UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

______________________________ ) STEVE SCHONBERG, ) ) Plaintiff, ) ) v. ) Civil Action No. 10-2040 (RWR) ) FEDERAL ELECTION COMMISSION ) et al., ) ) Defendants. ) ______________________________)

MEMORANDUM OPINION

Pro se plaintiff Steve Schonberg brings this action against

the Federal Election Commission (“FEC”) and the United States,

challenging the constitutionality of provisions of the Federal

Election Campaign Act of 1971 (“FECA”) and the Bipartisan

Campaign Reform Act of 2002 (“BCRA”); the statute governing

representational allowances for Members of the House of

Representatives (“MRA”), codified at

; and

legislation commonly referred to as “earmarks.” Schonberg has

moved to trifurcate the proceedings, and the defendants have each

moved to dismiss. Schonberg has not shown that he has standing

to bring his FECA and BCRA claims, the United States has not

waived its sovereign immunity with respect to his MRA and

earmarks claims, and even if the United States had waived its

sovereign immunity, Schonberg has failed to establish that the

MRA or earmarks violate the Constitution. Therefore, the - 2 -

defendants’ motions to dismiss will be granted, and Schonberg’s

motion to trifurcate will be denied.

BACKGROUND

The background of this case is discussed fully in Schonberg

v. FEC, Civil Action No. 10-2040,

(D.D.C. May 12,

2011) (per curiam). Briefly, Schonberg is a Florida resident who

ran unsuccessfully for the House of Representatives in Florida’s

Sixth Congressional District and who has expressed his intention

to run again for the seat in 2012. Id. at *1. Schonberg’s

second amended complaint claims that FECA, BCRA, the MRA,1 and

legislation earmarking2 funds for the College of Central Florida

and the University of Florida provided the incumbent, Congressman

Cliff Stearns, an unconstitutional competitive advantage in 2010

1 The MRA is the funding provided to members of the House of Representatives to operate their offices, both in the District of Columbia and in their home districts. See generally Ida A. Brudnick, Cong. Research Serv., R40962, Members’ Representational Allowance: History and Usage (2011). 2 An earmark is

a provision or report language included primarily at the request of a Member, Delegate, Resident Commissioner, or Senator providing, authorizing or recommending a specific amount of discretionary budget authority, credit authority, or other spending authority for a contract, loan, loan guarantee, grant, loan authority, or other expenditure with or to an entity, or targeted to a specific State, locality or Congressional district, other than through a statutory or administrative formula-driven or competitive process.

House Rule XXI, cl. 9(e), 112th Congress (2011). - 3 -

and will continue to provide that advantage to him in the 2012

election. (2d Am. Compl. ¶¶ 17, 32-44, 166-75, 186-89, 203, 219-

23, 229, 233, 248.) When he filed his original complaint,

Schonberg also filed an application for a three-judge court to

adjudicate his claims, which was granted. After the three-judge

court was convened, Schonberg amended his complaint and filed a

motion to trifurcate his claims, arguing that his BCRA claims

were properly before the three-judge court, but that the Court of

Appeals sitting en banc should adjudicate his FECA claims and

that a single district judge should adjudicate his MRA and

earmark claims. Schonberg then filed a second amended complaint,

the FEC moved to dissolve the three-judge court and to dismiss

the complaint, and the United States moved to dismiss the

complaint. The three-judge court granted the FEC’s motion to

dissolve the three-judge court and returned the motions to

dismiss and to trifurcate to this Court. The FEC moves under

Federal Rule of Civil Procedure 12(b)(1) to dismiss arguing that

there is no subject-matter jurisdiction over Schonberg’s FECA and

BCRA claims because he lacks standing. The United States moves

under Rules 12(b)(1) and 12(b)(6) to dismiss arguing that there

is no subject-matter jurisdiction over Schonberg’s MRA and

earmarks claims because the United States has not waived its

sovereign immunity from suit, and that Schonberg has failed to

state a claim. - 4 -

DISCUSSION

I. FECA AND BCRA CLAIMS

“On a motion to dismiss for lack of subject-matter

jurisdiction pursuant to Rule 12(b)(1), the plaintiff bears the

burden of establishing that the court has subject-matter

jurisdiction.” Larsen v. U.S. Navy,

(D.D.C. 2007); see also Moms Against Mercury v. FDA,

(D.C. Cir. 2007). A court “must accept as true the

allegations in the complaint and consider the factual allegations

of the complaint in the light most favorable to the non-moving

party.” Short v. Chertoff,

(D.D.C. 2007).

