United States Court of Appeals
For the First Circuit
No. 00-2124
HEIDI BECKER, ET AL.,
Plaintiffs, Appellants,
v.
FEDERAL ELECTION COMMISSION,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Torruella, Chief Judge
Lynch and Lipez, Circuit Judges.
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.
November 1, 2000
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.
I.
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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 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
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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).
1 The district court found that the individual voter
plaintiffs lacked standing.
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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.
II.
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
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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).
III.
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
(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
2 The FEC makes no claim that the plaintiffs have failed
to meet prudential standing requirements.
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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
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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
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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 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 an office-seeker's
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political campaign constitutes an injury of a kind sufficient to
confer standing." Id. at 37.
Nader argues, and the district court agreed, that his
case is analogous: given Nader's choice not to accept corporate
contributions, the FEC's regulations allowing corporate
sponsorship of the debates effectively bar him from
participating even if he qualifies for an invitation. He is
thus put at a potential disadvantage in the event that he is
invited and forced by his principles to decline the invitation;
and he suffers a consequent present harm, in that he has been
forced to structure his campaign to offset this potential
disadvantage -- e.g., by spending more on advertising than he
would if there remained a chance that he could appear in the
debates.
While the question is close, we find that Nader does
have standing under Vote Choice. Nader has been and continues
to be a significant candidate in the 2000 presidential race. At
the time he brought this suit,3 it was a genuinely open question
3 A footnote in the concurring opinion suggests that we
might err in assessing Nader's standing from this chronological
point of reference; it points to a Tenth Circuit case, Powder
River Basin Resource Council v. Babbitt, 54 F.3d 1477 (10th Cir.
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whether he would be invited to the debates: Nader brought suit
1995), holding that a plaintiff must not only have standing at
the time he brings suit, but must retain it throughout the
litigation. The case has rightly been criticized for ignoring
language in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992),
clearly indicating that standing is to be "assessed under the
facts existing when the complaint is filed." Klamath Siskiyou
Wildlands Ctr. v. Babbitt, No. CV-99-1044-ST, 2000 U.S. Dist.
LEXIS 2269, at *9 (D. Or. Feb. 15, 2000) (quoting Lujan, 504
U.S. at 571, n.4). The problem with the approach taken in
Powder River is that it conflates questions of standing with
questions of mootness: while it is true that a plaintiff must
have a personal interest at stake throughout the litigation of
a case, such interest is to be assessed under the rubric of
standing at the commencement of the case, and under the rubric
of mootness thereafter. See, e.g., Steger v. Franco, Inc., No.
99-2294, 2000 U.S. App. LEXIS 24818, at *7 (8th Cir. Oct. 3,
2000) ("[S]tanding is based on the facts as they existed at the
time the lawsuit was filed."); White v. Lee, Nos. 99-15098, 99-
15109, and 99-16033, 2000 U.S. App. LEXIS 23778, at *81 (9th
Cir. Sep. 27, 2000) (same); Advanced Mgmt. Tech., Inc. v. FAA,
211 F.3d 633, 636 (D.C. Cir. 2000) (same); see also Gwaltney of
Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 69
(Scalia, J., concurring) ("Subject matter jurisdiction depends
on the state of things at the time of the action brought; if it
existed when the suit was brought, subsequent events cannot oust
the court of jurisdiction.") (internal quotation marks and
citations omitted). "The confusion is understandable, given
[the Supreme Court's] repeated statements that the doctrine of
mootness can be described as 'the doctrine of standing set in a
time frame: The requisite personal interest that must exist at
the commencement of the litigation (standing) must continue
throughout its existence (mootness).'" Friends of the Earth,
Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., ___ U.S. ___, 120
S.Ct. 693, 708-09 (2000) (citations omitted). But questions of
standing and questions of mootness are distinct, and it is
important to treat them separately. See id. at 709-10. We
address whether Nader's claim is moot below.
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in June 2000; the CPD's first determination of which candidates
would be invited to the debates was scheduled for Labor Day;
within that time, it was certainly possible that Nader would be
able to meet the CPD's eligibility threshold of a fifteen-
percent showing of support in the national polls. Nader thus
reasonably claims that, at the time he brought suit, corporate
sponsorship of the debates loomed as a potential stumbling block
in the path of his campaign, which forced him to make
significant adjustments to his campaign strategy and use of
funds.4 "[W]e see nothing 'improbable' about the proposition,"
and we do not think it proper to second-guess a candidate's
reasonable assessment of his own campaign. See Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., ___ U.S. ___,
4 The concurrence argues that Nader's injury is "overly
speculative," and that our granting him standing effectively
"grants standing to any political entrant to challenge any
election regulation to which they might someday be subject."
Infra, at ___ (emphasis added). Our holding is nowhere near so
broad. Nader was not merely "any political entrant" in the
presidential race. At the time he brought suit, he could have
plausibly hoped to qualify for an invitation to the debates.
Nor did he merely worry that "someday" corporate sponsorship of
the debates would interfere with his campaign. At the time of
filing, invitations to the debates were scheduled to be
determined at a definite date, soon enough in the future to
affect his present campaign plans.
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120 S.Ct. 693, 706 (2000) (finding standing to turn on the
reasonableness of plaintiffs' fear that defendant's conduct
would interfere with their activity). We similarly granted
credence in Vote Choice to plaintiff Leonard's claim that she
had to adjust her campaign to account for the possibility of
facing a publicly funded opponent, even though in the end that
possibility did not materialize. Vote Choice, 4 F.3d at 37; see
also Vote Choice, Inc. v. DiStefano, 814 F. Supp 195, 204
(D.R.I. 1993). To probe any further into these situations would
require the clairvoyance of campaign consultants or political
pundits -- guises that members of the apolitical branch should
be especially hesitant to assume.
The FEC attempts to distinguish Vote Choice from this
case on the grounds that the plaintiff in Vote Choice was
directly subject to the law she challenged: the law specifically
required all candidates to choose whether to accept public
funding. By contrast, the FEC regulations in question here
regulate not candidates, but rather debate staging
organizations, such as the CPD, and their corporate donors.
Thus, the FEC argues, the regulations could not possibly have
put Nader to a "coerced choice," as was at issue in Vote Choice,
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see 4 F.3d at 37, simply because the regulations do not apply to
Nader at all. In short, the argument goes, the plaintiff's
choice in Vote Choice was coerced by law, while Nader's choice
is wholly self-imposed.
The FEC's formalistic distinction, however, does not
withstand scrutiny. The FEC regulations Nader challenges allow
the CPD to accept corporate funds; the CPD's acceptance of
corporate funds in turn presents Nader with a choice of whether
to participate in corporate-sponsored debates. Thus, but for
the regulations, Nader would not be coerced to make the choice.
Granted, the coercion wrought by the regulations is indirect,
but that makes no difference; the choice is still fairly
traceable to the regulations. Cf. Fulani v. League of Women
Voters, 882 F.2d 621, 628 (2d Cir. 1989) (finding candidate's
exclusion from debates traceable to government's refusal to
revoke League's tax-exempt status, where "[b]ut for the
government's refusal . . . the League, as a practical matter,
would have been unable to sponsor [the debates]").5 Moreover,
5 Similarly flawed is the FEC's argument that Nader
cannot claim standing on the basis that he has been put at a
competitive disadvantage in the presidential race. The FEC
cites a line of Second Circuit decisions in which competitive
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this is not a case like Lujan v. Defenders of Wildlife, 504 U.S.
555 (1992), where the agency is alleged to have unlawfully
regulated a third party, and the plaintiff's standing depends on
an unpredictable question of whether the third party will use
its discretion under the regulation so as to harm the plaintiff.
See id. at 562. In this case, whether the CPD will choose to
accept corporate funds to help stage the 2000 presidential
debates is not unpredictable; the CPD had already chosen to do
so by the time Nader brought suit.6
disadvantage in a political race has been recognized as a
possible basis for standing, but only where the plaintiff has
shown "that he personally competes in the same arena with the
party to whom the government has bestowed the assertedly illegal
benefit." In re United States Catholic Conference, 885 F.2d
1020, 1029 (2d Cir. 1989), quoted in Fulani v. Bentsen, 35 F.3d
49, 54 (2d Cir. 1994); see also Gottlieb v. FEC, 143 F.3d 618,
620-21 (D.C. Cir. 1998); Fulani v. Brady, 935 F.2d 1324, 1327
(D.C. Cir. 1991). The FEC argues that Nader cannot claim such
standing, because he does not compete in the same arena with the
CPD, which is the party to whom the FEC has bestowed the
assertedly illegal benefit of access to corporate funding.
