Legal Library


IN THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
__________________________________________________________

95-6099
__________________________________________________________

SAL F. ALBANESE, et al.,
Plaintiffs-Appellants,

v.

THE FEDERAL ELECTION COMMISSION, et al.,
Defendants-Appellees.
__________________________________________________________

BRIEF FOR PLAINTIFFS-APPELLANTS
__________________________________________________________
John C. Bonifaz
Cristobal Bonifaz
Jason Adkins
Jordan Yeager
Law Offices of Cristobal Bonifaz
401 Commonwealth Avenue
Boston, Massachusetts 02215
(617) 424-7950

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

Attorneys for the Plaintiffs-Appellants

with The National Voting Rights Institute
1130 Massachusetts Avenue
Cambridge, Massachusetts 02138
(617) 441-8200

On the brief:

Baiju Shah
Harvard Law School '97, Law Student Intern

TABLE OF CONTENTS


TABLE OF AUTHORITIES

PRELIMINARY STATEMENT

STATEMENT OF JURISDICTION

STATEMENT OF THE ISSUES

STATEMENT OF THE CASE

1. Course of proceedings and disposition in the court below

2. Statement of facts

SUMMARY OF ARGUMENT

STANDARD OF REVIEW

ARGUMENT

I. THE DISTRICT COURT ERRED IN FINDING THAT THE PLAINTIFF- VOTERS DID NOT HAVE STANDING TO CHALLENGE THE EXCLUSIONARY CAMPAIGN FINANCE SYSTEM IN THE CONGRESSIONAL ELECTION IN THEIR DISTRICT, AS SANCTIONED
AND AUTHORIZED BY THE FEDERAL ELECTION CAMPAIGN ACT OF 1971 (AS AMENDED, 1974)

A. Plaintiffs Suffer an Injury in Fact

1. Plaintiffs Suffer an Injury in Fact as Voters Excluded from an Integral Part of the Overall Electoral Process

2. Plaintiffs Suffer an Injury in Fact as Voters Whose Constitutional Right to Vote is Undermined and Debased by the Exclusionary Congressional Campaign Finance System

3. Plaintiff Sal Albanese Suffers an Injury in Fact as a Congressional Candidate Denied Participation on an Equal and Meaningful Basis in the Electoral Process

B. Plaintiffs' Injuries Are Traceable to the Defendants' Actions in the Wealth Primary

C. Plaintiffs' Injuries Are Likely to be Redressed By a Favorable Decision

II. THE DISTRICT COURT ERRED IN FINDING THAT BUCKLEY HAD PREVIOUSLY DECIDED PLAINTIFFS' CONSTITUTIONAL CLAIMS AND THAT, THEREFORE, THE PLAINTIFFS DID NOT STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED

III. THE DISTRICT COURT ERRED IN DENYING PLAINTIFFS STANDING TO CHALLENGE THE DEFENDANT MOLINARI'S USE OF THE INCUMBENT SUBSIDY

IV. THE DISTRICT COURT ERRED IN FINDING THAT THE PLAINTIFFS'
CHALLENGE TO THE INCUMBENT SUBSIDY HAD NOT STATED A CLAIM UPON WHICH RELIEF MAY BE GRANTED

CONCLUSION


TABLE OF AUTHORITIES


CASES

Austern v. Chicago Bd. Options Exch., 898 F. 2d 882,(2d Cir. 1989), cert.
denied, 498 U.S. 850 (1990)

Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990)

Baker v. Carr, 369 U.S. 186 (1962)

Baker v. Carr, 206 F. Supp. 341, (M.D. Tenn. 1962)

Baker v. Carr, 179 F. Supp. 824 (M.D. Tenn. 1959)

Brown v. Board of Education, 347 U.S. 483 (1954)

Buckley v. Valeo, 424 U.S. 1 (1976)

Bullock v. Carter, 405 U.S. 134 (1972)

Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961)

Civil Rights Cases, 109 U.S. 3 (1883)

Coalition to End the Permanent Congress v. Runyon, 979 F.2d 219 (D.C. Cir. 1992)

Comer v. Kemp, 37 F. 3d 775 (2d Cir. 1994)

Common Cause v. Bolger, 574 F. Supp. 672 (D.D.C. 1982)

Conley v. Gibson, 355 U.S. 41 (1957)

Davis v. Bandemer, 478 U.S. 109 (1986)

Dopico v. Goldschmidt, 687 F. 2d 644 (2nd Cir. 1982)

Easton v. Sundram, 947 F. 2d 1011 (2d Cir. 1991), cert. denied, 112 S. Ct. 1943 (1992)

Fulani v. League of Women Voters Education Fund, 882 F. 2d 621 (2d Cir. 1989)

Gayle v. Browder, 142 F. Supp. 707 (M.D. Alabama 1956), aff'd 352 U.S. 903 (1956)

Gray v. Sanders, 372 U.S. 368 (1963)

Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966)

Hernandez v. Coughlin, 18 F. 3d 133 (2d Cir. 1994)

Hoellen v. Anunzio, 468 F.2d 522 (7th Cir. 1972)

Johnson v. Virginia, 373 U.S. 61 (1963)

Kidd v. McCanless, 292 S.W. 2d 40 (1956)

Kovacs v. Cooper, 336 U.S. 77 (1949)

Lee v. Washington, 390 U.S. 333 (1968)

Loving v. Virginia, 388 U.S. 1 (1967)

Lubin v. Panish, 415 U.S. 709 (1974)

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)

Marbury v. Madison, 5. U.S. 137 (1803)

Marshall v. Switzer, 10 F. 3d 925 (2d Cir. 1993)

New Orleans City Park Improvement Association v. Detiege,
252 F. 2d 122 (5th Cir. 1958), aff'd 358 U.S. 54 (1958)

Nixon v. Condon, 286 U.S. 73 (1932)

Nixon v. Herndon, 273 U.S. 536 (1927)

Norman v. Reed, 502 U.S. 279 (1992)

O'Hair v. White, 675 F. 2d. 680 (5th Cir. 1982)

Plessy v. Ferguson, 163 U.S. 537 (1896)

Reynolds v. Sims, 377 U.S. 533 (1964)

Scheuer v. Rhodes, 416 U.S. 232 (1974)

Slaughterhouse Cases, 83 U.S. 36 (1873)

Smith v. Allwright, 321 U.S. 649 (1944)

Terry v. Adams, 345 U.S. 461 (1953)

Thornburg v. Gingles, 478 U.S. 30 (1986)

United States v. Hays, et al., 1995 U.S. LEXIS 4464

Warth v. Seldin, 422 U.S. 490 (1975)

Weber v. Heaney, 995 F.2d 872 (8th Cir. 1993)

Weisberg v. Powell, 417 F.2d 388 (7th Cir. 1969)

Wesberry v. Sanders, 376 U.S. 1 (1963)

Yick Wo v. Hopkins, 118 U.S. 356 (1886)

STATUTES AND REGULATIONS

Federal Election Campaign Act of 1971 (as amended, 1974) 2 U.S.C. 431 et. seq.

Minnesota Congressional Campaign Reform Act, Minn. Stat. 10A.40 - 10A.51 (1990 and Supp. 1991)

11 CFR 108.7(a),(b)

28 U.S.C. 1291, 1331, 2201, and 2202

39 U.S.C. 3210

MISCELLANEOUS

United States Constitution

FEC Advisory Opinion 1991-22

Federalist papers

Justice Frankfurter Memorandum cited in Richard Kluger, Simple Justice, 686 (1976)

Stephen Loffredo, Poverty, Democracy, and Constitutional Law, 141 U.Pa.L.Rev. 1277, 1285 (1993)

Senate Rep. No. 689, 93d Cong., 2d Sess. 1 (1974)

PRELIMINARY STATEMENT

The Honorable I. Leo Glasser entered the judgment involved in this appeal. The judgment is reported at 884 F.Supp. 685 (E.D.N.Y. 1995).

STATEMENT OF JURISDICTION

The Plaintiffs-Appellants, all of whom reside in New York's 13th Congressional District, brought this action below to secure their constitutional rights as voters and candidates in the political process. They have challenged the constitutionality of the exclusionary campaign finance system in congressional elections -- "the wealth primary." In challenging this exclusionary process critical to the overall electoral process, the Plaintiffs-Appellants have challenged the Federal Election Campaign Act of 1971, as amended, 2 U.S.C. 431 et seq. (hereinafter "FECA"), and its resulting statutory regime which has brought the modern wealth primary into being and which authorizes the Defendant-Appellee Federal Election Commission to monitor and oversee the wealth primary. They have further challenged the public self-subsidy in the wealth primary which only congressional incumbent candidates receive for use in helping finance their re-election campaigns. This public self-subsidy includes the congressional franking privilege as authorized by 39 U.S.C. 3210. The district court had jurisdiction over this action under 28 U.S.C. 1331, 2201, and 2202; and FECA, 2 U.S.C. 437h(a).

This appeal is taken from a judgment of the district court entered on April 24, 1995, dismissing this action in its entirety. This Court has jurisdiction of this appeal from a final decision of the district court under 28 U.S.C. 1291. The Plaintiffs-Appellants jointly filed a timely notice of appeal on May 18, 1995.

STATEMENT OF THE ISSUES

1. Did the Plaintiffs, a congressional candidate and registered voters of the 13th Congressional District of New York, have standing to challenge the constitutionality of the exclusionary campaign fundraising process in congressional elections, as sanctioned and authorized by FECA?

2. Did the plaintiffs, who sought declaratory relief invalidating the exclusionary fundraising process as sanctioned and authorized by FECA, state a claim upon which relief may be granted?

3. Did the plaintiffs have standing to challenge the constitutionality of the public self-subsidies allocated exclusively to incumbent congressional candidates, including the congressional franking privilege, as authorized by 39 U.S.C. 3210?

4. Did the plaintiffs, who sought declaratory relief invalidating the public self-subsidies allocated exclusively to incumbent congressional candidates unless and until equal funds are appropriated to all declared qualified congressional challengers, state a claim upon which relief may be granted?

STATEMENT OF THE CASE

1. Course of proceedings and disposition in the court below

On July 13, 1994, the Plaintiffs filed a complaint in the federal district court for the Eastern District of New York alleging violations of their constitutional rights 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; Article I of the Constitution; and the First Amendment to the Constitution. On August 19, 1994, the Plaintiffs filed an amended complaint as of right. (J.A. 9a.){1}

The Plaintiffs, as non-wealthy voters and candidates residing in New York's 13th Congressional District, challenged the exclusionary campaign finance process, as organized by the Defendants, in congressional elections in their district and sought declaratory relief leading to the protection of their constitutional rights in the political process.

The Defendant Federal Election Commission (hereinafter "Defendant FEC") and the Defendant Susan Molinari filed motions to dismiss the Plaintiffs' complaint on the grounds of standing and failure to state a claim upon which relief may be granted.{2}

On April 24, 1995, the district court entered a judgment granting the Defendants' motions to dismiss. (J.A. 160a.) The Plaintiffs now file this appeal of that decision.

2. Statement of facts

The Plaintiffs are all registered voters in the 13th Congressional District of New York, covering Staten Island and parts of Brooklyn, and include a bus driver, a public school teacher, a police lieutenant, a carpenter, and a substance abuse counselor. (J.A. 13a-15a, 59a-111a.) All of the Plaintiffs, who are Democrats, Republicans, and Independents, supported Plaintiff Sal F. Albanese, an elected member of the New York City Council who ran in 1992 as the Democratic nominee for Congress in the 13th Congressional District of New York. (J.A. 13a-15a, 59a-111a.) All of the Plaintiffs lack wealth and access to wealth and are, therefore, unable to make or amass large campaign contributions from their circles of relatives, friends, and associates for the candidate of their choice. (J.A. 13a-15a, 59a-111a.)

The Plaintiffs alleged that the Defendants have participated in and helped organize - and continue to participate in and help organize -- the exclusionary wealth primary in congressional elections 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. (J.A. 9a-29a.) The Plaintiffs have defined the wealth primary as the exclusionary campaign finance process in federal elections which serves today 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. (J.A. 10a-12a.) The wealth primary heavily favors incumbents, wealthy candidates, and candidates backed by affluent supporters and monied interests and, simultaneously, prevents potential office seekers lacking personal wealth or affluent backers from competing effectively for political office. (J.A. 10a, 31a, 119a.)

In their complaint and in an expert affidavit, the Plaintiffs have alleged facts showing that the wealth primary, like the white primary system of the past,{3} has become "'part of the machinery for choosing officials'"{4} for the United States Congress. (J.A. 9a, 31a.) Congressional candidates, like Defendant Susan Molinari, who win the wealth primary -- who raise and spend the most money -- almost invariably win election. In 388 of 435 House races in 1992, the candidate who won the wealth primary went on to win the election. (J.A. 22a, 34a-35a.) This pattern continued in the 1994 elections despite certain celebrated examples of incumbents losing their congressional seats. (J.A. 129a, 132a.)