Although a court is to construe liberally a pro se complaint,

Howerton v. Ogletree,

(D.D.C. 2006),

“[p]ro se plaintiffs are not freed from the requirement to plead

an adequate jurisdictional basis for their claims.” Gomez v.

Aragon,

(D.D.C. 2010).

“[A] showing of standing ‘is an essential and unchanging’

predicate to any exercise of [a court’s] jurisdiction.” Fla.

Audubon Soc’y v. Bentsen,

(D.C. Cir. 1996)

(quoting Lujan v. Defenders of Wildlife,

(1992)). In order for a plaintiff to establish standing to bring

a constitutional claim, Article III requires the plaintiff to

show an injury in fact, that the conduct complained of caused the

injury, and that it is likely, and not merely speculative, that - 5 -

the relief the plaintiff seeks would redress the injury. See

Ariz. Christian Sch. Tuition Org. v. Winn,

, 1442

(2011) (citing Lujan,

). “[W]hen the plaintiff

is not himself the object of the government action or inaction he

challenges, standing is not precluded, but it is ordinarily

‘substantially more difficult’ to establish.” Lujan,

(quoting Allen v. Wright,

(1984)).

With respect to Schonberg’s FECA and BCRA claims, the

injuries of which he complains are that the campaign finance

regime as currently enacted unfairly advantages incumbents in

federal elections and has prevented the United States from

enacting universal, affordable health care. (2d Am. Compl.

¶¶ 16-29, 33, 37, 89-104.) However, even if FECA and BCRA were

to be found to be

a legal nullity in all [their] iterations, this result would not further Schonberg’s goal of more stringent regulation of the federal campaign finance system and elimination of the alleged competitive advantages for incumbent federal candidates. Without a statute specifying permissible and impermissible uses of federal campaign contributions, the Constitution would be the only source for controlling legal authority governing relevant conduct, see United States v. Bounos,

(7th Cir. 1984), aside from federal statutory prohibitions on bribery and the like and various state laws regarding federal elections. Schonberg has made no showing that federal candidates, free from the constraints imposed by [FECA or BCRA] would be more restricted in their use of campaign funds, or that the Constitution itself forbids the pecuniary evils of the federal campaign finance system that he alleges persist. To the contrary, removing these limits would exacerbate, rather than remedy, the perceived ills. - 6 -

Schonberg,

. Accordingly, holding FECA or

BCRA unconstitutional is not likely to redress Schonberg’s

claimed injuries.3 He therefore has failed to establish standing

3 Schonberg also claims that FECA, by creating campaign committees that can accept campaign contributions, violates the Appointments, Ascertainment, and Emoluments Clauses of the Constitution. (2d Am. Compl ¶¶ 205-17.) The Emoluments Clause provides that “no Person holding any Office under the United States, shall be a Member of either House [of Congress] during his Continuance in Office.” U.S. Const. Art. I, § 6, cl. 2. The Appointments Clause vests in the President the power to appoint “Officers of the United States” but provides that “the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” U.S. Const. Art. II § 2, cl. 2. Schonberg appears to claim that incumbents act as “officers” of their campaign committees and therefore hold an “office,” in violation of both the Appointments and Emoluments Clauses. Arguably, a favorable decision might redress any competitive disadvantage Schonberg suffers from the existence of campaign committees, since such committees would not exist absent their authorization in FECA.

However, in Buckley v. Valeo,

(1976), the Supreme Court analyzed together the Appointments and Emoluments Clauses and concluded that to qualify as an officer of the United States, an appointee must “exercis[e] significant authority pursuant to the laws of the United States[.]” Because Schonberg provides no authority for the proposition that incumbents exercise any, yet alone significant, authority of the United States as agents of their campaign committees, he has failed to plead a violation of either the Appointments or the Emoluments Clauses. Moreover, to the extent that Schonberg pleads that benefits incumbents derive from their campaign committees constitute compensation, Schonberg has not pled a violation of the Ascertainment Clause, which does not provide a substantive limit on the amount or Congressional source of members’ compensation. See infra II(B)(2). - 7 -

over his FECA and BCRA claims, and the FEC’s motion to dismiss

will be granted.4

II. MRA AND EARMARK CLAIMS

Schonberg also challenges the constitutionality of the MRA

and legislative earmarks. He claims that the MRA disadvantages

him as a challenger by providing the incumbent member of Congress

against whom he is running with taxpayer funding for a website

and staff, which aids the incumbent’s prospects for reelection.

