Nat'l Republican Senatorial Comm. v. Fed. Election Comm'n
| Jurisdiction | United States,Federal |
| Parties | NATIONAL REPUBLICAN SENATORIAL COMMITTEE, et al. Plaintiffs, v. FEDERAL ELECTION COMMISSION, et al., Defendants. |
| Decision Date | 19 January 2024 |
| Court | U.S. District Court — Southern District of Ohio |
| Docket Number | 1:22-cv-639 |
The National Republican Senatorial Committee (NRSC), along with the National Republican Congressional Committee (NRCC) Senator J.D. Vance, and former Representative Steve Chabot have moved to certify the following constitutional question to the en banc court of the United States Court of Appeals for the Sixth Circuit: “Whether the limits on coordinated party expenditures in 52 U.S.C. § 30116 violate the First Amendment, either on their face or as applied to party spending in connection with ‘party coordinated communications' as defined in 11 C.F.R § 109.37.” (Doc. 20, #215). For the reasons stated more fully below, the Court GRANTS Plaintiffs' Motion to Certify Question to the En Banc Court of Appeals (Doc. 20).
Plaintiffs sued the Federal Election Commission and each of its Commissioners in their official capacities (collectively, the FEC) seeking to enjoin the FEC from enforcing the provisions found in § 315 of the Federal Election Campaign Act of 1971 (FECA), as amended, 52 U.S.C. § 30116. These challenged provisions limit a party committees' campaign expenditures made in coordination with political candidates who are associated with the political party. According to Plaintiffs, this limitation on their coordinated expenditures unconstitutionally abridges their First Amendment rights. (Compl., Doc. 1). Review of Plaintiffs' cause of action is governed by § 310 of the FECA, 52 U.S.C. § 30110:
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.
After this lawsuit was filed, the FEC moved to dismiss or to transfer the case on the basis of an improper venue, (Doc. 10), which motion the Court ultimately denied. (Doc. 18). Following the determination that the case was properly docketed in this Court, Plaintiffs moved to certify their First Amendment challenge to the en banc court of the United States Court of Appeals for the Sixth Circuit pursuant to § 310 of the FECA. (Doc. 20). In support of their motion, Plaintiffs argued that their proposed constitutional question was not an insubstantial or wholly frivolous legal question. (Doc. 21, #226-27). They acknowledged that the Supreme Court sustained the coordinated expenditure limits against a First Amendment challenge-the constitutional challenge Plaintiffs mount today-in Federal Election Commission v. Colorado Republican Federal Campaign Committee (Colorado II), 533 U.S. 431 (2001). (Doc. 21, #227). But they contend that Colorado II is distinguishable and that even if it did govern this dispute, its reasoning is undermined by subsequent Supreme Court precedent. (Id. at #227-30). In support of their motion for certification, Plaintiffs attached a proposed set of undisputed facts for the Court to certify as part of the record the Sixth Circuit would review. (Doc. 21-1).
The FEC at first opposed this motion in full. Citing relevant examples from other courts, the FEC argued, in relevant part, that although § 310 of the FECA required “immediate[]” certification of all constitutional questions, the Court was required to permit the parties to engage in discovery to develop a complete record for the Sixth Circuit's review. (Doc. 26, #315-20). Responsive to the FEC's concerns, the Court held a telephone status conference with the parties on August 1, 2023, to discuss issues related to discovery. (8/1/23 Min. Entry). Based on this conference, the Court proposed an expedited discovery schedule, which would permit the parties to develop the record and to produce experts and expert reports before the Court ruled on the pending motion to certify. .
After the parties conducted discovery, they each filed dueling proposed findings of fact. The FEC's 339-paragraph proposed findings of fact (Doc. 43) relied on 178 exhibits filed with this Court, which span nearly 4,000 pages, (Docs. 36-40, 42). As explained further below in the Court's discussion of the factual record it is certifying to the Sixth Circuit, see infra Part D, the vast majority of these proposed findings of “fact” actually involve legal conclusions, quotations from historical sources that are editorialized, and citations to other public news or book sources. Plaintiffs, on the other hand, expanded the scope of their initial proposed findings of fact, adding some 81 paragraphs and additional citations to 12 exhibits of materials that were produced during the expedited discovery-materials spanning over 800 pages. (Doc. 44, #5245). Similar to the FEC's proposed findings, Plaintiffs' additional proposed findings of fact largely state legal conclusions and incorporate policy arguments that support their legal position here.
