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.
_________________________________________________________________

REPLY BRIEF FOR PLAINTIFFS-APPELLANTS
_________________________________________________________________
John C. Bonifaz
Abigail Turner
Jordan Yeager
The National Voting Rights Institute
401 Commonwealth Avenue, Third Floor
Boston, Massachusetts 02215
(617) 867-0740


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

Attorneys for the Plaintiffs-Appellants

TABLE OF CONTENTS

TABLE OF AUTHORITIES

ARGUMENT

I. PLAINTIFFS HAVE STANDING TO CHALLENGE THE EXCLUSIONARY CAMPAIGN FUNDRAISING PROCESS IN CONGRESSION ELECTIONS

A. Plaintiffs Have Showed That They Suffer Legally Cognizable Injuries from Their Exclusion from the FECA-Controlled Campaign Fundraising 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. PLAINTIFFS HAVE STATED A CLAIM ON WHICH RELIEF MAY BE GRANTED BECAUSE THIS CASE DIFFERS FROM BUCKLEY

A. Plaintiffs' Legal Claims Differ From Buckley

B. The Facts In This Case Differ From Buckley

III. DEFENDANT MOLINARI RAISES NO VIABLE CONTEST TO PLAINTIFFS' STANDING TO CHALLENGE THE PUBLIC SUBSIDY PROVIDED EXCLUSIVELY TO INCUMBENT CONGRESSIONAL CANDIDATES

CONCLUSION

TABLE OF AUTHORITIES

CASES

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

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

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

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 (2d Cir. 1982)

First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978)

Flagg Brothers v. Brooks, 436 U.S. 149 (1978)

Froelich v. FEC, 855 F. Supp. 868, 870 (E.D. Va. 1994), aff'd mem., 57 F.3d 1066 (4th Cir. 1995)

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

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

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

In re U.S. Catholic Conference, 885 F.2d 1020 (2d Cir. 1989), cert. denied, 495 U.S. 918 (1990)

Kaplan v. County of Los Angeles, 894 F. 2d 1076, 1082 (9th Cir.), cert. denied, 496 U.S. 907 (1990)

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

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

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

Norman v. Reed, 502 U.S. 279, 288 (1992)

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

Renne v. Geary, 501 U.S. 312 (1991)

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

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

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

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

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

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

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

Winspinger v. Watson, 628 F.2d 133 (D.C. Cir. 1980)

STATUTES AND REGULATIONS

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

11 CFR 108.7(a),(b)

39 U.S.C. 3210

MISCELLANEOUS

United States Constitution

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

ARGUMENT

The question here is whether Plaintiffs, as non-wealthy voters in New York's 13th Congressional District, have the right to be heard on the merits of their constitutional challenge to the exclusionary campaign fundraising process in the election of their representative to the United States Congress. This is a case of first impression, involving Plaintiffs' fundamental voting rights guaranteed by the United States Constitution and by nearly fifty years of Supreme Court case law on the constitutional right of all citizens to an equal and meaningful vote.

This is not the case the U.S. Supreme Court heard and decided in Buckley v. Valeo, 424 U.S. 1 (1976). The Court did not consider this challenge brought today by less-affluent plaintiffs about their constitutional rights to participate in the electoral process without regard to their lack of wealth. Bullock v. Carter, 405 U.S. 134, 144 (1972); Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966).{1}

Most important at this early stage of this litigation is the fact that the Buckley plaintiffs reached the Supreme Court on the merits of their constitutional claims. The district court's decision dismissing Plaintiffs' complaint on the basis of standing and for failure to state a claim upon which relief may be granted should be reversed.

I. PLAINTIFFS HAVE STANDING TO CHALLENGE THE EXCLUSIONARY CAMPAIGN FUNDRAISING PROCESS IN CONGRESSIONAL ELECTIONS.

A. Plaintiffs Have Showed That They Suffer Legally Cognizable Injuries from Their Exclusion from the FECA-Controlled Campaign Fundraising Process.