The Plaintiffs have further defined the wealth primary as a critical two-part process which occurs during the electoral process leading up to any party primary election and which continues during the electoral process leading up to the general election. (J.A. 10a.) The wealth primary involves extensive conduct and participation by elected public officials in the federal government, and includes a public self-subsidy to incumbent congressional candidates to help finance their re-election campaigns. (J.A. 10a-12a, 21a, 31a, 119a.)

The Plaintiffs have alleged facts showing that this wealth primary system "falls with unequal weight on voters, as well as candidates, according to their economic status." Bullock v. Carter, 405 U.S. 134 (1972). (J.A. 9a-111a.) Through the wealth primary, wealthy campaign contributors exercise inordinate and disproportionate influence over who wins the party primary's nomination for Congress and a congressional general election. (J.A. 17a 24a, 37a-43a.) Though the wealth primary is a critical part of the overall electoral process, less than one percent of the nation's population provides eighty-one percent of all campaign money in congressional elections. (J.A. 22a, 37a-40a.) The wealth primary effectively excludes and discourages voters and candidates, such as the Plaintiffs, on the basis of their lack of wealth and access to wealth. (J.A. 17a-24a, 37a-43a.) Like other non-wealthy voters, the Plaintiffs do not have the money to participate and be heard in this integral part of the overall electoral process. (J.A. 9a-111a.)

The Plaintiffs have alleged facts showing that the wealth primary was a critical part of the 1992 congressional election in their district. (J.A. 17a-24a, 34a-36a.) The Defendants actively participated in and helped organize the wealth primary in that election. (J.A. 9a, 36a-37a, 40a-43a.) Defendant Molinari decisively won the wealth primary by a two-to-one margin over Plaintiff Albanese and went on to win re-election. (J.A. 17a-19a, 40a-43a.) While Plaintiff Albanese and his supporters could match Defendant Molinari and her re-election committee dollar for dollar in small contributions, they could not match Defendant Molinari's access to large sums of money from wealthy interests and wealthy contributors. (J.A. 17a-18a, 41a-42a.)

The Plaintiffs have alleged that, for several months leading to the general election, Plaintiff 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." (J.A. 19a, 61a.) Plaintiff Albanese could not, however, compete effectively with Defendant Molinari in the wealth primary. (J.A. 17a-21a, 40a-43a, 61a-67a.) With nearly half a million dollars to spend and with a public subsidy which included the congressional franking privilege, Defendant Molinari was able to purchase extensive television, newspaper and billboard advertising, to finance several district-wide mailings to the voters of the 13th Congressional District, and to hire a significant campaign staff. (J.A. 19a-20a, 63a-66a, 123a.) By first winning the wealth primary, Defendant Molinari and her re-election committee were effectively able to drown out Plaintiff Albanese's campaign.

The Plaintiffs further alleged that, because of their lack of wealth and access to wealth, they continue to be excluded from the wealth primary in the election of their Representative to the United States Congress. (J.A. 22a 27a, 59a-111a.) They alleged that the wealth primary continued again in the 1994 elections and that the Defendants again actively participated in and helped organize the wealth primary.{5} (J.A. 22a-27a, 59a-111a.) They alleged that, without the judicial protection of their constitutional rights, the wealth primary would continue in future congressional elections in the 13th District for the State of New York and in all other future congressional elections. (J.A. 23a, 24a-27a, 59a-111a.)

The Plaintiffs sought 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; (3) invalidating, as unconstitutional, 39 U.S.C. 3210, as amended, the statute authorizing funds for the congressional franking privilege, unless and until equal funds are appropriated to all declared qualified congressional challengers for use in making their views known to the electorate; and (4) stating that whenever a Member of the United States Congress engages in activity as a candidate for public office, he or she is acting as a private citizen and not as a Member of the U.S. Congress and that, therefore, the U.S. government may not provide a subsidy to such a candidate that is not shared equally by all other candidates for that office. (J.A. 27a-29a.)

SUMMARY OF ARGUMENT

The district court's dismissal of Plaintiffs' complaint on standing grounds and for failure to state a claim should be reversed. The district court erred in denying standing to the Plaintiffs. The Plaintiffs, as voters and candidates in the political process, had the right to be heard on the merits of their constitutional claims. The Plaintiffs sufficiently alleged facts showing that they suffer a concrete and particularized harm as a result of the exclusionary campaign finance system in congressional elections, that their injuries are traceable to the Defendants' actions in the wealth primary, and that their injuries are likely to be redressed by a favorable decision. They had further shown that they are among those individuals for whom Congress intended to provide standing under FECA, 2 U.S.C. 437h(a). The district court's heavy reliance on Plaintiff Albanese's decision not to run again for Congress in 1994 in its assessment of Plaintiffs' standing was misplaced. While Plaintiff Albanese did not run again for Congress in 1994 because of the wealth primary barrier, this does not, in any way, detract from the facts, as alleged by all the Plaintiffs, that they, as voters, continued to be excluded from the wealth primary in the 1994 congressional election in their district and that, without judicial protection of their constitutional rights, such exclusion would continue in future congressional elections in their district. Further, Plaintiff Albanese need not constantly run for Congress in order to maintain his standing status to challenge an ongoing exclusionary process in the overall congressional electoral process in his district. See Fulani v. League of Women Voters Education Fund, 882 F. 2d 621, 628 (2d Cir. 1989) (finding that presidential candidate's challenge of past exclusion from a 1988 Democratic primary debate presented a controversy "'capable of repetition, yet evading review'" and was, therefore, not moot).

The district court also erred in finding that Plaintiffs had not stated a claim upon which relief may be granted. The court wrongly held that Plaintiffs' constitutional challenge to FECA had already been decided by the U.S. Supreme Court in Buckley v. Valeo, 424 U.S. 1 (1976). In Buckley, the Court heard a challenge to the constitutionality of FECA brought by affluent individuals and candidates. The Court did not hear -- and, therefore, did not decide -- a different challenge to FECA brought by non-affluent voters and candidates seeking judicial protection of their constitutional rights under the Equal Protection Clause, Article I, and the First Amendment. The Plaintiffs, here, have brought that latter challenge. They sufficiently stated a claim upon which relief may be granted.

The district court further erred in finding that, with Plaintiffs' challenge to congressional incumbent subsidies, the Plaintiffs had not stated a claim upon which relief may be granted. As with its reliance on Buckley, the district court's reliance on Common Cause v. Bolger, 574 F. Supp. 672 (D.D.C. 1982), to grant Defendant Molinari's 12(b)(6) motion was similarly in error. The district court found that the Plaintiffs' constitutional challenge to the congressional franking privilege -- a portion of the overall congressional incumbent subsidies which Plaintiffs challenged -- had been "fully heard and decided upon its merits" by the Bolger court. (J.A. 156a.)

In Bolger, the district court found that "the franking privilege confers a substantial advantage to incumbent Congressional candidates over their challengers" but stated that there was a "lack of evidence" presented in the case as to how decisive such an advantage was to the electoral success of incumbents. Bolger, 574 F. Supp. at 679. In addition, the plaintiffs in Bolger had requested the abolition of the franking privilege rather than the far more sensible relief that "non-incumbents should also be afforded the franking privilege." Id. at 682. The court then specifically stated that the plaintiffs' constitutional claims "would have considerable merit" upon a new showing of facts, as alleged here, that the congressional franking privilege is "available and widely used for reelection purposes" and that such use has a "substantial detrimental impact on opposing candidates or members of the voting public..." Id. at 682. In its challenge to the congressional incumbent subsidies, the Plaintiffs, who sought declaratory relief to have such subsidies made available equally to non-incumbent congressional candidates, sufficiently stated a claim upon which relief may be granted.

STANDARD OF REVIEW

The district court's dismissal of the Plaintiffs' complaint on the grounds of standing and failure to state a claim is subject to de novo review by this Court. "We review the grant of a motion to dismiss or summary judgment de novo, accepting as true the factual allegations of the...complaint...Additionally we review de novo questions of standing...because they are questions of law." Comer v. Kemp, 37 F. 3d 775, 786-87 (2d Cir. 1994). See also Austern v. Chicago Bd. Options Exch., 898 F. 2d 882 (2d Cir. 1989), cert. denied, 498 U.S. 850 (1990).

In considering whether to dismiss a complaint, a district court must presume all factual allegations to be true and all reasonable inferences must be made in favor of the plaintiff whose complaint the court contemplates dismissing. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Marshall v. Switzer, 10 F. 3d 925, 927 (2d Cir. 1993) (citing Easton v. Sundram, 947 F. 2d 1011, 1014-15 (2d Cir. 1991), cert. denied, 112 S. Ct. 1943 (1992)). "The complaint may not be dismissed 'unless it appears beyond doubt that the plaintiff[s] can prove no set of facts in support of [their claims] which would entitle [them] to relief.'" Marshall v. Switzer, 10 F. 3d 925 (2d Cir. 1993) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). This standard is applied "with even greater force" where the Plaintiffs, as here, allege civil rights violations. Hernandez v. Coughlin, 18 F. 3d 133, 136 (2d Cir. 1994) (citing Easton v. Sundrum, 947 F. 2d 1011, 1014-15 (2d Cir. 1991), cert. denied, 112 S. Ct. 1943 (1992)).

ARGUMENT

I. THE DISTRICT COURT ERRED IN FINDING THAT THE PLAINTIFF-VOTERS DID NOT HAVE STANDING TO CHALLENGE THE EXCLUSIONARY CAMPAIGN FINANCE SYSTEM IN THE CONGRESSIONAL ELECTION IN THEIR DISTRICT, AS SANCTIONED AND AUTHORIZED BY THE FEDERAL ELECTION CAMPAIGN ACT OF 1971 (AS AMENDED, 1974).

Plaintiffs have standing under Article III of the Constitution to be heard on the merits of their claim (1) if they suffer an injury in fact, a concrete and particularized harm; (2) if there is a causal connection between the injury and the conduct complained of; and (3) if it is likely that the injury will be redressed by a favorable decision. See United States v. Hays, et al., 1995 U.S. LEXIS 4464, citing Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). Further, in Section 437h(a) of FECA, Congress afforded standing to "any individual eligible to vote in any election for the office of President" to challenge the constitutionality of the Act:

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 the 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. 2 U.S.C. 437H(a)

"It is clear that Congress, in enacting 2 U.S.C. 437h, intended to provide judicial review to the extent permitted by Article III." Buckley, 424 U.S. at 11-12.

A. Plaintiffs Suffer an Injury in Fact

1. Plaintiffs Suffer an Injury in Fact as Voters Excluded from an Integral Part of the Overall Electoral Process

The Plaintiffs in this case are all registered voters who reside in the 13th Congressional District of the State of New York. (J.A. 13a-16a.) They sufficiently alleged facts below showing that they all lack the means to make large financial contributions to candidates running for the United States Congress, and that they all lack the means to amass such large financial contributions from their circles of relatives, friends and associates. (J.A. 16a, 59a-111a.) The Plaintiffs further alleged that, because of their lack of wealth and access to wealth, they are all unable to participate in, and, therefore, effectively excluded from, the "wealth primary"-- the campaign finance process in congressional elections which has become a critical part of the overall electoral process. (J.A. 9a-111a, 119a.) This exclusion of voters from an integral part of the electoral process constitutes a concrete and particularized harm long ago recognized by the courts.

Voters, like the Plaintiffs here, who are excluded from an integral part of the electoral process have standing to seek judicial relief from such exclusion. In Terry v. Adams, 345 U.S. 461 (1953), a group of African-American voters sought court relief from being excluded from the candidate nominating process of the Jaybird Democratic Association, an all white organization in Texas. The Jaybird Democratic Association had, for years, nominated candidates for county offices to run in the official Democratic primary and the general election. The association's candidate nominating process was not governed by state or federal laws and did not utilize state or federal elective machinery or funds. Yet, the candidates who won the Jaybird Democratic Association's nomination would invariably win the Democratic primary and the general election.

The U.S. Supreme Court struck down the Jaybird Democratic Association's pre-primary endorsement process as an unconstitutional infringement on the right to vote of African-American citizens in Texas. Justice Black, writing for the Court, stated that the "Jaybird primary" had become "an integral part...of the elective process that determines who shall rule and govern" and that the state cannot allow voters to be excluded from such a critical part of the process on the basis of their race. Id. at 469. Justice Clark, in his concurring opinion, wrote that "any 'part of the machinery for choosing officials' becomes subject to the Constitution's restraints," even if it takes "the form of 'voluntary association' of unofficial character." Id. at 481, quoting Smith v. Allwright, 321 U.S. 649 (1944). See also Smith v. Allwright (barring exclusion of African-American voters from party primaries by vote of party membership), Nixon v. Condon, 286 U.S. 73 (1932) (barring exclusion of African-American voters from party primaries by action of the party's executive committee), and Nixon v. Herndon, 273 U.S. 536 (1927) (barring exclusion of African-American voters from party primaries by state statute).

