Becker v. Federal Election Commission, No. 00-2124

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtBefore Torruella, Chief Judge Lynch and Lipez; LYNCH; TORRUELLA
Citation230 F.3d 381
Parties(1st Cir. 2000) HEIDI BECKER, ET AL., Plaintiffs, Appellants, v. FEDERAL ELECTION COMMISSION, Defendant, Appellee. Heard
Decision Date05 October 2000
Docket NumberNo. 00-2124

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230 F.3d 381 (1st Cir. 2000)
HEIDI BECKER, ET AL., Plaintiffs, Appellants,
No. 00-2124
United States Court of Appeals For the First Circuit
Heard October 5, 2000
Decided November 1, 2000


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Scott P. Lewis, with whom Palmer & Dodge, John C. Bonifaz, Gregory G. Luke, Brenda Wright, and National Voting Rights Institute were on brief, for appellants.

Stephen E. Hershkowitz, Assistant General Counsel, with whom Lawrence M. Noble, General Counsel, Richard B. Bader, Associate General Counsel, and David Kolker, Holly J. Baker, and Erin K. Monaghan, Attorneys, were on brief, for appellee.

Before Torruella, Chief Judge Lynch and Lipez, Circuit Judges.

LYNCH, Circuit Judge.

Presidential candidate Ralph Nader and others assert that the prohibition in the Federal Election Campaign Act on the use of corporate money "in connection with" federal elections invalidates certain Federal Election Commission regulations governing the funding of presidential debates. Those regulations permit corporations to make contributions from their general treasuries to qualified nonprofit, nonpartisan organizations staging federal candidate debates. Suit was brought in anticipation of the debates to be staged by the Commission on Presidential Debates (CPD) before the November 2000 Presidential Election. The district court dismissed Nader's claims on the merits and entered judgment on September 14, 2000. Nader appealed and this court granted expedited review. We hold, contrary to the FEC, that we have Article III jurisdiction and, contrary to Nader, that the plaintiffs' facial challenge to the debate regulations fails.


With the 2000 presidential debates on the horizon, Nader, nominee of the Green Party, together with organizations supporting his campaign, as well as both supportive and uncommitted individual voters, brought this action on June 19, 2000 in the United States District Court for the District of Massachusetts. The plaintiffs challenge as ultra vires two FEC regulations, 11 C.F.R. 110.13 and 114.4(f), which

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allow qualified nonprofit, nonpartisan organizations to accept corporate donations in staging presidential debates and allow corporations to make such donations. The plaintiffs claim that the regulations violate a provision of the Federal Election Campaign Act, 2 U.S.C. 431 et seq. , which makes it unlawful for a corporation to make any "contribution or expenditure in connection with" the presidential elections. Id. 441b(a). The Act defines "contribution or expenditure" to include "any direct or indirect payment . . . or gift of money, or any services, or anything of value . . . to any candidate, campaign committee, or political party or organization." Id. 441b(b)(2).

On June 29, the plaintiffs moved to preliminarily enjoin the FEC from implementing the challenged regulations and requested that the district court order the FEC to enforce the FECA's prohibition on corporate contributions so as to prevent corporate sponsorship of the presidential debates. The FEC moved to dismiss for lack of jurisdiction, arguing that none of the plaintiffs could demonstrate Article III standing and that the plaintiffs had failed to exhaust their administrative remedies.

After holding oral argument on both motions on August 14, 2000, the district court on September 1 denied the FEC's motion to dismiss, concluding that Nader and the Green Party had standing to challenge the FEC's debate regulations1 and that plaintiffs were entitled to review because the futility exception to the exhaustion requirement of the Administrative Procedure Act applied. The court denied plaintiffs' motion for a preliminary injunction, however, finding no likelihood of success on the merits, on the basis that the regulations were based on a reasonable interpretation of the FECA entitled to deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

On September 6, the district court entered final judgment in accordance with a stipulation of the parties, and plaintiffs filed a motion for expedited review in this court, which the FEC opposed. We granted plaintiffs' motion on September 26, 2000, ordered expedited briefing, and heard oral argument on October 5.


