Becker v. Federal Election Commission

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

-63-
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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