STOP RECKLESS ECONOMIC INSTABILITY CAUSED BY DEMOCRATS, (“Stop Reid“); Tea Party Leadership Fund; Alexandria Republican City Committee, Plaintiffs-Appellants, American Future PAC, Intervenor/Plaintiff-Appellant, and Niger Innis; Niger Innis for Congress, Plaintiffs, v. FEDERAL ELECTION COMMISSION, Defendant-Appellee.
No. 15-1455.
United States Court of Appeals, Fourth Circuit.
Argued: Dec. 8, 2015. Decided: Feb. 23, 2016.
814 F.3d 221
Before TRAXLER, Chief Judge, SHEDD, Circuit Judge, and ELIZABETH K. DILLON, United States District Judge for the Western District of Virginia, sitting by designation.
Affirmed in part; vacated and remanded in part with instructions by published opinion. Chief Judge TRAXLER wrote the opinion, in which Judge SHEDD and Judge DILLON joined.
TRAXLER, Chief Judge:
Four political committees—“Stop Reckless Economic Instability Caused By Democrats” (“Stop PAC“), “Tea Party Leadership Fund” (“the Fund“), “Alexandria Republican City Committee” (“ARCC“), and “American Future PAC” (“American Future“) (collectively, “Appellants“)—appeal a district court order granting summary judgment against them in their claims challenging the constitutionality of certain contribution limits established by the Federal Election Campaign Act of 1971 (“FECA“), see
I.
FECA regulates many different types of donors and recipients. See
To begin, FECA defines a “political committee” as “any committee, club, association, or other group of persons” that, during a calendar year, received contributions or made expenditures in excess of $1,000.
There are different types of political committees. Some are associated with a particular candidate or entity. See, e.g.,
FECA sets different contribution limits for different classes of donors and recipients. A contribution made by a non-connected political committee to an individual candidate is governed by the restriction limiting contributions by “persons” generally.
FECA also limits contributions that persons and political committees can make to political party committees. See
On December 16, 2014, Congress amended FECA to create a new category of limits. Under the amended law, national party committees can create up to three segregated accounts to fund their presidential nominating convention, building headquarters, and election-related legal expenses. See Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. 113-235, Div. N, § 101, 128 Stat. 2130, 2772-73 (Dec. 16, 2014) (codified as amended at
II.
The plaintiffs in this suit, Stop PAC, the Fund, and ARCC, filed their initial complaint against the FEC on April 14, 2014, and filed an amended complaint on July 7, 2014 (the “Amended Complaint“). The Amended Complaint alleged the following facts regarding the parties.
Plaintiff Stop PAC is a non-connected political committee that registered with the FEC on March 11, 2014. As of April 14, 2014, Stop PAC had over 150 contributors and had made contributions to five candidates for federal office. On or around April 4, 2014, Stop PAC contributed the maximum $2,600 to candidate Niger Innis in the Nevada Primary for the Republican nomination for a seat in the U.S. House of Representatives.2 On or around June 16, 2014, Stop PAC contributed the same amount to candidate Dan Sullivan in the Alaska Primary for the Republican nomination for the U.S. Senate. Stop PAC wished to contribute more to each candidate—as it could have had it been an MPC—but its waiting period would not expire until September 11, 2014, after the primaries were held.
Stop PAC also contributed $2,600 to Congressman Joe Heck, Republican nominee for Congress from Nevada‘s 3rd Congressional District, in connection with his 2014 general election. Stop PAC wished to contribute more to Heck immediately, but it was prohibited from doing so until its waiting period expired.