In this case, the Plaintiff-candidate and Plaintiffs-voters face exclusion from "an integral part" of the electoral process on the basis of their lack of wealth and access to wealth. (J.A. 9a-111a.) The U.S. Supreme Court has firmly held that neither wealth nor poverty may be used to block meaningful participation by a group of citizens in the electoral process. In Bullock v. Carter, 405 U.S. 134 (1972), the Court struck down on equal protection grounds a series of filing fees that the state of Texas required primary candidates to pay to their political parties in order to get on the primary ballot. The fees ranged from $150 to $8900. The Court found that "the very size of the fees imposed under the Texas system [gave] it a patently exclusionary character." Id. at 143. Chief Justice Warren Burger, writing for the Court, stated that under the Texas system, "[m]any potential office seekers lacking both personal wealth and affluent backers are in every practical sense precluded from seeking the nomination of their chosen party, no matter how qualified they might be, and no matter how broad or enthusiastic their popular support." Id.

"The effect of this exclusionary mechanism on voters is neither incidental nor remote," Justice Burger continued.

Not only are voters substantially limited in their choice of candidates, but also there is the obvious likelihood that this limitation would fall more heavily on the less affluent segment of the community, whose favorites may be unable to pay the large costs required by the Texas system...[W]e would ignore reality were we not to recognize that this system falls with unequal weight on voters, as well as candidates, according to their economic status.

Id. at 144. See also Harper v. Virginia State Board of Elections, 383 U.S. 663, 666 (1966) (striking down a $1.50 poll tax in Virginia state elections: "We conclude that a State violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard. Voter qualifications have no relation to wealth nor to paying or not paying this or any other tax.")

The Supreme Court has long recognized the "real and appreciable impact on the exercise of the franchise" which voters face under a system which excludes them on the basis of their lack of wealth and access to wealth. Bullock, 405 U.S. at 144. The "real and appreciable impact on the exercise of the franchise" faced by the voters in this case is the same as that faced by the voters in Bullock. Like the Texas filing-fee scheme, the current congressional campaign finance system "falls with unequal weight on voters, as well as candidates, according to their economic status." Id. Because of their lack of wealth and access to wealth, voters, such as the Plaintiffs in this case, are effectively excluded from the campaign fundraising process -- a critical "part of the machinery for choosing" their representatives in the United States Congress. This exclusionary system "substantially disadvantages certain voters in their opportunity to influence the political process effectively." Davis v. Bandemer, 478 U.S. 109, 133 (1986) (finding claims of unlawful political gerrymandering to be justiciable based on the theory that "each political group in a State should have the same chance to elect representatives of its choice as any other political group" and that equal protection forbids arranging the electoral system "in a manner that will consistently degrade...a group of voters' influence on the political process as a whole." Id. at 124, 132)

The district court erred in holding that the Plaintiffs' alleged harm of exclusion from an integral part of the electoral process "is, at least at this stage of its jurisprudential life, abstract and conjectural." (J.A. 148a.) Plaintiffs presented extensive expert evidence that the congressional campaign finance system, as sanctioned and authorized by FECA, is exclusionary, discriminatory, and overwhelmingly determinative of electoral outcomes. See generally Plaintiffs' Exhibit 1, Affidavit of Ellen S. Miller, (hereinafter "Miller Affidavit"). (J.A. 31a-58a.){6}

Plaintiffs further showed that the campaign fundraising process in the 1992 congressional race between Plaintiff Sal Albanese and Defendant Susan Molinari was exclusionary and decisive as were nearly all other congressional races that year. (J.A. 40a-43a.)

Defendant Molinari and Defendant Committee to Re-Elect Susan Molinari raised $524,112 for Molinari's re-election campaign for Congress in 1992, outraising Plaintiff Sal Albanese and his campaign by nearly two to one. (J.A. 17a-18a, 40a-41a.) As with nearly all other races, the key money in that race was the money available or raised in large sums. (J.A. 17a-18a, 40a-43a.) Defendant Molinari outraised Plaintiff Albanese in large individual contributions of $200 or more by a factor of nearly four to one. (J.A. 42a.) Defendant Molinari outraised Plaintiff Albanese in political action committee contributions by a factor of 2.5 to one. (J.A. 42a.) Defendant Molinari's political action committee contributions, alone, nearly equaled the total amount of money Plaintiff Albanese raised for his challenger campaign. (J.A. 42a.)

Plaintiffs sufficiently alleged facts showing the concrete and particularized harm which each of them suffer as individual voters excluded from this wealth primary process because of their economic status. See generally, Plaintiffs' Exhibits 2-15, Affidavits of Plaintiffs. (J.A. 59a-111a.){7}

The district court inaccurately described the Plaintiffs in this case as "a potential candidate who decided not to run and his would-be supporters." (J.A. 148a.) This inaccurate assessment of who the Plaintiffs are contributed to the district court's error in finding that they had not suffered a concrete and particularized harm.

First, all of the Plaintiffs, including Plaintiff Albanese, bring this action as voters excluded from an integral part of the electoral process because of their lack of wealth and access to wealth. (J.A. 9a, 59a-111a.) They each suffer individually a concrete and particularized harm as a result of that exclusion. (J.A. 59a-111a.) They have sufficiently alleged facts showing that they suffered this exclusion in the 1992 and 1994 congressional elections in their district and that, without judicial protection of their constitutional rights, they will continue to suffer such exclusion in future congressional elections in their district. (J.A. 9a-111a, 119a.)

Second, Plaintiff Albanese did not hypothesize about the harm that he might suffer were he to run as a candidate for Congress from the 13th Congressional District of New York. Plaintiff Albanese ran as a candidate for Congress from the 13th Congressional District of New York in 1992 and he suffered a concrete and particularized harm as a result of the wealth primary process. (J.A. 9a-67a.) Further, the other thirteen Plaintiffs-voters in this case were not "would-be supporters" of Plaintiff Albanese. They were supporters of Plaintiff Albanese and they experienced first-hand the harm of being effectively excluded from a critical part of the process of electing their Representative to the United States Congress. (J.A. 9a, 68a-111a.) Plaintiffs sufficiently alleged facts showing that the wealth primary is a process which repeats itself every election cycle. (J.A. 9a-59a, 119a, 129a, 132a.) Plaintiff Albanese need not constantly run for Congress every two years in order for him and his supporters to maintain their standing status to bring these constitutional claims. See Fulani, 882 F. 2d at 628:

[A]ppellees also argue, albeit indirectly, that Fulani's claims are 'moot' because the presidential election is now over. We find these arguments wholly without merit, since '[t]he issues properly presented...will persist in future elections and within a time frame too short to allow resolution through litigation. This is, therefore, a case where the controversy is capable of repetition, yet evading review.{8}

Voters in New York's 13th Congressional District who lack wealth and access to wealth, like the Plaintiffs in this case, did not have -- and do not have today -- the large sums of money needed to influence the congressional campaign fundraising process. (J.A. 9a-111a.) They, therefore, were and are unable to participate in this critical part of the electoral process. (J.A. 9a-111a.) This effective exclusion impacts the Plaintiff-voters' constitutional rights guaranteed under the Equal Protection Clause, Article I, and the First Amendment.{9} The harm of exclusion which Plaintiffs suffer, like the harm of exclusion suffered by the plaintiffs in the white primary cases and in Bullock, constitutes an injury in fact.

2. Plaintiffs Suffer an Injury in Fact as Voters Whose Constitutional Right to Vote Is Undermined and Debased by the Exclusionary Congressional Campaign Finance System.

The Plaintiff-voters in this case suffer an injury in fact since their constitutional right to vote is undermined and debased by the exclusionary congressional campaign finance system. This injury in fact is separate and distinct from the harm of being excluded from an integral part of the electoral process. It, too, has been well-established by the courts as a concrete and particularized harm.

The Supreme Court has, for more than 30 years, repeatedly recognized that voters who suffer a debasement of the value of their vote have standing to challenge electoral systems which cause their vote to be debased. The standing question in Baker v. Carr, 369 U.S. 186 (1962), and its progeny is indistinguishable from the standing question in this case. Voters brought each of the Baker line of cases. In each case, the plaintiff voters were allowed to cast their vote. In each case, the plaintiff voters sought relief from an electoral system which, they argued, undermined and debased the constitutionally guaranteed value of their vote. In each case, the Supreme Court found that plaintiff voters, who suffer a debasement of their vote, suffer an injury in fact giving them standing to challenge such electoral systems. See Baker v. Carr, 369 U.S. 186 (1962);{10} Wesberry v. Sanders, 376 U.S. 1 (1963);{11} Gray v. Sanders, 372 U.S. 368 (1963);{12} Reynolds v. Sims, 377 U.S. 533 (1964).{13}

Like the voters in the Baker line of cases, the Plaintiffs-voters in this case have standing to bring their claim that an electoral system causes the debasement and dilution of their constitutional right to vote. The Plaintiffs sufficiently alleged facts showing that the wealth primary process undermines the value of their vote. (J.A. 9a-111a.) In her affidavit, Plaintiffs' expert Miller described extensively how wealthy contributors and wealthy interests participating in the exclusionary campaign fundraising process have a disproportionate influence in the overall electoral process, as compared to non-wealthy voters such as the Plaintiffs. (J.A. 31a.) Those who could afford to participate in the 1992 wealth primary in the 13th Congressional District of New York -- by making and amassing large financial contributions from their relatives, friends, and associates -- had a much greater say in determining who got elected than did the Plaintiffs and other non-wealthy voters of that district.{14} (J.A. 9a-111a.)

The Plaintiffs-voters in this case have a "personal stake in the outcome" of the election of their Representative to the United States Congress. Baker, 369 U.S. at 204.{15} As in Baker, 369 U.S. at 206, the voters here have "allege[d] facts showing disadvantage to themselves as individuals..."{16} (J.A. 59a-111a.)

Plaintiffs further alleged facts below showing that the debasement and dilution of their constitutional right to vote extended to their "influence on the political process as a whole." Davis, 478 U.S. at 132. (J.A. 9a 111a.){17}

The district court sought to distinguish Plaintiffs' alleged harm of a debasement and dilution of their constitutional right to vote from Baker and its progeny. The court stated that while the Baker line of cases "dealt with the dilution of votes based upon a measurable population disparity between districts," the Plaintiffs were "not suggesting that their votes are diluted on the basis of the number of citizens represented..." (J.A. 149a.) Yet, the Plaintiffs need not allege facts identical to the Baker line of cases in order to have the principles of those cases applied to their constitutional claims.{18} If precedent is only of value when faced with identifical fact scenarios, there would be no judicial duty to interpret and apply the law to new and different sets of facts.

Baker and its progeny stand for the constitutional principle that "the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise." Reynolds, 377 U.S. at 555. Plaintiffs alleged facts below showing that with the wealth primary process they suffer a debasement and dilution of their constitutional right to vote. (J.A. 9a-111a, 119a.) Under the principles articulated by the Supreme Court in the Baker line of cases, the Plaintiffs, "like any person whose right to vote is impaired...[have] standing to sue." Gray, 372 U.S. at 375.

The district court further erred in assessing Plaintiffs' vote debasement and dilution injury as one which arose from a diminished influence with their Representative "since they could (or would) not contribute financially to that person's campaign and might, therefore, have less access or influence than a hypothesized wealthy contributor." (J.A. 149a.) Plaintiffs suffer a debasement and dilution of their constitutional right to vote in the election of their Representative to the U.S. Congress as well as in their influence with that Representative once elected. The district court did not address the debasement and dilution injury which Plaintiffs suffer in the congressional election process. Further, as before, the Plaintiffs did not "hypothesize" about whether they would suffer less access or influence than a wealthy contributor with their Representative. The Plaintiffs alleged facts that as individual voters unable to make or amass large financial contributions, they do suffer less access or influence than a wealthy contributor with their Representative. (J.A. 9a-111a.)

3. Plaintiff Sal Albanese Suffers an Injury in Fact as a Congressional Candidate Denied Participation on an Equal and Meaningful Basis in the Electoral Process

As a voter, Plaintiff Albanese suffers an injury in fact, like the other Plaintiff-voters in this case, as a result of the exclusionary congressional campaign finance system and as a result of the debasement and dilution of his constitutional right to vote. Plaintiff Albanese suffers a distinct and separate harm as a congressional candidate who was denied participation on an equal and meaningful basis in the electoral process because of the exclusionary congressional campaign finance system. Plaintiff Albanese also has standing to bring this action based on that distinct and separate harm.

