Opinion
00 Civ. 3476 (BSJ) (JCF)
October 10, 2001
Opinion and Order
This court referred this matter to the Honorable James C. Francis, IV, United States Magistrate Judge, for preparation of a report and recommendation. This court has received Magistrate Judge Francis' Report dated December 13, 2000 ("Report"), which recommends that the court: (1) deny defendant Federal Election Commission's motion to dismiss the Amended Complaint with respect to the Constitution Party National Committee, the Independence Party of New York, the District of Columbia Reform Party, and Cathy Stewart; (2) grant defendant FEC's motion to dismiss with respect to the remaining plaintiffs for lack of standing; (3) deny plaintiffs' motion for summary judgment; and (4) grant defendant's cross motion for summary judgment. On January 12, 2001, the parties submitted objections to the Report pursuant to 28 U.S.C. § 636 (b)(1); responses to these objections were submitted on January 26, 2001.
I. Standard of Review
When evaluating a Magistrate Judge's Report, the court may adopt those portions of the report to which no specific objection is made, provided that they are not clearly erroneous. 28 U.S.C. § 636 (b)(1); Fed.R.Civ.P. 72(b). When an objection is made to a portion of a magistrate's report, however, the Court must make a de novo determination as to those portions. 28 U.S.C. § 636 (b)(1); Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989) Here, the plaintiffs' and defendant's objections address the totality of the report. Therefore, the entire report is now reviewed de novo.
In his Report, Judge Francis included a detailed and accurate factual background, familiarity with which is presumed.
II. Discussion
A. Exhaustion of Administrative Remedies:
This Court agrees with Judge Francis' observation that the plaintiffs are not barred from bringing this action because they failed to present their arguments during the rulemaking process or otherwise. As stated recently by First Circuit: "[t]he FEC has steadfastly maintained that these debate regulations are valid and there is no point requiring the plaintiffs to go through exhaustion." Becker v. Fed. Election Comm'n, 230 F.3d 381, 384 (1st Cir. 2000) (citations omitted)
B. Mootness
This court also agrees with Judge Francis' finding that the plaintiff's action remains ripe despite the fact that the election is complete, and that the plaintiffs initially filed their complaint in the hope that they could nullify the Debate Regulations in time to facilitate the inclusion of minor party candidates in televised debates during the year 2000 election cycle.
In determining that the immediate action remains ripe, Judge Francis pointed a line of cases that hold that a facial challenge to an election law remains justiciable even after the completion of the particular election where the challenge was first made. See Report at 6 (citing Storer v. Brown, 415 U.S. 724, 737 n. 8 (1974); Fulani v. League of Women's Voters Educ. Fund, 882 P.2d 621, 628 (2d Cir. 1989) ("Fulani I")).
The Defendant's principal objection to Judge Francis' finding is that because it is possible that this action could have been adjudicated before the completion of the 2000 election cycle, the plaintiffs should have to wait until the next presidential election to bring this action. According to the FEC, the plaintiffs "will have ample time to litigate their concerns before such presidential debates occur." Defendant FEC's Objection to Magistrate Judge Francis' Report and Recommendation at 7 ("Def. Obj.").
After reviewing this issue de novo, this court agrees with both Judge Francis and the majority in Becker that "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 timely resolution difficult." 230 F.3d at 389 (emphasis added). Even if a resolution of this matter is theoretically possible within the time frame proposed by defendant, in reality, time constraints would make such resolution difficult and far from assured.
C. Standing
Under Article III of the Constitution, this court is limited to deciding justiciable cases and controversies. U.S. Const. art. III, § 2, cl. 1. "To have standing, a plaintiff must " [1] allege personal injury [2] fairly traceable to the defendant's allegedly unlawful conduct and [3] likely to be redressed by the requested relief.'" Fulani v. Bentsen, 35 F.3d 49, 51-52 (2d Cir. 1994) ("Fulani II") (quoting Allen v. Wright, 468 U.S. 737, 754 (1984). Thus, all three elements — injury, traceability and redressability — must be satisfied in order for a plaintiff to have standing to bring an action.
