ANH CAO v. FEDERAL ELECTION COM'N

• Decision Date: 27 January 2010
• Docket Number: Civil Action No. 08-4887.
• Citation: 688 F. Supp.2d 498
• Parties: ANH "Joseph" CAO, Republican National Committee, and Republican Party of Louisiana v. FEDERAL ELECTION COMMISSION.
• Court: U.S. District Court — Eastern District of Louisiana

688 F.Supp.2d 498

ANH "Joseph" CAO, Republican National Committee, and Republican Party of Louisiana v. FEDERAL ELECTION COMMISSION.

Civil Action No. 08-4887.

United States District Court, E.D. Louisiana.

January 27, 2010.

Joseph F. Lavigne, Thomas P. Hubert, Jones Walker, New Orleans, LA, James Bopp, Jr., Kaylan Lytle Phillips, Richard E. Coleson, Bopp, Coleson & Bostrom, Terre Haute, IN, for Plaintiffs.

Thomasenia P. Duncan, Claire N. Rajan, David Kolker, Harry J. Summers, Seth Nesin, Federal Election Commission, Office of General Counsel, Washington, DC, for Defendants.

ORDER AND REASONS

HELEN G. BERRIGAN, District Judge.

This action under 2 U.S.C. ? 437h challenges the constitutionality of provisions of the Federal Election Campaign Act ("FECA" or "the Act") of 1971, 2 U.S.C. ? 431 et seq, as amended by the Bipartisan Campaign Reform Act ("BCRA") of 2002. Section 437h of the Act assigns to the en banc court of appeals the role of decision maker on constitutional challenges. The district court's task is to determine whether the constitutional challenge is "frivolous." If the issues are not frivolous, the district court is to make findings of fact and certify the issues to be resolved to the appellate court. Khachaturian v. Federal Election Commission, 980 F.2d 330, 332 (5th Cir.1992).

Plaintiffs Anh "Joseph" Cao ("Cao"), the Republican National Committee ("RNC"), and the Louisiana GOP ("LA-GOP") (hereinafter referred to collectively as "the Cao plaintiffs") bring the instant eight challenges to several provisions of the Act, contending, inter alia that the Supreme Court has left unresolved questions regarding the constitutionality of contribution and expenditures limits on political parties. (Rec. Doc. 19).

2 U.S.C. ? 437h provides:

The Commission, the national committee of any political party, or any individual eligible to vote in any election for the office of President may institute such actions in the appropriate district court of the United States, including actions for declaratory judgment, as may be appropriate to construe the constitutionality of any provision of this Act. The district court 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.

The Fifth Circuit has expressly spoken on this particular statute and has required specific findings by the district court prior to certification. In Khachaturian v. Federal Election Commission, the Fifth Circuit remanded a case with certified questions because the district court had failed to develop an adequate factual record. 980 F.2d 330 (5th Cir.1992). The Fifth Circuit requires that the district court first determine whether or not the claim is frivolous, and recommends an evidentiary hearing to conduct the inquiry. Second, a district court should a) identify the constitutional issues in the complaint; b) take necessary evidence; c) make findings of fact; d) certify constitutional questions arising from the above. Id. at 332 (quoting Buckley v. Valeo, 519 F.2d 817, 818 (D.C.Cir.1975)).

I. Standard of Review

The most thorough discussion of a district court's obligation to assess the contours of the plaintiff's claim before certifying under this statute was set forth by the Ninth Circuit in Goland v. United States, 903 F.2d 1247, 1257-58 (9th Cir.1990). There, a district court refused to certify questions to the Ninth Circuit on the grounds that the constitutional challenges were frivolous, and the circuit court affirmed. Id. The court approved a "frivolousness" standard "similar to that of a single judge presented with a motion to convene a three judge court to hear constitutional challenges." Id.

Under that standard, a single judge could dismiss constitutional claims which already had been decided. We believe this is a more appropriate standard. Such a standard may more closely resemble that applied under Rule 12(b)(6) to the failure to state a claim than it does to the frivolousness standard under ? 1915(d). . . . Nothing in Rule 12(b)(6) confines its sweep to claims of law which are obviously insupportable. On the contrary, if as a matter of law it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations, a claim must be dismissed, without regard to whether it is based on an outlandish legal theory or a close but ultimately unavailing one.

Id. at 1258 (citations omitted). The court also noted that "once a statute has been thoroughly reviewed by the Supreme Court, questions arising under `blessed' provisions understandably should meet a higher threshold." Id. at 1257.