Again, however, such argument unjustifiably ignores the
consequences of the FEC's action: the corporate funds that the
FEC has allowed the CPD to solicit in the end pay for free
television exposure for the debate participants; and obviously
Nader competes in the same arena with these other candidates.
6 The CPD announced on January 6, 2000 that Anheuser-
Busch would serve as one of the national financial sponsors for
its 2000 presidential debates, as well as the sole financial
sponsor of the October 17 debate in St. Louis, Missouri.
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In addition, the FEC's analysis of Vote Choice, as the
FEC itself suggested at oral argument, leads to the result that
no candidate could ever challenge the FEC regulations in
question here, regardless of how likely he or she was to be
invited to debate. If the FEC is right that only those directly
governed by the regulations can challenge them, then only debate
staging organizations such as the CPD or their corporate donors
could ever bring challenge. But these parties are beneficiaries
of the regulations, and the regulations are permissive with
respect to them. Hence, these parties are unlikely ever to have
any incentive -- or, likewise, standing -- to seek to invalidate
the regulations insofar as they permit corporate sponsorship of
the debates.7 In this respect, then, the regulations might
effectively be immune from judicial review. We see no reason to
read Vote Choice to imply this result.8
Annheuser-Busch reportedly paid $550,000 to underwrite the
October 17 debate.
7 Rather, such parties would likely bring challenge only
if they were excluded for some reason from the benefits of being
able to receive or donate corporate funds in support of the
debates.
8 We recognize that the mere implication "that if [the
plaintiff has] no standing to sue, no one would have standing,
is not a reason to find standing." Valley Forge, 454 U.S. at
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Finally, we reject the FEC's suggestion in its brief
that Nader's choice is self-imposed, that it "only exists
because he perceives a dilemma, not because it appears anywhere
in the regulations." Such a view would raise too high a bar for
standing; clearly, one who challenges a governmental action may
not be denied standing merely because his challenge in a sense
stems from his own choosing. For example, if instead of
involving corporate sponsorship, this case instead involved
regulations allowing the CPD to impose speech restrictions on
debate participants -- e.g., a requirement that the participants
say a word of gratitude to the CPD's underwriters -- there would
hardly be question that the debate participants would have
standing to challenge such regulations, even though their
objection might stem purely from a choice of conscience. Cf.,
e.g., Rust v. Sullivan, 500 U.S. 173 (1991) (no standing
question raised where doctors challenged regulations
conditioning receipt of funds on compliance with speech
489 (citations omitted). But that is not what is wrong with the
FEC's direct regulation theory. What is wrong with the FEC's
theory is that it permits only those directly subject to the
regulations to bring suit, when the very persons likely to be
harmed by the regulations are not directly subject to them.
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restrictions); Virginia v. American Booksellers Ass'n, 484 U.S.
383, 393 (1988) (self-censorship is harm sufficient for
standing).9 In sum, the FEC regulations Nader challenges
have caused him sufficient injury for the purposes of standing.
By allowing corporate sponsorship of the debates, the
regulations threatened to force Nader to decline an invitation
to participate in the debates, and that threat affected the
conduct of his campaign. In light of the FECA's concern with
ensuring that corporate funds do not undermine the fairness of
federal elections, we find that Nader has claimed sufficient
unfairness to his campaign to establish standing. "To hold
otherwise would tend to diminish the import of depriving a
serious candidate for public office of the opportunity to
compete equally for votes in an election," and would make it too
difficult for candidates in Nader's position to challenge FEC
regulations thought to impinge on that opportunity. See Fulani
v. League of Women Voters Education Fund, 882 F.2d 621, 626
(1989).
9 We note also that Nader's choice is not wholly
ideological; he objects to participating in corporate-sponsored
debates not only because they offend his principles, but
because, on his view, they are illegal.
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There remains, however, a question of redressibility.
At the time he brought suit, Nader could have been provided with
relief that would have redressed his injury -- namely, a
judgment in effect preventing corporate sponsorship of the
debates in time to preserve the possibility of his
participation. Now that the 2000 presidential debates are over,
such relief is no longer available. However, this subsequent
redressibility problem is one of mootness, not standing. See
Advanced Mgmt. Tech., Inc. v. FAA, 211 F.3d 633, 636 (D.C. Cir.
2000) (noting that "[s]tanding is assessed at the time the
action commences," whereas mootness concerns whether "a
judiciable controversy existed but no longer remains") (citing
Friends of the Earth, 120 S.Ct. at 709) (internal quotation
marks omitted). And the FEC conceded at oral argument that
Nader's case is not moot. As other courts have held in similar
cases, this sort of case qualifies for the exception to mootness
for disputes "capable of repetition, yet evading review":
corporate sponsorship of the debates is sure to be challenged
again in future elections, yet, as here, the short length of the
campaign season will make a timely resolution difficult. See
Storer v. Brown, 415 U.S. 724, 737 n.8 (1974); Fulani v. League
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of Women Voters Educ. Fund, 882 F.2d 621, 628 (2d Cir. 1989);
Johnson v. F.C.C., 829 F.2d 157, 159 n.7 (D.C.Cir. 1987).
Hence, Nader's case is not moot, and he has satisfied the
requirements for standing.10
B. Whether Voters Have Standing
The voter plaintiffs assert two grounds for standing.
First, they argue that, as voters, they are harmed directly by
the corruption of the political process allegedly caused by
corporate sponsorship of the debates. Second, the voters who
have decided to vote for Nader argue that, as supporters of
Nader, they suffer derivatively from any injury the FEC
regulations cause him.
As to the first argument, the harm done to the general
public by corruption of the political process is not a
sufficiently concrete, personalized injury to establish
standing. Plaintiffs cite to FEC v. Akins, 524 U.S. 11 (1998),
10 Nader's interest in this case is identical to that of
his party (represented by plaintiffs Green Party USA and the
Association of State Green Parties) and campaign organization
(the Nader 2000 Primary Committee); together, they represent the
Nader candidacy that has been injured by the FEC regulations as
described in the preceding discussion. Hence, by virtue of our
finding that Nader has standing, we also find that these
plaintiffs have standing.
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for the proposition that any voting-related injury is per se
sufficiently concrete and personalized to establish standing.
But Akins does not open the door so wide. Akins held that
individual voters had standing to challenge the FEC's decision
not to subject the American Israel Public Affairs Committee to
certain disclosure requirements. The Court's decision did not
rest merely on the fact that the voters there had suffered a
"voting-related" injury. Rather, what was important was that
the voters had been denied access to information that would have
helped them evaluate candidates for office, when such
information was specifically required by statute to be disclosed
to the public. See Akins, 524 U.S. at 21; see also Common Cause
v. FEC, 108 F.3d 413, 418 (D.C. Cir. 1997) (limiting
"informational standing" under FECA to cases in which plaintiffs
are denied information that is "both useful in voting and
required by Congress to be disclosed"). In contrast, the
plaintiffs here allege no such particularized burden they will
suffer as a result of corporate sponsorship of the debates.
Their concern for corruption of the political process "is not
only widely shared, but is also of an abstract and indefinite
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nature," comparable to "the common concern for obedience to
law." Akins, 524 U.S. at 23 (internal quotation marks omitted).
As to the argument of Nader's supporters that they
suffer derivatively from his injury, again, such argument sweeps
too broadly. Regardless of Nader's injury, his supporters
remain fully able to advocate for his candidacy and to cast
their votes in his favor. Compare Buckley v. Valeo, 424 U.S. 1,
94 (1976) ("[T]he denial of public financing to some
Presidential candidates is not restrictive of voters' rights .
. . ."), and Gottlieb v. FEC, 143 F.3d 618, 622 (D.C. Cir. 1998)
("The extra infusion of funds into the Clinton campaign did not
impede the voters from supporting the candidate of their
choice."), with Bullock v. Carter, 405 U.S. 134, 143-44 (1972)
(holding that expensive filing fees keeping candidates from
appearing on ballot harmed voters by preventing them from voting
for the candidate of their choice). The only derivative harm
Nader's supporters can possibly assert is that their preferred
candidate now has less chance of being elected. Such "harm,"
however, is hardly a restriction on voters' rights and by itself
is not a legally cognizable injury sufficient for standing. See
Gottlieb, 143 F.3d at 622 (holding that voters cannot establish
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standing solely on basis that their candidates have been
unfairly treated).
