Legal Library


No. _____
_______________________________________________________________

IN THE
Supreme Court of the United States
OCTOBER TERM, 1995

___________________

SAL F. ALBANESE, TIM CARL, LORETTA CARL, JOSEPH CAROLEI, JOHN CASTELLI, STEPHEN CLINTON, GREGORY GLOVER, TINAMARIE LAMBIASI, JOHN O'DONNELL, ELAINE POLENINI, ROCHELLE PUGLISI, TOBIAS RUSSO, TERRY SILVEIRA, and VICTOR M. SUAREZ,

Petitioners,

v.

FEDERAL ELECTION COMMISSION, SUSAN MOLINARI,
COMMITTEE TO RE-ELECT SUSAN MOLINARI,

Respondents.

_____________________

On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Second Circuit

_____________________

PETITION FOR WRIT OF CERTIORARI

______________________

JOHN W. CARROLL
WOLFSON & CARROLL
233 Broadway, Suite 970
New York, New York 10279
(212) 233-0314

JOHN C. BONIFAZ
Counsel of Record
ABIGAIL TURNER
NATIONAL VOTING RIGHTS INSTITUTE
401 Commonwealth Avenue, Third Floor
Boston, Massachusetts 02215
(617) 867-0740

Attorneys for Petitioners


QUESTIONS PRESENTED

1. Whether the lower courts erred in holding that a congressional candidate and his voter-supporters lacked standing to challenge the constitutionality of the congressional franking privilege, in direct conflict with Common Cause v. Bolger, 574 F. Supp. 672 (D.D.C. 1982, three-judge panel), aff'd, 461 U.S. 911 (1983).

2. Whether the lower courts erred in holding that a congressional candidate and his voter-supporters did not state a cause of action in their constitutional challenge to the congressional franking privilege, in direct conflict with Common Cause v. Bolger, 574 F. Supp. 672 (D.D.C. 1982, three judge panel), aff'd, 461 U.S. 911 (1983).

3. Whether a congressional candidate and nonwealthy voters in congressional elections have standing to challenge the constitutionality of the campaign finance system in congressional elections.

4. Whether a congressional candidate and nonwealthy voters in congressional elections have a cause of action in their equal protection challenge to the campaign finance system in congressional elections.

TABLE OF CONTENTS

TABLE OF AUTHORITIES

OPINIONS BELOW

The opinion of the United States Court of Appeals for the Second Circuit is reported at 78 F. 3d 66 (2d Cir. 1996), and is reprinted in the Appendix ("App.") to this petition at 1a-8a. The opinion of the District Court for the Eastern District of New York is reported at 884 F. Supp. 685 (E.D.N.Y. 1995), and is reprinted at App. 9a-33a.

JURISDICTION

The U.S. Court of Appeals for the Second Circuit entered judgment on March 12, 1996. See App. 1a. This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED

Article I, Section 2, Clause 1 of the United States Constitution provides in pertinent part:

The House of Representatives shall be composed of Members chosen...by the People of the several States...

Article III, Section 2, Clause 1 of the Constitution provides in pertinent part:

The judicial power shall extend to all Cases, in Law and Equity, arising under this Constitution...to Controversies to which the United States shall be a Party...

The First Amendment to the Constitution provides in pertinent part:

Congress shall make no law...abridging the freedom of speech...

The Equal Protection Clause of the Fourteenth Amendment to the Constitution (as incorporated in the Due Process Clause of the Fifth Amendment) provides in pertinent part:

No State shall...deny to any person within its jurisdiction the equal protection of the laws.

Pertinent sections of the Federal Election Campaign Act of 1971, as amended, 2 U.S.C. § 431 et seq. are included in the Appendix at App. ___.

The congressional franking statute, 39 U.S.C. § 3210, is included in the Appendix at App. ____.

STATEMENT OF THE CASE

Sal Albanese, a congressional candidate, and voters in congressional elections brought this action in July 1994 to challenge the constitutionality of the congressional franking privilege. They further challenged the campaign finance system in congressional elections as discriminatory against nonwealthy voters and candidates. Their complaint, filed in the Eastern District of New York, alleged that these systems of financial privileges violated their constitutional rights under the Equal Protection Clause of the Fourteenth Amendment to the United States 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. The Defendants are the Federal Election Commission, Susan Molinari, and the Committee to Re-Elect Susan Molinari. The Plaintiffs sought declaratory relief leading to the protection of their constitutional rights in the election process. Federal jurisdiction of this case was proper pursuant to 28 U.S.C. § 1331 and 2 U.S.C. § 437(a).