The Fund is a non-connected MPC that registered with the FEC in 2012, has over 100,000 contributors, and has contributed to dozens of federal candidates. Because the Fund was an MPC, the maximum amounts it could contribute annually to a state political party committee and its local affiliates and to a national party committee each year were $5,000 and $15,000, respectively. See
Plaintiff ARCC is a local political party committee affiliated with the Virginia Republican State Committee, which is a state political party committee. The Fund contributed the statutory maximum of $5,000 to ARCC on April 4, 2014. For the year 2014, the Fund wished to contribute an additional $5,000 to ARCC and $32,400 to the National Republican Senatorial Committee (“NRSC“), both of which FECA would have allowed had the Fund not yet become an MPC. See
The Amended Complaint contains three claims, each of which seeks declaratory and injunctive relief. Counts I and II pertain to FECA‘s $2,600-per-election limit on contributions made to individual candidates by political committees that have not yet become MPCs. See
On August 27, 2014, the plaintiffs moved to join American Future in the suit as an intervening plaintiff concerning Counts I and II. American Future is a non-connected political committee that registered with the FEC on August 11, 2014. As of August 22, 2014, American Future had raised $5,473 from 54 contributors. It contributed $2,600 to candidate Tom Cotton‘s general election campaign in Arkansas for the U.S. Senate, and $100 each to four other candidates. American Future wished to contribute $2,000 more to Cotton for the 2014 general election, but FECA prevented it from doing so since American Future‘s waiting period was not due to expire before the November 2014 election. American Future also wished to contribute more than $2,600 to Cotton immediately but could not do so until he filed paperwork concerning the 2016 primary election. Finally, American Future desired to contribute more than $2,600 as soon as possible to other candidates for their 2016 primaries. On October 6, 2014, the district court entered an order allowing American Future to intervene pursuant to
On September 19, 2014, before the district court ruled on the plaintiffs’ joinder motion, the parties filed cross-motions for summary judgment. In support of its motion, the FEC, in addition to arguing that none of the challenged limitations were unconstitutional, asserted that the district court lacked subject-matter jurisdiction over Stop PAC‘s claims (Counts I and II). In particular, it argued that Stop PAC‘s claims should be dismissed for lack of standing since it caused its own injury by not registering as early as November 2013, in time to become an MPC before the three elections concerning which it wished to make additional contributions. The FEC also argued that Stop PAC‘s claims were moot because it became an MPC on September 11, 2014, and was thus no longer subject to the limit that it challenged, and never would be again.
In response, the plaintiffs contended that Stop PAC established standing. In that regard, they objected to the FEC‘s attempt to “effectively blame Stop PAC for failing to organize itself more than six months before the primaries,” when in fact “[m]ost ordinary people are not especially interested in becoming involved in the political process until shortly before an election.” Memo. in Opp‘n to FEC‘s Mot. for Summ. J. 3. As for the FEC‘s suggestion that Stop PAC‘s claims were moot, the plaintiffs invoked the exception for claims that are “capable of repetition, yet evading review.” Southern Pac. Term. Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 55 L.Ed. 310 (1911). Although the plaintiffs acknowledged that this exception is generally applied only when the plaintiff itself faces a risk that it will be subject to the same challenged provisions in the future, the plaintiffs argued that the same-plaintiff requirement need not be met in election-related cases.
On February 24, 2015, as the parties waited for the district court to rule on their summary judgment motions, the FEC filed a notice with the district court raising additional arguments regarding mootness. In the notice, the FEC in-
The district court subsequently granted summary judgment to the FEC on all claims. See Stop Reckless Econ. Instability Caused By Democrats v. FEC, 93 F.Supp.3d 466 (E.D.Va. 2015) (“Stop“). Regarding each of the three claims, the district court assumed that the FEC‘s arguments regarding standing and mootness failed, see id. at 472-73, and ruled that the FEC was entitled to summary judgment on the merits, see id. at 473-77. As for Count II, alleging a First Amendment violation, the district court concluded that “Stop PAC and American Future cannot show that they have suffered a cognizable constitutional injury as a result of the waiting period, even if they would have made a higher contribution, had they been permitted to do so.” Id. at 474 (citing Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), and California Med. Ass‘n v. FEC, 453 U.S. 182, 101 S.Ct. 2712, 69 L.Ed.2d 567 (1981)). Regarding Counts I and III, alleging violation of the plaintiffs’ equal protection rights under the Fifth Amendment, the district court concluded that Stop PAC and the Fund were not similarly situated to each other, and thus that “FECA does not improperly discriminate among such committees” and “does not violate the plaintiffs’ rights under the Fifth Amendment.” Id. at 477. The district court alternatively ruled that any discrimination was justified under either rational-basis or intermediate scrutiny. See id.
III.
With regard to each of the three counts, Appellants argue that the district court erred in granting summary judgment against them. In response, the FEC maintains that the district court should never have addressed the merits of the claims because it lacked subject-matter jurisdiction over them. See
“Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.” Ex parte McCardle, 74 U.S. 506, 514, 7 Wall. 506, 19 L.Ed. 264 (1868). Accordingly, the Supreme Court has stated in no uncertain terms that federal courts are not free to simply assume that they possess subject-matter jurisdiction and then proceed to decide the merits of the issues before them when their jurisdiction remains in doubt. See Steel Co. v. Citizens for a Better Env‘t, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Rather, federal courts must determine whether they have subject-matter jurisdiction over a claim before proceeding to address its merits. See id. The district court erred in failing to follow this course in this case.