IV.
Having determined that Nader has standing, we turn to
his challenge to the validity of the debate regulations. The
issue before us is a narrow one: whether the FEC debate
regulations allowing corporate funding of certain debate staging
organizations, 11 C.F.R. §§ 110.13 and 114.4(f), violate, on
their face, the FECA. The exclusion of Nader from the 2000
Presidential election debates is not at issue, nor is any
constitutional claim asserted. We review de novo the district
court's decision to uphold the regulations, a question of law.
Strickland v. Commissioner, Maine Dept. of Human Services, 96
F.3d 542, 545 (1st Cir. 1996).
The parties dispute whether this case requires
deference to the administrative agency’s determination under
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984). Chevron governs the judicial review of
agency regulations to ensure that they comply with the
applicable statutory scheme, and entails a two step analysis.
If Congress has spoken to the precise question at issue and the
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intent of Congress is clear, that is the end of the matter. Id.
at 842. Agency regulations in accord with that unambiguously
expressed intent are upheld; those that contravene that intent
are invalid. But if the statute is silent or ambiguous with
respect to the precise issue, then the question becomes whether
the agency’s regulations are based on a permissible construction
of the statute. Id. at 843. In assessing the agency's
construction of an ambiguous provision, courts, under this
second step of Chevron, must defer to reasonable agency
interpretation and implementation of the provision. United
States v. Haggar Apparel Co., 526 U.S. 380, 383 (1999). The FEC
is the type of agency which is entitled to such deference where
congressional intent is ambiguous. FEC v. Democratic Senatorial
Campaign Committee, 454 U.S. 27, 37 (1981).
Several key statutory provisions of the FECA are at
issue. The FECA prohibits corporations from making any
contribution or expenditure "in connection with" any federal
election, 2 U.S.C. § 441b(a), and defines "contribution or
expenditure" to include "any direct or indirect payment . . . or
gift . . . to any candidate, campaign committee, or political
party or organization," id. § 441b(b)(2). This general
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prohibition is subject to three exceptions, which permit
corporate funds to be used (1) for internal corporate
communications; (2) for nonpartisan registration and get-out-
the-vote campaigns by a corporation directed to its stockholders
and executive and administrative personnel and their families;
and (3) for the establishment of a separate segregated fund used
for political purposes. Id. § 441b(b)(2)(A)-(C). In addition,
the FECA's general definition section also addresses the term
"expenditure," defining it to include any payments made "for the
purpose of influencing any election for Federal office," id. §
431(9)(A)(i), but not to include "nonpartisan activity designed
to encourage individuals to vote or to register to vote," id. §
431(9)(B)(ii).11
Implementing these statutory provisions, in 1980 the
FEC promulgated debate regulations to govern contributions and
expenditures made in sponsorship of candidate debates; in 1996,
it revised them. Under the FEC's regulatory scheme, corporate
contributions and expenditures may be made to defray the costs
11 No party has attributed any significance to the failure
to exclude this latter category from the definition of
"contribution."
-25-
of conducting candidate debates where those debates are held by
nonpartisan organizations so long as those organizations and the
structure of the debate meet certain criteria. Two interrelated
regulations produce this result. First, Section 110.13
delineates the requirements for debate staging organizations,
debate structure, and criteria for candidate selection necessary
to qualify for exemption from the contribution and expenditure
restrictions. Debate staging organizations must either be
nonprofit organizations that "do not endorse, support, or oppose
political candidates or political parties," or broadcasters that
are "not owned or controlled by a political party, political
committee or candidate." 11 C.F.R. § 110.13(a). The candidate
debate must include at least two candidates and not be
structured "to promote or advance one candidate over another."
11 C.F.R. § 110.13(b). Finally, debate staging organizations
are required to use "pre-established objective criteria to
determine which candidates may participate in the debate" and
may not rely solely on nomination by particular parties. 11
C.F.R. § 110.13(c). Second, Section 114.4(f) allows nonprofit
debate staging organizations to accept funds donated by
corporations to defray costs incurred in staging candidate
-26-
debates and, on the flipside, expressly permits corporations to
make such donations to qualifed debate staging organizations.
11 C.F.R. § 114.4(f). Complementing these sections, the FEC
regulations defining the terms "contribution" and "expenditure"
as covered by the Act expressly exempt the funds used in staging
a qualified candidate debate from the "contributions" and
"expenditures" regulated by the FECA. See 11 C.F.R. §
100.7(b)(21) (not included in "contributions"); id. §
100.8(b)(23) (not included in "expenditures"). In accordance
with the requirements of the FECA, 2 U.S.C. § 438(d), the
proposed regulations, along with the FEC's analysis, were sent
to Congress and did not become final until Congress had
opportunity to express disapproval.12
Nader argues that these debate regulations permit
corporate contributions to flow to candidates in violation of
the general prohibition of Section 441b(a) and that such
contributions do not fall within the limited exceptions of
Section 441b(b)(2)(A)-(C); further, he rejects the FEC's
12 The Senate rejected an initial, more restrictive
version of the debate regulations through this mechanism by
unanimous resolution. See S. Res. 236, 96th Cong. (1979).
-27-
contention that the regulations permissibly construe ambiguities
in what corporate disbursements qualify as "contributions and
expenditures" under the Act. Nader argues the FEC’s position
must be rejected for several reasons. First, Nader contends
that the general prohibition against corporate contributions and
expenditures in Section 441b(a) stands alone and is not at all
ambiguous. This prohibition, he says, reflects a clear
congressional intent that corporate monies not go toward
political activities unless they fall into one of the three
narrowly drawn exceptions in Section 441b(b), none of which is
applicable to candidate debates. Hence this provision reveals
an unambiguous congressional intent that corporate monies not be
used to sponsor candidate debates.
Second, Nader argues that when Congress enacted the
more specific rules contained in Section 441b governing the use
of general treasury corporate funds in 1976, it narrowed the
exemption from the prohibition on corporate contributions so as
to permit only those "nonpartisan registration and get-out-the-
vote campaigns" that are aimed at the corporations' own
"shareholders and executive or administrative personnel and
their families." 2 U.S.C. § 441b(b)(2). While Nader
-28-
acknowledges that Section 431(9)(B)(ii) contains a more general
exception permitting funding for "nonpartisan activity designed
to encourage individuals to vote or to register to vote," that
"permission" comes in the form of an exemption to the FECA's
general definition of "expenditure." Nader maintains that the
enactment of a specific provision dealing with corporate
contributions and expenditures and defining those terms for that
purpose renders the general definition inapposite, citing the
principle that a specific statute governs over a more general
one. See HCSC-Laundry v. United States, 450 U.S. 1, 6 (1981).
The specific exception in Section 441b(b)(2) for
"nonpartisan registration and get-out-the-vote campaigns by a
corporation aimed at its stockholders and executive and
administrative personnel and their families," Nader argues,
clearly does not exempt funding of candidate debates. Moreover,
even if read in tandem with the general exemption excluding
expenditures for "nonpartisan activity designed to encourage
individuals to vote or to register to vote" in Section
431(9)(B)(ii), Nader maintains that the statute still contains
no ambiguity regarding the legality of expenditures for
-29-
candidate debates because a debate cannot reasonably be
described as such an activity.13 Since sponsoring candidate
debates does not fall into these exceptions to the prohibition
of Section 441b(a), he contends that the clear intent of
Congress as expressed in that prohibition must govern. Thus,
Nader argues, there is no ambiguity in the statute that would
permit the FEC, under the Chevron doctrine, to make policy
interstitially. While disavowing any need to look at
legislative history to clarify what Congress meant, Nader says
that nothing in that history supports the FEC's reading. And
so, Nader concludes, there is no gap in the statute on the
13 Congress clearly did intend to permit corporate
expenditures, Nader says, at least for internal nonpartisan
voter registration and get-out-the-vote campaigns. But it is
not enough, he argues, for the FEC simply to say that debates
will "stimulate voter interest and that will lead more people to
register to vote or to vote." 44 Fed. Reg. 76,736 (1979).
Nationally televised debates serve predominantly as "a critical
campaign showpiece for participating candidates." Nader
concedes that had Congress said that an exemption applies to
corporate expenditures for activities "such as" voter
registration, then the FEC would be in a stronger position. See
U.S. v. Haggar Apparel Co., 526 U.S. 380, 387 (1999). But the
FECA contains no such language.