(2d Am. Compl. ¶¶ 30-32, 36, 38-40, 42, 44, 105-32.) Schonberg

also claims that the two earmarks he challenges provided the

incumbent with an unfair advantage relative to challengers, in

violation of the Equal Protection Clause, and with

“unconstitutional compensation” by encouraging others to provide

job opportunities to the incumbent’s wife and sporting tickets to

4 In his motion to trifurcate, Schonberg argues that his FECA claims should be heard by the United States Court of Appeals for the District of Columbia Circuit sitting en banc. See 2 U.S.C. § 437h (“The district court immediately shall certify all questions of constitutionality of this Act to the United States court of appeals for the circuit involved, which shall hear the matter sitting en banc.”). “Despite the mandatory phrasing of the certification provision, district courts presented with complaints brought under section 437h need not automatically certify every constitutional question raised to the en banc court of appeals.” Mott v. FEC,

(D.D.C. 1980). Rather, the procedure is “circumscribed by the constitutional limitations on the jurisdiction of the federal courts[,]” including the requirement that a party have standing to raise a constitutional claim. Cal. Med. Ass’n v. FEC,

, 192 n.14 (1981). Because Schonberg lacks standing, his constitutional FECA claims will not be certified to the court of appeals sitting en banc, and his motion to trifurcate will be denied. - 8 -

the incumbent, and to name buildings after the incumbent.5 (Id.

¶¶ 229-30.)

A. Sovereign immunity

Because the United States’ consent to be sued in a

particular court defines the scope of that court’s jurisdiction,

“[a]bsent a waiver, sovereign immunity shields the Federal

Government . . . from suit.” FDIC v. Meyer,

(1994); see also United States v. Mitchell,

(1983) (“It is axiomatic that the United States may not be sued

without its consent and that the existence of consent is a

prerequisite for jurisdiction.”). A waiver of sovereign immunity

“must be unequivocally expressed in statutory text, and will not

be implied.” Lane v. Pena,

(1996) (internal

5 In addition to challenging these two particular earmarks, Schonberg seeks a prospective declaration that any future earmark obtained by Stearns during the 112th Congress be declared unconstitutional. (2d Am. Compl. at 65.) However, Schonberg’s challenge to the constitutionality of future earmarks does not present a justiciable case or controversy. “Article III, section 2 of the Constitution limits federal courts to deciding actual, ongoing controversies.” 21st Century Telesis Joint Venture v. FCC,

(D.C. Cir. 2003) (internal quotation marks omitted). Accordingly, federal courts are prohibited from rendering advisory opinions and from resolving issues that “cannot affect the rights of litigants in the case before them.” Preiser v. Newkirk,

(1975). For there to be subject-matter jurisdiction over a claim, therefore, a judgment must resolve a real and substantial controversy and not rely on a hypothetical set of facts.

Because “the opinion of a court on hypothetical Acts of Congress . . . would be difficult to characterize as anything but advisory[,]” U.S. Nat’l Bank of Or. v. Ind. Ins. Agents of Am., Inc.,

(1993), there is no subject-matter jurisdiction over Schonberg’s challenge to earmarks he believes may be enacted in the future. - 9 -

citation omitted). “[C]onditions upon which the Government

consents to be sued must be strictly observed[,]” Lehman v.

Nakshian,

(1981) (quotation marks and citation

omitted), and any waiver is construed strictly in the sovereign’s

favor. Lane,

.6

However, it “is well-established that sovereign immunity

does not bar suits for specific relief against government

officials where the challenged actions of the officials are

alleged to be unconstitutional[.]” Clark v. Library of Cong.,

(D.C. Cir. 1984); see also Larson v. Domestic &

Foreign Commerce Corp.,

(1949) (reasoning that

where a “statute or order conferring power upon the officer to

take action in the sovereign’s name is claimed to be

unconstitutional[,]” “the conduct against which specific relief

is sought is beyond the officer’s powers and is, therefore, not

the conduct of the sovereign”). Here, Schonberg has not styled

his suit as one against a government official, but rather as one

against the United States. Even a liberal construction of his

complaint does not yield a readily apparent officer or agency

against whom or which he seeks specific relief. Cf. Clark,

(holding that plaintiff’s claim was not barred by

6 But see Richlin Sec. Serv. Co. v. Chertoff,

(2008) (noting that the “sovereign immunity canon is just that –– a canon of construction” and that it does not “displace[] the other traditional tools of statutory construction”). - 10 -

sovereign immunity because he sought specific relief against a

government official). His claim, therefore, will be barred by

sovereign immunity if no unequivocally expressed waiver exists.