We therefore begin our analysis by addressing the FEC‘s contentions that the
“To qualify as a case fit for federal-court adjudication, an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.” Arizonans for Official English v. Arizona, 520 U.S. 43, 67, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (internal quotation marks omitted). Accordingly, a case is moot “when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Chafin v. Chafin, 568 U.S. 165, 172, 133 S.Ct. 1017, 1023, 185 L.Ed.2d 1 (2013) (some internal quotation marks omitted).
A case that would otherwise be moot is not so if the underlying dispute is “capable of repetition, yet evading review.” Southern Pac. Term. Co., 219 U.S. at 515. The Supreme Court has explained
that in the absence of a class action, the “capable of repetition, yet evading review” doctrine was limited to the situation where two elements combined: (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.
Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975) (per curiam); see id. (holding that doctrine did not prevent the case from being moot because the “case, not a class action, clearly does not satisfy the latter element“).
A.
Regarding Counts I and II, the FEC repeats its argument presented below that Stop PAC lacked standing to prosecute Counts I and II. The FEC also repeats its alternative contention that Counts I and II became moot once Stop PAC and Intervenor American Future became MPCs, since that change in status ensured that they would never again be bound by the limit they are challenging. We agree with this latter argument. See United States v. Juvenile Male, 564 U.S. 932, 938, 131 S.Ct. 2860, 2865, 180 L.Ed.2d 811 (2011) (per curiam) (holding that exception‘s same-complaining-party requirement was not met when plaintiff challenging special conditions of juvenile supervision had turned 21 and thus would “never again be subject to an order imposing [such] special conditions“). Because we conclude that Counts I and II became moot before the district court granted summary judgment, we do not address the FEC‘s contention that Stop PAC never established standing to assert these claims in the first place. See Arizonans for Official English, 520 U.S. at 66-67 (declining to decide standing issue when claim was moot).
Appellants do not deny that once Stop PAC and American Future became MPCs and the contribution limit they are challenging therefore ceased to apply to them, the district court was no longer in position to prevent any threatened injury (or provide redress for any past injury). Nevertheless, Appellants argue that the “capable
In support of their argument, Appellants rely primarily on Justice Scalia‘s dissent in Honig v. Doe, 484 U.S. 305, 335-36, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988) (Scalia, J., dissenting). In the dissent, Justice Scalia cited abortion and election cases in which he argued the Court had “dispens[ed] with the same-party requirement” and “focus[ed] instead upon the great likelihood that the issue will recur between the defendant and the other members of the public at large.” Id. (emphasis in original).3
Since Honig was decided, courts have taken different views regarding whether the cases cited in Justice Scalia‘s dissent indicated a deliberate decision by the Supreme Court not to apply the same-complaining-party requirement in election cases. Partially as a result of this disagreement, courts have reached different results when considering arguments like the ones Appellants now raise. Compare Van Wie v. Pataki, 267 F.3d 109, 114-15 (2d Cir. 2001) (applying same-plaintiff requirement in an election case), and Barilla v. Ervin, 886 F.2d 1514, 1519-20 & n. 3 (9th Cir. 1989) (same), with Catholic Leadership Coal. of Tex. v. Reisman, 764 F.3d 409, 423-24 (5th Cir. 2014) (concluding that same-plaintiff requirement need not be met in election cases), Lawrence v. Blackwell, 430 F.3d 368, 372 (6th Cir. 2005) (same), and Majors v. Abell, 317 F.3d 719, 723 (7th Cir. 2003) (same).
In the end, we need not decide whether we believe the Supreme Court has sub silentio limited, or created an exception to, the requirements of the “capable of repetition, yet evading review” doctrine. That is so because even were we to conclude that the Supreme Court has actually sub silentio excused compliance with the rule in some election cases, we would be obligated to follow the rule that the Court has actually articulated. See, e.g., Shalala v. Illinois Council on Long Term Care, Inc., 529 U.S. 1, 18, 120 S.Ct. 1084, 146 L.Ed.2d 1 (2000) (“This Court does not normally overturn, or so dramatically limit, earlier authority sub silentio.“); Hohn v. United States, 524 U.S. 236, 252-53, 118 S.Ct. 1969, 141 L.Ed.2d 242 (1998) (“Our decisions remain binding precedent until we see fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continuing vitality.“); Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) (explaining that if a Supreme Court precedent directly controls, “yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow
Moreover, the Supreme Court has actually applied the same-complaining-party rule in two relatively recent election cases. FEC v. Wisconsin Right To Life, Inc., 551 U.S. 449, 127 S.Ct. 2652, 168 L.Ed.2d 329 (2007), concerned an as-applied challenge to a federal prohibition on the use of corporate funds to finance “electioneering communications” during a 60-day pre-election black-out period. See id. at 457-60. With the black-out period long over, the Supreme Court considered whether the case met the requirements of the “capable of repetition, yet evading review” doctrine. The Court explained that “[t]he second prong ... requires a ‘reasonable expectation’ or a ‘demonstrated probability’ that ‘the same controversy will recur involving the same complaining party.‘” Id. at 463 (emphasis added). The Court concluded that the requirement was met in that case because the plaintiff “credibly claimed that it planned on running materially similar future targeted broadcast ads mentioning a candidate within the blackout period, and there is no reason to believe that the FEC will refrain from prosecuting violations of” the challenged statute. Id. (citation and internal quotation marks omitted).