1. Standing of Political Party Plaintiffs:
In his report, Judge Francis found that the Constitution Party National Committee, Inc., the District of Columbia Reform Party, and the Independence Party of New York (collectively the "Political Party Plaintiffs") satisfy the requirements for standing on the theory that the Debate Regulations put them at a competitive disadvantage. Report at 12. For the reasons set forth below, this Court disagrees with Magistrate Judge Francis and finds that the Political Party Plaintiffs have not established standing. At least two of the three Political Party Plaintiffs cannot demonstrate the requisite injury. Moreover, assuming that the Political Party Plaintiffs can establish an injury-in-fact through the theory of competitive disadvantage, it is clear that these plaintiffs cannot satisfy the remaining requirements for Article III standing.
In the immediate action, the Political Parties claim that the Debate Regulations impede their ability to compete against the major political parties because the regulations permit their exclusion, thereby depriving them of critical public exposure. At the same time, the major parties get the benefit of enhanced legitimacy through their cost-free participation in televised debates. Thus, Political Party Plaintiffs claim that the Debate Regulations put them at a competitive disadvantage sufficient to satisfy the injury requirement of standing.
The Second Circuit articulated and developed the theory of injury-in-fact based on "competitive disadvantage" for political plaintiffs in a series of three cases. In 1989, the Second Circuit granted standing to minor party candidate for President Lenora Fulani to challenge the tax-exempt status of the League of Women's Voters (the "League"). Fulani v. League of Women's Voters Educ. Fund, 882 F.2d 621 (2d Cir. 1989) ("Fulani I"). In Fulani I, the League had sponsored a debate from which Fulani had been excluded. Specifically, the League had decided that only significant" Democratic and Republican candidates would be included in their debate. Id. at 626. Consequently, the court found that:
The 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 party or agency.Id. The Second Circuit subsequently found that: (1) the injury was fairly traceable to the defendant's conduct, since the League had promulgated the party affiliation requirement; and that (2) the requested relief would redress the injury, because denying tax-exempt status to the League would have prevented them from sponsoring the debate in question, and would have resulted in the debate's cancellation, since the League was its sole sponsor.
That same year, the Second Circuit further elaborated on the scope of the competitive disadvantage injury when it denied standing to plaintiffs who wished to challenge the tax exempt status of the Catholic Church.United States Catholic Conference v. Baker, 885 F.2d 1020 (2d Cir. 1989) ("Catholic Conference") In Catholic Conference the plaintiffs claimed that the Church engaged directly in political activity and therefore was disqualified from the tax benefit. The court, however, found that plaintiffs lacked standing to bring the action. Specifically, the court rejected the plaintiffs' contention that they were competitors with the Church, noting that while the plaintiffs in Catholic Conference were advocates of reproductive choice, they did not engage in any political advocacy. The Second Circuit explained that in order to demonstrate a particularized injury under the competitive advocate theory "a plaintiff must show that he personally competes in the same arena with the party to whom the government has bestowed the assertedly illegal benefit." Id. at 1029.
Finally, in Fulani II, 35 F.3d 49 (2d Cir. 1994), the Second Circuit held that Fulani, again a minor party candidate for President, lacked standing to undertake a second attempt to revoke the tax-exempt status of the League of Women's Voters. Just as in Fulani I, the League had sponsored a presidential debate from which Fulani had been excluded. This time, however, the League had cosponsored the debate with CNN. In distinguishing Fulani I from Fulani II, the Second Circuit noted both the insufficiency of the injury and the lack of a causal nexus between the harm inflicted and the relief requested. Even if the League had been forced to rescind its sponsorship to maintain its tax-exempt status, the debate could have continued under the sole sponsorship of CNN, who was not a party to the litigation. Fulani II, 35 F.3d at 52-53. The court inFulani II was careful to explain that the actual challenge did not — as Fulani alleged — relate directly to Fulani's ability to participate in a debate: "Rather, this case is about the alleged incremental advantage accorded participants in debates in which the League plays a sponsoring role." Id. at 52 (emphasis added)
Defendant FEC objects to Judge Francis' finding of standing and argues that the Political Party Plaintiffs have not alleged sufficiently an injury-in-fact under the competitive disadvantage theory. While I do not agree with the FEC's formalistic interpretation of the "same arena" requirement for standing formulated in Catholic Conference and elaborated upon in Fulani II, this court nonetheless agrees with the FEC's ultimate contention that none of the Political Party Candidates satisfies the requirements for standing.