-30-
precise question of whether corporate funds can be used to
finance electoral debates.14
In the alternative, Nader argues that even under the
second stage of Chevron these regulations should fail. Nader
maintains that the regulations cannot be a permissible
construction of the statute because they are inconsistent with
the purposes of the Act. Nader alleges that the FECA seeks to
restrict the influence of corporate monies in political
elections in order to protect the integrity of the electoral
system. Since the debate regulations instead promote corporate
involvement in political activity, they are not a reasonable
interpretation of the FECA.
Finally, Nader responds to the common sense observation
that these debate regulations have been in place for more than
twenty years, that they have governed many well-publicized
14 In a footnote in his appellate brief, Nader argues that
even if Congress did leave the FEC discretion to create
exceptions to the general prohibition on corporate funding, such
a grant of discretion would violate the nondelegation doctrine
as recently applied by the D.C. Circuit. See American Trucking
Ass'ns, Inc. v. EPA, 175 F.3d 1027 (D.C. Cir. 1999), cert.
granted, Browner v. American Trucking Ass'ns, Inc., 120 S. Ct.
2003 (2000). Such summary treatment does not permit a reasoned
analysis and we disregard the argument.
-31-
debates, and that Congress never once intimated that the FEC
rules were contrary to its intention. Nader says that this
"silence" proves nothing: a busy Congress cannot be expected to
police every agency action; indeed, in 5 U.S.C. § 801(g)
Congress forbade the courts to infer any such intent from its
silence.15
The FEC responds that Nader's emphasis on the
narrowness of the exceptions in Section 441b(b)(2)(B) and
Section 431(9)(B)(ii) is misplaced: the debate regulations do
not interpret the scope of these exceptions, the FEC contends;
rather, they interpret what types of corporate disbursements
count as "contributions and expenditures" in the first
instance. 16 The FEC relies on asserted ambiguities in Section
15 5 U.S.C. § 801(g) states: "If Congress does not enact
a joint resolution of disapproval under section 802 respecting
a rule, no court or agency may infer any intent of the Congress
from any action or inaction of the Congress with regard to such
rule, related statute, or joint resolution of disapproval."
16 Nader suggests in his brief that the FEC has conceded
in a prior proceeding that donations to debate staging
organizations would constitute prohibited "contributions" absent
the "safe harbor" created by the debate regulations. However,
the FEC opinion he cites simply holds that donations to debate
staging organizations that do not meet the requirements of
Section 110.13 constitute prohibited contributions to the
participating candidates, not that absent the regulations,
-32-
441b as well as Section 431(9) to justify its policymaking
activity with regard to candidate debates. The general language
of those sections, the FEC contends, says nothing indicating any
congressional consideration, much less a clear congressional
intent, about whether (or in what circumstances) sponsorship of
candidate debates should be treated as a "contribution" or
"expenditure," which the FEC claims is the "precise question at
issue" in this case. Since the general provisions leave this
question open, the FEC argues that the FECA effectively
delegates that question to the policymaking authority of the
agency. Moreover, the FEC suggests that its construction of the
statute is reasonable in three additional respects: first, the
narrow construction of the prohibitory language of the Act
serves to protect First Amendment interests otherwise
potentially implicated by it; second, the construction of the
Act accords with Congressional intent as expressed in the
donations to any debate staging organization would necessarily
constitute unlawful contributions. See FEC Statement of
Reasons, In the Matter of Commission on Presidential Debates
(April 6, 1998) at 4. In other words, the FEC regulations at
issue can reasonably be viewed as defining the scope of the
definitions of "contribution" and "expenditure" rather than
creating exceptions to their clear terms.
-33-
legislative record; and third, the debate regulations serve
purposes akin to those served by the existing exceptions to the
statute's prohibitions. Thus the FEC insists that the debate
regulations reflect a reasonable construction of the FECA that
is due Chevron deference. Finally, the FEC also points to the
fact that the debate regulations were submitted to Congress,
which did not disapprove them, and have been in force quite
publicly for twenty years.
Our analysis under Chevron begins with the question of
whether the FECA statutory scheme reveals a clear congressional
intent to ban the particular activity of corporate sponsorship
of the debates as permitted under the regulations. We conclude
that several aspects of the statutory scheme, rather than
indicating a clear congressional intent on the issue, in fact
foster ambiguity. As a primary matter, it is not clear on the
face of the definitions of "contribution" and "expenditure" that
corporate disbursements to nonpartisan debate staging
organizations even fall within the scope of the Act's coverage
in the first instance. Section 441b bars corporate
contributions or expenditures "in connection with any election,"
2 U.S.C. 441b(a), including direct or indirect corporate
-34-
payments or gifts "to any candidate, campaign committee, or
political party or organization." Id. § 441b(b)(2). Section
431(9) defines "expenditures" as any payments made "for the
purpose of influencing any election for Federal office." Id. §
431(9)(a)(i). In neither case is it clear that corporate
disbursements to nonprofit debate staging organizations fall
within the ambit of the respective definitions, as such payments
are not clearly "in connection with any election," nor are they
clearly "indirect payments . . . to any candidate," nor are they
clearly made "for the purpose of influencing any election for
Federal office." These imprecise definitional phrases display
the ambiguity present in the statutory scheme. The Supreme
Court itself has observed (in a different context) that the
phrase, "for the purpose of influencing any election," is
ambiguous. See Buckley v. Valeo, 424 U.S. 1, 79-80 (1976). In
light of this uncertainty, the statute taken as a whole does not
express a clear congressional intent with respect to the precise
question at issue.
Other language in the FECA reinforces our finding that
the statute is ambiguous. First, that Congress intended to
delegate broad policymaking discretion to the FEC is confirmed
-35-
by the statutory charge that the FEC shall "formulate policy
under the Act." 2 U.S.C. § 437. Congress also lodged a degree
of flexibility in the definitions of "contribution" and
"expenditure" in particular where it defined them to "include"
certain uses and phrased the exceptions to their general
prohibitions as enumerating activities that the terms "shall not
include." See id. § 441b. The Supreme Court has recognized an
element of flexibility in the term "include," as it indicates
that "activities not specifically enumerated in that section may
nonetheless be encompassed by it." FEC v. Massachusetts
Citizens For Life, Inc., 479 U.S. 238, 246 (1986). Thus the
definitions are not only of uncertain scope but also employ
language suggestive of flexibility.
The language and structure of the exceptions to the
prohibitions also suggest ambiguity. The statutory phrase
"nonpartisan activity designed to encourage individuals to vote
or register to vote" at Section 431(9)(B)(ii) gives the
Commission some leeway to interpret the term "activity" and to
decide which activities so "encourage" people. In addition, the
statutory structure gives rise to a second question: how the
specific corporate funding prohibition and exception in Section
-36-
441b(b)(2)(B) are meant to operate with the more general
"encouraging activity" provision of Section 431(9)(B)(ii). It
is unclear whether the specific provision trumps the earlier
"encouraging activity" exception by limiting it and removing any
leeway in the Commission, as Nader contends, or whether Congress
intended the two sections to work together and to provide some
flexibility to the Commission. In light of these questions, we
find the statute is not clear on its face and rules of statutory
interpretation do not compel any one particular answer to the
precise question at issue.
Resort to the legislative history, even if appropriate,
fails to dispel this uncertainty and provide a clear
Congressional intent. We explain, beginning with the amendments
Congress has made to the Act in response to judicial
developments. Although the language of the statute is seemingly
broad, that language has often been reviewed by courts in light
of constitutional constraints, that is, the First Amendment
rights of those regulated. See United States v. C.I.O., 335
U.S. 106, 123-24 (1948) (union political endorsements directed
to union members are not contributions or expenditure covered by
the predecessor of the Act); MCFL, 479 U.S. at 249 (corporate
-37-
communications about candidates that do not expressly advocate
the election or defeat of a clearly identified candidate); Maine
Right to Life Committee, Inc. v. FEC, 98 F.3d 1 (1st Cir. 1996)
(same), cert. denied, 552 U.S. 810 (1997); Clifton v. FEC, 114
F.3d 1309 (1st Cir. 1997) (corporate voter guides comparing the
positions of competing candidates), cert. denied, 522 U.S. 1108
(1998); Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986) (corporate
donations to picnic during which incumbent candidate addressed
constitutents).