Concerned about the type of “facts” the parties requested the Court to certify, the Court held a telephone status conference on November 30, 2023. (11/30/23 Min. Entry). During this status conference, the Court shared its concerns about the legal conclusions and argumentation in the parties' filings, and the evidentiary issues, such as hearsay, occasioned by many of the sources the parties quoted as the basis for their “facts.” (Id.). Due to such concerns, the Court requested supplemental briefing from the parties. The parties were asked to provide simultaneous supplemental briefing regarding the appropriate scope of the factual record the Court was to certify, and that responded directly to the opposing side's proposed findings of fact. (Id.) The parties filed their briefs in response to this request on December 15, 2023. (Docs. 46, 47).
At the November 30, 2023, conference, the Court also requested that the FEC provide an updated response to the motion to certify now that expedited discovery had been completed, with Plaintiffs to file any reply thereafter. (11/30/23 Min. Entry). The FEC responded in partial opposition to the motion to certify. (Doc. 45). Although the FEC no longer opposes certification, it argues that the Court should dismiss Chabot for want of Article III jurisdiction, strike the portion of Plaintiffs' proposed certification question that purportedly challenges an FEC's regulation as outside the scope of § 310 of the FECA, and narrow the scope of the certified question by adding a qualifier-“as a matter of Sixth Circuit law”-to the proposed constitutional question. (Id. at #5293, 5297-98, 5303-04). Plaintiffs then replied. (Doc. 48).
The matter is now ripe for the Court's review.
As noted, Plaintiffs' motion is governed by § 310 of the FECA, 52 U.S.C. § 30110. Under the plain text of that provision, this Court “immediately shall certify all questions of constitutionality of th[e] [FECA] to the United States court of appeals for the circuit involved, which shall hear the matter sitting en banc.” But there are limits on the immediacy of this mandate. As with any other case that comes before an Article III court, there must be a ‘case' or ‘controversy' for the Court to adjudicate. Cal. Med. Ass'n v. Fed. Election Comm'n, 453 U.S. 182, 192 n.14 (1981) (). A district court presented with a question for certification also must evaluate whether the question raises a “frivolous” issue or poses a “purely hypothetical application[] of the statute.” Id. In making its assessment of the proposed constitutional questions to certify, the Court is also “[em]power[ed], and apparently [has] the duty, to identify the constitutional issues and to reframe the question as necessary so that any proper non-frivolous question is certified to the en banc Court of Appeals.” Libertarian Nat'l Comm., Inc. v. Fed. Election Comm'n, 930 F.Supp.2d 154, 168-69 (D.D.C. 2013) (collecting appellate caselaw approving of district courts' reframing constitutional questions). Finally, the Court must establish an adequate factual record on which the court of appeals may rely when evaluating the constitutional question certified. Cal. Med. Ass'n, 453 U.S. at 192 n.14.
The Court proceeds as follows. First, it turns to whether Plaintiffs have standing to bring this First Amendment challenge to the FECA's limits on coordinated party expenditures-a necessary prerequisite to reaching the other issues raised by their motion to certify as it implicates the Court's subject matter jurisdiction. Steel Co. v Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998). Concluding that the Plaintiffs indeed do have standing, the Court next turns to the proposed question to be certified to evaluate whether it raises a frivolous issue. This is the logical next step, as the Court need not evaluate any other questions if there is no need to certify the question to the Sixth Circuit-a finding against Plaintiffs would dispose of their motion. Because the Court finds Plaintiffs raise a non-frivolous constitutional question, the Court next evaluates the FEC's arguments that the question should be modified or narrowed. And finally, after conducting that analysis, the Court then turns to the question of the factual...
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