Plaintiffs have documented the concrete and particularized harms they suffer as voters excluded from "an integral part" of the overall electoral process and as voters whose constitutional right to vote is undermined and debased. Terry v. Adams, 345 U.S. 461, 469. (Principal Br. 14-30.){2}

Plaintiffs have alleged facts in their complaint and have presented expert evidence showing the exclusionary and critical nature of the campaign finance system in New York's 13th Congressional District elections.{3} These facts, derived from analysis of the 1992 congressional election but which continue to apply today, include the following key points:

1. All of the Plaintiffs supported Plaintiff Albanese's candidacy in 1992. They could not, however, make or amass large campaign contributions in support of his candidacy and were effectively excluded from the wealth primary process. (J.A. 13a-15a, 59a-111a.){4}

2. All of the Plaintiffs, as non-wealthy voters, continue to be effectively excluded from the wealth primary process in congressional elections in their district. (J.A. 18a, 40a-43a.)

3. Wealthy interests dominated Defendant Susan Molinari's re- election campaign in 1992. Defendant Molinari and Defendant Committee to Re-Elect Susan Molinari (hereinafter "Defendant Committee") outraised Plaintiff Albanese in individual contributions of $200 or more by a factor of nearly four to one. (J.A. 42a.)

4. Defendant Molinari and Defendant Committee outraised Plaintiff Albanese in political action committee contributions by a factor of 2.5 to one. (J.A. 42a.)

5. The key money Defendant Molinari raised in the campaign fundraising process was in large sums. Eighty-one percent of the money Defendant Molinari raised in 1992 for her re-election campaign came from individual and political action committee contributions of $200 or more. (J.A. 40a-41a.)

6. Campaign contributors who are able to provide or amass large sums of money to congressional candidates most often do so for the purpose of obtaining legislative access, influence, and results. This is demonstrated, in part, by the fact that the flow of campaign money to incumbents in the U.S. Congress often parallels the Members' committee assignments. As an incumbent Member of Congress who sits on the House Public Works and Transportation Committee, Defendant Molinari raised $72,150 from industries with business before that committee for her 1992 re-election campaign. (J.A. 44a-45a.) 7. Twenty percent of the money Defendant Molinari raised in large individual contributions for her 1992 re-election campaign came from individuals who reside outside the State of New York. (J.A. 42a.)

8. Defendant Molinari and Defendant Committee raised and spent a total of $524,112 in order to retain Molinari's seat in Congress in 1992. Plaintiff Albanese raised a total of $267,248 in his 1992 electoral campaign for Congress. (J.A. 17a-18a; 40a-41a.)

9. As an incumbent Member of Congress, Defendant Molinari received a politically valuable public subsidy during her 1992 re-election campaign, including $166,953 of taxpayer money to send several pieces of franked mail to the voters of the 13th District. This public subsidy was unavailable to Plaintiff Albanese during his 1992 electoral campaign. (J.A. 19a-21a; 123a-125a.)

10. 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 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 non-wealthy voters in the 13th District, including Plaintiffs. Such disproportionate influence undermines the fundamental principle of "one person, one vote," and threatens the basic integrity of the democratic process. (J.A. 21a.)

Plaintiff Albanese spent thousands of hours meeting the voters of the 13th Congressional District. He campaigned at subway and ferry stops, visited senior centers and community groups, attended community meetings, and canvassed neighborhoods. He had hundreds of volunteers working for his campaign. Despite all of this, Plaintiff Albanese could not, in the end, compete against the money of Defendant Molinari's campaign. Plaintiffs have demonstrated that the campaign fundraising process serves as a critical part of the machinery for getting elected to Congress from New York's 13th Congressional District. (J.A. 19a-21a; 40a-43a; 61a-67a.) Plaintiffs have further demonstrated the harmful effects of this exclusionary wealth primary process on Plaintiff Albanese's ability to reach the voters of New York's 13th Congressional District about his candidacy. Plaintiff Albanese never had nor raised enough money in his campaign to afford:

--advertising on New York cable television stations which reach more than 50% of the homes on Staten Island where 400,000 of the 13th Congressional District's 535,000 voters live;

--full page advertising in local newspapers reaching the voters of the 13th Congressional District;

--district-wide mailings to the voters;

--advertising on billboards in the 13th Congressional District. Defendant Molinari's campaign purchased all such advertising and financed several district-wide mailings to voters in the district. (J.A. 19a-20a; 64a-65a.)

Further, as a result of this exclusionary campaign finance system, Plaintiff Albanese had a limited campaign staff with a paid campaign manager, a paid fundraiser, and three campaign staff members who were each paid nominal sums. Defendant Molinari had a significant campaign staff, with pollsters, fundraisers, media consultants, and two field offices. (J.A. 20a, 65a.)

