congressional candidates which protects the constitutional rights of all candidates and voters who lack wealth and access to wealth.

C. A declaratory judgment that the spending of public money by incumbent Members of Congress through the use of the franking privilege and other politically-related uses is unconstitutional unless and until equal funds are appropriated to all declared qualified challengers in congressional races to make their views known to the electorate.

C. An award of plaintiffs' attorneys fees and costs, as deemed reasonable by this Court, pursuant to the Equal Access to Justice Act, 28 U.S.C. Sect. 2412, and pursuant to 42 U.S.C. 1973 l(e).

D. Other remedies the court may find appropriate.

August 19, 1994 Respectfully submitted,
Attorneys for the Plaintiffs:

_____________________________
John C. Bonifaz (JB-0987)
Law Offices of Cristobal Bonifaz
401 Commonwealth Avenue
Boston, Massachusetts 02215
(617) 424-7950

-and-



______________________________
John W. Carroll (JWC-6810)
Wolfson and Carroll
233 Broadway, Suite 970
New York, New York 10279
(212) 233-0314

with the National Voting Rights Institute,
Cambridge, Massachusetts

FOOTNOTES

{1} See Jamin Raskin & John Bonifaz, "Equal Protection and the Wealth Primary," 11 Yale Law & Policy Review, No. 2, 273-332 (1993).

{2} See Terry v. Adams, 345 U.S. 461 (1953). In Terry, the United States Supreme Court held that a private Texas club's candidate nominating process, which excluded African-American voters on the basis of their race, had become "an integral part" of the overall electoral process, thereby implicating state responsibility. The winner of that exclusionary "white primary," like the winner of the exclusionary wealth primary, almost invariably went on to win the election.

{3} Id.