In Bullock v. Carter, 405 U.S. 134 (1972), the Supreme Court ruled on the constitutionality of Texas' candidate filing fee system based on a claim brought by candidates for local offices in Texas. While stating that the rights of candidates do not invoke the same kind of strict judicial protection as is required with questions concerning the fundamental rights of voters, the Court, nevertheless, recognized the separate but connected harm candidates faced as a result of the filing fee system.{19} The standing of the candidates to bring this claim was never a question for the Court. See also Lubin v. Panish, 415 U.S. 709 (1974) (holding that California could not deprive an indigent citizen the right to run for office because of his inability to pay a $701.60 filing fee, stating that "prohibitive filing fees" can "effectively exclude serious candidates": "[O]ur tradition has been one of hospitality toward all candidates without regard to their economic status." Id. at 717-718.)

Like the candidates in Bullock and Lubin, Plaintiff Albanese is harmed by an electoral system which erects wealth as a barrier to his equal and meaningful participation as a candidate in the electoral process. The wealth barrier presented to non-affluent candidates under the congressional campaign finance system is, in fact, far greater than the wealth barrier presented to the candidates in Bullock. The candidates in Bullock had to pay, either by personal money or by raising contributions, filing fees ranging from $150 to $8900 in order to appear on the primary ballot and participate in the party primary election process. As a congressional candidate facing the wealth primary system, Plaintiff Albanese had to raise more than sixty times the amount of the highest filing fee in Bullock in order to have what it takes, on average, to win a seat in the House of Representatives today ($543,000). (J.A. 35a.) Despite his efforts in pleading for money, Plaintiff Albanese could not come close to raising that amount and was outraised and outspent by Defendant Molinari and Defendant Committee to Re-Elect by a factor of nearly two to one. (J.A. 40a-43a, 59a.){20}

The congressional campaign finance system harmed Plaintiff Albanese's candidacy in a concrete and particularized way by denying him an equal and meaningful chance to compete against the incumbent candidate Susan Molinari. While Plaintiff Albanese and his campaign volunteers reached out to voters at subway and ferry stops, at community meetings, and at coffee "kloches," he never had nor raised enough money to purchase television, newspaper, or billboard advertising, to finance a district-wide mailing, or to hire a significant campaign staff. (J.A. 17a-21a, 40a-43a, 61a-67a.)

Defendant Molinari and Defendant Committee to Re-Elect, however, because of their access to wealthy contributors and wealthy interests, purchased advertising on New York cable television stations and "repeatedly ran several campaign commercials on the stations during their campaign;" purchased and ran "several full page advertisements in the local newspapers throughout their campaign;" "financed several district-wide mailings to the voters of the 13th District; "financed several advertisements on billboards throughout the 13th District during their campaign." (J.A. 64a-65a.) And, "[a]s a result of the large sums of money they raised, Susan Molinari and her committee to re elect had a significant staff, with pollsters, fundraisers, media consultants, and two field offices." (J.A. 65a.)

Having been "effectively exclude[d]," Lubin, 415 U.S. at 717, from an integral part of the electoral process (J.A. 66a), Plaintiff Albanese has standing to bring this action as a result of that exclusion.

The Supreme Court's ruling in Buckley v. Valeo, 424 U.S. 1 (1976), is further precedent supporting Plaintiffs' standing to bring this action. The plaintiffs in Buckley included congressional candidates and "direct and active participant[s] in the federal political process." (J.A. 116a.) They filed suit challenging the constitutionality of certain provisions of the FECA on First and Fifth Amendment grounds. They argued that, like the Plaintiff voters in Baker v. Carr, they had " 'such a personal stake in the outcome' of [their] lawsuit as to grant them Article III standing." (J.A. 116a.) They further emphasized that Congress intended, in enacting Section 437(h) of FECA, to authorize defined classes of persons to bring challenges to the constitutionality of FECA and that such classes of private persons included candidates and "direct and active participant[s] in the federal political process" such as themselves. (J.A. 116a.)

Applying the "personal stake in the outcome" standard set out in Baker and the intent of Congress in enacting 2 U.S.C. 437(h), the Supreme Court granted standing to the plaintiffs in Buckley. Buckley, 424 U.S. at 11-12. It is, in fact, telling that the Court spent all of one paragraph to address this question. The plaintiffs had a right to have their claim heard on its merits.

As in Buckley, the plaintiffs in this case include a congressional candidate and "direct and active participant[s] in the federal political process." As in Buckley, the plaintiffs in this case have " 'such a personal stake in the outcome' of [their] lawsuit as to grant them Article III standing." As in Buckley, the plaintiffs in this case have the right under 2 U.S.C. 437(h) to bring their challenge to the constitutionality of FECA. If former U.S. Senator James Buckley, who had access to wealth, had standing in 1976 to argue that he should be able to raise and spend his and other people's money to an unlimited degree, then Councilmember Sal Albanese, who lacks access to wealth, has standing today to argue that the FECA created congressional campaign finance system unconstitutionally excludes candidates like himself. If multi-millionaire Stewart Mott, a plaintiff in Buckley, had standing to argue that he should be able to influence the political process by contributing his large sums of money to candidates to an unlimited degree, then the non-wealthy voters in this case have standing to argue that the FECA-created congressional campaign finance system denies them their constitutional right to an equal and meaningful vote. If the court doors are open to the affluent, then they ought to be open to the non-affluent as well. The Plaintiffs in this case have the right to their day in court.

In its attempt to distinguish the plaintiffs in Buckley from the Plaintiffs in this case, the district court erred in its reading of the facts. The court stated:

The plaintiffs in Buckley were actual candidates for election and re-election as well as their potential contributors. In this case, the plaintiffs are a potential candidate who decided not to run and his would-be supporters. (J.A. 148a.)

The court was simply wrong. The Plaintiffs alleged facts addressing the harm they suffered as a result of the exclusionary wealth primary in the 1992 congressional election in their district. (J.A. 13a-22a, 40a-43a, 59a 111a, 123a.) In that election, Plaintiff Albanese was an "actual" congressional candidate and the other thirteen Plaintiffs were his supporters. Plaintiff Albanese's decision not to run again in 1994 because of the wealth primary barrier does not change those facts nor their capability of repetition. See Fulani, 882 F. 2d, 621, 628 (2d Cir. 1989); Norman v. Reed, 502 U.S. 279, 288 (1992) (articulating "capable of repetition, yet evading review" doctrine.) The Plaintiffs in this case have as much of a "personal stake in the outcome" of their challenge to FECA seeking judicial protection of their constitutional rights in the election of their Representative to the U.S. Congress as did the wealthy contributors and candidates in Buckley.

The district further erred in finding that, because Plaintiffs alleged they are among the vast majority of American people who cannot afford to participate in the wealth primary in their congressional elections, they have alleged a "more generalized harm" than the plaintiffs in Buckley. (J.A. 148a.) The fact that non-wealthy voters across this country, like the Plaintiffs, are effectively excluded from an integral part of the process of electing their Representative to the U.S. Congress does not diminish the "personal stake" which the Plaintiffs have in the outcome of their challenge to FECA. Stewart Mott was not the only wealthy individual in the United States who, in 1976, wanted to continue to influence the electoral process with his money to an unlimited degree. Mr. Mott was, nevertheless, allowed to be heard on the merits of his claims in Buckley. The Supreme Court did not question his "personal stake" in the matter.

In Baker and the cases which followed, the Supreme Court found that plaintiffs who suffer an impairment of their constitutional right to vote have standing "to protect or vindicate an interest of their own, and of those similarly situated." Baker, 369 U.S. at 207. Like the plaintiffs in Baker, the Plaintiffs in this case "are asserting 'a plain, direct and adequate interest in maintaining the effectiveness of their votes,' not merely a claim of 'the right, possessed by every citizen, to require that the Government be administered according to law...'" Id. at 208 (citations omitted). While many voters suffer from the impairment of the constitutional right to vote alleged here, the Plaintiffs "are among those who have sustained it." Id. See also Warth v. Seldin, 422 U.S. 490 (1975) (a plaintiff alleging a distinct and palpable injury, even if shared by a large class of other possible litigants, still has standing).

B. Plaintiffs' Injuries Are Traceable to the Defendants' Actions in the Wealth Primary

The Defendants in this case "have participated in and helped organize" the exclusionary campaign fundraising process -- "the wealth primary." (J.A. 9a.) They continue today to participate in and help organize the wealth primary in New York's 13th Congressional District. (J.A. 9a.) As with the participants in the white primaries of the past, the actions of the Defendant-participants in the wealth primary today have caused and continue to cause the debasement of Plaintiffs' right to vote, the exclusion of the Plaintiff-voters from an integral part of the electoral process, and the denial of Plaintiff Albanese's right as a candidate to participate on an equal and meaningful basis in the electoral process.

In its papers below, the Defendant Federal Election Commission tried to abandon any responsibility for the wealth primary regime. It claimed that neither the Commission nor the Federal Election Campaign Act "authorizes" the process of soliciting, accepting, and using campaign contributions. (J.A. 30a.) The Plaintiffs, however, presented extensive expert evidence showing that the Defendant FEC's claim was untrue. (J.A. 31a-58a.){21}

In fact, FECA itself refers, throughout the Act, to persons and committees "authorized" to solicit, accept, and use campaign contributions. "The term 'authorized committee' means the principal campaign committee or any other political committee authorized by a candidate under section 432(e)(1) of this title to receive contributions or make expenditures on behalf of such candidate." 2 U.S.C. 431(6) The Defendant FEC, as the agency responsible for enforcing FECA, prohibits candidates and their "authorized committees" from soliciting, accepting, and using individual and political action committee contributions which exceed the limitations set forth in FECA. 2 U.S.C. 441a, "Limitations on contributions and expenditures." Candidates and candidate committees are subject to potential civil and criminal penalties, pursuant to actions initiated by the Defendant FEC, for soliciting, accepting, and using unauthorized contributions. 2 U.S.C. 437g. Those contributions which are not prohibited are authorized.

The Defendant FEC and FECA's authorization of campaign contributions is further evidenced by the legislative history of the 1974 amendments to the Act. The 1974 amendments, which were introduced in the U.S. Senate in 1973 by Senator Howard Cannon, were first referred to the Senate Committee on Rules and Administration, the committee which Senator Cannon chaired. When the committee reported the bill to the full Senate in February 1974, it explained the intent of the legislation:

This recommended legislation is a comprehensive and far-reaching measure, designed to bring together various laws already enacted or passed by the Senate, for the purpose of providing complete control over and disclosure of campaign contributions and expenditures in campaigns for Federal elective office...

S. Rep. No. 689, 93d Cong., 2d Sess. 1 (1974) (emphasis added){22} The Defendant FEC and FECA today have "complete control over" the exclusionary wealth primary process in congressional elections.

The Defendant FEC further exhibited that complete control through its own actions in 1977 when it promulgated a rule with respect to FECA's preemption of state laws in the area of campaign finance in the federal electoral process. FECA states:

The provisions of this Act, and of the rules prescribed under this Act, supersede and preempt any provision of State law with respect to election to Federal office.

2 U.S.C. 453. The Defendant FEC, pursuant to its rulemaking power, promulgated a rule based on that provision of FECA. See 11 CFR 108.7(a),(b).{23}

The Defendant FEC has also interpreted the preemption provision of FECA, 2 U.S.C. 453, in an advisory opinion it issued on October 3, 1991, to the state attorney general's office of the State of Minnesota. FEC Advisory Opinion 1991-22. In that advisory opinion, the FEC stated that the Minnesota Congressional Campaign Reform Act, Minn. Stat. 10A.40 - 10A.51 (1990 and Supp. 1991) was preempted in its entirety by FECA, 2 U.S.C. 453. The Minnesota Congressional Campaign Reform Act provided partial public financing to congressional candidates in Minnesota who agreed to voluntary campaign expenditure limits. In the litigation which followed the passage of that state legislation, the United States Court of Appeals for the Eighth Circuit affirmed a federal district court's decision, based, in part, on the FEC's advisory opinion, finding that the Minnesota statute was preempted in its entirety by FECA. Weber v. Heaney, 995 F.2d 872 (8th Cir. 1993).

The Defendant FEC cannot, on the one hand, argue that neither it nor FECA authorize campaign contributions in the federal electoral process -- in contradiction of Senator Cannon's committee statement as to FECA, as amended-- and, on the other hand, argue that FECA supersedes and preempts all state laws in the area of campaign finance in the federal electoral process. If any state law in this area is preempted by FECA, then the Defendant FEC and FECA, accordingly, occupy the field of -- have "complete control over"-- campaign finance in the federal electoral process. If the Defendant FEC and FECA have "complete control over" the congressional campaign finance process, then, accordingly, the Defendant FEC and FECA authorize that process.{24}

The district court again relied on an inaccurate assessment of the facts as alleged by the Plaintiffs when it found that "[t]he FECA's contribution limits cannot be directly traced to the cause of Albanese's decision not to run for Congress in the face of an expected lack of financial support for his undeclared candidacy." (J.A. 149a.) First, Plaintiffs challenge the constitutionality of the exclusionary campaign fundraising process as authorized and controlled by FECA and its resulting statutory regime. (J.A. 9a.) FECA's contribution limits are a part of that statutory regime, but they, alone, do not constitute the wealth primary.

