IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Transcription

1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) JIM SYKES (3779 North Lee Circle, ) Palmer, Alaska 99645), ) ) Plaintiff, ) ) v. ) ) FEDERAL ELECTION COMMISSION ) (999 E Street, N.W., Washington, ) D.C ), ) ) Case No. JACK VALENTI (Motion Picture ) Association of America, I Street, ) N.W., Washington, D.C ), ) MICHAEL BERMAN (Duberstein Group, ) 2100 Pennsylvania Avenue, N.W., ) Washington, D.C ), on behalf ) of themselves and all other ) non-alaska resident individual ) contributors similarly situated, ) ) HALIBURTON COMPANY POLITICAL ) ACTION COMMITTEE (1150 Eighteenth ) Street, N.W., Washington, D.C. ) 20036), WASTE MANAGEMENT ) EMPLOYEES BETTER GOVERNMENT FUND ) (601 Pennsylvania Avenue, N.W., ) Washington, D.C ), on behalf ) of themselves and all other ) political action committee ) contributors similarly situated, ) and ) ) DEMOCRATIC SENATORIAL CAMPAIGN ) COMMITTEE (120 Maryland Avenue, ) N.E., Washington, D.C ), ) NATIONAL REPUBLICAN SENATORIAL ) COMMITTEE (425 Second Street, ) N.E., Washington, D.C ), ) ) Defendants. ) )

2 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF The plaintiff alleges: INTRODUCTION 1. This is a civil action that seeks a declaratory judgment, and corresponding injunctive relief, that provisions of the Federal Election Campaign Act (FECA), as amended most recently by the Bipartisan Campaign Reform Act (BCRA), that authorize an individual who is not an Alaska resident to make a campaign contribution (either individually or through a political action committee or senatorial campaign committee) to a candidate seeking election in the November 2, 2004 Alaska general election as Alaska's United States Senator violate rights that the First and Fifth Amendments of the United States Constitution guarantee to the plaintiff. JURISDICTION 2. The court has jurisdiction of this action pursuant to 2 U.S.C. 437h and 28 U.S.C Venue is proper pursuant to 28 U.S.C. 1391(b) and (e) and section 403 of the BCRA. PARTIES Plaintiff 3. Plaintiff Jim Sykes is a twenty-seven-year Alaska resident who is domiciled in Palmer, Alaska. The plaintiff is registered to vote in Alaska and has voted in Alaska primary and 2

3 general elections since The plaintiff intends to vote in the August 24, 2004 Alaska primary and November 2, 2004 Alaska general elections. The plaintiff is eligible to vote in the November 2, 2004 election for the office of President of the United States. 4. The plaintiff is a founding member of the Green Party of Alaska (hereinafter Green Party ), which since 1990 has been recognized by the State of Alaska pursuant to Alaska Statute (20) as an official political party. 5. The plaintiff has properly filed as a candidate in the August 24, 2004 Alaska primary election for the Green Party s nomination as the party s candidate for election to the United States Senate in the November 2, 2004 Alaska general election. Because his candidacy is unopposed, the plaintiff will be the Green Party s nominee and his name will appear on the November 2, 2004 Alaska general election ballot as the party s candidate for election to the United States Senate. In his capacity as the Green Party s candidate for election to the United States Senate, the plaintiff is being directly and immediately injured in fact by the unlawful acts of the defendants complained of herein. Defendants 6. Defendant Federal Election Commission is the federal agency established by Congress to administer and enforce the FECA, including the provisions complained of herein. 7. Defendant Jack Valenti is chairman and CEO of the Motion 3