In Davis v. FEC, 554 U.S. 724, 128 S.Ct. 2759, 171 L.Ed.2d 737 (2008), the Supreme Court reviewed a challenge from a self-financed candidate to certain campaign-finance-disclosure requirements to which he was subject. See id. at 731-32. With the litigation having continued after the election occurred, the Court again considered whether the “capable of repetition, yet evading review” doctrine applied. The Court again applied the same-complaining-party requirement, and determined it was satisfied because the candidate had publicly announced that he intended to run again as a self-financed candidate. See id. at 735-36.
Like the Supreme Court, we have also applied the same-complaining-party requirement in recent election cases. Most recently, in Lux v. Judd, 651 F.3d 396 (4th Cir. 2011), we reviewed a constitutional challenge to a state‘s requirement that each signature on a petition for ballot placement by an independent candidate for Congress be witnessed by a district resident. See id. at 398. In considering whether the case satisfied the requirements of the “capable of repetition, yet evading review” doctrine, we noted that “[e]lection-related disputes qualify as ‘capable of repetition’ when ‘there is a reasonable expectation that the challenged provisions will be applied against the plaintiffs again during future election cycles.‘” Id. at 401. We concluded that that requirement was satisfied in that case. See id.
For all of these reasons, we conclude that we are bound to apply the doctrine that we and the Supreme Court have articulated and recently applied—and we must leave to the Supreme Court the decision of whether it wishes to create an exception to, or otherwise limit, that rule. Accordingly, because Appellants cannot
B.
The FEC contends that the district court erred in declining to dismiss Count III on mootness grounds as well. We disagree.
In Count III the Fund and ARCC challenge the constitutionality of the annual $5,000 limit that applies to contributions from MPCs to state political party committees and their local affiliates, and the Fund challenges the constitutionality of the annual $15,000 limit on contributions from MPCs to national party committees. See
Regarding the challenge to the limit on contributions to state party committees and their local affiliates, the FEC notes that the Amended Complaint alleges that the Fund wished to “immediately contribute an additional $5,000 to ... ARCC, which would bring its total contributions to ... ARCC for the year 2014 to $10,000.” J.A. 59. The FEC argues that, once 2014 ended, this challenge was moot because the district court could not grant the Fund the right to contribute additional amounts to ARCC in 2014.
We conclude, however, that this challenge, unlike those presented in Counts I and II, easily fits into the “capable of repetition, yet evading review” exception. It is undisputed that the election cycle is too short in duration for election disputes to be fully litigated within a single cycle. See Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969). And the Fund very well may wish to contribute more than $5,000 to the ARCC in future years. To invoke the exception, Appellants are not required to forecast evidence that they were so inclined. See North Carolina Right to Life Comm. Fund for Indep. Political Expenditures v. Leake, 524 F.3d 427, 435 (4th Cir. 2008) (holding that constitutional challenges to system of public financing, for judicial elections, brought by two political committees and a candidate, were not mooted by the election even though neither the political committees nor the candidate had specifically alleged an intent to participate in future election cycles; concluding that “there is a reasonable expectation that the challenged provisions will be applied against the plaintiffs again during future election cycles“; rejecting “the argument that an ex-candidate‘s claims may be ‘capable of repetition yet evading review’ only if the ex-candidate specifically alleges an intent to run again in a future election“); see also Honig, 484 U.S. at 318-19 n. 6 (“Our concern in these cases, as in all others involving potentially moot claims, was whether the controversy was capable of repetition and not ... whether the claimant had demonstrated that a recurrence of the dispute was more probable than not.” (emphasis in original)).
As for the Fund‘s challenge to the annual $15,000 limit on contributions from MPCs to national party committees, the FEC contends that that challenge was mooted by the December 2014 change in the law referenced earlier. The Fund had alleged in its 2014 Amended Complaint that it wanted to “immediately contribute $32,400 to the” NRSC. J.A. 59. The December 2014 amendment authorized the NRSC to create a segregated account to
IV.
