Three federal contractors who are suing for the right to make campaign donations were sent back to square one today on jurisdictional grounds.
A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit held that under Federal Election Campaign Act, the merits of such disputes may only be considered by an en banc appellate panel.
In an unsigned per curiam opinion, the appeals court remanded the case to U.S. District Judge James Boasberg, vacating his judgment and giving him just five days to turn the case around and return it to the full court for review.
The case, Wendy E. Wagner v. Federal Election Commission, began in 2011 when the three contractors who perform consulting services for various executive agencies sued the FEC, seeking the right to make political contributions in federal elections.
Under the Federal Election Campaign Act, contractors are barred from doing so. The plaintiffs argued that this abridges their First Amendment right to freedom of speech and denies them the equal protection of the laws in violation of the Fifth Amendment.
In their original complaint, the contractors, represented by George Washington University Law School professor Alan Morrison and Arthur Spitzer of the American Civil Liberties Union, moved to follow the path of en banc review, asking the district court to find certain facts and then send the case up to the full D.C. Circuit.
Under section 437h of the Federal Election Campaign Act, district courts are given a limited role in constitutional challenges of the election law: develop a record for appellate review, make sure the issue isn’t frivolous and certify the case for en banc review.
The FEC opposed the contractors’ motion, arguing that en banc certification was premature. In response, the plaintiffs changed their complaint, dropping the bid for en banc review and invoking the district court’s federal question jurisdiction instead, as well as moving for a preliminary injunction.
Boasberg ruled that the case could “follow the standard path of federal litigation.” He denied the contractors’ motion for a preliminary injunction, and granted summary judgment to the FEC.
On appeal, both sides argued that the three-judge panel had jurisdiction to hear the case.
But the panel—Senior Judge Douglas Ginsburg and judges Thomas Griffith and Karen LeCraft Henderson—found otherwise.
“The parties’ interpretation disregards both how the Congress writes jurisdictional statutes and how the courts interpret them,” the opinion states. “The Congress decided that challenges to [the Federal Election Campaign Act’s] constitutionality belong in the en banc courts of appeals to the exclusion of all other tribunals.”