In its objections to Judge Francis' finding of injury, the FEC insists that Fulani II dictates a very strict interpretation of the court's statement in Catholic Conference that the plaintiffs "must show that [they] personally compete in the same arena [upon] whom the government has bestowed the assertedly illegal benefit." Catholic Conference, 885 F.2d at 1029. Specifically, the court in Fulani II declines to "extend the rule of Catholic Conference to encompass not only a plaintiff's competitors in a defined area, but also to any entity that provides a tangential benefit to those competitors." 35 F.3d at 54. According to the FEC, because the Political Party Plaintiffs do not compete in the same arena as the Commission on Presidential Debates ("the CPD"), the recipient of the allegedly illegal benefit, any benefits that pass through to the participating candidates and their political parties are "tangential" and insufficient to convey standing under the theory of competitive disadvantage.
This court agrees with Judge Francis' determination that the FEC readsFulani II too broadly. "If Fulani II were read as the FEC advocates . . . then Fulani I would have been overruled. The receipt of governmental benefits in Fulani I was the League; the plaintiff's competitors were major party candidates." Report at 12. Furthermore, this court agrees with the First Circuit's recent observation regarding competitive disadvantage that such a formalistic construal of the "same arena" language "unjustifiably ignores the consequences the 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 [the minor party candidate plaintiff] competes in the same arena with these other candidates." Becker, 230 F.3d at 388 n. 6. Thus, the fact remains that while the direct beneficiary of the allegedly illegal benefit is the CPD, the CPD passes this benefit on to the major parties and their candidates to the disadvantage of minor parties who are in direct competition with them.
While I agree with Judge Francis' interpretation of the theory of injury based on competitive disadvantage, however, I do not agree that the D.C. Reform Party or the Independence Party of New York can demonstrate an injury here. Neither of these two political parties has demonstrated that it was in direct competition with the major parties or their candidates. Specifically, the FEC correctly notes that neither party alleges that they had nominated or sponsored any federal candidates, or that they have registered as a federal political committee. Def. Obj. at 12. Rather, the plaintiffs only allege that "[t]hese plaintiffs aspire to achieve parity with the Democratic and Republican parties in their respective states and their effort to do so would be greatly aided if the Reform Party USA candidate were included in the presidential debates . . ." Amended Complaint at 9 ("Am. Comp.".). Had the Reform Party USA or its presidential candidate brought this suit, then either might have had standing. See Becker, 230 F.3d at 389;Fulani I, 882 F.2d at 626. As it stands, the situation of the D.C. Reform Party and the Independence party of New York is more analogous to the pro-choice advocates in Catholic Conference than the excluded candidates in Becker and Fulani I. Since the state affiliates do not personally compete in the same arena as the national parties, their injury is not as direct or immediate as that of a political party whose candidate actually attempted to participate, but was excluded.
The position of the Constitution Party National Committee, Inc. ("Constitution Party") is slightly less attenuated than the other Political Party Plaintiffs, because it expected to have a presidential candidate on the ballot in at least forty states. Am. Comp. at 8. Nevertheless, the Constitution Party also lacks standing. Assuming that the Constitution Party had been able to place a candidate on the ballot in forty states, and was able to allege an injury based on competitive disadvantage, it still would not satisfy the remaining requirements for standing.