In her affidavit, Plaintiffs' expert Ellen Miller documents that the injuries Plaintiff Albanese and the Plaintiff-voters suffered and continue to suffer are typical of the congressional campaign finance system nationwide. (J.A. 31a-58a.)

This exclusionary system disadvantages these voters "in their opportunity to influence the political process effectively." Davis v. Bandemer, 478 U.S. 109, 133 (1986). It undermines and debases the constitutionally guaranteed value of Plaintiffs' votes. See Baker v. Carr, 369 U.S. 186 (1962); Wesberry v. Sanders, 376 U.S. 1 (1963); Gray v. Sanders, 372 U.S. 368 (1963); Reynolds v. Sims, 377 U.S. 533 (1964). Plaintiffs have made a thorough factual showing that, as voters, they have suffered and continue to suffer legally cognizable injuries as a result of the FECA-controlled exclusionary campaign fundraising process in congressional elections.{5}

That other voters across the country suffer similar harms is not dispositive. Like the voters in Baker v. Carr, 369 U.S. at 204, Plaintiffs here have a "personal stake in the outcome" of the election of their Representative to the United States Congress. (Principal Br. 34-37.) The fact that Plaintiffs' injuries are "shared by a large class of other possible litigants," Warth v. Seldin, 422 U.S. 490, 501 (1975), does not change the fact that Plaintiffs "are asserting 'a plain, direct and adequate interest in maintaining the effectiveness of their votes..." Baker, 369 U.S. at 208. Plaintiffs who suffer a debasement of their constitutional right to vote have standing "to protect or vindicate an interest of their own, and of those similarly situated." Id. at 207. See also Gray v. Sanders, 372 U.S. at 375 ("We also agree that appellee, like any person whose right to vote is impaired, has standing to sue.")

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

Plaintiffs have alleged facts showing that the wealth primary in congressional elections in their district is a definable process which has become "an integral part...of the elective process that determines who shall rule and govern..." Terry, 345 U.S. at 469. The injuries which Plaintiffs suffer are traceable to the Defendants' actions in this exclusionary process. In its line of white primary cases, the Supreme Court articulated a sequence of holdings for finding state action in the specific field of the electoral process. See Terry; Smith v. Allwright, 321 U.S. 649 (1944); Nixon v. Condon, 286 U.S. 73 (1932); Nixon v. Herndon, 273 U.S. 536 (1927). Central to this line of authority is that the public election process "is an exclusively public function," as distinguished from state action questions in other contexts. Flagg Brothers v. Brooks, 436 U.S. 149, 158 (1978) (citing Terry, Smith, and Nixon v. Condon). In its attempt to argue that Plaintiffs' injuries are unrelated to any state action, Defendant FEC misses the principle of the key white primary holdings.

In his concurrence in Terry, Justice Clark explained that "any 'part of the machinery for choosing officials' becomes subject to the Constitution's restraints," even if that machinery is a private association taking "the form of 'voluntary association' of unofficial character." Terry, 345 U.S. at 481, quoting Smith, 321 U.S. at 664. Justice Frankfurter, in his concurrence, explained that "[t]he vital requirement is State responsibility -- that somewhere, somehow, to some extent, there be an infusion of conduct by officials, panoplied with State power..." Id. at 473.

Plaintiffs have demonstrated that the wealth primary process is infused with conduct by public officials, including Defendant Molinari, and by a federal agency, Defendant FEC. As a Member of Congress, Defendant Molinari receives a public subsidy to support her re-election campaigns. Defendant Molinari and Defendant Committee to Re-Elect Susan Molinari actively participate in the wealth primary process, soliciting, accepting, and spending the large sums of wealth raised through that process. Defendant FEC authorizes and exercises "complete control over" the campaign finance system in congressional elections. S. Rep. No. 689, 93d Cong., 2d Sess. 1 (1974).{6} The Federal Election Campaign Act of 1971 (as amended) occupies the field of campaign finance in the congressional election process, superseding and preempting all state laws in this area. 2 U.S.C. 453; 11 CFR 108.7(a),(b); Weber v. Heaney, 995 F. 2d 872 (8th Cir. 1993).

