Election Law Challenge Heads to En Banc Court

     (CN) – The en banc D.C. Circuit alone should determine the constitutional claims federal contractors filed over laws barring them from making political contributions, a panel ruled.
     Under Section 441c(a)(1) of the Federal Elections Campaign Act (FECA), any person who is under contract with the federal government for either the rendition of personal services or for the furnishing any material, supplies or equipment to the federal government is prohibited from making federal contributions to any political party, committee or candidate for public office or to any person for any political purpose or use.
     Wendy Wagner, Lawrence Brown and Jan Miller filed suit in October 2011 under FECA’s judicial review provision, codified at Section 437h, as well as its federal question jurisdiction, Section 1331.
     Each one holds a consulting contract with various federal agencies and wants to make political contributions for use in federal elections. They said section 441c is unconstitutional under both the First and the Fifth Amendments.
     Section 437h requires a District Court to develop a record for appellate review, determine if the constitutional issues are frivolous and immediately certify the matter for review by an en banc appellate panel.
     The contractors initially moved for en banc consideration of their claims, but the FEC opposed the motion, arguing that certification was premature.
     The contractors then amended their complaint in response, avoiding the en banc certification requirement and only invoking the district court’s federal question jurisdiction.
     U.S. District Judge James Boasberg denied them an injunction, finding their claims unlikely to succeed, and then granted the FEC summary judgment.
     A three-judge panel of the D.C. Circuit decided last week, however, that the “Section 437h grants exclusive merits jurisdiction to the en banc court of appeals.”
     FECA provides “two routes” for a party to obtain judicial review of the act’s constitutionality, according to the ruling.
     One of these routes is under section 437g, by which a party may also mount a constitutional defense to an FEC enforcement action. This route’s “extraordinary procedures” are only available, however, to the parties specifically enumerated in that statute: the FEC, national committees of political parties and individual voters.
     Plaintiffs who are not enumerated in section 437h are remitted to the “usual remedies,” the appellate panel said.
     “The unanswered question is whether the enumerated parties may also avail themselves of the ‘usual remedies,'” the unsigned decision states. “The District Court concluded that they may but its rationale was flawed.”
     The text of section 437h, read in the context of its underlying legislative purpose, makes clear that the parties therein enumerated may bring actions challenging FECA’s constitutionality only under that section.
     Neither the contractors nor the FEC provided any reason for the panel to disregard section 437h’s text and purpose, according to the ruling.
     “We therefore conclude that both the District Court and this panel lack jurisdiction to decide the constitutional questions pressed by appellants,” the judges wrote.
     “Because the purpose underlying section 437h is the vindication of the public’s interest in the expeditious resolution of constitutional challenges to FECA, we reject the parties’ interpretation of the statute,” they added. “Their reading threatens to make that interest illusory by leaving its effectuation entirely up to individual plaintiffs’ litigation strategies.”
     The appellate panel also acknowledged that by remanding this case for the district court to comply with expedited review provision, they were taking the risk of further prolonging the litigation.
     “But even if we believed that the American citizenry’s interest in expedient resolution of constitutional challenges to FECA were best served by addressing the merits, we are without authority to do so,” they wrote. “Inferior federal courts have only the jurisdiction the Congress confers upon them.”

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