Having determined that the district court possessed subject-matter jurisdiction over Count III, and that we continue to possess jurisdiction as well, we turn to Appellants’ contention that the district court erred in granting summary judgment to the FEC on the merits on that claim. We conclude that the district court was correct to grant summary judgment.
“We review a district court‘s decision to grant summary judgment de novo,
Although the Fourteenth Amendment‘s Equal Protection Clause does not apply to the federal government, the Fifth Amendment‘s Due Process Clause contains an equal protection component. See Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 98 L.Ed. 884 (1954). Indeed, the Supreme Court has explained that “the equal protection obligations imposed by the Fifth and the Fourteenth Amendments [are] indistinguishable.” Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 217, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995).
“To succeed on an equal protection claim, a plaintiff must first demonstrate that he has been treated differently from others with whom he is similarly situated and that the unequal treatment was the result of intentional or purposeful discrimination.” Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001). “Once this showing is made, the court proceeds to determine whether the disparity in treatment can be justified under the requisite level of scrutiny.” Id.
Count III alleges that the challenged limits violate the Fifth Amendment‘s equal protection component by discriminating
Like the Ninth Circuit, the Supreme Court concluded that the challenged limit did not violate the Fifth Amendment. The Court reasoned as follows:
In order to conclude that [the restriction] ... violates the equal protection component of the Fifth Amendment, we would have to find that because of this provision [FECA] burdens the First Amendment rights of persons subject to [the challenged restriction] to a greater extent than it burdens the same rights of corporations and unions, and that such differential treatment is not justified. We need not consider this second question—whether the discrimination alleged by appellants is justified—because we find no such discrimination. Appellants’ claim of unfair treatment ignores the plain fact that the statute as a whole imposes far fewer restrictions on individuals and unincorporated associations than it does on corporations and unions. Persons subject to the [challenged restriction] may make unlimited expenditures on political speech; corporations and unions, however, may make only the limited contributions authorized by
§ 30118(b)(2) . Furthermore, individuals and unincorporated associations may contribute to candidates, to candidates’ committees, to national party committees, and to all other political committees while corporations and unions are absolutely barred from making any such contributions. In addition, [MPCs] are generally unrestricted in the manner and scope of their solicitations; the segregated funds that unions and corporations may establish pursuant to§ 30118(b)(2)(C) are carefully limited in this regard.
The FEC argues that the claims here fail for similar reasons in that political committees overall clearly receive more favorable treatment under FECA than do other groups. For that reason, the FEC argues, there is no discrimination by FECA against MPCs that must be justified. We largely agree with the FEC‘s position, but with one caveat. We believe the FEC is correct to the extent it argues that CMA requires us, in determining whether actionable discrimination has occurred, to compare the treatment the relevant respective groups receive under FECA overall, not just the treatment the groups receive under the specific provision of FECA that is being challenged. We conclude, however, that the proper comparison is between political committees that have become MPCs and political committees that have not completed the waiting period but have satisfied the other MPC conditions. It is those two groups, after all, that Appellants maintain are similarly situated yet treated differently under FECA.
Nevertheless, in our estimation, Appellants cannot show that FECA overall burdens the First Amendment rights of political committees that have become MPCs more than it burdens the rights of political committees that have satisfied all MPC requirements but the waiting period. That is so because the decrease in the amount of contributions that political committees, once they become MPCs, can make annually to state party committees or their local affiliates (from $10,000 to $5,000) and to national party committees (from $32,400 to $15,000) is more than counteracted by the increase in the limits in the amount of contributions that MPCs can make to individual candidates (from $2,600 to $5,000). To the extent that there is a difference in treatment, it appears to us to favor the MPCs in that the total amount of money MPCs can contribute overall will be substantially greater since there are so many different individual candidates to which the respective entities can contribute. Because Appellants cannot demonstrate that FECA discriminates against MPCs, there is no discrimination to be justified, and we conclude that the FEC was entitled to summary judgment on Count III.
V.
In sum, we conclude that the district court erred in adjudicating the merits of Counts I and II, as those claims became moot once the political committees challenging them became MPCs and were no longer subject to the limitations they were challenging. Accordingly, we vacate the merits judgment on those claims and remand to the district court with instructions to dismiss them for lack of subject-matter jurisdiction. On the other hand, we conclude the district court properly granted summary judgment to the FEC on Count III, and we therefore affirm the judgment on that claim.
AFFIRMED IN PART; VACATED AND REMANDED IN PART WITH INSTRUCTIONS TO DISMISS
WILLIAM B. TRAXLER, JR.
CHIEF JUDGE