These decisions, in turn, led Congress to amend the
original statute. As the FEC notes, the statute has changed
over time so as to mesh more smoothly with subsequent court
decisions and other related statutes. The exceptions to the
prohibition now set out in Section 441b(b) were added to the
predecessor of Section 441b in 1971 largely to codify earlier
court decisions. See, e.g., Pipefitters Local Union No. 562 v.
United States, 407 U.S. 385, 409-13, 421-27 (1972) (exception
allowing segregated political fund codified prior case law).
Congress then refined the exceptions in 1974, excepting
"nonpartisan activity designed to encourage individuals to vote
or to register to vote." See 2 U.S.C. § 431(9)(B)(ii).
-38-
Finally, in 1976, Congress incorporated the prohibitions on
corporate expenditures and the concomitant exceptions previously
codified at 18 U.S.C. § 610 into the FECA with the enactment of
Section 441b, which specifically excepted from the prohibition
on corporate expenditures the internal registration and get-out-
the-vote activities described earlier. See 2 U.S.C. §
441b(b)(2)(B).
The FEC says that Congress illuminated how these
provisions were meant to work together in the legislative
history:
The conferees' intent with regard to the inter-
relationship between sections [2 U.S.C. 431(9)(B)(ii)]
and [2 U.S.C. 441b(b)(2)(B)] which permit such
activities as assisting eligible voters to register
and get to the polls, so long as these services are
made available without regard to the voter's political
preference, is the following: these provisions should
be read together to permit corporations both to take
part in nonpartisan registration and get out the vote
activities that are not restricted to stockholders and
executive or administrative personnel, if such
activities are jointly sponsored by the corporation
and an organization that does not endorse candidates
and are conducted by that organization; and to permit
corporations, on their own, to engage in such
activities restricted to executive or administrative
personnel and stockholders and their families. The
same rule, of course, applies to labor organizations.
-39-
H.R. Conf. Rep. No. 94-1057, at 63-64 (1976). Indeed, a key
phrase in this legislative history indicates that Congress
intended to permit corporate funding of "such activities as"
assisting eligible voters. Once again, rather than collapsing
ambiguity, this legislative history confirms it.
Finally, although our conclusion that the debate
regulations coincide with congressional intent would be the same
in any event, we note that this view is consistent with
Congress's apparent acquiescence in the regulations under the
"report and wait" requirements of the FECA. Nader's reliance on
the admonition against inferring any intent from Congress's
silence in 5 U.S.C. § 801(g) is inappropriate, as that provision
is limited to proposed rules submitted to Congress under the
disapproval mechanism established in 5 U.S.C. §§ 801 and 802,
and hence does not apply to regulations promulgated by the FEC
under 2 U.S.C. § 438(d) long before the enactment of 5 U.S.C. §
801 in 1996. Moreover, this is not a situation of complete
congressional inaction; the failure to disapprove of the
current debate regulations takes on additional significance in
-40-
light of Congress's rejection of the FEC's initial proposal.17
Thus we conclude that the FECA expresses no clear congressional
intent on the precise issue in this case -- the corporate
sponsorship of qualified debate staging organizations to defray
the costs of conducting candidate debates.
Since we have determined that the FECA does not answer
the precise question at issue, the question thus becomes whether
the FEC's efforts in the debate regulations to permit such
corporate sponsorship, and to define the proper scope of
"contribution" and "expenditure" as used by the Act, reflect a
permissible construction of the statute. Under Chevron, absent
an unambiguously expressed congressional intent on the precise
issue, the courts must defer to the Commission's construction if
it is reasonable and not inconsistent with the statute.
Duckworth v. Pratt & Whitney, Inc., 152 F.3d 1, 5 (1st Cir.
1998). The debate regulations at issue pass that test.
17 Indeed, when the Senate rejected the initial proposal,
the floor statements of the resolution's cosponsors indicated
that the Senate was concerned that the initial proposed
regulations were too intrusive and burdensome on debate
sponsors, not too permissive in allowing corporate sponsorship
of debates. See 125 Cong. Rec. 24,957-58 (1979) (statements of
Sen. Pell and Sen. Hatfield).
-41-
First, the debate regulations reflect a reasonable
understanding of the purposes of the FECA, and in fact parallel
the purposes of its express exceptions. In 1979, the Commission
addressed the funding and sponsorship of candidate debates in a
rulemaking. The Commission decided that since the legislative
policy behind the express exceptions was to permit corporations
and unions to fund activity directed to the general public to
encourage voter participation so long as the activity is
conducted primarily by a nonpartisan organization, "permitting
corporations and labor organizations to donate funds to
nonprofit nonpartisan organizations for [debate] staging is
consistent with congressional intent and policy." FEC,
Explanation and Justification, Funding and Sponsorship of
Federal Candidate Debates, 44 Fed. Reg. 74,734, at 76,736
(1979); see also 44 Fed. Reg. 39,348, at 39,349. The Commission
concluded that "[t]he educational purposes" of a debate staged
by such nonpartisan organizations "is similar to the purpose
underlying nonpartisan voter registration and get-out-the-vote
campaigns." Id. at 39,348. "Unlike single candidate
appearances, nonpartisan debates are designed to educate and
inform voters rather than to influence the nomination or
-42-
election of a particular candidate. Hence, funds received and
expended [by certain nonprofit organizations] to defray costs
incurred in staging nonpartisan public debates are not
considered contributions or expenditures under the Act." Id.
Moreover, the FEC's debate regulations are in accord with
congressional expectations as expressed in the legislative
history discussed above. It is certainly within the purview of
agency discretion to accord respect to congressional intent as
reflected in the legislative record.
Finally, the debate regulations are not inconsistent
with the definitions of "contribution" and "expenditure"
provided by Section 441b. As the prohibition contained in
Section 441b did not specifically address corporate donations to
nonpartisan tax exempt organizations but rather addressed
payments "to any candidate, campaign committee, or political
party or organization," the Commission reasonably determined
that the prohibition need not apply to corporate disbursements
to nonpartisan tax exempt organizations for the limited purpose
of staging candidate debates. The Commission's determinations
that the prohibition was especially concerned with "active
electioneering" to promote a particular candidate and that
-43-
sponsoring a nonpartisan debate was not "active electioneering"
were similarly permissible. And the fact that the regulations
allow corporate contributions to candidate debates in order to
encourage voter participation in a fashion not expressly
permitted by the statute does not itself invalidate the
regulation. "Agencies often are allowed through rulemaking to
regulate beyond the express substantial directives of the
statute, so long as the statute is not contradicted." Clifton,
114 F.3d at 1312. Hence, the Commission's views are not
unreasonable, nor are they inconsistent with the statute.
We note that Nader's interpretation of the FECA is also
not unreasonable. He argues that the debates in fact promote
the campaigns of those invited to participate. As amicus CPD
says, the goal of its debates "is to afford the members of the
public an opportunity to sharpen their views, in a focused
debate format, of those candidates from among whom the next
President and Vice President will be selected."18 Insofar as
such debates have the primary effect of showcasing the
candidacies of those selected to participate, Nader reasonably
18 We acknowledge with appreciation the amicus brief
submitted by the CPD.
-44-
concludes that corporate funding of the debates might be viewed
as contributing in effect to the candidacies of the
participants. But Congress gave the choice as to the preferred
reasonable interpretation to the FEC, not to Nader. The task
for the reviewing court under Chevron is only to undertake the
narrow inquiry into whether the agency's construction is
sufficiently reasonable to be accepted by the reviewing court.
The debate regulations at issue do not contravene the
unambiguously expressed intent of Congress, as reflected in the
FECA statutory scheme, but rather fall within the scope of the
policymaking authority Congress delegated to the FEC under the
Act. Moreover, the regulations reflect a permissible
construction of the statute, indeed one that easily falls within
the reasonable ambit of the statutory terms.
We reject Nader’s challenge and affirm the district
court judgment dismissing his suit. So ordered. No costs are
awarded.
Concurrence follows.
-45-
TORRUELLA, Chief Judge, concurring. Although I agree
with the majority's affirmance of the district court's dismissal
of this action, I would not have reached the merits of this
case, because I believe Ralph Nader lacks standing for the
reasons stated herein. Even if Nader has standing, I would find
that there is no Article III case or controversy here, as
Nader's claim is moot at this point in the litigation.
I.
Standing doctrine embraces both constitutional mandates
and prudential considerations.1 See Allen v. Wright, 468 U.S.
