BERYL A. HOWELL, Chief Judge.
The plaintiff, the Libertarian National Committee ("LNC"), was left a testamentary bequest by Joseph Shaber in 2015 in the amount of $235,575.20 but was allegedly unable to accept the bequest in full due to restrictions imposed by the Federal Election Commission Act ("FECA"), see 52 U.S.C. §§ 30116 and 30125. The LNC challenges certain aspects of the statutory scheme as unconstitutional and seeks certification of the constitutional issues it raises to the D.C. Circuit en banc, pursuant to 52 U.S.C. § 30110.
The challenged statutory framework is summarized before discussing the particular facts underlying this suit and the LNC's claims.
Under FECA, "no person," including, inter alia, a testamentary estate,
The contribution limits set forth in § 30116(a)(1) are adjusted for inflation in odd-numbered years such that, at the time this Complaint was filed, the annual limit on a general account contribution was $33,400, and the annual limit on a segregated account contribution for each of the three segregated accounts was $100,200. See id. § 30116(c). Accordingly, in 2015, the total amount that a party's political committee could accept from any person, including a testamentary estate, was $334,000.
The LNC is "the national committee of the Libertarian Party of the United States." Compl. ¶ 1. Its mission is "to field national [p]residential tickets, to support its state party affiliates in running candidates for public office, and to conduct other political activities in furtherance of a libertarian public policy agenda in the United States." Id. From 1988 to 2011, Mr. Shaber made small, periodic donations to the LNC. Id. ¶ 15. "Unbeknown to the LNC, it was made a beneficiary of the Joseph Shaber Revocable Living Trust U/T/D February 11, 2010." Id. ¶ 16. Upon his death on August 23, 2014, Mr. Shaber's trust became irrevocable, with the LNC's share amounting to $235,575.20. Id. ¶ 17. No restrictions were placed on how the LNC could utilize the bequest, and the trustee maintains that it is "entirely up to the LNC how it wishes to apply the distribution." See Def.'s Mot. Dismiss at 6-7, ECF No. 9 (quoting Letter from Trustee's Counsel to FEC (dated June 15, 2015), available online at http://saos.fec.gov/aodocs/1317218.pdf (last visited Dec. 27, 2016)).
On February 23, 2015, the trustee distributed $33,400 of the bequest to the LNC's general account. Id. ¶ 19. LNC asserts that it "would [have] accept[ed] and spen[t] the entire amount of the Shaber bequest for its general expressive purposes" but for FECA's contribution limits. Id. ¶¶ 18-19. On May 6, 2015, the trustee requested an advisory opinion from the FEC as to whether the remainder of the bequest could be placed in a third-party escrow account for annual disbursements pursuant to § 30116(a)(1). The FEC approved the trustee's request on August 11, 2015. See generally FEC Advisory Op. 2015-05. In January 2016, the LNC accepted another $33,400 of the Shaber bequest from escrow for deposit into the party's general purpose account. Compl. ¶ 20. Thus, as of the filing of the complaint, approximately $168,775.20 of the bequest remained in escrow. See Def.'s Mot. Dismiss at 7; Pl.'s Opp'n Def.'s Mot. Dismiss ("Pl.'s Opp'n") at 20, ECF No. 12 (referencing $168,000 in escrow).
The LNC's complaint alleges in three counts that application of the § 30116 contribution limits to the Shaber bequest "violates the First Amendment speech and associational rights of the LNC and its supporters," id. ¶ 27 (Count I), and that the segregated accounts scheme, which allows parties to accept larger donations for
"`Federal courts are courts of limited jurisdiction,' possessing `only that power authorized by Constitution and statute.'" Gunn v. Minton, 568 U.S. 251, 133 S.Ct. 1059, 1064, 185 L.Ed.2d 72 (2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994)). Indeed, federal courts are "forbidden ... from acting beyond our authority," NetworkIP, LLC v. FCC, 548 F.3d 116, 120 (D.C. Cir. 2008), and, therefore, have "an affirmative obligation `to consider whether the constitutional and statutory authority exist for us to hear each dispute,'" James Madison Ltd. ex rel. Hecht v. Ludwig, 82 F.3d 1085, 1092 (D.C. Cir. 1996) (quoting Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 196 (D.C. Cir. 1992)).
