Federal Election Commission Files Motion to Dismiss for Lack of Proper Jurisdiction

Because of its status as a government entity, the Federal Election Commission was given until today to file an answer to the original complaint filed by attorney Philip Berg on August 21, 2008. This afternoon, the FEC met that deadline when it filed a motion to dismiss for lack of subject matter jurisdiction, answering Berg's complaint by arguing that he "lacks standing to raise the issue of a candidate's constitutional eligibility."

"Moreover," the motion reads, "even if Berg had standing to raise the constitutional eligibility issue, the Commission should be dismissed as a party to this case because it has no oversight over the Constitution’s Presidential Qualifications Clause."

Benjamin Streeter, the filing attorney from the office of the general counsel for the Federal Election Commission refused to comment. (I felt I should mention it, but please don't read into it too much. Remember that I'm just a regular guy with a political blog, okay? -- Jeff)

Like in the motions to dismiss filed by Barack Obama and the Democratic National Committee, the FEC maintains that Berg fails to meet the minimum requirements of standing.

Three elements constitute the “irreducible constitutional minimum” of standing: (1) an injury-in-fact, (2) a causal connection between the injury and the challenged conduct of the defendant (traceability), and (3) a likelihood that the injury will be redressed by a favorable decision of the court ... The injury-in-fact required by Article III is an invasion of a legally protected interest that is “concrete and particularized” as well as “actual or imminent,” rather than “conjectural” or "hypothetical." The injury cannot be merely a generalized grievance about the government that affects all citizens or derives from an interest in the proper enforcement of the law.

That final sentence, from FEC v. Akins, truly shows the similarity between the issue of voter standing and the issue of taxpayer standing. Just as you or I could not sue the United States of America claiming to have standing simply because we are taxpayers, the FEC contends--just as was contended by Obama and the DNC, as well as the defendants in the three similar cases against John McCain--that voters cannot raise the issue of constitutional eligibility just because they are voters.

The FEC also argues that, because it has no jurisdiction to enforce the constitutional eligibility of presidential candidates, it should be dismissed from this case. Instead, the Commission only has jurisdiction over campaign finance aspects of federal campaigns.

None of these statutes [the Federal Election Campaign Act, the Presidential Election Campaign Fund Act, or the Presidential Primary Matching Payment Account Act] delegates to the FEC authority to determine the constitutional eligibility of federal candidates, and Berg does not allege otherwise. Although the Commission determines whether certain presidential candidates are eligible for public funding, it has no power to determine who qualifies for ballot access or who is eligible to serve as president. Thus, because the Commission has no authority to take action against Senator Obama as suggested by Berg, the Commission should be dismissed from this case with prejudice.

Upon speaking with Philip Berg, the Philadelphia attorney mentioned that he was not surprised, that he felt he had already established his standing, and that the other argument by the FEC would be taken into consideration.

"We did not make specific allegations against them in our first complaint, however we have done so in our amended complaint," Berg said, noting that his motion for leave to amend is among the dozen or so pending pleadings before the court. "We will carefully look at their motion and what we have here, and make a decision at that point. Even so, the Federal Election Commission should ideally be one of the checks and balances in the system to ensure that this sort of thing doesn't happen."