1 Because I find that Nader lacks the constitutional
requirements for standing, I have not addressed the issue of
prudential standing. However, a plaintiff generally has
prudential standing under § 10(a) of the APA when his interest
is "arguably" within the "zone of interests to be protected or
regulated by the statue in question." National Credit Union
Admin. v. First Nat'l Bank & Trust Co., 522 U.S. 479, 489 (1998)
(quoting Assoc. of Data Processing Serv. Orgs., 397 U.S. 150,
153). Given that this section of the FECA is designed to
prevent corruption in campaign finance, see, e.g., FEC v.
National Right to Work Comm., 459 U.S. 197, 209 (1982), and that
Nader challenges it not based on corruption per se, but because
it provides additional advantages to his competitors, his injury
at first blush lies outside the statutory zone of protection.
The fact that Nader personally is concerned with corruption in
politics is particularly irrelevant to the standing question.
See Lujan v. Defenders of Wildlife, 504 U.S. 555, 573-74 (1992)
("[A] citizen's interest in proper application of the
Constitution and laws . . . does not state an Article III case
or controversy."); United States v. AVX Corp., 962 F.2d 108, 114
-46-
737, 751 (1983). When a plaintiff lacks standing in a
constitutional sense, this Court lacks jurisdiction under
Article III. See Warth v. Seldin, 422 U.S. 490, 498-99 (1975).
The constitutional component of standing derived from Article
III requires that "a plaintiff . . . allege personal injury
fairly traceable to the defendant's allegedly unlawful conduct
and likely to be redressed by the requested relief." Allen, 468
U.S. at 751. In other words, the plaintiff must show (1)
"actual or threatened injury as a result of the defendant's
putatively illegal conduct," (2) "that the injury may fairly be
traced to the challenged action," and (3) "that a favorable
decision will redress the injury." Vote Choice Inc. v.
DiStefano, 4 F.3d 26, 36 (1st Cir. 1993). Although these
concepts are admittedly "not susceptible of precise definition,"
(1st Cir. 1993) ("A mere interest in an event--no matter how
passionate or sincere the interest and no matter how charged
with public import the event--will not substitute for an actual
injury.").
Furthermore, to the extent the district court viewed the
prudential analysis as considerations "weighing" in Nader's
favor, the court made an error of law. If the plaintiff fails
to meet the constitutional standing guidelines, no assessment of
his personal concern can create an Article III case or
controversy. See Lujan v. Defenders of Wildlife, 504 U.S. at
560-61 (three elements are the "irreducible constitutional
minimum").
-47-
Allen, 468 U.S. at 751, our case law has provided a sufficient
outline of the standing map to address this petitioner.
The extent and type of injury required for
constitutional standing is not easily defined. It must at the
very least be "distinct and palpable," id. (quoting Gladstone,
Realtors v. Village of Bellwood, 441 U.S. 91, 100 (1979)), and
not "abstract," "conjectural," or "hypothetical," id. (quoting
Los Angeles v. Lyons, 461 U.S. 95, 101-102 (1983); O'Shea v.
Littleton, 414 U.S. 488, 494 (1974)). As I read his claim,
Nader asserts two distinct theories of injury. First, he claims
an injury derived from the "coercive choice" potentially posed
by the allegedly illegal debate regulations. According to
Nader, if he is invited to participate in the debates, he will
be forced into a Hobbesian choice: either compromise of his
corporate watchdog platform or loss of an important avenue for
communication. Second, Nader claims injury as a political
competitor: opponents invited to the debate benefit directly
from allegedly illegal corporate sponsorship.
The problem with the majority approach, as I see it,
is that the majority found standing here by collapsing these two
very separate theories. If he had been invited to the debate,
-48-
Nader may indeed have faced a choice between accepting corporate
sponsorship and losing free national exposure. However, as he
was not invited to the debate, he did not face this choice; he
cannot be injured by any coercive effect it might have had, or
by any strategic changes to his campaign such a choice might
entail. Likewise, it is surely true that Nader was at a
competitive disadvantage because his opponents participated in
the debates. He may have had to alter his strategy to cope with
the free air time that they receive. However, to the extent
that Nader faces this problem, it is because he is a political
competitor, not because he faces a coerced choice under the Vote
Choice analysis; his unwillingness to participate in the debates
if invited did not affect Nader's response to this free air
time. And as I discuss below, his injury as a political
competitor is not traceable to the challenged regulations
because he cannot show that the debates likely would not occur
without the corporate sponsorship.2
2 Throughout, the majority examines Nader's situation in
June, when this lawsuit was filed, under the assumption that
standing is measured only at the time of filing. Although some
cases hold that standing is only measured at that time, other
cases point in the opposite direction, i.e., that a petitioner
must retain standing throughout the litigation. See, e.g.,
-49-
A.
I began by addressing the "coerced choice" theory.
Relying on Vote Choice, Nader claims that the allegedly
impermissible regulation coercively impacted the strategy and
conduct of his presidential campaign. In Vote Choice, Elizabeth
Leonard, a Rhode Island gubernatorial candidate, challenged a
set of state campaign finance laws that: (i) required candidates
Powder River Basin Resource Council v. Babbitt, 54 F.3d 1477,
1485 (10th Cir. 1995). Such a conclusion would seriously
complicate the majority's approach; far before oral argument it
was quite clear that Nader would not receive an invitation to
the debate, and thus his campaign strategy was determined
without any influence of a potential choice.
Although the majority suggests that Powder River no longer
provides any authority because of the Supreme Court's
intervening decision in Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs. (TOC), Inc., 120 S. Ct. 693 (2000), I note that
although the Court described standing as "[t]he requisite
personal interest that must exist at the commencement of the
litigation," id. at 709, it also did "not license courts to
retain jurisdiction over cases in which one or both parties
plainly lacks a continuing interest," id. at 710. Friends of
the Earth thus distinguished standing from mootness, but
primarily to indicate that because the mootness analysis occurs
at the end of litigation, there are important differences
between the two doctrines. See id. My point here, which is
supported by Powder River and not directly contradicted by
Friends of the Earth, is that when standing disappears in the
early stages of litigation, we should perhaps dismiss for lack
of standing even if it may have existed at the time of the
complaint.
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upon declaring their candidacy to make an irrevocable election
whether to use public funds; (ii) forced candidates electing to
use public funds to sign an irrevocable pledge to abide by
various terms and conditions of the fund grant; and (iii)
created significant differences in legally allowed contributions
between those who accepted and those who did not accept public
funding (a so-called "contribution cap gap"). Although Leonard
had not accepted the public funding and never actually faced a
publicly funded opponent, we found that she retained standing to
challenge the public funding provisions. We reasoned that "when
declaring her candidacy, Leonard had to make an irrevocable
commitment" as to her use of public funding. Vote Choice, 4
F.3d at 36-37. As a result, she had to plan her campaign
strategy based on the possibility that her opponent (perhaps an
undeclared one) would make the opposite choice; "the coerced
choice between public and private financing colored her campaign
strategy from the outset." Id. We concluded that "such an
impact on the strategy and conduct of an office-seeker's
political campaign constitutes an injury of a kind sufficient to
confer standing. See id.
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Nader argues, and the majority agrees, that the
allegedly illegal corporate contributions to the debate
organizing entity create a coercive choice of the type in Vote
Choice, and thus standing follows. However, there is an
important distinction between the two situations. Vote Choice
did not grant Leonard standing simply because of the benefits
given to her publicly funded opponents under Rhode Island
campaign finance law. To do so would have premised standing on
Leonard's injury as a political competitor; that is, it would
have found injury due to the additional benefits accrued by her
opponents. Such a theory may be viable here, and I discuss it
below. Vote Choice, however, premised standing on the fact that
Leonard's choice not to accept such benefits shaped her strategy
throughout the race. In other words, because Rhode Island
provided allegedly unlawful incentives to accept public funding,
a candidate could challenge those incentives even if they did
not ultimately rely on them. But in the present case, Nader was
not coerced into making this choice – in fact, he has been
saved from coercion by the lack of sufficient public support to
meet the threshold set by the Commission on Public Debates (the
"CPD"). Unlike Leonard, whose campaign strategy was altered by
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an irrevocable choice made at the start of her campaign, Nader
never faced such a dilemma. If he had, I would have found
standing under Vote Choice.