Second, the district court's description of the Plaintiffs' alleged harms is again inaccurate. FECA authorizes and controls, and the Defendant FEC oversees and monitors, a congressional campaign finance process which had, in 1992, an exclusionary and discriminatory impact on all of the Plaintiffs as voters and on Plaintiff Albanese as a candidate, and which continues to this day to have an exclusionary and discriminatory impact on all of the Plaintiffs as voters. (J.A. 9a-111a.) The court's repeated focus on Plaintiff Albanese's decision not to run again in 1994 as the basis of Plaintiffs' alleged harms is wrong.

The district court also erred in its analysis of the application of Bullock to the Plaintiffs' claims. The court stated that Bullock was distinguishable from this case since, in Bullock, a candidate "was actually excluded by...an insurmountable filing fee," whereas, here, "[i]n the final analysis, Albanese opted not to participate in the election process; he was not prevented from doing so." (J.A. 150a.) As stated earlier, Plaintiff Albanese did participate in the election process in 1992. As for the wealth primary, however, the Plaintiffs in this case do not voluntarily exclude themselves from this congressional campaign finance process. As stated earlier, they, like others who lack wealth and access to wealth, are unable to participate in the wealth primary. See Affidavits of Plaintiffs,(J.A. 59a-111a). The Supreme Court, in Bullock, recognized this very distinction. See Bullock, 405 U.S. at 146: The candidates "were unable, not simply unwilling, to pay the assessed fees..." (emphasis in original) In Bullock, non-affluent candidates were "in every practical sense," Id. at 143, excluded from participating in the party primary in Texas. In this case, the Plaintiffs, non-affluent voters and candidates, are "in every practical sense" excluded from participating in the wealth primary, a process which, like the white primaries of the past, has become today "an integral part," Terry, 345 U.S. at 469, of the process of electing Representatives to the United States Congress, including the Representative for New York's 13th Congressional District.

C. Plaintiffs' Injuries Are Likely to be Redressed By a Favorable Decision

The Plaintiff-voters have requested relief which, if granted, would make it likely that their injuries will be redressed. Lujan v. Defenders of Wildlife, 112 S. Ct. 2130, 2136 (1992).{25} Included in the Plaintiff voters' prayer for relief is a request for a declaratory judgement invalidating the wealth primary process on constitutional grounds and a declaratory judgment that FECA, "insofar as it allows for the solicitation and use of private money in federal elections," is unconstitutional. (J.A. 28a, emphasis added.) Such declaratory relief would initiate the process of protecting the Plaintiffs-voters' constitutional rights in a manner consistent with the judiciary's prior use of its declaratory power to provide such protection.{26}

This case concerns basic rights guaranteed to voters and candidates under the United States Constitution. When such constitutional rights are at stake, courts have been particularly cognizant of their judicial duty to provide protection. In Reynolds v. Sims, the State of Alabama warned the Supreme Court that the question of legislative apportionment for its state legislature was a complicated one. It warned the Court -- notwithstanding its decision one year earlier in Baker v. Carr on justiciability -- about the dangers of the "political" nature of the apportionment issue. But, the Supreme Court upheld the district court's issuance of a declaratory judgment that Alabama's long-existing legislative apportionment scheme was unconstitutional, in violation of the plaintiff-voters' rights as guaranteed under the Equal Protection Clause:

We are told that the matter of apportioning representation in a state legislature is a complex and many-faceted one. We are advised that States can rationally consider factors other than population in apportioning legislative representation. We are admonished not to restrict the power of the States to impose differing views as to political philosophy on their citizens. We are cautioned about the dangers of entering into political thickets and mathematical quagmires. Our answer is this: a denial of constitutionally protected rights demands judicial protection; our oath and our office requires no less of us.

Reynolds, 377 U.S. at 566.

As in Reynolds, the judiciary used its declaratory power in Baker to initiate the process of protecting voters' basic constitutional rights. As in the case here, the plaintiff-voters in Baker faced an argument from the defendants as to "the feasibility of the various possible remedies sought by the plaintiffs." Baker, 369 U.S. at 197. The district court first hearing Baker dismissed the plaintiffs' case on the grounds that the court lacked jurisdiction of the subject matter and that the complaint failed to state a claim upon which relief could be granted.{27}

The Supreme Court disagreed. In reversing the district court's dismissal of the plaintiff-voters' case, the Court found that the district court had jurisdiction of the subject matter, "that a justiciable cause of action [was] stated upon which the appellants would be entitled to appropriate relief," and that the plaintiff-voters had standing to bring their case. Baker, 369 U.S. at 197-198. And, the Supreme Court stated:

Beyond noting that we have no cause at this stage to doubt the District Court will be able to fashion relief if violations of constitutional rights are found, it is improper now to consider what remedy would be most appropriate if appellants prevail at trial.

Id. at 198.

In its discussion on the standing issue, the Supreme Court again addressed the lower court's doubt on the remedy question:

It would not be necessary to decide whether appellants' allegations of impairment of their votes by the 1901 apportionment will, ultimately, entitle them to any relief, in order to hold that they have standing to seek it. If such impairment does produce a legally cognizable injury, they are among those who have sustained it...They are entitled to a hearing and to the District Court's decision on their claims. 'The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.'

Id. at 208 (citing Marbury v. Madison, 5. U.S. 137, 163 (1803)).

On remand, the district court issued the declaratory judgment the plaintiff-voters had sought. While the court's declaratory judgment in Baker did not immediately end the plaintiff-voters' harm under Tennessee's legislative apportionment scheme, the issuance of that judgment forced a recalcitrant Tennessee legislature to take the necessary steps to reapportion itself for the eventual protection of the plaintiff-voters' constitutional rights.{28} In declaring the apportionment scheme unconstitutional, the district court emphasized the judicial responsibility set forth by the Supreme Court:

[F]ederal courts would be derelict in their duties and would abdicate their proper responsibilities under our federal system of government if they hesitated or failed to take necessary remedial action to protect the individual citizen in the enjoyment of personal and civil rights guaranteed to him by the Federal Constitution.

...We have confidence that a legislature...having before it the views of the [c]ourt herein set forth...will adopt a plan of reapportionment which will comply with the commands of the Federal Constitution.

Baker v. Carr, 206 F. Supp. 341, 348-349 (M.D. Tenn. 1962). See also Gray v. Sanders, 372 U.S. 368 (1963) (where declaratory judgment for the plaintiff-voters caused the State of Georgia to change its primary election system so as to comport with the principle of "one person, one vote"); and Wesberry v. Sanders, 376 U.S. 1 (1964) (where the Supreme Court found that Georgia apportionment statute for congressional districts was unconstitutional, causing the Georgia state legislature to enact a new apportionment plan).

In the Baker line of cases, the judiciary recognized its duty to intervene to protect the fundamental constitutional rights of voters, particularly when the protection of such rights directly conflicted with the interests of a legislature unwilling to open up the political process. As in the Baker line of cases, the Plaintiff-voters in this case challenge the constitutionality of a system which benefits those who hold legislative power. The overwhelming majority of the Members of the United States Congress have gained power through the exclusionary campaign finance system. The overwhelming majority of the Members of Congress maintain that power through that same system. As in the Baker line of cases, the Plaintiff-voters in this case cannot look to the chief beneficiaries of this exclusionary system to protect their basic constitutional rights. They must, instead, look to the courts.{29}

In the process of making the Supreme Court's landmark decision in Brown v. Board of Education, 347 U.S. 483 (1954) (Brown I), Justice Frankfurter wrote to his fellow Justices:

Not even a court can in a day change a deplorable situation into the ideal. It does its duty if it effectively gets under way the righting of a wrong.

Justice Frankfurter Memorandum cited in Richard Kluger, Simple Justice, 686 (1976). With Brown, the Supreme Court began a process which forever changed this nation, ending a long history of legalized racial segregation and the denial of basic constitutional rights of African-Americans and other citizens on account of their race. Brown not only marked the reversal of the Supreme Court's ruling of "separate but equal" in Plessy v. Ferguson, 163 U.S. 537 (1896), but also the reversal of earlier, well-established Supreme Court holdings, including the Slaughterhouse Cases, 83 U.S. 36 (1873) (treating former slaves as citizens of the United States but not citizens of the states, thereby leaving them unprotected by the "privileges and immunities" clause), and the Civil Rights Cases, 109 U.S. 3 (1883) (allowing racial discrimination by owners of private establishments open to the public).

With Brown and the cases which followed, the Court used its declaratory power to further the process of desegregation in all areas of public life. See also Gayle v. Browder, 142 F. Supp. 707 (M.D. Alabama 1956), aff'd 352 U.S. 903 (1956) (buses); New Orleans City Park Improvement Association v. Detiege, 252 F. 2d. 122 (5th Cir. 1958), aff'd 358 U.S. 54 (1958) (parks); Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961) (parking facilities); Johnson v. Virginia, 373 U.S. 61 (1963) (courtrooms); Loving v. Virginia, 388 U.S. 1 (1967) (legalizing interracial marriage); and Lee v. Washington, 390 U.S. 333 (1968) (prisons).

The district court erred in finding that the Plaintiffs had not requested relief which would make it likely that their injuries will be redressed. In its conclusory paragraph on this third prong of the standing analysis, the district court failed to address the extensive legal history of the judicial branch fulfilling its duty to protect citizens' constitutional rights through the use of declaratory power. Baker and Brown -- and the cases which followed -- represent that history. The Plaintiff-voters in this case sought nothing less than that same kind of judicial protection. And, at this early stage, they sought only to be heard.{30}

II. THE DISTRICT COURT ERRED IN FINDING THAT BUCKLEY HAD PREVIOUSLY DECIDED PLAINTIFFS' CONSTITUTIONAL CLAIMS AND THAT, THEREFORE, THE PLAINTIFFS DID NOT STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED.

The district court erred in finding that the Plaintiffs did not state a claim upon which relief may be granted. In ruling on Defendant FEC's 12(b)(6) motion, the court was bound by "the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of this claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The Plaintiffs, as voters and candidates, brought this action to secure their constitutional rights in the political process. They sufficiently alleged that the Defendants' actions in organizing and participating in the exclusionary wealth primary process violate their 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 violate their right to freedom of expression and freedom of association as guaranteed by the First Amendment. (J.A. 9a-111a.)

The district court argued that the Plaintiffs' constitutional claims had previously been decided by the Supreme Court in Buckley v. Valeo, and that, therefore, "in obedience to that precedent," the Plaintiffs' challenge to FECA must be dismissed for failure to state a claim upon which relief may be granted. (J.A. 151a-152a.) Yet, in Buckley, the Supreme Court heard a challenge to FECA brought by affluent individuals and candidates who argued that FECA's provisions limiting campaign contributions and expenditures violated their First Amendment rights. See Buckley, 424 U.S. 1 (1976). The Court did not hear --and, therefore, did not decide -- a different case brought by non-affluent voters and candidates who argue that the exclusionary campaign fundraising process, as sanctioned and authorized by FECA, violate their constitutional rights under the Equal Protection Clause, Article I, and the First Amendment. The Plaintiffs, who come from "the less affluent segment of the community," Bullock, 405 U.S. at 144, have brought that latter challenge, and, like the plaintiffs in Buckley, they, too, have sought to be heard. Buckley cannot be used to defend the wealth primary regime. The issues presented here were simply never presented in that case.{31} Furthermore, the congressional campaign finance process has evolved into a much more decisive and all-encompassing process since the time Buckley was decided. See generally Miller Affidavit, J.A. 43a-49a. The present-day facts concerning this exclusionary system were not available to the Buckley Court. As Plaintiffs' expert Miller states:

In its decision in Buckley...the U.S. Supreme Court identified the corruption and the appearance of corruption associated with the congressional campaign finance system as threatening the integrity of the electoral process. Despite its ruling upholding limitations on political action committee contributions and on individual contributions, the corruption and appearance of corruption associated with the congressional campaign finance system continue to this day. In fact, the situation has dramatically worsened since the Buckley decision. The facts of private money in federal elections today are facts which were unavailable to the Supreme Court when it issued its decision in Buckley v. Valeo. (J.A. 43a-44a.)