Factual history

Plaintiff Albanese, a member of the New York City Council, ran as the 1992 Democratic nominee for Congress in the 13th Congressional District of New York which covers Staten Island and parts of Brooklyn. All of the voter plaintiffs, who include a bus driver, a public school teacher, a police lieutenant, a carpenter, and a substance abuse counselor, supported Plaintiff Albanese's candidacy in 1992. Plaintiff Albanese and each of the voters lack wealth and access to wealth. They are unable to make or amass large campaign contributions from their relatives, friends, and associates for the candidate of their choice.

Plaintiff Albanese's opponent was the incumbent congressional candidate, Defendant Molinari. As an incumbent Member of Congress, Defendant Molinari received and used a politically valuable public subsidy during her 1992 re-election campaign. This subsidy primarily included $166,953 of taxpayer money to send several mass mailings to the voters of the 13th District, a government benefit provided to Defendant Molinari through the congressional franking statute, 39 U.S.C. § 3210. See Affidavit of Plaintiffs' Expert Gary Ruskin, R. No. 19 at 5 (Plaintiffs' Exhibits). As a challenger congressional candidate, Plaintiff Albanese did not have access to this public subsidy.

Due to his lack of wealth and access to wealth, Plaintiff Albanese was unable to compete effectively against Defendant Molinari in the campaign finance process in congressional elections. Mr. 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. Hundreds of volunteers worked for his campaign. Despite all of this, Plaintiff Albanese could not, in the end, compete against the money of Defendant Molinari's campaign.

Defendant Molinari and Defendant Committee to Re-Elect Susan Molinari (hereinafter "Defendant Committee") relied on large contributions to finance her campaign. 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.

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.

As a result of this campaign finance system, Mr. Albanese never had nor raised enough money in his campaign to afford television advertising, newspaper advertising, district-wide mailings, nor advertising on billboards to reach the voters of New York's 13th Congressional District. Defendant Molinari's campaign purchased all such advertising. The campaign staff Mr. Albanese could afford was meager compared to Defendant Molinari's pollsters, fundraisers, media consultants, and two field offices.

The campaign finance system in the 1992 congressional race in New York's 13th Congressional District served as a critical part of the overall election process. The system effectively excluded the Plaintiffs and all other voters lacking access to wealth. This effective exclusion continues today.

The campaign finance process in congressional elections is sanctioned and controlled by the Federal Election Campaign Act of 1971, 2 U.S.C. § 431 et seq. (1994) ("FECA"). FECA occupies the field of campaign finance in congressional elections, 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).

The injuries Plaintiffs suffer and continue to suffer are typical of the congressional campaign finance system nationwide. See Affidavit of Plaintiffs' Expert Ellen S. Miller, R. No. 19. Further, like the Plaintiffs here, challenger congressional candidates and their voter-supporters across the country are harmed by their incumbent opponents' exclusionary access to and use of the congressional franking privilege. See Ruskin Affidavit, R. No. 19:

...House incumbents spent a total of $51.5 million on the congressional franking privilege between January 1, 1993, and June 30, 1994. By comparison, the Federal Election Commission reports that the 1,041 congressional challengers [ ] raised a total of $40.8 million during that same period. Many incumbents spend more on the unsolicited mass mailings than the average challenger spends on an entire election campaign. Id. at 3.

The lower court decisions

The District Court ruling

Defendant Federal Election Commission (hereinafter "Defendant FEC") and Defendant 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. On April 17, 1995, the District Court issued a memorandum and order granting the Defendants' motions to dismiss, and on April 24, 1995, the District Court entered a judgment to that effect.

The congressional franking privilege

The District Court discussed earlier cases in which other courts had found that candidates and voters have standing to challenge the congressional franking statute. Common Cause v. Bolger, 574 F. Supp. 672 (D.D.C. 1982), aff'd, 461 U.S. 911 (1983); Coalition To End The Permanent Congress v. Runyon, 979 F. 2d 219 (D.C. Cir. 1992). The court distinguished those cases as brought by plaintiffs who were actual candidates, contributors, and campaign workers and described Plaintiffs in this case as "a would-be candidate who chose not to run and his supporters..." App. 29a.