Federal Rule of Civil Procedure 12(b)(1) is the proper vehicle for moving to dismiss a complaint due to lack of subject matter jurisdiction. Absent subject-matter jurisdiction over a case, the court must dismiss it, Fed. R. Civ. P. 12(h)(3); Arbaugh v. Y & H Corp., 546 U.S. 500, 506-07, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006), and the burden of establishing any jurisdictional facts to support the exercise of the subject matter jurisdiction rests on the plaintiff, see Hertz Corp. v. Friend, 559 U.S. 77, 96-97, 130 S.Ct. 1181, 175 L.Ed.2d 1029 (2010); Moms Against Mercury v. FDA, 483 F.3d 824, 828 (D.C. Cir. 2007). A court "may consider materials outside the pleadings" in determining whether jurisdiction exists. Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005); see also Belhas v. Ya'alon, 515 F.3d 1279, 1281 (D.C. Cir. 2008) (examining materials outside the pleadings in ruling on a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction).
With regard to standing, Article III of the Constitution restricts the power of federal courts to hear only "Cases" and "Controversies." U.S. Const. art. III, § 2, cl. 1. "The doctrine of standing gives meaning to these constitutional limits by `identify[ing] those disputes which are appropriately resolved through the judicial process.'" Susan B. Anthony List v. Driehaus, ___ U.S. ___, 134 S.Ct. 2334, 2341, 189 L.Ed.2d 246 (2014) (alterations in original) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)); Clapper v. Amnesty Int'l USA, 568 U.S. 398, 133 S.Ct. 1138, 1146, 185 L.Ed.2d 264 (2013) ("`One element of the case-or-controversy requirement' is that plaintiffs `must establish that they have standing to sue.'" (quoting Raines v. Byrd, 521 U.S. 811, 818, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997))). As the Supreme Court has explained, "the irreducible constitutional minimum of standing contains three elements." Defs. of Wildlife, 504 U.S. at 560, 112 S.Ct. 2130. First, the plaintiff must have suffered an "injury in fact," i.e., "an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical." Id. (citations and internal quotation marks
In considering the FEC's motion to dismiss the LNC's complaint for lack of standing, a recent case in this Court involving the same parties is instructive since, in that case, the LNC was found to have standing to challenge the predecessor provision to § 30116(a). See LNC v. FEC ("LNC I"), 930 F.Supp.2d 154, 163 (D.D.C. 2013) (Wilkins, J.).
The FEC advances two arguments in an apparent effort to show why LNC I's standing analysis does not apply here, but neither argument is persuasive.
"[S]elf-inflicted harm doesn't satisfy the basic requirements for standing" since it is neither a "cognizable" injury nor "fairly traceable to the defendant's challenged conduct." Nat'l Family Planning & Reproductive Health Ass'n, Inc. v. Gonzales, 468 F.3d 826, 831 (D.C. Cir. 2006); accord Afifi v. Lynch, 101 F.Supp.3d 90, 110 (D.D.C. 2015); Ellis v. Comm'r of IRS, 67 F.Supp.3d 325, 336-37 (D.D.C. 2014), aff'd sub nom. Ellis v. C.I.R., 622 Fed. Appx. 2 (D.C. Cir. 2015). According to the FEC, the LNC has chosen not to accept the entire Shaber bequest even though it could and, consequently, any injury suffered by the LNC is self-inflicted and thereby insufficient to establish standing. Def.'s Mot. Dismiss at 10-14. As support, the FEC points out that § 30116(a) permits the LNC to accept immediately the entire balance of the bequest by funneling funds beyond the general spending account into the special-purpose segregated
The FEC's argument papers over the nuance in the LNC's claims. The LNC does not argue that the amended statutory scheme allowing a party to accept a contribution as large as $334,000 prohibits the LNC from accepting the entire Shaber bequest in one lump sum. Rather, the LNC alleges that the harm is due to the restriction on the political committee's inability to accept the entire bequest for general expressive purposes when the bequest became available in 2015. See Compl. ¶¶ 18-19; Pl.'s Opp'n at 8 ("LNC's injury is that it cannot accept money — from Shaber's bequest and from other donors — for spending as it wishes.") (emphasis in original). Thus, the fact that the LNC could accept the entire bequest by utilizing its segregated accounts does not eliminate the alleged harm. The precise harm alleged confers a sufficient injury in fact to sustain standing. See Wagner v. FEC, 717 F.3d 1007, 1010 n.1 (D.C. Cir. 2013) ("Our constitutional jurisdiction is clear. Because Appellants declare that they would make political contributions but for section 441c [52 U.S.C. § 30119's predecessor provision], they have Article III standing. Section 441c allegedly deprives them of a legally protected interest (making a political contribution) that an order of this court declaring section 441c unenforceable would remedy."); Republican Party of La. v. FEC, 219 F.Supp.3d 86, 93, No. 15-cv-1241, 2016 WL 6601420, at *4 (D.D.C. Nov. 7, 2016) (three-judge panel) ("The state party's inability to use corporate funds in its possession for additional [federal election activity] in which it would like to engage qualifies as a concrete injury.").
