451 F.Supp.3d 92
D.D.C.2020Background:
- Plaintiffs: Senator Rafael Edward Cruz and Ted Cruz for Senate challenge Section 304 of the Bipartisan Campaign Reform Act (52 U.S.C. § 30116(j)) and the FEC regulations implementing it (11 C.F.R. § 116.11), arguing the $250,000 post‑election loan repayment cap violates the First Amendment and is arbitrary and capricious under the APA.
- Facts: Senator Cruz made $260,000 in pre‑election loans to his campaign ($5,000 personal cash; $255,000 margin loan). The committee repaid $250,000 after the 20‑day pre‑election repayment window; $10,000 converted to a contribution under the statute.
- Procedural posture: A three‑judge court was convened on Plaintiffs’ BCRA constitutional challenge; Defendants (FEC) moved to remand Plaintiffs’ regulatory/APA claims to a single judge and to compel discovery the Plaintiffs had withheld.
- Core disputes: (1) whether the three‑judge court should exercise supplemental jurisdiction over Plaintiffs’ challenges to the FEC’s implementing regulations; (2) whether discovery into campaign strategy, motivations for loans, and repayment decisions is relevant and/or shielded by a First Amendment privilege.
- Rulings: The court declined to remand and exercised discretionary supplemental jurisdiction over the regulatory claims; it granted in part the motion to compel, ordering production of non‑privileged responsive materials and requiring in camera submission of documents withheld on First Amendment grounds.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the three‑judge court should exercise supplemental jurisdiction over challenges to FEC regulations implementing Section 304 | Keep regulatory claims before the three‑judge court because they are legally and factually intertwined with the statutory constitutional claim | Remand regulatory/APA claims to a single judge; three‑judge jurisdiction should be limited to core statutory constitutional issues | Court exercises discretionary supplemental jurisdiction; denies partial remand (efficiency, common nucleus of operative fact) |
| Relevance of discovery into loan motivations and repayment decisions | Such subjective motivations and individualized burdens are irrelevant (esp. to standing); facial challenge does not require them | Information about the loans, motivations, and repayment is relevant to FEC defenses on the merits (as‑applied claims) | Court: motivations irrelevant to standing (adopts Judge Mehta). But such information is relevant to merits defenses; Plaintiffs must produce responsive, non‑privileged materials |
| First Amendment privilege over internal campaign strategy and consultant materials | Internal strategy, polling, billing, and tactical communications are protected by First Amendment associational privilege | FEC acknowledges possible privilege but argues its need for the materials outweighs Plaintiffs’ interest | Court orders in camera review: Plaintiffs must submit any documents withheld on First Amendment grounds for the court to balance interests and decide disclosure |
| Scope and timing of production | Plaintiffs previously objected on relevance and privilege; asked to limit production | FEC seeks specified RFPs and interrogatories answered and documents produced | Court grants motion in part: identifies specific RFPs/interrogatories to be answered/produced; requires revised privilege logs and three Bates‑stamped sets of withheld documents submitted to the court by April 6, 2020; reserves further amendment after in camera review |
Key Cases Cited
- Zemel v. Rusk, 381 U.S. 1 (three‑judge supplemental jurisdiction precedent)
- Allee v. Medrano, 416 U.S. 802 (three‑judge court jurisdiction principles)
- McConnell v. FEC, 540 U.S. 93 (campaign‑finance precedent discussed)
- United Mine Workers v. Gibbs, 383 U.S. 715 (common nucleus of operative fact/pendant jurisdiction test)
- NAACP v. Alabama, 357 U.S. 449 (First Amendment associational privacy)
- AFL‑CIO v. FEC, 333 F.3d 168 (D.C. Cir. balancing test for First Amendment privilege)
- Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (broad discovery relevance standard)
- Black Panther Party v. Smith, 661 F.2d 1243 (First Amendment privilege balancing)
- Adams v. Clinton, 40 F. Supp. 2d 1 (D.D.C. three‑judge supplemental jurisdiction analysis)