The District Court further held that the Plaintiffs did not have a cause of action in their constitutional challenge to the congressional franking statute because the three-judge panel in Bolger had already fully adjudicated that challenge. App. 30a.

The campaign finance system in congressional elections

The District Court first found that the Plaintiffs lacked cognizable injuries to have standing to challenge the campaign finance system under FECA. The court stated that, unlike the "actual" candidates and potential contributors in Buckley v. Valeo, 424 U.S. 1 (1976), the Plaintiffs here were "a potential candidate who decided not to run and his would-be supporters." App. 22a. Further, the court held that the Plaintiffs' harm was "abstract and conjectural." App. 23a.

Second, the District Court ruled that the Plaintiffs' injuries from the campaign finance regime were not traceable to FECA. Finally, the court held that the Plaintiffs' requested declaratory relief would not redress their injuries.

In dismissing Plaintiffs' constitutional claims for failure to state a claim upon which relief may be granted, the District Court reasoned that this Court in Buckley had considered and rejected Plaintiffs' challenge to FECA.
The Second Circuit ruling

The Plaintiffs' appealed the District Court's ruling to the U.S. Court of Appeals for the Second Circuit. On March 12, 1996, the Second Circuit issued a per curiam opinion affirming the District Court's ruling.

The Second Circuit affirmed without comment on the question of the Plaintiffs' standing to challenge the congressional franking statute and on the question of whether they have a cause of action to bring that challenge. The appellate court also affirmed without comment on the question of whether Plaintiffs have a cause of action to bring their equal protection challenge to the campaign finance system in congressional elections.

On the issue of the Plaintiffs' standing to challenge the campaign finance system, the Second Circuit found that the Plaintiffs' injuries were not traceable to FECA and were not redressable by their requested declaratory relief. The appellate court held that this Court's ruling in Terry v. Adams, 345 U.S. 461 (1953), invalidating as unconstitutional an all-white association's pre-primary candidate nominating process, was distinguishable from Plaintiffs' case. It stated that "[u]nlike the plaintiffs in Terry, plaintiffs here are not prevented from voting in any election." App. 8a.

REASONS FOR GRANTING THE WRIT

The lower courts in this case shut the courthouse doors on a congressional candidate and his voter-supporters in their constitutional challenge to the congressional franking privilege and to the exclusionary campaign finance system in congressional elections. These decisions directly conflict with the three-judge panel in Common Cause v. Bolger, 574 F. Supp. 672 (D.D.C. 1982), a ruling affirmed by this Court, 461 U.S. 911 (1983). The Bolger court held that candidates and voters had the right to be heard on the merits of their claim that the congressional franking privilege conferred a distinct political advantage to incumbent congressional candidates over their challengers. Further, by denying standing to a congressional candidate and nonwealthy voters to bring their constitutional challenge to the campaign finance system in congressional elections, the lower courts have severely departed from a long history of voting rights cases in which this Court and lower courts have allowed candidates and voters to be heard. If unreviewed, this ruling poses significant ramifications for future voting rights cases and will be used to bar future challenges to exclusionary election schemes.

The constitutional issues raised in this case go to the core meaning of equal protection in the election process. Nonwealthy candidates and voters in every congressional district in the United States are significantly impacted by the exclusionary nature of the congressional campaign finance system. If this candidate and his voter-supporters do not have standing to raise these constitutional issues, then no one does. If nonwealthy candidates and voters cannot go to court on a constitutional challenge to the financing system for congressional elections campaigns, then they have nowhere to go. Article III of the United States Constitution provides that this congressional candidate and his voter-supporters shall have their day in court.

I. The ruling below conflicts with the holding in Common Cause v. Bolger that congressional challenger candidates and voters have standing to challenge the constitutionality of the congressional franking privilege.

In Common Cause v. Bolger, 574 F. Supp. 672 (D.D.C. 1982, three-judge panel), aff'd, 461 U.S. 911 (1983), candidates and voters challenged the congressional franking statute, 39 U.S.C. § 3210, on the grounds that it "provid[ed] an unconstitutional 'subsidy' to incumbent candidates for Congress..." Id. at 672. The Bolger court held that the candidates and voters had standing to bring their equal protection and First Amendment challenge. The court found that "the franking privilege confers a substantial advantage to incumbent Congressional candidates over their challengers..." Id. at 679. The lower courts in this case have directly conflicted with that ruling.