The Supreme Court, itself, has, in recent years, made departures from the Buckley decision. In Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), the Supreme Court upheld a Michigan criminal statute preventing corporations from spending general funds as independent expenditures in state elections. The Court found that Michigan had a compelling interest in combatting a "different type of corruption in the political arena: the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of corporate form and that have little or no correlation to the public's support for the corporation's political ideas." Austin, 494 U.S. at 660. With Austin, the Supreme Court "squarely acknowledged -- for the first time in constitutional discourse -- that inequalities of private economic power tend to reproduce themselves in the political sphere and displace legitimate democratic governance." Stephen Loffredo, Poverty, Democracy, and Constitutional Law, 141 U. Pa. L. Rev. 1277, 1285 (1993).

The Plaintiffs stated a claim upon which relief can be granted. The district court's ruling granting the Defendant FEC's 12(b)(6) should be reversed.

III. THE DISTRICT COURT ERRED IN DENYING PLAINTIFFS STANDING TO CHALLENGE THE DEFENDANT MOLINARI'S USE OF THE INCUMBENT SUBSIDY

The Plaintiffs alleged that, as part of the exclusionary congressional campaign finance system, Defendant Molinari and all other incumbent Members of Congress receive a politically-valuable self-subsidy which they use to help finance their re-election campaigns and which is unavailable to all congressional challenger candidates. (J.A. 11a-12a, 21a.){32} Plaintiff Albanese, as a candidate, and all of the Plaintiffs, as voters, suffer an injury in fact as a result of Defendant Molinari's use of this incumbent subsidy. That injury is traceable to Defendant Molinari's actions and is likely to be redressed by a favorable decision. The district court erred in denying Plaintiffs standing to be heard on the merits of their constitutional challenge to the incumbent subsidy.

Plaintiffs alleged that Defendant Molinari's use of the franking privilege and other politically valuable public subsidies (such as a press secretary, a scheduler and her public salary) during the election period confer upon her an extraordinary and unjust advantage in campaign publicity over any congressional challenger. (J.A. 26a-27a, 119a, 126a.){33} As a challenger candidate in 1992 against Defendant Molinari and as voters who supported that candidacy and who continue to reside and vote in New York's 13th Congressional District, Plaintiffs have suffered a concrete and particularized harm resulting from that unjust advantage provided to the Defendant.

The Plaintiffs further suffer a concrete and particularized harm by the fact that the incumbent's public subsidies help to make it nearly impossible for challenger candidates, such as Plaintiff Albanese, to raise money and compete effectively in campaigns against her. Potential donors understand that incumbents' ample public subsidies give them a huge head-start, rendering challengers' chances very slim. This public subsidy available to only one class of candidates contributes to the incumbent candidate's enormous fundraising advantage in the wealth primary process. (J.A. 125a, 127a 128a.){34}

Finally, the use of franked mass mailings to advertise "good news" about legislative accomplishments and constituent service confers upon the incumbent's campaign an official aura that challenger candidates have a very hard time demystifying. Voters are sent the message through the mailings that the private individual who occupies a seat in the House of Representatives carries a kind of official political endorsement and stamp of approval by the United States government.{35} The principle of election by the people is offended when the government essentially creates quasi-official candidacies by conferring a powerful financial advantage on the incumbent's campaign.

Courts have recognized that the unjust advantage conferred upon congressional incumbent candidates by a public subsidy such as the congressional franking privilege constitutes an injury in fact for non-incumbent congressional candidates and their voter-supporters giving rise to voter and candidate standing to challenge such a subsidy. In Common Cause v. Bolger, 574 F. Supp. 672 (D.D.C. 1982), the court held that voters and candidates had standing to challenge the congressional franking privilege, finding that "the franking privilege confers a substantial advantage to incumbent Congressional candidates over their challengers..." Id. at 679. This Court has explicitly endorsed the Bolger court's holding on standing. See Fulani v. League of Women Voters Education Fund, 882 F. 2d 621, 627 (1989): "In terms of judicial assessment of injury for standing purposes, we find the analysis in Common Cause v. Bolger to be persuasive." Like Bolger, the case before this Court involves a constitutional challenge to the congressional franking statute, 39 U.S.C. 3210, as amended, on the grounds that it "effectively grant[s] . . . subsidies to the reelection campaigns of incumbent officials" and "impair[s] the new contenders' ability to compete with incumbent candidates on equal terms." Bolger, 574 F. Supp. at 672. Like Bolger, the Plaintiffs in this case had standing to be heard on the merits of their constitutional challenge{36} to the incumbent subsidy.{37}

The injury in fact which Plaintiffs suffer as a result of the incumbent subsidy is traceable to Defendant Molinari's actions. Plaintiffs alleged that Defendant Molinari's personal use of -- and official support for -- politically valuable incumbent subsidies directly produces the Plaintiffs' injury to their constitutional rights. (J.A. 26a-27a.) In 1992, Defendant Molinari, as an incumbent candidate, received and spent a direct public subsidy from Congress totaling at least $166,953 in government-financed mailings to voters in New York's 13th Congressional District. (J.A. 123a.) Defendant Molinari also received other politically valuable incumbent subsidies which she used to help finance her 1992 re-election campaign, including the public salary which she relied on as a or the source of personal income while running as a candidate, and the assistance of congressional staff members, financed by public money, such as her scheduler and press secretary. See generally Ruskin Affidavit, J.A. 119a. Plaintiffs' injury is directly traceable to Defendant Molinari's repeated actions in supporting and using these incumbent subsidies.

The Plaintiffs sought relief declaring the incumbent public subsidy, including the congressional franking privilege, unconstitutional unless and until such a subsidy is made available equally to all congressional candidates. (J.A. 28a-29a.) This relief would lead to the protection of the Plaintiffs' constitutional rights. It is consistent with the judicial use of declaratory power to provide such protection. See supra Section IC.

In denying the Plaintiffs standing to bring their constitutional challenge to the incumbent subsidy, the district court cited Baker and the political-question doctrine as a basis for its reasoning. Yet, as the Supreme Court held in Baker, "the mere fact that the suit seeks protection of a political right does not mean it presents a political question." Baker, 369 U.S. at 209. The district court stated that to issue the Plaintiffs' requested declaratory relief on the incumbent subsidy would "be an affront to the coordinate legislative branch." (J.A. 154a.) Yet, while the State of Tennessee and the Tennessee Supreme Court made much of the same argument with respect to the judiciary's involvement in reviewing the apportionment of state legislative districts, the U.S. Supreme Court in Baker and the cases which followed did not find that argument compelling when questions of people's constitutional rights are at stake. See Reynolds, 377 U.S. at 566: "[A] denial of constitutionally protected rights demands judicial protection..." The violation of constitutional rights through unjust incumbent subsidies can be reversed and remedied with the declaratory relief requested by the Plaintiffs. With respect to the Plaintiffs' constitutional challenge of the congressional franking privilege, the district court's denial of standing centered entirely on its misplaced attempt to distinguish this case from Bolger. The district court claimed that, in Bolger,

the plaintiff organization was composed of members who were actual candidates for elective office as well as actual contributors and campaign workers for those candidates. In this case, the plaintiffs are a would-be candidate who chose not to run and his supporters whose possible actions on his behalf were frustrated by his decision not to run. (J.A. 155a.)

The court again was simply wrong on the facts as alleged by the Plaintiffs. As stated earlier, Plaintiff Albanese was an "actual candidate" for Congress in 1992 against Defendant Molinari and the other thirteen Plaintiffs were "actual" voter-supporters of Plaintiff Albanese's candidacy. (J.A. 9a, 59a-111a.) The Plaintiffs suffered a concrete and particularized harm resulting from Defendant Molinari's use of the incumbent subsidy in 1992, and, as voters who continue to reside in New York's 13th Congressional District, Plaintiffs continue to suffer that harm. Further, the harm which Plaintiffs suffer is likely to be repeated, thereby constituting a cognizable injury for standing purposes. (J.A. 23a.) The suggestion that, as a former but not current candidate for office, Plaintiff Albanese cannot suffer injury to his constitutional rights has already been rejected by this Court. See Fulani, 882 F.2d at 628 (rejecting as "wholly without merit" argument that former presidential candidate's claims were "moot" because election was over); see also Norman v. Reed, 502 U.S. at 288 (further application of "capable of repetition, yet evading review" doctrine in election context).

The Plaintiffs have the right to be heard on the merits of their constitutional challenge to the incumbent subsidy. The district court's decision denying the Plaintiffs standing to bring this challenge should be reversed.

IV. THE DISTRICT COURT ERRED IN FINDING THAT THE PLAINTIFS' CHALLENGE TO THE INCUMBENT SUBSIDY HAD NOT STATED A CLAIM UPON WHICH RELIEF MAY BE GRANTED

The district court erred in granting the Defendants' 12(b)(6) motion on the Plaintiffs' challenge to the congressional franking privilege. The court wrongfully relied on Bolger as the basis for its ruling, finding that the Bolger court had already decided the Plaintiffs' constitutional claims.

The Bolger court, however, specifically invited more richly developed records and more carefully drawn demands for relief--such as Plaintiffs bring forward in this case. The three judge court found that "the franking privilege confers a substantial advantage to incumbent Congressional candidates over their challengers" but stated that there was a "lack of evidence" presented in the case as to how decisive such an advantage was to the electoral success of incumbents. Bolger, 574 F. Supp. at 679. In addition, the plaintiffs in Bolger had requested the abolition of the franking privilege rather than the far more sensible relief that "non-incumbents should also be afforded the franking privilege." Id. at 682. The court thus issued the following invitation for further litigation:

Were the frank shown to be available and widely used for reelection purposes and had plaintiffs demonstrated that such use has a substantial detrimental impact on opposing candidates or members of the voting public seeking to educate themselves on the candidates and the issues, plaintiffs' claims, particularly those based on the First Amendment, would have considerable merit. Id. at 682.

The Bolger court left open the question of the constitutionality of the congressional franking privilege for another day. In their challenge to this incumbent subsidy, the Plaintiffs sufficiently stated a claim upon which relief may be granted. The district court's decision granting the Defendants' 12(b)(6) motion should be reversed.

CONCLUSION

More than 100 years have passed since the United States Supreme Court stated that the constitutional right to vote is "a fundamental political right...preservative of all rights." Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886). Since that time, through constitutional and statutory change, this nation has seen a continued expansion of the franchise and the steady elaboration of the meaning of one person/one vote. The Plaintiffs, as non-wealthy voters and candidates in the political process, brought this case with that history in mind and with the respectful request that they, too, be allowed to be heard.

For the foregoing reasons, the judgment of the district court should be reversed.

August 10, 1995 Respectfully submitted, Attorneys for the Plaintiffs-Appellants:

________________________________
John C. Bonifaz
Cristobal Bonifaz
Jason Adkins
Jordan Yeager
Law Offices of Cristobal Bonifaz
401 Commonwealth Avenue
Boston, Massachusetts 02215
(617) 424-7950

________________________________
John W. Carroll
Wolfson & Carroll
233 Broadway, Suite 970
New York, New York 10279
(212) 233-0314

with The National Voting Rights Institute
1130 Massachusetts Avenue
Cambridge, Massachusetts 02138
(617) 441-8200
On the brief:

Baiju Shah
Harvard Law School '97
Law Student Intern

CERTIFICATE OF SERVICE

I hereby certify that I have caused on this day, August 10, 1995, the foregoing Brief for Plaintiffs-Appellants and the accompanying Joint Appendix to be served by Federal Express on the following counsel:

Vivien Clair, Esq.
Office of the General Counsel
Federal Election Commission
999 E Street, N.W.
Washington, D.C. 20463

(Counsel for Defendant Federal Election Commission)

Cheryl A. Lau, Esq.
Michael Murray, Esq.
Office of the General Counsel
U.S. House of Representatives
U.S. Capitol, H-112
Washington, D.C. 20515

(Counsel for Defendant Susan Molinari)

and by First Class Mail on the following counsel:

Richard F. Birmingham, Esq.
Cawse & Birmingham
3974 Amboy Road
Staten Island, New York 10308

(Counsel for Defendant Committee to Re-Elect Susan Molinari)

August 10, 1995
John C. Bonifaz

FOOTNOTES

{1} "J.A." references are to the joint appendix.

{2} Defendant Molinari is a defendant in this case in her capacity as an incumbent congressional candidate -- not as a Member of Congress. Despite that fact, Defendant Molinari, through her counsel, remained silent below on Plaintiffs' allegations that, as an incumbent congressional candidate, she "participated in and helped organize and continue[s] to participate in and help organize" the exclusionary campaign finance process in New York's 13th Congressional District. Defendant Molinari left those allegations completely unchallenged. The Defendant Committee to Re-Elect -- which, as a candidate committee, is not associated in any way with the United States House of Representatives -- did not file a separate response to the Plaintiffs' complaint but rather, through its counsel, joined in Defendant Molinari's response prepared by the General Counsel for the U.S. House of Representatives. In so doing, the Defendant Committee to Re-Elect similarly left Plaintiffs' allegations concerning its participation in the exclusionary campaign finance process completely unchallenged.