However, the majority finds potential coercion even
when none actually exists. In my view, by creating a present
harm from the possibility of a future one, they dangerously
expand our standing jurisprudence. The majority begins with the
theory that because Nader has chosen not to accept corporate
contributions, he was barred from the debates at the time the
CPD accepted corporate donations, whether he proved ultimately
eligible or not. If the debates were not funded by
corporations, however, Nader would have been able and willing to
participate if he had been invited. This seems plausible to me.
However, the majority continues, this "threat" of being forced
to decline a debate invitation in the future "had a palpable and
immediate impact on [Nader's] campaign strategy and
expenditures," namely that Nader spent "more on advertising than
he would [have] if there remained a chance that he could appear
in the debate." I agree with the majority that it is not
generally proper for this institution "to second-guess a
candidate's reasonable assessment of his own campaign."
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However, I am not willing to grant a petitioner seeking standing
free reign to allege changes in strategy forced only by the
possibility of future events. Much as our standing
jurisprudence requires the injury to be "distinct and palpable,"
Allen, 468 U.S. at 751, I believe that a strategic harm argued
under Vote Choice must be more than a mere potentiality. And
unlike the majority, I find something "improbable" about the
proposition that a threatened choice three months in the future
impacted Nader's strategy at the time of the complaint.
Let me expand. In June of 2000, at the time he filed
this complaint, Nader admittedly failed to meet the eligibility
requirements set by the CPD in January of 2000.3 Specifically,
he had not reached the 15% popular opinion threshold, although
some polls had him in the 6 % range. See Frank Newport, Gallup
News Service, Poll Releases (October 23, 2000), available at
http://www.gallup.com/poll/releases/pr001023.asp. In June,
Nader's potential strategies were thus either to attempt to
3 These eligibility requirements were: (i) constitutional
eligibility; (ii) appearance on a sufficient number of state
ballots to achieve an Electoral College majority; and (iii) a
level of support exceeding 15% according to major national
polls. See Joint Appendix 174-76.
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reach the 15% threshold, so that he would be eligible for the
free exposure of the debates, or not to attempt to reach the 15%
threshold. However, given that he was running for President of
the United States, the latter choice does not seem a viable one
– whether or not he received a debate invitation. Moreover,
Nader has never asserted that, because he would not accept a
debate invitation under any circumstances, he resigned himself
to a failed campaign that would never reach the 15% mark.
Even ignoring the infirmities of this theory of
strategic impact, I note that Nader has not alleged that his
campaign strategy was so affected by the potential choice which
he faced. His main brief merely asserts that "Nader and his
organizational supporters have been forced to adjust their
campaign strategy to compensate for the benefits conferred upon
Nader's competitors by the Debate Regulations" (emphasis added).
In Nader's reply brief, he explains the strategic impact of the
regulations in slightly more detail: "Nader has been forced to
spend more of his campaign's money on advertising in order to
overcome the free television time that candidates Bush and Gore
have and will continue to receive as debate participants." In
this regard, Nader is correct: the fact that his opponents will
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participate in the debates and that he will not (either because
he is not invited or because he chooses not to) means he will
have to spend additional advertising funds to match their free
television time. However, Nader's phrasing indicates that the
strategic impact of the debate regulations, in his mind, is only
related to the receipt of illegal (according to him) money by
his opponents. Nader says nothing about planning for the
possibility of receiving free debate time; he has apparently
assumed that he will not compete and formed his campaign
strategy based on that assumption. This is very different from
the strategic impact proposed by the majority, and it is also
foreign to our analysis in Vote Choice. At base, Nader is
claiming injury as a political competitor; the majority's
attempt to dress it as a future choice with a present strategic
impact is misguided and not supported by either appellant's
brief or their approach at oral argument. Furthermore, unlike
in Vote Choice, the district court here failed to make clear
findings of strategy, simply noting that appellants had alleged
a strategic harm. See Becker v. FEC, No. 00-11192-PBS, at 14
(D. Mass., September 1, 2000). Even if it is inappropriate for
a court to evaluate the actual impact of a choice on a
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candidate's strategy, and even if a court should accept the
candidate's assessment of the impact at face value with hardly
any inquiry, we need not premise injury on a supposed strategic
impact not even argued by the petitioner.
In short, I find that theoretical injury caused by
potential future choices is the type of injury the Supreme Court
warned against in Lujan. In Berner v. Delahanty, 129 F.3d 20
(1st Cir. 1997), we noted specific hurdles for abstract harms
such as this:
The [Supreme] Court placed a special gloss
on cases in which a party seeks exclusively
injunctive or declaratory relief. In such
purlieus, standing inheres only if the
complainant can show that he has suffered
(or has been threatened with) "an invasion
of a legally protected interest which is . .
. concrete and particularized," Lujan, 504
U.S. at 560, together with "a sufficient
likelihood that he will again be wronged in
a significant way," Lyons, 461 U.S. at 111.
In other words, the complainant must
establish that the feared harm is "actual or
imminent, not conjectural or hypothetical."
Lujan, 504 U.S. at 560. It bears noting
that the imminence concept, while admittedly
far reaching, is bounded by its Article III
purpose: "to ensure that the alleged injury
is not too speculative." Id. at 564 n.2.
I do not find that Nader has made a sufficient showing of a
"concrete and particularized" injury; the unfocused "threat" of
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a coerced choice sometime hence is much like the overly
speculative "'some day' intentions" that the Supreme Court found
lacking in Lujan. Id. at 564.
The problem of abstractness and lack of imminence is
further revealed by the opening the majority creates for future
litigants. Because the majority analysis places its present
harm in the possibility of a future choice, anyone that could
face the future choice must have the same injury. No language
in the majority necessarily restricts this to candidates with a
significant chance of facing the future choice; presumably, the
possibility of this choice affected Nader's strategy prior to
June. It theoretically could have altered his decision even to
enter the race. In expanding standing to Nader here, the
majority grants standing to any political entrant to challenge
any election regulation to which they might someday be subject.4
4 Although the majority contends that its holding is
"nowhere near so broad" as I have suggested, I am unconvinced.
Their basic point is that potential choices in the future can
alter strategy today, and that forced changes in strategy today
can meet the injury requirement for standing. I see no clear
way of distinguishing Nader's "plausible" hope that he would be
invited to the debates "at a definite date" in the future, from
perhaps slightly less plausible (but still possible) hopes that
may occur at a more distant time.
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B.
Nader's second theory of standing is not based on the
strategic underpinnings of his own campaign, but on the theory
that the corporate contributions to the CPD impermissibly help
his competitors, essentially providing Gore and Bush with
inexpensive access to extensive media coverage. The theory that
a political competitor incurs injury because of an impermissible
benefit to his opponent is premised on a line of cases granting
standing to economic competitors. See, e.g., Clarke v.
Securities Indus. Ass'n, 479 U.S. 308, 403 (1987).
Courts have, however, been reluctant to adopt this
"political competitor" theory of standing, not so much because
the injury faced by a plaintiff is not a real one, but because
that injury generally cannot be traced to the challenged
regulation, nor is the injury usually redressable by
For example, Nader is running for President. Presumably,
issues affecting the President of the United States inform his
decision to run, which is undoubtedly part and parcel of his
campaign strategy. Yet I doubt very much that the majority
would grant Nader standing to challenge, say, the calculation of
the presidential salary, simply because he may potentially be
subject to its dictates. However, I believe that the majority's
theory of standing would require them to do so if Nader asserted
that such issues altered his current campaign strategy.
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invalidating the regulation. Three cases pursued by minor party
candidate Lenora Fulani indicate the contours of this standing
doctrine. In Fulani v. League of Women Voters Educ. Fund, 882
F.2d 621 (2d Cir. 1989), the Second Circuit found that Fulani
had standing to challenge the tax-exempt status of the League of
Women Voters. Fulani claimed that the League's refusal to
include her in debates deprived her of critical media exposure
and competitive advantage, as well as the opportunity to
communicate her political ideas to the electorate. The court
found that:
[T]he loss of competitive advantage flowing
from the League's exclusion of Fulani from
the national debates constitutes sufficient
"injury" for standing purposes, because such
loss palpably impaired Fulani's ability to
compete on an equal footing with other
significant presidential candidates. To
hold otherwise would tend to diminish the
import of depriving a serious candidate for
public office of the opportunity to compete
equally for votes in an election, and would
imply that such a candidate could never
challenge the conduct of the offending
agency or party.
Fulani v. League, 882 F.2d at 626. The Second Circuit then
found that the other prerequisites for standing were met,
because removing the League's not-for-profit status would end
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the League's ability to sponsor debates, and probably would have
meant the absence of any debates in the 1988 campaign season.