In its opinion, the Second Circuit affirmed without comment on the question of the plaintiffs' standing to bring their constitutional challenge to the congressional franking privilege. The district court's denial of standing centered entirely on its erroneous factual distinction of this case from Bolger. The district court stated that while the Bolger plaintiffs included "actual candidates for elective office as well as actual contributors and campaign workers for those candidates," the plaintiffs here 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." App. 29a.

Plaintiff Albanese was an "actual candidate" for Congress in 1992 against Defendant Molinari. The other thirteen Plaintiffs were "actual" voter-supporters of Plaintiff Albanese's candidacy. As such, the Plaintiffs here, like the plaintiffs in Bolger, suffered concrete and particularized harms resulting from the use of the congressional franking privilege. Plaintiff Albanese need not constantly run for Congress in order to maintain his standing status to challenge the congressional franking statute. See Fulani v. League of Women Voters Education Fund, 882 F. 2d 621, 628 (1989) (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. 279, 288 (1992) (further application of the "capable of repetition, yet evading review" doctrine in the election context).

Further, Plaintiff Albanese need not prove that he would have won election had he been afforded access to the incumbent subsidy to send mass mailings to the voters of New York's 13th Congressional District. Plaintiff Albanese and his voter-supporters have standing to challenge this denial of equal treatment, irrespective of the election outcome.
As this Court has held:

When the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, a member of the former group seeking to challenge the barrier need not allege that he would have obtained the benefit but for the barrier in order to establish standing. The "injury in fact" in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit.

Northeastern Florida Chapter of the Associated General Contractors of America v. City of Jacksonville, Florida, 113 S.Ct. 2297, 2302-2303 (1993) (holding that members of construction contractors' association have standing to challenge minority set-aside program without showing actual loss of contract since "the 'injury in fact' is the inability to compete on an equal footing in the bidding process..." Id. at 2303).

The Plaintiffs here have the right to be heard on the merits of their constitutional challenge to the congressional franking privilege. The clear conflict between the rulings below and the Bolger decision should be addressed and resolved by this Court.

II. The ruling below conflicts with the holding in Bolger that congressional challenger candidates and voters had stated a cause of action in their challenge to the constitutionality of the congressional franking privilege.

The Bolger court held that the plaintiffs had stated a cause of action in their equal protection and First Amendment challenge to the congressional franking statute. The rulings below directly conflict with the Bolger decision.

The Second Circuit affirmed without comment on the question of whether the Plaintiffs had stated a cause of action in their constitutional challenge to the congressional franking statute. The district court's holding that the Plaintiffs' claims had been "previously fully adjudicated" in the Bolger case is wrong. App. 30a.

The Bolger court opened the door for Plaintiffs' claims here. The three-judge panel specifically invited more richly developed records and more carefully drawn demands for relief -- such as Plaintiffs have brought foward in this case. While finding that "the franking privilege confers a substantial advantage to incumbent Congressional candidates over their challengers," the court 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, as the Plaintiffs here have requested. 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 congressional franking statute provides a substantial public subsidy to only one class of congressional candidates: incumbent Members of Congress. Between January 1991 and September 22, 1992, House incumbents spent a total of $74.9 million on government-financed franked mail. The House incumbents' use of the congressional franking privilege in the first eight months of 1992, an election year, increased by 40 percent compared to the same period in 1991. See Ruskin Affidavit, R. No. 19 at 5. Challenger candidates and their voter-supporters in congressional districts across the country must face this distinct disadvantage every election cycle. The Plaintiffs' challenge to the congressional franking privilege thus implicates the constitutional rights of challenger candidates and voters throughout the nation, and it raises fundamental questions about the fairness of the congressional election process.

Like the plaintiffs in Bolger, the Plaintiffs here have stated a claim upon which relief may be granted. Further, the Plaintiffs have followed the Bolger court's specific invitation for a new challenge to the congressional franking statute. The clear conflict between the rulings below and the Bolger decision should be addressed and resolved by this Court.

III. The ruling below wrongly shut the courthouse doors on a congressional candidate and nonwealthy voters in their constitutional challenge to the exclusionary campaign finance system in congressional elections.