4 Picture Association of America (MPAA), a trade organization that represents the financial and other interests of Metro-Goldwyn- Mayer, Inc., Paramount Pictures Corporation, Twentieth Century Fox Film Corporation, and other film studios that collectively dominate the American motion picture industry. Defendant Valenti s office is located in the District of Columbia. Defendant Valenti is the MPAA s registered lobbyist. In 2004 The Hill, a Washington, D.C., newspaper that reports exclusively on the Congress, named defendant Valenti as one of the most influential of the more than 12,000 individuals who professionally lobby the Congress. On May 19, 2003 defendant Valenti contributed $1,000 to the election campaign of Lisa Murkowski. Ms. Murkowski is Alaska s junior United States Senator and the Alaska Republican Party s presumptive nominee as its candidate for election to the United States Senate in the November 2, 2004 Alaska general election in which the plaintiff is competing as a candidate. Defendant Valenti made his contribution to Ms. Murkowski in the District of Columbia. Defendant Valenti is not an Alaska resident, and may not vote in, and has no constitutionally cognizable interest in the outcome of, the November 2, 2004 Alaska election. Defendant Valenti made his contribution to Ms. Murkowski s election campaign in order to facilitate his access to Ms. Murkowski if she wins the November 2, 2004 Alaska general election. Defendant Valenti intends to use that access to try and 4

5 influence how Senator Murkowski votes on bills that are of financial and other interest to the MPAA. During the first three quarters of 2003 defendant Valenti also made campaign contributions in the following amounts to the following incumbent members of Congress: Senator Maria Cantwell (D) $1,000, Senator Christopher Dodd (D) $1,000, Senator Patrick Leahy (D) $2,750, Senator Harry Reid (D) $1,000, Senator Charles Grassley (R) $2,000, Senator Orrin Hatch (R) $2,000, Senator Don Nickles (R) $2,000, Senator Arlen Spector (R) $1,250, Senator John Warner (R) $1,000, Representative Jane Harman (D) $1,500, Representative Jesse Jackson, Jr. (D) $1,000, Representative Mark Foley (R) $1,000, Representative Howard Buck McKeon (R) $1,000, Representative Bill Thomas (R) $2, Defendant Michael Berman is a partner in The Duberstein Group, a Washington, D.C., lobbying firm whose clients include the Business Roundtable and General Motors. Kenneth Duberstein, the chairman and CEO of The Duberstein Group, is the former chief of staff for President Ronald Reagan. Defendant Berman s office is located in the District of Columbia. Defendant Berman is a registered lobbyist. In 2004 The Hill named defendant Berman as one of the most influential of the more than 12,000 individuals who professionally lobby the Congress. On August 21, 2003 defendant Berman contributed $2,000 to the election campaign of Tony Knowles. Mr. Knowles is a former governor of Alaska and the 5

6 Alaska Democratic Party s presumptive nominee as its candidate for election to the United States Senate in the November 2, 2004 Alaska general election in which the plaintiff is competing as a candidate. Defendant Berman made his contribution to Mr. Knowles in the District of Columbia. Defendant Berman is not an Alaska resident, and may not vote in, and has no constitutionally cognizable interest in the outcome of, the November 2, 2004 Alaska election. Defendant Berman made his contribution to Mr. Knowles election campaign in order to facilitate his access to Mr. Knowles if Mr. Knowles wins the November 2, 2004 Alaska general election. Defendant Berman intends to use that access to try and influence how Senator Knowles votes on bills that are of financial and other interest to clients of The Duberstein Group. During the first three quarters of 2003 defendant Berman also made campaign contributions in the following amounts to the following incumbent members of Congress: Senator Hillary Clinton (D) $3,000, Senator Tom Daschle (D) $3,000, Senator Byron Dorgan (D) $2,000, Senator Harry Reid (D) $2,000, Senator Charles Schumer (D) $1,000, Representative Rosa DeLauro (D) $2, Defendant Haliburton Company Political Action Committee (HCPAC) is a political action committee that employees and officers of the Haliburton Company have organized pursuant to the FECA for the purpose of allowing such members to, first bundle together, and then make campaign contributions to candidates for 6