In each of the white primary cases, the defendants argued, as Defendant FEC does here, that the actions challenged were merely "the actions of private parties." (FEC Br. 24.) The Supreme Court consistently rejected these arguments in the face of evidence of the critical nature of the white primary system to the overall electoral process. In comparing Plaintiff-voters' injuries as a result of the exclusionary wealth primary system to a person's inability "to purchase luxury gifts for one's family," Defendant FEC ignores the "exclusively public function" of the public election process, Flagg Brothers, 436 U.S. at 158, and the fundamental constitutional rights at issue in this case.

Defendants are deeply immersed in the wealth primary process, a process which is today a "part of the machinery for choosing officials" for the United States Congress. Smith, 321 U.S. at 664. The injuries which Plaintiffs suffer are traceable to Defendants' actions in that exclusionary system.

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

Plaintiffs demonstrated that the declaratory relief they seek would initiate the process of protecting their constitutional rights in a manner consistent with the judiciary's prior use of its declaratory power to provide such protection. (Principal Br. 44-52.) The question, at this early stage, remains one of the Plaintiff-voters' standing -- not one on the merits of plaintiffs' claim.

In Dopico v. Goldschmidt, 687 F.2d 644 (2d Cir. 1982), this court reversed a district court's dismissal of plaintiffs' claims based on the massive relief which plaintiffs requested. This court found that such a dismissal would require a conclusion that plaintiffs were not entitled to any relief, a conclusion which, it held, would be improper in the early stage of the case.

In Dopico, a group of physicially-handicapped persons filed suit against local transportation authorities in New York and against federal transportation officials. They sought declaratory and injunctive relief to force defendants to engage in a major overhaul of the New York mass transit system so as to comply with federal statutes and regulations requiring accomodation of handicapped persons. As this court stated in its reversal of the district court's ruling:

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, (emphasis added).

Plaintiffs filed this action to seek judicial protection of their basic constitutional rights in the political process. They have sought declaratory relief which would lead to the redress of the concrete harms they suffer as a result of their exclusion from the wealth primary process and the debasement of their constitutional right to vote. At this early stage, they ask only to be heard. See also O'Hair v. White, 675 F.2d 680, 689 (5th Cir. 1982): "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. at 375)

II. PLAINTIFFS HAVE STATED A CLAIM ON WHICH RELIEF MAY BE GRANTED BECAUSE THIS CASE DIFFERS FROM BUCKLEY.

Plaintiffs' challenge to the FECA-controlled campaign finance system is not the same case as Buckley because both the legal claims and the facts are very different. Plaintiffs' serious constitutional questions of first impression were neither presented nor decided by the Supreme Court in Buckley.

A. Plaintiffs' Legal Claims Differ From Buckley.

In Buckley, the Court faced a challenge to certain provisions of FECA, including provisions requiring congressional candidates to adhere to campaign contribution and expenditure limitations. In reviewing the constitutionality of these limitations, the Court considered arguments for three governmental interests justifying the restrictions: preventing corruption and the appearance of corruption; equalizing the relative ability of individuals and groups to influence the outcome of elections; and reducing the cost of campaigns. Id. at 26, 48-49, 53.

The Court's consideration of these governmental interests is entirely different from a consideration of the constitutional claims brought by Plaintiffs. In Buckley, the Court balanced the stated governmental interests against the First Amendment rights of the wealthy plaintiffs challenging the FECA provisions. The Court never addressed the constitutional rights of non-wealthy voters and candidates excluded from the FECA-controlled campaign finance system. Whether the government has a compelling state interest to justify a restriction on the exercise of the constitutional rights of wealthy individuals is a far different question than whether the non-wealthy Plaintiffs here, who are excluded from the critical campaign finance system, deserve judicial protection of their constitutional rights in the political process.

The Buckley Court's brief mention of the voting rights holdings relied on by Plaintiffs considered only the question of whether such holdings supported a stated governmental interest for justifying the expenditure limitations. Id. at 49 n. 55. The Court did not interpret nor apply the voting rights cases to the constitutional challenge presented here.

B. The Facts In This Case Differ From Buckley.

Further, the facts of the campaign finance system under FECA have changed so dramatically since Buckley that Plaintiffs are entitled to make a showing that the discrimination they suffer today constitutes a violation of their fundamental constitutional rights in the political process. When the Buckley plaintiffs filed suit in 1975 challenging provisions of the 1974 congressional amendments to FECA, the Act was still in its infancy. The reporting and disclosure requirements of FECA had yet to take any real effect. The Court, therefore, had only a limited factual record as to the impact of the FECA-controlled campaign finance system on the overall congressional election process.