The Plaintiffs here have brought a constitutional challenge to the exclusionary campaign finance system in congressional elections. The system they challenge, which they call "the wealth primary," exists in every congressional district in the country. It has become "an integral part...of the elective process that determines who shall rule and govern..." Terry v. Adams, 345 U.S. 461, 469 (1953) (invalidating an all-white association's pre-primary candidate nominating process as an unconstitutional infringement on the right to vote of African-American citizens). As this Court has again recognized this term, exclusion from "an integral part" of the election process, "does not merely curtail [Plaintiffs'] voting power, but abridges their right to vote itself." Morse v. Republican Party of Virginia, 1996 WL 134280, *11 (U.S.).

Eighty-nine percent of all winning candidates for the U.S. House of Representatives first win the wealth primary, then win election. The average cost today for winning a seat in the U.S. House of Representatives is $543,000. Wealthy interests dominate the campaign finance system. More than 80% of all money flowing to congressional campaigns comes from large contributors in amounts of $200 or more. Most voters cannot afford to participate in the process of amassing large sums of wealth for congressional campaigns. Out of a country of 250 million people, fewer than 900,000 gave direct individual contributions to candidates of $200 or more in 1992. Like the modest-income voter plaintiffs here, the vast majority of citizens are unable to be heard in the wealth primary because of their lack of wealth. They are effectively excluded from this critical process. See Miller Affidavit, R. No. 19 at 4-10.

The wealth primary process in congressional elections today threatens the basic tenets of democracy and the constitutional rights of all nonwealthy candidates and voters. As a congressional candidate and as nonwealthy voters, the Plaintiffs have the right to be heard on the merits of their claims. By closing the courthouse doors on the Plaintiffs' challenge, the Second Circuit has severely departed from a long history of voting rights cases in which candidates and voters have had their day in court to challenge exclusionary election schemes.

This Court has long recognized that the public election process in the United States "is an exclusively public function." Flagg Brothers v. Brooks, 436 U.S. 149, 158 (1978) As such, "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 v. Adams, 345 U.S. at 481 (1953) (Justice Clark, concurring), quoting Smith v. Allwright, 321 U.S. 649, 664 (1944). This Court reiterated this principle in Morse, holding that Section 5 of the Voting Rights Act of 1965, "'like the constitutional provisions it is designed to implement, applies to all entities having any power over any aspect of the electoral process...'" Morse, 1996 WL 134280, *16 (U.S.), quoting United States v. Sheffield Bd. of Comm'rs, 435 U.S. 110, 118 (1978) (emphasis added). Plaintiffs have demonstrated in the record below that the wealth primary today, like the white primary of the past, has become "part of the machinery" for choosing Representatives for the United States Congress.

As non-wealthy voters and as a congressional candidate, Plaintiffs have documented the concrete and particularized harms they suffer by their effective exclusion from an integral part of the congressional election process. Like the plaintiffs in Morse and Terry, the plaintiffs here suffer cognizable injuries. The exclusionary campaign finance system in congressional elections disadvantages the Plaintiff-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) (finding that the dilution and debasement of the right to vote is as unconstitutional as the absolute prohibition of the franchise). It presents a "real and appreciable impact on the exercise of the franchise." Bullock v. Carter, 405 U.S. 134, 144 (1972) (striking down as unconstitutional under the Equal Protection Clause a system of high candidate filing fees: "[W]e would ignore reality were we not to find that this system falls with unequal weight on voters, as well as candidates, according to their economic status." Id.) See also Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966) (striking down as unconstitutional under the Equal Protection Clause a $1.50 poll tax in Virginia state elections.) Like the filing fee in Morse, the exclusionary campaign finance system "undercuts [Plaintiffs'] influence on the field of candidates whose names will appear on the ballot, and thus weakens the 'effectiveness' of their votes..." Morse, 1996 WL 134280, *9 (U.S.).

As non-wealthy voters, all of the Plaintiffs continue to be effectively excluded from the wealth primary process in congressional elections today and they, therefore, continue to suffer cognizable injuries. Plaintiffs' injuries are not tied solely to their support of Plaintiff Albanese's 1992 congressional candidacy. They suffer harm as individual voters effectively excluded from the wealth primary process in congressional elections, a process which repeats itself every election cycle.