The Administrative Procedure Act (“APA”) provides that

“[t]he United States may be named as a defendant” in an action

“seeking relief other than money damages and stating a claim that

an agency or an officer or employee thereof acted or failed to

act in an official capacity or under color of legal authority[.]”

. This provision waives the government’s immunity

from suit. Trudeau v. FTC,

(D.C. Cir. 2006).

Although Schonberg does not bring his claims under the APA, there

“is nothing in the language of . . . § 702 that restricts its

waiver to suits brought under the APA.” Id. However, the APA’s

waiver of sovereign immunity applies only to suits for specific

relief against an agency or officer acting or failing to act in

an official capacity. Nowhere in his complaint does Schonberg

identify an agency that, or an officer of the United States who,

acted or failed to act in a way that implicates the

constitutionality of the MRA or earmarks. Rather, Schonberg

argues in his opposition that the “members of the House of

Representatives cannot pass a law that is a violation of” the

Constitution. (Pl.’s Resp. in Opp’n to Def. United States’ Mot.

to Dismiss (“Pl.’s Opp’n”) at 11.) Because the APA explicitly

excludes Congress from its definition of an agency, 5 U.S.C. - 11 -

§ 701(b)(1)(A), it does not waive sovereign immunity for

Schonberg’s claims. See Clark,

. Schonberg has

not established that sovereign immunity does not bar his claim,

nor has he established that the United States has waived its

sovereign immunity in this context, and the United States’ motion

to dismiss for lack of subject matter jurisdiction will be

granted. Even if sovereign immunity did not bar Schonberg’s MRA

and earmarks claims, however, they would still fail on the

merits.

B. Failure to state a claim

The United States also has moved to dismiss Schonberg’s MRA

claims under Rule 12(b)(6) for failure to state a claim. “A Rule

12(b)(6) motion tests the legal sufficiency of a complaint[.]”

Browning v. Clinton,

(D.C. Cir. 2002). In

considering a motion to dismiss for failure to state a claim

under Rule 12(b)(6), a court must construe the complaint in the

light most favorable to the plaintiff,

and “the court must

assume the truth of all well-pleaded allegations.” Warren v.

Dist. of Columbia,

(D.C. Cir. 2004).

1. Equal protection

“Unless a classification . . . is drawn upon inherently

suspect distinctions such as race, religion, or alienage,”

statutory distinctions are presumed constitutional, and will

survive a challenge if the classification is “rationally related - 12 -

to a legitimate state interest.” City of New Orleans v. Dukes,

(1976). Although not every non-suspect

legislative classification passes muster under rational basis

review, see, e.g., Metro. Life Ins. Co. v. Ward,

(1985) (holding that a preferential state tax rate for

domestic businesses violated the Equal Protection Clause because

the state’s justifications –– that the tax promoted domestic

industry and encouraged investment in domestic assets –– were not

legitimate government interests since if they were, “any

discriminatory tax would be valid if the State could show it

reasonably was intended to benefit domestic business”), “the

judiciary may not sit as a superlegislature to judge the wisdom

or desirability of legislative policy determinations[.]” Dukes,

.

Schonberg alleges that the MRA and earmarks violate the

equal protection component of the Fifth Amendment by

discriminating against challengers in favor of incumbents. (2d

Am. Compl. ¶¶ 222, 229.) Schonberg provides no authority for the

proposition that a statute that provides benefits to an incumbent

but not a challenger draws a suspect classification, and other

courts have explicitly rejected the notion that such a

classification is suspect. See, e.g., El-Amin v. State Bd. of

Elections,

(E.D. Va. 1989) (concluding

that although the “plaintiffs claim that the statute denies equal - 13 -

protection . . . because . . . incumbents receive preferential

treatment[,]” the statute was not subject to strict scrutiny

because “it does not make a ‘suspect classification’”).