{3} See Terry v. Adams, 345 U.S. 461 (1953) (holding that all-white organization's exclusionary candidate nominating process, which withdrew significance from Democratic primary, was unconstitutional under the Equal Protection Clause of the Fourteenth Amendment); Smith v. Allwright, 321 U.S. 649 (1944) (finding that exclusion of African- Americans from party primary by vote of party membership constituted state action violating the Fifteenth Amendment); Nixon v. Condon, 286 U.S. 73 (1932) (holding that action by state Democratic party's executive committee excluding African-Americans amounted to a delegation of state power and was unconstitutional under the Equal Protection Clause); Nixon v. Herndon, 273 U.S. 536 (1927) (ruling that state statute barring African-Americans from participation in Democratic primary violates the Equal Protection Clause).

{4} Terry, 345 U.S. at 481, quoting Smith, 321 U.S. at 664.

{5} While Plaintiff Albanese did not run again for Congress in 1994 because of the wealth primary barrier, this does not, in any way, detract from the facts, as alleged by all the Plaintiffs, that they, as voters, continued to be excluded from the wealth primary in the 1994 congressional election in their district, and that, without judicial protection of their constitutional rights, such exclusion would continue in future congressional elections in their district. (J.A. 22a-27a, 59a-111a.)

{6}As Plaintiffs' expert Miller stated:

The current campaign finance system in congressional elections functions today as a critical part of the machinery for getting elected to the U.S. House of Representatives or the U.S. Senate. Candidates who triumph in the campaign fundraising process -- by having or raising the most money -- almost invariably go on to win election. Eighty-nine percent of all House winners and eighty-six percent of all Senate winners won the campaign fundraising process first...and outspent their opponents in 1992. (J.A. 34a.)

The key money in the campaign fundraising process is the money available or raised in large sums by candidates who have wealth or access to wealth...Since the key money in congressional campaigns is the money available or raised in large sums, voters who lack wealth or access to wealth are essentially unable to be heard in this critical part of the overall electoral process. The contributors who have access and influence are the contributors who can provide large sums of money. All other voters, like the Plaintiffs in this case, are effectively excluded from this decisive campaign fundraising process. (J.A. 39a-40a.)

{7} Plaintiff Tinamarie Lambiasi, a registered Republican voter who works as a substance abuse counselor stated:

I do not have the finances to put someone into office. I cannot afford to make large contributions to the campaigns of candidates that I like. Most people in my economic situation do not have the resources to dramatically influence an election. So many people have problems just paying their mortgage or their medical bills. How can we have as much influence in electing our representatives as someone who contributes $1,000 or some group that gives $10,000? It is very frustrating because it goes against the whole idea of democracy. (J.A. 83a.)

Another plaintiff, Victor Suarez, a registered Democratic voter who works as a bus driver stated:

I am not wealthy, and I do not have access to wealth. I can afford to give $25 or maybe even $50 to a candidate that I like, but corporate interests can afford to give thousands. My small contribution is not enough to give a candidate a fair chance of winning an election. Candidates therefore pay more attention to the interests of their wealthy contributors than they do to the needs of average people like me. (J.A. 90a.)

{8} See also Norman v. Reed, 502 U.S. 279, 288 (1992) (holding that challenge of the use of a party name on the 1990 election ballot in Cook County, Illinois presented a controversy "capable of repetition, yet evading review": "There would be every reason to expect the same parties to generate a similar, future controversy subject to identical time constraints if we should fail to resolve the constitutional issues that arose in 1990.")

{9} On the First Amendment claim, the Plaintiff-voters alleged that, by being effectively excluded, they are unable to exercise, in a critical part of the electoral process, their First Amendment right to speak. (J.A. 25a.) They further alleged that this exclusionary system drowns out their speech in the overall political process. (J.A. 25a.) The Supreme Court long ago recognized that no one has the right to drown out other people's speech. See Kovacs v. Cooper, 336 U.S. 77, 97 (1949) (Justice Jackson concurring): "Freedom of speech for Kovacs does not, in my view, include freedom to use sound amplifiers to drown out the natural speech of others."

{10} In Baker, a group of voters in Tennessee challenged, on equal protection grounds, a 1901 Tennessee statute allocating house and senate seats within the state legislature. The voters argued that the apportionment of members to Tennessee's General Assembly caused a "debasement of their votes" and, thereby, denied them the equal protection of the laws as guaranteed by the Fourteenth Amendment to the U.S. Constitution. Id. at 194. The Supreme Court held that the voters had standing to challenge the apportionment system of Tennessee. "They [the plaintiff voters] are asserting 'a plain, direct and adequate interest in maintaining the effectiveness of their votes'..." Id. at 208.

{11} In Wesberry, a group of voters in Georgia challenged, under Article I, Section 2, the constitutionality of the Georgia state legislature's alignment of congressional districts in the state, resulting from a 1931 Georgia apportionment statute. The voters, who resided in a congressional district which was two to three times greater than that of some other congressional districts in the state, argued that they suffered from a debasement of their right to vote. The Supreme Court held that the voters had standing to bring their claim. In emphasizing the importance of each citizen having an equal vote, the Supreme Court in Wesberry quoted James Madison's writings in the Federalist papers:

Who are to be the electors of the Federal Representatives? Not the rich more than the poor; not the learned more than the ignorant; not the haughty heirs of distinguished names, more than the humble sons of obscure and unpropitious fortune. The electors are to be the great body of the people of the United States. Id. at 18. (emphasis added)

{12} In Gray, the Supreme Court held that voters had standing to challenge, on equal protection grounds, the constitutionality of a Georgia state legislative apportionment scheme: "We also agree that appellee, like any person whose right to vote is impaired...has standing to sue." Id. at 375. (internal citations omitted) (emphasis added); the Supreme Court in Gray first articulated the "one person, one vote" principle: "The conception of political equality from the Declaration of Independence, to Lincoln's Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing -- one person, one vote." Id. at 381.

{13} In Reynolds, the Supreme Court further articulated the harm citizens face when their right to vote is debased and diluted. In Reynolds, a group of voters in Alabama challenged their state's legislative apportionment scheme as unconstitutional, on equal protection grounds, in that it caused a debasement and dilution of their right to vote.

[H]istory has seen a continuing expansion of the scope of the right of suffrage in this country. The right to vote freely for the candidate of one's choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government. And the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise. Id. at 555.

...Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests. As long as ours is a representative form of government, and our legislatures are those instruments of government elected directly by and directly representative of the people, the right to elect legislators in a free and unimpaired fashion is a bedrock of our political system. Id. at 562.

...To the extent that a citizen's right to vote is debased, he is that much less a citizen. Id. at 567.

{14} As Plaintiffs alleged below, many of those who had a greater say in the 1992 congressional election from the 13th District of New York did not even reside in that district and, therefore, did even have the right to vote in that election. Twenty percent of the money Defendant Molinari raised in the wealth primary in 1992 came from wealthy individuals and interests located outside the State of New York. (J.A. 42a.)

{15} Unlike the plaintiffs in United States v. Hays, et al., 1995 U.S. LEXIS 446, who did not reside in the district which they challenged, the Plaintiffs-voters in this case do, in fact, reside in the congressional district at the center of the facts of this case. They challenge the wealth primary in that district as it directly harms them as individual voters in the election of their Representative to the United States Congress.

{16} See Plaintiffs' Exhibits 2-15:

The current campaign finance system undermines my right to vote by allowing wealth to unfairly influence who gets elected and what interests get represented. I am not wealthy, and I do not have access to wealth. Most people I know are usually too worried about their own financial problems to be able to give money to a campaign. Because I do not have wealth, my vote and my interests are not as important to a candidate as the monied interests...The current campaign finance system undermines my right to vote and dilutes the value of my vote. (Affidavit of Plaintiff Stephen Clinton, a registered Democratic voter and public school teacher, J.A. 74a.)

I have never made a financial contribution to an electoral campaign because I cannot afford to do so. My husband and I do not have wealth or access to wealth. The money we earn is used to helping make ends meet.

I would like to be able to have my voice heard in the election of my representative to the United States Congress on an equal basis with all other citizens. But, this does not happen today. The people who have large sums of money to give to campaigns and the political action committees have a much greater influence in determining who gets elected. As a result, people like me do not have an equal voice, an equal say. This lessens the value of my vote and the vote of others in my economic situation. (Affidavit of Plaintiff Elaine Poleneni, a registered Republican voter and family assistant for the New York City Board of Education, J.A. 86a.)

I believe that the right to vote is supposed to be of equal weight for everyone. It is supposed to be the same for rich and poor, black and white, democrat and republican. It should not be capable of manipulation, dilution or discrimination. Everyone is supposed to have an equal say in who their advocates in Congress will be...The current campaign finance system dilutes this one person one vote ideal. The impact of my vote, and the vote of regular people like me, is substantially reduced where large sums of money are more important to a candidate than my vote is. (Affidavit of John O'Donnell, a registered Democratic voter and police lieutenant, J.A. 96a.)

{17} See Plaintiffs' First Amended Complaint:

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. (J.A. 21a.)

Affidavit of Plaintiffs' expert Miller: Like most other candidates in her category, Defendant Molinari was able to raise large sums of money in 1992 from wealthy individuals and wealthy interests, many of whom were and are seeking, through their money, legislative access, influence, and results. ...As with nearly all other incumbent congressional candidates, much of the campaign money Defendant Molinari and Defendant Committee to Re-Elect Susan Molinari raised in 1992 came from corporate PACs [political action committees] and from individuals, in the amounts of $200 or more, concentrated in the same industries with which the corporate PACs are associated. For example, in 1992, Defendant Molinari raised a combined total of $79,430 from the finance, insurance, and real estate industries in corporate PAC contributions and contributions from individuals in the amounts of $200 or more. She raised $38,425 from the health care industry in PAC and large individual contributions. And, as a Representative from a congressional district covering part of the City of New York, Defendant Molinari raised $14,174 from the agriculture industry. (J.A. 43a-47a.)

Affidavit of Plaintiff Poleneni: "The money is what talks, not the individual voters. And people who give the money -- who have the wealth to do so -- have much more access to our elected members of Congress than do everyday working people like me." (J.A. 86a.)

{18} The district court, in fact, recognized at oral argument that there is a distinction between finding that cases are similar on a factual basis and finding that cases are similar on a conceptual basis. (J.A. 130a-131a.) The court, however, ultimately did not apply this distinction in its reasoning.

{19} See Bullock:

The initial and direct impact of filing fees is felt by aspirants for office, rather than voters, and the Court has not heretofore attached such fundamental status to candidacy as to invoke a rigorous standard of review. However, the rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters. Id. at 142-143.

...Many potential office seekers lacking both personal wealth and affluent backers are in every practical sense precluded from seeking the nomination of their chosen party, no matter how qualified they might be, and no matter how broad or enthusiastic their popular support...[W]e would ignore reality were we not to recognize that this system falls with unequal weight on voters, as well as candidates, according to their economic status. Id. at 143-144. (emphasis added)

{20} Plaintiff Albanese tried to compete with Defendant Molinari in the critical fundraising process but, because of his lack of wealth and access to wealth, he did not have an equal and meaningful chance at defeating her in that cash collection process...[W]hile Plaintiff Albanese could match dollar for dollar the contributions Defendant Molinari raised from small contributors, he could not compete in the key fundraising process -- the collection of large sums of money from wealthy interests and wealthy contributors. Defendant Molinari raised $189,680 in individual contributions of $200 or more to Plaintiff Albanese's $49,000 in contributions from the same category, outraising him by a factor of nearly four to one. Similarly, Defendant Molinari raised $225,690 in political action committee contributions to Plaintiff Albanese's $88,000 in political action committee contributions, outraising him by a factor of 2.5 to one. Defendant Molinari's political action committee contributions, alone, nearly equaled the total amount of money Plaintiff Albanese raised for his challenger campaign. (J.A. 41a-42a.)

{21} See Miller Affidavit:

As the federal agency responsible for enforcing the Federal Election Campaign Act of 1971 (as amended), the Defendant Federal Election Commission oversees and monitors the campaign fundraising process in congressional elections -- this critical part of the machinery of getting elected. The Defendant FEC receives regular reports from all candidate committees engaged in this process and reviews such reports to determine that the candidates and their committees are soliciting, accepting, and using only those contributions as allowed under the Federal Election Campaign Act.

...Congressional candidates and candidate committees are authorized to solicit, accept, and use such contributions to the extent currently allowed under the Federal Election Campaign Act. This authorization of such contributions by the Federal Election Campaign Act and the Defendant Federal Election Commission is most clearly present by the fact that those contributions not currently allowed under the Federal Election Campaign Act are prohibited -- not authorized. (J.A. 36a-37a.)