In Fulani v. Brady, 935 F.2d 1324 (D.C. Cir. 1991) and
Fulani v. Bentsen, 35 F.3d 49 (2d Cir. 1994), both the Second
and the D.C. Circuits cut back on this approach, in cases more
nearly mirroring our own. In Fulani v. Brady, Fulani sought
standing to challenge the tax-exempt status of the CPD based on
its decision that she lacked a realistic chance of being elected
President, and its concordant refusal to invite her to the 1988
presidential debates. The D.C. Circuit focused its inquiry on
the fact that Fulani was challenging a tax exemption, and noted
strong judicial precedent against the ability to challenge the
tax treatment of a competitor. See id. at 1327. In particular,
Fulani could not meet the standing requirements of traceability
and redressability: first, many factors beyond the tax-exempt
status of the CPD were influential in excluding Fulani from the
debates; second, revocation of the tax-exempt status of the CPD
would not necessarily have any impact on the purportedly unfair
provision of media coverage to the major party candidates. See
id. at 1328-29. Although Nader is not challenging a tax
exemption, his claim is once removed because it does not
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challenge the entity hosting the debate (the CPD) but that
entity's source of funds. At best, a Nader victory here could
require the CPD to find other sources of funds; it would not
necessarily reduce his opponent's television exposure, nor would
it likely cancel the debates.
In Fulani v. Bentsen, Fulani again challenged the tax
status of the League. However, the Second Circuit, noting that
the debate in question was co-sponsored by CNN, refused to find
injury based on "the alleged incremental advantage accorded
participants in debates in which the League plays a sponsoring
role." Id. at 52-53. In other words, the fact that Fulani's
competitors might benefit from the accouterments of League
sponsorship was insufficient to create standing. Similarly, the
fact that Nader's competitors may gain incremental advantages
through their association with corporate sponsors is an
insufficient basis for standing, given that a decision by this
Court will have little or no impact on the exposure they gain
due to the debate.
Moreover, the Second Circuit has indicated that for a
plaintiff to gain standing as a political competitor, he must
"personally compete in the same arena with the same party to
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whom the government has bestowed the assertedly illegal
benefit." In re United States Catholic Conference, 885 F.2d
1020, 1029 (2d Cir. 1989). In this case, the benefit has
perhaps been conferred upon the sponsoring corporations, who at
the most are allowed to further their political viewpoint by
sponsoring a two-person debate, and at least are given
additional air-time for their beer and pretzels. Perhaps the
benefit has been conferred upon CPD, the entity which receives
the allegedly illegal contributions. Nader would argue that
Gore and Bush receive the unlawful benefit, and that as their
competitor he has standing. However, Fulani v. Bentsen
explicitly refused to extend the competitive standing rule to
encompass this removed level of competition. Id. at 54 ("We
decline to extend the rule of Catholic Conference to encompass
not only a plaintiff's competitors in a defined arena, but also
any entity that provides a tangential benefit to those
competitors."). Nader does compete with Bush and Gore, who may
or may not have received tangential benefits from corporate
sponsorship of the debates; however, I fear that expanding
competitor standing to this extent gives plaintiffs the ability
to challenge a host of regulations that, while undoubtedly
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having incidental beneficial effects on their competitors, are
not traceable to a concrete, particularized harm. See Catholic
Conference, 885 F.2d at 1028; see also Gottlieb v. FEC, 143 F.3d
618, 621 (D.C. Cir. 1998) (AmeriPAC could not challenge matching
funds received by the Clinton campaign, because it was never in
a position to receive such matching funds itself).
C.
The majority rues the fact that this analysis "leads
to the result that no candidate could ever challenge the FEC
regulations in question here, regardless of how likely he or she
was to be invited to the debate." First, I dispute this
premise. Although no candidate may be able to challenge the
regulations under a political competitor theory of standing, it
is certainly possible that a candidate would have standing under
the Vote Choice theory, if he or she actually faced a coerced
choice. If Nader had reached the 15% mark, been invited to
debate, and then refused to do so, I would be tempted to find
standing here. Al Gore or George W. Bush could potentially have
challenged the regulations as well. Furthermore, under the
competitor theory, a rival debate organization or a potential
non-corporate sponsor that could not afford the CPD's
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sponsorship prices might have successfully defended their
standing as an economic competitor. In any event, even in the
majority's refusal to read Vote Choice as implying that "the
regulations might effectively be immune from judicial review,"
the majority admits that the fact that the plaintiff might be
the best person to have standing does not in itself give them
standing. See Valley Forge Christian Coll. v. Americans United
for the Separation of Church and State, Inc., 454 U.S. 464, 489
(1982).
I do not doubt "the powerful beneficial effect that
mass media exposure can have today on the candidacy of a
significant aspirant seeking national political office." Fulani
v. League, 882 F.2d at 626. But this effect alone is
insufficient to confer standing on such an aspirant simply
because his claim is related to this mass media exposure.
II.
The majority gives short shrift to the question of
mootness, stating conclusively that "this sort of case qualifies
for the exception to mootness for disputes 'capable of
repetition, yet evading review.'" I have no quarrel with the
claim that this case is capable of repetition: under the
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majority's theory of standing, in fact, it is all too capable of
repetition as any candidate or potential candidate could claim
that their strategy is affected by the potential that they will
be subject to a choice down the campaign trail.
The Supreme Court has indicated that election cases are
particularly privy to this mootness exception. See Storer v.
Brown, 415 U.S. 724, 737 n.8; Rosario v. Rockefeller, 410 U.S.
752, 756 n.5 (1973); Dunn v. Blumstein, 405 U.S. 330, 333 n.2
(1972); Moore v. Ogilvie, 394 U.S. 814, 816 (1969). However,
all of these cases involved burdens placed on candidates or
voters in order for them to participate in the election process,
an inherently time-sensitive issue.5 For example, in Storer,
petitioners challenged ballot access and nomination procedures
necessarily occurring between the primary and the general
election. See id. at 726-28; see also Rockefeller, 410 U.S. at
752-56 (similar issue). Dunn involved a challenge to state
5 In addition, these election exceptions to mootness
involved First Amendment constitutional challenges, an area
afforded special treatment by the Court's standing and mootness
jurisprudence. See, e.g., Rust v. Sullivan, 500 U.S. 173 (1991)
In contrast, Nader does not raise a First Amendment challenge of
any sort, but simply challenges the legality of FEC regulations.
The majority recognizes this distinction, but chooses to rely
upon it to find an exception here.
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residency requirements which a would-be voter might not be able
to challenge until just before the election, and which would
without the exception become moot immediately after the
election. See id. at 333-34. In Fulani v. League, Fulani's
standing arose only at the time she was not invited to the
debates, which meant that not enough time remained to litigate
prior to the debates being held. See id. at 628. It is ironic
that the very rationale which the majority used to grant Nader
standing should now (I believe) lead them to find mootness.
Under the majority's new standing jurisprudence, Nader could
have brought his suit at any time after announcing his candidacy
and possibly before doing so. A future petitioner who faces
this same strategic problem will have ample time to sue in a
manner so that we can redress his injury if appropriate.
Moreover, the procedural history of this case indicates
that future cases in which standing arises will not necessarily
evade our review. Nader's complaint was filed on June 29, 2000.
However, oral argument was not until six weeks later, on August
14, 2000. The argument was delayed by both the recusal of the
original assigned judge and by at least one unopposed motion to
extend time (made by the FEC). Although the district court
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issued its Memorandum and Order relatively quickly, on September
1, 2000, two more weeks passed until a final judgment was
entered on September 18, 2000. This Court granted expedited
review and oral arguments were heard on October 5, 2000.
Although we have not issued our opinion until now, we certainly
could have done so with more alacrity if it had proved
necessary. Given the procedural history of this case, it can
hardly be said that an Article III case or controversy on the
issues raised would not be capable of full litigation and
appellate review in a sufficient time to prevent mootness.
This case should never have reached the merits of the
challenge to the FEC regulation. Nader lacked standing, either
because his injury was hypothetical, or because his injury,
although potentially real, was not traceable to the challenged
regulations and not redressable by the invalidation of the
challenged regulations. Moreover, by the time the litigation
reached this court, Nader's harm had become moot. Although I
agree with the majority that this appeal should be dismissed, I
would not have reached the merits.
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