Therefore, so long as the MRA and the challenged earmarks are

rationally related to a legitimate government interest, they will

pass muster under the Equal Protection Clause. See FCC v. Beach

Commc’ns, Inc.,

(1993) (“In areas of . . .

economic policy, a statutory classification that neither proceeds

along suspect lines nor infringes fundamental constitutional

rights must be upheld against equal protection challenge if there

is any reasonably conceivable state of facts that could provide a

rational basis for the classification.”).

The MRA provides a member of the House of Representatives

with funding to compensate and provide benefits to staff members,

to rent and maintain a district office, and to pay for travel,

printing, supplies, shipping, equipment, and franking expenses.

See Ida A. Brudnick, Cong. Research Serv., R40962, Members’

Representational Allowance: History and Usage 9-10 (2011). Such

funding allows representatives “to operate their offices in a way

that supports their congressional duties and responsibilities[.]”

Id. at 1; see also Gravel v. United States,

(1972) (noting that “it is literally impossible, in view of the

complexities of the modern legislative process, with Congress

almost constantly in session and matters of legislative concern - 14 -

constantly proliferating, for Members of Congress to perform

their legislative tasks without the help of aides and

assistants”). There is plainly a legitimate government interest

in ensuring that members of the House of Representatives are able

to carry out their duties and responsibilities, and it is easy to

conclude that providing such funding to members of Congress and

not to non-members of Congress is rationally related to this

interest. Schonberg therefore has failed to state an equal

protection claim with respect to the MRA.

Similarly, there is a legitimate government interest in

exercising Congress’ appropriation authority to provide funding

for higher education institutions. See Buckley v. Valeo,

(1976) (“It is for Congress to decide which

expenditures will promote the general welfare[.]”). Granting

authority to members of Congress but not to non-members of

Congress to spend federal funds is rationally related to this

interest. Schonberg therefore has failed to state an equal

protection claim with respect to the challenged earmarks.

2. Ascertainment Clause

The Ascertainment Clause provides that members of Congress

“shall receive a Compensation for their services, to be

ascertained by Law, and paid out of the Treasury of the United

States.” U.S. Const. Art. 1 § 6, cl. 1. Schonberg claims that

the MRA violates the Ascertainment Clause by providing - 15 -

“compensation over and above that contained in the

[Ascertainment] Clause.” (Pl.’s Opp’n at 11.) Schonberg also

claims that the school earmarks he challenges provided Stearns

with “unconstitutional compensation” by encouraging others to

provide job opportunities to Stearns’ wife and sporting tickets

to Stearns, and to name buildings after Stearns. (2d Am. Compl.

¶ 230.) However, Schonberg cites no authority for the

proposition that the Ascertainment Clause provides any

substantive limit on the amount or Congressional source of member

compensation. Rather, the clause merely creates the procedural

requirement that Congress set its own pay rather than delegating

that task to other bodies, such as state legislatures. See

Humphrey v. Baker,

(D.C. Cir. 1988) (citing

Pressler v. Simon,

(D.D.C. 1976), for the

proposition that “the animating purpose of the Ascertainment

Clause” is “to affix political responsibility for the level of

Members’ pay ultimately with Congress itself”). Even if

Schonberg could demonstrate that the clause imposes a substantive

limit on member compensation, the MRA would not violate such a

limit, as it does not fund member salaries. See Members’

Representational Allowance at 10. Nor do the benefits Schonberg

asserts that Stearns has derived from earmarks –– even if

Schonberg could succeed in proving a causal connection between

the earmarks and the benefits –– constitute member salary. - 16 -

Schonberg has therefore failed to state a claim that the MRA or

the school earmarks he challenges violate the Ascertainment

Clause.

CONCLUSION

Schonberg has not established that he has standing for his

BCRA and FECA claims, nor has he demonstrated that the government

has waived its sovereign immunity or that he has stated a claim

with respect to his MRA and earmark claims. Accordingly, the

defendants’ motions [33, 34] to dismiss will be granted, and

Schonberg’s motion [24] to trifurcate proceedings will be denied.

An appropriate Order accompanies this Memorandum Opinion.

SIGNED this 23rd day of June, 2011.

__________/s/_______________ RICHARD W. ROBERTS United States District Judge