The Cao plaintiffs argue repeatedly that the FEC has inappropriately argued the merits. (Rec. Doc. 76 at 6). Because the Court adopts a standard of review akin to that used in deciding a Rule 12(b)(6) motion, some "merits" review is appropriate; the Court could not effectively assess the "frivolousness" of the claims in the motion to certify without undertaking a thorough review of the controlling law.

What is less certain is the proper role of the Court with respect to reviewing the facts. The Khachaturian court remanded because the district court failed to determine whether the plaintiff in that as applied challenge had "demonstrated that the $1,000 limit on campaign contributions had a serious adverse effect on the initiation and scope of his candidacy." 980 F.2d at 331. The Fifth Circuit then laid out the steps the court should have taken, which have already been cited above. Id. In conclusion, the court advised that

The district court should first determine whether Khachaturian's claim is frivolous in light of Buckley. The district court may find it desirable to conduct an evidentiary hearing to assist it in this inquiry. Should the court find that the case is not frivolous, it should proceed to follow the four-step course of action outlined above. If no colorable constitutional claims are presented on the facts as found by the district court, it should dismiss the complaint. If it concludes that colorable constitutional issues are raised from the facts, it should certify those questions to us.

Khachaturian, 980 F.2d at 331 (emphasis added). This quote strongly supports a conclusion that a district court can engage in some amount of factual review. Further, the "four step course of action" indicates that this Court should only certify constitutional questions that arise from a combination of the constitutional issues in the complaint and the Court's findings of fact. Id. There is little guidance beyond this in the caselaw to determine the appropriate standard of review to apply to those facts. Nonetheless, despite the Goland court's conclusion that the proper standard is the 12(b)(6) standard, where "no relief could be granted under any set of facts," 903 F.2d at 1257, such a standard makes little sense in an as applied challenge, where some review of the facts is inherently necessary to determine if a colorable claim has been raised. The Court will therefore proceed using a deferential standard, akin to the 12(b)(6) standard, but per the instructions in Khachaturian will only certify those questions that arise out of the Court's review of both the facts and the law.¹ In this case, both parties have submitted extensive findings of fact, and declined the opportunity to have an evidentiary hearing, preferring to proceed with the record before the Court and the briefs.

Further, the FEC has filed a motion for summary judgment. (Rec. Doc. 69). In a motion for summary judgment, the Court goes beyond the pleadings to determine whether there is any genuine issue as to any material fact such that the movant is entitled to judgment as a matter of law. See Copeland v. Wasserstein, Perella & Co., Inc., 278 F.3d 472, 477 (5th Cir.2002).

Because the Court is adopting a "frivolousness" standard that is somewhere between a motion to dismiss?€”where no factual review is appropriate?€”and a motion for summary judgment?€”where the Court must review for genuine issues of material fact?€”it follows that any question that the Court finds "frivolous" is also appropriate for summary judgment.

Finally, the Khachaturian court's instructions suggested that the "frivolousness" determination was the first step of the district court's review process, followed by a second step, involving the four step process from Buckley. 980 F.2d 330. Both steps, however, involve a review of the evidence, followed by a determination of whether colorable constitutional claims have been presented. Id. The Court has taken evidence, and its findings of facts are set forth below. However, rather than engage in the analysis of those facts twice, after identifying the constitutional issues, the Court will first set forth its findings, and then certify any colorable constitutional questions that arise out of the facts and complaint as non-frivolous.

II. Questions Presented for Certification to the En Banc Panel of the Fifth Circuit

The Cao plaintiffs ask the Court to certify eight questions:

1. Has each of the plaintiffs alleged sufficient injury to constitutional rights enumerated in the following questions to create a constitutional "case or controversy" within the judicial power of Article III?

2. Do the Party Expenditure Provision limits at 2 U.S.C. ? 441a(d)(2)-(3) violate the First and Fifth Amendment rights of one or more plaintiffs in that they are excessively vague, overbroad, and beyond the authority of Congress to regulate elections as applied to coordinated expenditures other than (a) communications containing express advocacy, (b) targeted federal election activity, (c) disbursements equivalent to paying a candidate's bills, and (d) distributing a candidate's campaign literature?

3. Do the expenditure limits at 2 U.S.C. ? 441a(d)(2)-(3) violate the First Amendment rights of one or more plaintiffs as applied to

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