In addressing the Buckley plaintiffs' claims, the Court made several references in its ruling to that undeveloped record. See Buckley, 424 U.S. at 33: "The charge of discrimination against minor- party and independent candidates is more troubling, but the record provides no basis for concluding that the Act invidiously disadvantages such candidates;" Id. at 34 n.40: "[T]he absence of experience under the Act prevents us from evaluating" the assertion that contribution limitations prevent the acquisition of seed money to launch campaigns; Id.:"...it is difficult to assess the effect of the contribution ceiling...;" Id. at 46: Independent expenditures "[do] not presently appear to pose dangers of real or apparent corruption comparable to those identified with large campaign contributions." (emphasis added) Two years after Buckley, the Court explicitly stated its willingness to revisit a related campaign finance question upon a new factual showing.

According to appellee, corporations are wealthy and powerful and their views may drown out other points of view. If appellee's arguments were supported by record or legislative findings that corporate advocacy threatened imminently to undermine democratic processes, thereby denigrating rather than serving First Amendment interests, these arguments would merit our consideration.

First National Bank of Boston v. Bellotti, 435 U.S. 765, 789-790 (1978) (citation omitted) (emphasis added).

Plaintiffs here have presented extensive expert evidence showing that the facts of the congressional campaign finance system have dramatically changed since the Buckley ruling nearly twenty years ago. In the 1992 elections, "[m]ore than $678 million was spent on campaigns, an almost 700% increase from a decade ago." (J.A. 44a.) "[T]oday, the average cost of a winning campaign for the U.S. House of Representatives is $543,000, and the average cost of a winning campaign for the U.S. Senate is $3.9 million." (J.A. 44a.) "Forty six House candidates each spent more than $1 million on their campaigns in 1992, up from eleven such candidates in 1990." (J.A. 44a.) "Despite the limitations on political action committee contributions...and on individual contributions...those who seek to amass large sums of campaign money and, through such money, influence election outcomes still do so...In the 1992 elections, 29 House members collected contributions of $20,000 or more from a single source." (J.A. 45a-46a.) "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." (J.A. 34a.)

Plaintiffs have stated a claim on which relief may be granted. They are entitled to be heard on the merits of their constitutional challenge based on a new factual showing of the exclusionary and critical nature of the FECA-controlled campaign finance system in the election of their representative to the United States Congress.

III. DEFENDANT MOLINARI RAISES NO VIABLE CONTEST TO PLAINTIFFS' STANDING TO CHALLENGE THE PUBLIC SUBSIDY PROVIDED EXCLUSIVELY TO INCUMBENT CONGRESSIONAL CANDIDATES.

Plaintiffs' challenge to the FECA-controlled exclusionary campaign finance system includes a challenge to the politically valuable public subsidies provided exclusively to all incumbent congressional candidates running for re-election. Plaintiffs have the right to be heard on the merits of their constitutional challenge to the incumbent subsidy and will not repeat here their arguments from their principal brief showing injury in fact, traceability, and redressability. (Principal Br. 55-63.)

On the question of injury, Defendant Molinari claims that Plaintiffs seek to be provided the same "official responsibilities, and the means for handling them" as those provided to a Member of Congress. (Molinari Br. 12.) This is absurd. Plaintiffs seek only to secure their constitutional rights in the electoral process.

Defendant Molinari's reliance on In re U.S. Catholic Conference, 885 F.2d 1020 (2d Cir. 1989), cert. denied, 495 U.S. 918 (1990), is misplaced. Unlike the Plaintiffs' case, the plaintiff class of pro-choice organizations in In re U.S. Catholic Conference did not include any political candidates -- former, present, or aspiring -- nor any specific allegations about how lax tax law enforcement affected the conduct and outcome of any particular election. This court, in fact, concluded that it would "not foreclose the possibility that political competitors may state a cognizable injury." Id. at 1031.

Defendant Molinari's reliance on Winspinger v. Watson, 628 F.2d 133 (D.C. Cir. 1980) on the traceability question is also misplaced. In Fulani v. League of Women Voters Education Fund, 882 F.2d 621, 627 (1989), this court found Winspinger "inapposite" to Fulani's claims because her injury was "much less attenuated." This court held that the impairment of Fulani's "ability to compete on an equal footing with other significant presidential candidates" could be fairly traced to the government's tax treatment of the League. Id. at 626, 628.