The Second Circuit erroneously distinguished the Plaintiffs here from the plaintiffs in Terry by stating that "[u]nlike the plaintiffs in Terry, plaintiffs here are not prevented from voting in any election." App. 8a. This distinction is wrong. The plaintiffs in Terry were not prevented from voting in an election. Rather, they were excluded from participating in an all-white association's pre-primary candidate nominating process, a process which had become "an integral part" of the overall election process.

Under the Second Circuit's standard in this case -- in which plaintiff-voters must be actually barred from voting in an election to have standing to challenge an exclusionary election scheme -- Terry and the long line of voting rights cases since Terry would never have been heard on their merits.

In holding that the Plaintiffs' injuries were not "fairly traceable" to the Federal Election Campaign Act of 1971, 2 U.S.C. § 431 et seq. (1994) ("FECA"), the Second Circuit misapplied this Court's holding in Terry. Terry, like this Court's two prior white primary cases, Smith v. Allwright, 321 U.S. 649 (1944) and Nixon v. Condon, 286 U.S. 73 (1932), did not involve any state or federal statute. In each of those cases, the defendants, in fact, argued, as the Defendant Federal Election Commission has argued here, that the actions challenged were merely "the actions of private parties." Federal Election Commission appellate brief to the Second Circuit at 24.

As this Court re-affirmed in Morse: "Although the Jaybirds had no official status, received no state funds, and conducted a purely private election, the Court readily concluded that this voluntary association's exclusion of black voters from its primaries on racial grounds was prohibited by the Fifteenth Amendment." Morse, 1996 WL 134280, *14 (U.S.), citing Terry. The critical issue for this Court in Terry was that the all-white association's candidate nominating process had become "an integral part" of the overall election process and "that somewhere, somehow, to some extent, there [was] an infusion of conduct of officials, panoplied with State power..." Terry, 345 U.S. at 469, 473 (Justice Frankfurter, concurring).

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. 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). FECA 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). As a Member of Congress, Defendant Molinari receives and uses a public subsidy, primarily through the congressional franking privilege, 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. The Plaintiffs' injuries are traceable to the Defendants' actions in the exclusionary campaign finance system in congressional elections, a system sanctioned and controlled by FECA.

Plaintiffs' prayer for relief is a request for a declaratory judgment 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. Such declaratory relief would initiate the process of protecting Plaintiffs' constitutional rights in a manner consistent with the judiciary's prior use of its declaratory power to provide such protection. See Baker v. Carr, 369 U.S. 186 (1962) and its progeny (declaratory power used to strike down malapportioned districts) and Brown v. Board of Education, 347 U.S. 483 (1954) and its progeny (declaratory power used to bar racial segregation in public schools and facilities).

The Second Circuit misread the Plaintiffs' requested declaratory relief as resulting in the elimination of FECA's current limits on campaign contributions. Plaintiffs' requested relief does not refer anywhere to contribution limitations.

The question here is the voters' standing -- not the merits of their claim. In Dopico v. Goldschmidt, 687 F. 2d 644 (2d Cir. 1982), the Second Circuit reversed a district court's dismissal of plaintiffs' claims based on the massive relief which plaintiffs requested. The appellate 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. 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). The Plaintiffs have the right to be heard on the merits of their claims.

The Second Circuit affirmed without comment on the question of whether the Plaintiffs had stated a cause of action in their challenge to the exclusionary campaign finance system in congressional elections. The district court reasoned that since this Court had already held FECA to be constitutional in Buckey v. Valeo, 424 U.S. 1 (1976), the Plaintiffs' action should be dismissed. The Buckley plaintiffs included a well- financed candidate and wealthy contributors who challenged FECA's contribution and expenditure limitations on First Amendment grounds. The Plaintiffs here include a nonwealthy candidate and nonwealthy voters who have brought a different case, challenging on equal protection grounds the exclusionary campaign finance system sanctioned and controlled by FECA. In Buckley, this Court did not hear Plaintiffs' claims and did not address them.

If Buckley is relevant at all, it is in this way: The Buckley plaintiffs had their day in court. They were able to reach the merits of their claims. If the courthouse doors are open to the Buckley plaintiffs, they must be open to Sal Albanese and voters in congressional elections. The ruling below contravenes a long history of voting rights cases in which the courthouse doors have stayed open. It should be reviewed by this Court.

CONCLUSION

For the foregoing reasons, the petition for a writ of certiorari should be granted.

Respectfully submitted,

JOHN C. BONIFAZ
Counsel of Record
ABIGAIL TURNER
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