The Constitution Party cannot demonstrate that the harm it suffered is traceable to the Debate Regulations. The Debate Regulations state only that debate sponsors must use objective and pre-established selection criteria in determining which candidates to include in the debate. 11 C.F.R. § 110.13. The Regulations do not impose upon sponsors a particular format, nor do they favor a bilateral format over a multilateral format. As the FEC correctly notes, "it is the independent decisions of these candidates and debate sponsors — none of which is a party to this suit — that determine what (if any) candidate debates will occur and which candidates will participate." Def. Obj. at 18.
It is also doubtful that the Constitution Party can demonstrate a causal nexus between the injury alleged (exclusion from televised presidential debates) and the relief requested (enjoining the Debate Regulations). Bilateral debates could still be sponsored by news media corporations or by private persons, if they so desire. Furthermore, the relief sought by plaintiffs would not compel Democratic and Republican candidates to debate minority candidates. Given that the other elements required for standing are hot present, however, the court need not decide this issue.
2. Standing of Cathy Stewart:
As New York County Chair of the Independence Party (one of the Political Party Plaintiffs), Cathy Stewart also lacks standing. Since this court has found that the Political Party Plaintiffs lack standing, it follows that Stewart, in her capacity as Chair of one of those parties, does not have standing. See Report at 13 (standing of Cathy Stewart dependent on standing of Independence Party)3. Standing of CUIP:
This court also agrees with Judge Francis' finding that the Committee for a Unified Independent Party ("CUIP") lacks standing. Like the Political Party Plaintiffs, CUIP also claims an injury based on the theory of competitive disadvantage. Their alleged injury is as follows: The CUIP seeks to sponsor multilateral debates as part of their greater goal of promoting a multiparty democracy. Their ability to recruit majority candidates and conduct such debates, however, is compromised by the staging of bilateral debates as permitted under the current FEC Debate Regulations. The CUIP is therefore at a competitive disadvantage as compared to debate sponsors willing to sponsor bilateral debates.
While this theory may be sufficient to demonstrate an injury, the injury is not traceable to the Debate Regulations. As stated above, the Debate Regulations do not dictate a particular debate structure. Nor do they favor bilateral over multilateral debates. Thus, like the Political Party Plaintiffs, CUIP's alleged injury results from: (1) the Democrat and Republicans' refusal to participate in debates that include minor party candidates; and (2) the independent decisions of debate sponsors to adopt particular selection criteria.
4. Standing of Lenora Fulani Remaining Minor Party Supporters
Lenora Fulani also claims standing; however, she is not now a candidate, nor is there any indication the she will be one in the future. Fulani also does not hold a formal position in a minor party. Therefore, as Judge Francis correctly asserts, she cannot demonstrate a particularized injury to support standing. Similarly, the remaining minor party supporters' interest in this case is too attenuated to satisfy the Constitutional requirements for standing. These remaining plaintiffs include registered voters who assert a general interest in having more information about minor party candidates, as well as one unregistered voter. These plaintiffs do not attain standing as voters in general or as supporters of parties that may be disadvantaged by the debate regulations. See Becker, 230 F.3d at 389-90; Gottlieb v. Fed. Election Comm'n, 143 F.3d 618, 621-22 (D.C. Cir. 1998)
Finally, the Minor Party Supporters also contend that they have standing because they have suffered an informational injury sufficient to create standing under Federal Election Comm'n v. Akins, 524 U.S. 11, 24 (1998). Specifically, they allege that the debate sponsors are actually political action committees for the Democratic and Republican parties, such that the source of the funding for the debates must be publicly disclosed. Even assuming that the plaintiffs had suffered an injury, however, the injury would not be redressable here. As Judge Francis points out, the consequence of nullifying the debate regulations would be the elimination of illegal corporate contributions and expenditures, not the dissemination of information regarding corporate sponsors. Therefore, these plaintiffs cannot allege standing based upon an informational injury. IV. Conclusion
Because this court has found that none of the plaintiffs has standing, this court need not reach the merits of plaintiffs claims.
Since this court finds that none of the plaintiffs have standing to bring this action, Defendant's motion to dismiss is GRANTED. The Clerk of the Court is ORDERED to close this case.
So Ordered.
New York, New York October 10, 2001