We first address the FEC's argument that plaintiffs have failed to exhaust their administrative remedies. Like the district court, we think the plaintiffs are not required to petition the FEC before bringing a facial challenge to the agency's regulations. Because the FECA itself has no provisions governing judicial review of FEC regulations, the judicial review procedures of the Administrative Procedure Act, 5 U.S.C. 701 et seq., apply to a facial challenge to the FECA's implementing regulations. See Perot v. FEC, 97 F.3d 553, 560-61 (D.C. Cir. 1996); Faucher v. FEC, 743 F. Supp. 64, 68 (1990), aff'd 928 F.2d 968 (1st Cir. 1991). The FEC has steadfastly maintained that these debate regulations are valid and there is no point in requiring plaintiffs to go through exhaustion. See Skubel v. Fuoroli, 113 F.3d 330, 334 (2d Cir. 1997); Brown v. Secretary of HHS, 46 F.3d 102, 113-14 (1st Cir. 1995).


We next consider whether the plaintiffs have standing. Standing doctrine involves "a blend of constitutional requirements and prudential considerations." Valley Forge Christian Coll. v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471 (1982). The constitutional component of standing stems directly from Article III's limitation of federal judicial power to deciding justiciable cases or controversies. See Allen v. Wright, 468 U.S. 737, 751

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(1984). 2 To establish standing, it does not suffice for plaintiffs to show merely that they bring a justiciable issue before the court; they must show further that they have a sufficiently personal stake in the issue. This means that plaintiffs must show: (1) that they have suffered or are in danger of suffering some injury that is both concrete and particularized to them; (2) that this injury is fairly traceable to the allegedly illegal conduct of the defendant; and (3) that a favorable decision will likely redress the injury. See Valley Forge, 454 U.S. at 472; see also Vote Choice, Inc. v. DiStefano, 4 F.3d 26, 36 (1st Cir. 1993). We first determine whether Nader has standing; we then turn to the voter plaintiffs.

A. Whether Nader Has Standing

Nader argues that the FEC regulations allowing corporate sponsorship of the presidential debates have injured him by making corporate contributions available to his opponents (in the form of free television exposure during the debates) when such contributions are not available to him. Consequently, Nader has been put at a competitive disadvantage in the presidential race, and as a result he has had to alter his campaign strategy and spend more on advertising in order to compensate for this disadvantage.

The FEC's central counterargument is that the injuries Nader alleges are not fairly traceable to the FEC regulations he challenges. Nader's standing theory is misplaced, the FEC contends: while it might be true that Nader's exclusion from the debates puts him at a competitive disadvantage, Nader is not challenging his exclusion from the debates. As plaintiffs state in their brief: "This is a lawsuit about the funding of presidential debates, not a challenge to the rules governing participation in debates." Moreover, Nader concedes that, even if FEC regulations did not allow corporate sponsorship of the debates, the debates would likely be held anyway, with funding coming from public sources or the media; and Nader makes no claim that in such event he would have a better chance of being invited to participate. Thus Nader has failed to show, the FEC concludes, that there is a causal nexus between corporate sponsorship of the debates and the injuries he alleges as his basis for standing.

In reply, Nader argues that there is such a causal nexus. At the time that he brought this suit, Nader still stood a chance of being invited to participate in the debates. Yet if he were invited, he says, he would be forced to decline the invitation due to his principled stand against accepting corporate contributions. The consequences of this Faustian dilemma, he argues, suffice for standing: not only did it create the potential injury of having to cede to his opponents the advantage of free television exposure, but it also forced him presently to conduct his campaign and make advertising expenditures on the assumption that no such exposure would be available to him. In this sense, corporate sponsorship threatened to exclude him from the debates and had a palpable and immediate impact on his campaign strategy and expenditures.

In support of his position, Nader cites Vote Choice, Inc. v. DiStefano, 4 F.3d 26, 36 (1st Cir. 1993). In that case, Elizabeth Leonard, a Rhode Island gubernatorial candidate, challenged a state campaign finance law requiring all candidates, at the time they declared their candidacies, to choose whether to accept public funding for their campaigns. The law at issue attached certain benefits to the acceptance of public funding, such as free air time on community television and higher caps on campaign contributions. See id. at 29-30. Leonard chose to decline public funding and thereby to forego the accompanying

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benefits. As a result, this court held, she had standing. Given Leonard's choice not to accept public funding, the law put her at a potential disadvantage as to any publicly funded opponents she might face, forcing her to structure her campaign to anticipate and offset that disadvantage. See id. at 36-37. "In our view," we held, "such an impact on the strategy and conduct of...

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