Plaintiffs' injuries here are more clearly traceable to Defendant Molinari's actions than Fulani's injuries were to the Internal Revenue Service. Fulani was excluded from a presidential debate sponsored by a private, non-partisan organization and only indirectly underwritten by a public tax exemption from the Internal Revenue Service. Plaintiff Albanese tried to run for a House seat in 1992 against Defendant Molinari, who received and then spent a direct public subsidy, including at least $166,953 for district-wide mailings to the voters of New York's 13th congressional district. As in Fulani, Winspinger is inapposite to Plaintiffs' case.

Defendant Molinari's argument that the Plaintiffs' constitutional rights raised by this challenge can be protected by the United States Congress and do not necessitate intervention by any court lacks credibility and is not based on established law. The duty to protect Plaintiffs' constitutional rights lies with the courts, not with the Congress. See Reynolds v. Sims, 377 U.S. 533, 566: "[A] denial of constitutionally protected rights demands judicial protection..."

Defendant Molinari ignores entirely the specific invitation made by the three-judge district court in Common Cause v. Bolger, 574 F. Supp. 672 (D.D.C. 1982), to bring a new constitutional challenge to the congressional franking privilege. (Principal Br. 63-64.)

The district court's decision denying the Plaintiffs standing to bring this challenge to the incumbent subsidy and dismissing Plaintiffs' challenge for failure to state a claim on which relief may be granted should be reversed.

CONCLUSION

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

October 6, 1995

Respectfully submitted,
Attorneys for the Plaintiffs-Appellants:

_________________________________
John C. Bonifaz
Abigail Turner
Jordan Yeager
National Voting Rights Institute
401 Commonwealth Avenue, Third Floor
Boston, Massachusetts 02215
(617) 867-0740

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

On the brief:

Richard E. DuBois
Doug Ford
Jessica Roth
Baiju Shah
Lisa Sullivan
Josh Toll

CERTIFICATE OF SERVICE

I hereby certify that I have caused, on this day, October 6, 1995, the foregoing Reply Brief for Plaintiffs-Appellants to be served by First Class Mail 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)

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

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

October 6, 1995
John C. Bonifaz

FOOTNOTES

{1} Unlike the system in Kaplan v. County of Los Angeles, 894 F. 2d 1076, 1082 (9th Cir.), cert. denied, 496 U.S. 907 (1990), where candidates who could not afford to pay the fees for inclusion in a voter's pamphlet were afforded alternative financing for the publication of their statements, Plaintiffs, here, have no alternative to their exclusion from the wealth primary process. (FEC Br. 25.)

{2} Plaintiffs' case is very different from Froelich v. FEC, 855 F. Supp. 868, 870 (E.D. Va. 1994), aff'd mem., 57 F.3d 1066 (4th Cir. 1995) which involved a 17th Amendment challenge to out-of-state contributions in U.S. Senate elections in Virginia.

{3} These facts, as alleged, must be taken to be true at this preliminary stage of Plaintiffs' case. Marshall v. Switzer, 10 F.3d 925 (2d Cir. 1993) (citing Conley v. Gibson, 355 U.S. 41 (1957)).

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

{5} See Principal Br. 8, 10, 20-23, 30, 36. In addition, under this court's decision in Fulani v. League of Women Voters, 882 F. 2d, 621, 628 (2d Cir. 1989), and the Supreme Court's ruling in Norman v. Reed, 502 U.S. 279, 288 (1992), Plaintiff Albanese, as a candidate, suffers a harm which is "capable of repetition, yet evading review." Plaintiff Albanese, like the plaintiff in Fulani, was an actual candidate and has raised issues which "will persist in future elections and within a time frame too short to allow resolution through litigation." Fulani, 882 F. 2d at 628. Renne v. Geary, 501 U.S. 312 (1991) is inapplicable because plaintiffs in that case had not demonstrated "a live controversy." None of the plaintiffs had actually endorsed a candidate for a nonpartisan office which would have caused the application of a state constitutional provision prohibiting such endorsements.

{6} The Supreme Court has held that 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). The fact that the bill as reported out of this Senate committee is not in the exact form as the law does not detract from this point of congressional intent.