{22} A committee report is an "authoritative source" for determining the intent of Congress embodied in the text of the bill on which the report was written. Thornburg v. Gingles, 478 U.S. 30, 43 n. 7 (1986).

{23} The rule states:

The provisions of the Federal Election Campaign Act of 1971, as amended, and rules and regulations issued thereunder, supersede and preempt any provision of State law with respect to election to Federal office.

Federal law supersedes State law concerning the -- (1)Organization and registration of political committees supporting Federal candidates; (2)Disclosure of receipts and expenditures by Federal candidates and political committees; and (3)Limitation on contributions and expenditures regarding Federal candidates and political committees.

{24} In a footnote, the district court attempts to define the Plaintiffs' challenge of FECA as a challenge of "the absence of laws" prohibiting the wealth primary. (J.A. 147a.) As described above, however, FECA is not a mere bystander to this exclusionary campaign fundraising process. The Act authorizes and has "complete control over" that process. The plaintiffs in the white primary cases were not challenging "the absence of laws" prohibiting the white primary. The plaintiffs were challenging the white primary itself, as an integral part of the overall electoral process. Plaintiffs' challenge, here, is a challenge to the wealth primary, as authorized and controlled by FECA.

{25} While the legal standard announced in Lujan is applicable to the case at bar, the facts of Lujan are clearly distinguishable. The plaintiffs in Lujan, like those in numerous other suits challenging environmental regulations, tried to claim injury from actions which could have potentially harmful effects on animals in far-away lands. The Court has said, repeatedly, that such claims of injury are too attenuated for standing in federal court. The Plaintiffs in the present case, by contrast, are asserting real and actual injuries to their constitutionally protected rights. Unlike the plaintiffs in Lujan, the Plaintiffs here have alleged "continuing adverse effects." Lujan, 112 S. Ct. at 2138. Plaintiffs argue that they have been and continue to be excluded from an integral part of the electoral process, that their constitutional right to vote has been and continues to be undermined and debased by the exclusionary congressional campaign finance system, and that their candidate has been and continues to be denied participation on an equal and meaningful basis in the electoral process. This does not present the Court with the uncertainty of a "some-day" intention of visiting a far-off land. Id. Plaintiffs' allegations represent the here and now. Furthermore, Plaintiffs' allegations do not rest on the future enjoyment of another species, but rather on the present enjoyment of their most basic and fundamental democratic rights.

{26} The question, at this early stage, remains one of the Plaintiff- voters' standing -- not one on the merits of plaintiffs' claim. See Dopico v. Goldschmidt, 687 F. 2d 644 (2nd Cir. 1982) (reversing district court dismissal and finding that plaintiffs -- physically disabled citizens -- had standing to sue the New York City Transit Authority for failing to comply with federal statutes concerning access to public mass transit: "[T]he District Court concluded that dismissal was warranted because the plaintiffs were seeking 'massive relief involving extraordinary expenditures' which would amount to the 'kind of burdensome modifications...held to be beyond the scope of [the relevant statute].' The extreme result of dismissing the claim would be proper only if plaintiffs were not entitled to any relief, even if they were to prevail on the merits. We do not believe that conclusion can be reached at this preliminary stage of the lawsuit." Id. at 649)

{27} The district court stated:

From a review of [numerous Supreme Court]...decisions there can be no doubt that the federal rule, as enunciated and applied by the Supreme Court, is that the federal courts, whether from a lack of jurisdiction or from the inappropriateness of the subject matter for judicial consideration, will not intervene in cases of this type to compel legislative reapportionment. Baker v. Carr, 179 F. Supp. 824, 826 (M.D. Tenn. 1959).

The district court then "made clear that its dismissal reflected a view not of doubt that violation of constitutional rights was alleged, but of a court's impotence to correct that violation" Baker, 369 U.S. at 197:

With the plaintiffs' argument that the legislature of Tennessee is guilty of a clear violation of the state constitution and of the rights of the plaintiffs the [c]ourt entirely agrees. It is also agrees that the evil is a serious one which should be corrected without further delay. But even so the remedy in this situation clearly does not lie with the courts. It has long been recognized and is accepted doctrine that there are indeed some rights guaranteed by the Constitution for the violation of which the courts cannot give redress. Baker v. Carr, 179 F. Supp. at 828.

{28} These steps included the Tennessee legislature's enactment in its 1963 session, one year following the declaratory judgment, of a reapportionment plan and a Tennessee constitutional convention in December 1965 revising that charter to comport with the court's holding. The Tennessee Supreme Court had earlier warned in Kidd v. McCanless, 200 Tenn. 273, 292 S.W. 2d 40 (1956), that "a declaration or 'striking down' of the 1901 [apportionment] Act would...leave the state without a legislature and the means of electing a new one 'and [would] ultimately bring about the destruction of the State itself.'" Baker v. Carr, 206 F. Supp. 341, 350 (M.D. Tenn. 1962) (citing Kidd v. McCanless). That warning proved to be unfounded. The State of Tennessee still stands. It survived the Supreme Court's holding in Baker v. Carr.

{29} See also O'Hair v. White, 675 F. 2d. 680, 689 (5th Cir. 1982) (per Vance, J.): "We do not believe that prudential notions of self-restraint in the area of standing are properly invoked in cases involving the dilution of an individual's fundamental voting rights. When a complaint alleges injury stemming from a clogged democratic process, it would be anomalous to require the plaintiff to seek relief from political institutions. O'Hair, 'like any person whose right to vote is impaired has standing to sue.'" (quoting Gray v. Sanders, 372 U.S. 368, 375 (1963))

{30} The Plaintiffs' standing to bring their constitutional challenge to FECA is further supported by the express provision in FECA providing standing to "any individual eligible to vote in any election for the office of President." 2 U.S.C. 437h(a) The district court's suggestion that Plaintiffs take their constitutional claims to the political branches of the government (J.A. 152a) contravenes not only the judicial duty to protect citizens' constitutional rights but also the express intentions of Congress in enacting Section 437h of FECA. As the Supreme Court stated in Buckley, "[i]t is clear that Congress, in enacting 2 U.S.C. 437h, intended to provide judicial review to the extent permitted by Article III." Buckley, 424 U.S. at 11-12.

{31} The district court claimed that the Plaintiffs admitted in footnote 5 of their complaint that Buckley had already decided their constitutional challenge to FECA. That claim is grossly in error. Footnote 5 of Plaintiffs' complaint reads, in its entirety, as follows: As for the relief requested for this particular count (invalidating FECA as unconstitutional insofar as it allows for the use of private money in federal elections), Plaintiffs ask this Honorable Court to reconsider the U.S. Supreme Court's 1976 holding in Buckley v. Valeo, 424 U.S. 1 (1976), given the Supreme Court's subsequent departure from that decision, such as Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), and given the facts of private money in federal elections today, eighteen years after the Buckley decision. (J.A. 26a.) While this footnote addresses a specific relief requested by Plaintiffs, it in no way constitutes an admission that Plaintiffs' constitutional claims under the Equal Protection Clause, Article I, and the First Amendment had already been considered and decided by Buckley. If a court were to hear the Plaintiffs' claims on their merits and decide that the exclusionary campaign fundraising process, as sanctioned and authorized by FECA, does, in fact, violate their constitutional rights in the political process, a court would need to address the Buckley holding in the fashioning of appropriate relief and, Plaintiffs argue, need to reconsider that decision in light of more recent Supreme Court holdings and in light of the facts as we know them today. That is the clear meaning of footnote 5 of Plaintiffs' complaint.

{32} See also Plaintiffs' Exhibit 17, Affidavit of Plaintiffs' expert Gary Ruskin (hereinafter "Ruskin Affidavit"), J.A. 119a, 120a:

This public subsidy includes: the public salary for each Member of Congress when it is relied on as a or the source of personal income for the incumbent candidate, when he or she is acting in his or her capacity as a private citizen 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.

{33} See Ruskin Affidavit:

This public subsidy provides a distinct and often decisive advantage to the re-election efforts of the sitting Members of the U.S. Congress. Congressional candidates who are challenging incumbent congressional candidates do not have access to this public subsidy. The congressional franking privilege represents the most significant part of the incumbent public subsidy...These mass mailings, sent to residents in the congressional district, almost invariably provide voters only 'good news' about the work of the incumbent candidate and often show several different photos of the incumbent candidate. As such, the mailings act as a form of campaign literature, financed by the government for only one class of candidates. While Congress claims to prohibit any political use of the congressional franking privilege, any public purpose in these unsolicited mass mailings is usually overwhelmed and overshadowed by the private political re-election purpose.

...Incumbent candidate Susan Molinari spent $166,953 on government-financed mailings to residents of New York's 13th Congressional District during the period of January 1991 through September 22, 1992. Sal Albanese, the congressional challenger in 1992 for New York's 13th Congressional District, did not have access to any such public funds for use in reaching the voters of that district...In the 1994 election cycle, incumbent candidate Susan Molinari continues to have access to public funds, which are unavailable to any challenger candidates, for conducting mailings to the voters of New York's 13th Congressional District. Between July 1993 and June 1994, Ms. Molinari spent $132,314 on government-financed mailings to the voters of New York's 13th Congressional District. (J.A. 120a-121a, 123a.)

See also Transcript (J.A. 133a-134a) (Plaintiffs' co-counsel quoting from franked mail sent by Defendant Molinari to the voters of New York's 13th Congressional District and referencing affidavits further detailing the campaign nature of Defendant's mass mailings using the congressional franking privilege).

{34} See Ruskin Affidavit: "The incumbent public subsidy provides an important additional advantage to incumbent candidates, furthering the exclusionary and decisive nature of the congressional campaign finance system;" (J.A. 125a) and see Miller Affidavit: "Despite intense voter anger with the political system in 1992, incumbents raised the most money, spent the most money, and won eighty-eight percent of their races. Some eighty-two percent of House incumbents running in the 1992 general election, including Defendant Susan Molinari, outraised their challengers by $200,000 or more, and thirty percent outspent their challenger by at least $500,000." (J.A. 35a-36a.) While some have described the 1994 elections as an electoral "revolution," the fact remains that, as in previous election cycles, the vast majority of incumbents retained their unjust advantage in 1994 and were re-elected. See Transcript (J.A. 129a, 132a).

{35} This is the same kind of blending of the Member's personal interests with the official power of the federal government reflected in the fact that Defendant Molinari is being represented in this case by the General Counsel to the House of Representatives even though she was sued in her private capacity as an incumbent congressional candidate.

{36} The Plaintiffs have challenged the incumbent subsidy, including the congressional franking privilege, as violative of their constitutional rights as protected by the Equal Protection Clause, Article I, and the First Amendment. (J.A. 26a-27a.) This Court has recognized the First Amendment rights associated with political campaigns. See Fulani, 802 F. 2d at 627 (citing Bolger): "The First Amendment most certainly protects political advocacy." Further, as stated earlier, the Supreme Court has consistently held that voters have standing to challenge practices which they claim debate and dilute their constitutional right to vote. See e.g., Wesberry v. Sanders, 376 U.S. 1 (1964) (striking down malapportioned congressional districts); Reynolds v. Sims, 377 U.S. 533 (1964) (invalidating malapportioned state legislative districts); Smith v. Allwright, 321 U.S. 649 (1944) (striking down an all-white party primary); Bullock v. Carter, 405 U.S. 134 (1972) (rejecting excessively high candidate filing fees); Davis v. Bandemer, 478 U.S. 109 (1986) (holding that voters of one party have standing to challenge redistricting plans whose lines are drawn to reduce their voting power over time). The mobilization of public subsidies, including the franking privilege and staff and office expenses, by congressional incumbents to deter and overwhelm electoral opposition constitutes an actionable injury to political rights akin to malapportioned districts, white primaries, high filing fees and partisan-gerrymandered districts.

{37} See also Coalition to End the Permanent Congress v. Runyon, 979 F.2d 219 (D.C. Cir. 1992) (declaring unconstitutional the incumbent practice of sending franked mail to voters residing outside the incumbent's district but residing in a new future district: "[W]e must assume that the subsidy provides an advantage to the recipient equal to its economic value, and no one has suggested that the frank's value per potential voter to a congressional campaign is insignificant." Id. at 226); Hoellen v. Anunzio, 468 F.2d 522 (7th Cir. 1972), (upholding a district court injunction ordering Congressman Frank Annunzio to stop using his franking privilege to send mass mailings to voters living outside his district who had been brought inside a newly configured district in which he would soon be running; the court stated that the franking statute cannot lawfully be applied "to favor one of two opposing candidates entitled to equal treatment under the law." Id. at 526 (citing Weisberg v. Powell, 417 F.2d 388 (7th Cir. 1969)).