The FEC, however, advances an additional theory as to why the LNC's injury is self-inflicted. See Def.'s Mot. Dismiss at 12. The FEC suggests that "LNC's public disclosure reports show that it actually spends significant amounts on expenses for which Segregated Account funds may be used" and, therefore, the LNC "could have spent the entire bequest during this election cycle had it chosen to do so." Id. According to the FEC, "the LNC spent in excess of $940,000 on its Alexandria building headquarters" during the 2014 election cycle, id., and spent $120,000 on its 2014
The FEC's argument has some surface-level appeal, but does not stand up to scrutiny. The LNC's precise injury is that it was not permitted to accept the Shaber bequest in full, when it became available, to spend on federal election activities. See Compl. ¶ 18 ("LNC would accept and spend the entire amount of the Shaber bequest for its general expressive purposes, including expression in aid of its federal election efforts."). Since the bequest became available in 2015, the LNC's 2014 and 2016 expenditures are of no moment.
The FEC argues that "[e]ven if the LNC's choice to forego [sic] immediate acceptance of the Shaber bequest is not to blame for its claimed competitive injury, that alleged injury cannot support the LNC's standing for three independent reasons." Def.'s Mot. Dismiss at 15. First, under Buckley v. Valeo, 424 U.S. 1, 48, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) and McConnell v. FEC, 540 U.S. 93, 227, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003), "LNC's claim that it is competitively disadvantaged and so must use the Shaber bequest to achieve electoral success fails to allege a valid injury in fact." See Def.'s Mot. Dismiss at 15. Second, the LNC's alleged competitive disadvantage is not caused by FECA but by decisions of private actors in the political marketplace. Id. at 15-17. Finally, a favorable decision by this Court would not remedy the alleged injury but instead would exacerbate the injury by giving the major parties access to more money. Id. at 17-19.
These arguments are predicated on the FEC's characterization of the LNC's alleged injury as stemming from a "competitive disadvantage ... against its major party rivals." Id. at 2. In suggesting that the LNC's alleged injury is a competitive disadvantage, the FEC cherry-picks certain phrases from the LNC's complaint referencing the party's interest in competing with other parties. See Def.'s Mot. Dismiss at 8 (citing Compl. ¶¶ 12-14, 26). The Complaint does allege that, "[u]nlike its two major competitors, the Libertarian Party's national committee is forced to spend the bulk of its resources securing access to the ballot, leaving comparatively little for actual campaigning — an expensive activity in and of itself." Compl. ¶ 12; see also id. ¶ 13 ("[T]he LNC has comparatively less use for funds intended to support national conventions, a headquarters building, or attorney fees."). Further, the Complaint alleges that "[i]n the absence of the Party Limit's application to the Shaber bequest, the LNC would substantially improve its ability to advocate and achieve electoral success by taking immediate control over the balance of the Shaber funds." Id. ¶ 26.
The Court agrees with the LNC that "the Commission does not afford the Complaint a fair reading." Pl.'s Opp'n at 18; see also id. at 19 ("The Libertarian Party certainly does not argue that the First Amendment requires a level electoral playing field, free of the advantages that speakers may have owing to their resources." (emphasis in original)). The phrases the FEC relies on are included in the Complaint to explain why the LNC sought to accept the entire bequest into its general purpose account when the bequest became available and why accepting the bequest into the segregated accounts was not an adequate substitute. See id. at 19. As noted above, the LNC clearly articulates the injury suffered to be the inability to accept the entire Shaber bequest, when it became available in 2015 to engage in election activities, including various forms of expressive conduct. See Compl. ¶¶ 14, 18-19. Accordingly, the FEC's arguments that the LNC's alleged injury is not cognizable, not caused by the FEC, and not redressable are premised on a mischaracterization of the alleged injury and therefore fail.
The LNC has standing to challenge FECA provisions that restricted immediate access to the full amount of a bequest for expressive activities. That the LNC could accept the entire bequest by depositing the funds into segregated accounts does not alter this analysis because the LNC alleges that it wishes to use the funds for expressive activities. Accordingly, the FEC's motion to dismiss is denied. The parties shall submit jointly, within twenty days, a schedule to govern further proceedings in this matter.