7 election to the United States Senate and United States House of Representatives. No employee or officer of the Haliburton Corporation who has made a contribution to defendant HCPAC is an Alaska resident. Defendant HCPAC s office is located in the District of Columbia. On September 23, 2003 and October 2, 2003 defendant HCPAC contributed a total of $3, to the election campaign of Lisa Murkowski. Defendant HCPAC made its contributions to Ms. Murkowski in the District of Columbia. Defendant HCPAC made its contributions to Ms. Murkowski s campaign in order to influence the outcome of the November 2, 2004 Alaska general election in Ms. Murkowski s favor because defendant HCPAC believes that, if she wins the election, during the 109th, 110th, and 111th Congresses Senator Murkowski will cast votes on bills whose enactment will advance the financial interests of the Haliburton Company that the plaintiff and Mr. Knowles will not cast if the plaintiff or Mr. Knowles, rather than Ms. Murkowski, win the election. Defendant HCPAC also intends that, if Ms. Murkowski wins the November 2, 2004 Alaska general election, defendant HCPAC s contributions will facilitate access to Senator Murkowski by lobbyists who represent the Haliburton Company, in order to enable those lobbyists to use that access to try and influence how Senator Murkowski votes on bills whose enactment will affect the financial interests to the Haliburton Company. 10. Defendant Waste Management Employees Better Government 7

8 Fund (WMEBGF) is a political action committee that employees and officers of the Waste Management Company have organized pursuant to the FECA for the purpose of allowing such employees and officers to, first bundle together, and then make campaign contributions to candidates for election to the United States Senate and United States House of Representatives. No employee or officer of the Waste Management Company who has made a contribution to defendant WMEBGF is an Alaska resident. Defendant WMEBGF s office is located in the District of Columbia. On October 27, 2003 defendant WMEBGF contributed $1,500 to the election campaign of Lisa Murkowski. On October 27, 2003 defendant WMEBGF also contributed $1,500 to the election campaign of Tony Knowles. Defendant WMEBGF made its contributions to Ms. Murkowski and Mr. Knowles in the District of Columbia. Defendant WMEBGF made contributions to both Ms. Murkowski and Mr. Knowles because defendant WMEBGF believes that one or the other will win the November 2, 2004 Alaska general election. Whoever wins, defendant WMEBGF intends its contributions to facilitate access to Senator Murkowski or Senator Knowles by lobbyists who represent the Waste Management Company, in order to enable those lobbyists to use that access to try and influence how Senator Murkowski or Senator Knowles votes on bills whose enactment will affect the financial interests of the Waste Management Company. The contributions defendant WMEBGF made to Ms. Murkowski and Mr. Knowles are part of a strategy by the Waste Management Company to purchase access by its lobbyists to members of the United States Senate. To that end, between 1997 and 2003 defendant WMEBGF 8

9 contributed $55,000 to defendant Democratic Senatorial Campaign Committee, and $75,000 to defendant National Republican Senatorial Committee. 11. Defendant Democratic Senatorial Campaign Committee (DSCC) is a committee the National Democratic Party has organized pursuant to the FECA for the purpose of allowing individuals and political action committees to, first bundle together, and then make campaign contributions to Democratic candidates seeking election to the United States Senate. Section 315 of the FECA, as amended by section 307(c) of the BCRA, authorizes defendant DSCC to contribute $35,000 to each such candidate. Defendant DSCC s office is located in the District of Columbia. Approximately 20,000 individuals who are residents of every state have contributed to defendant DSCC. Very few of those individuals are Alaska residents. On October 2, 2003 and October 29, 2003 defendant DSCC contributed a total of $11,910 to the election campaign of Tony Knowles. Defendant DSCC made its contributions to Mr. Knowles in the District of Columbia. 12. Defendant National Republican Senatorial Committee (NRSC) is a committee the National Republican Party has organized pursuant to the FECA for the purpose of allowing individuals and political action committees to, first bundle together, and then make campaign contributions to Republican candidates seeking election to the United States Senate. Section 315 of the FECA, as 9

10 amended by section 307(c) of the BCRA, authorizes defendant NRSC to contribute $35,000 to each such candidate. Defendant NRSC s office is located in the District of Columbia. Approximately 50,000 individuals who are residents of every state have contributed to defendant NRSC. Very few of those individuals are Alaska residents. On June 20, 2003 defendant NRSC contributed $17,500 to the election campaign of Lisa Murkowski. Defendant NRSC made its contribution to Ms. Murkowski in the District of Columbia. Class Action Allegations 13. This action is brought against a class of defendants composed of defendants Jack Valenti, Michael Berman, and all other individuals who are not Alaska residents and who have made a campaign contribution to a candidate seeking election to the United States Senate in the August 24, 2004 Alaska primary and November 2, 2004 Alaska general elections, or who, unless they are enjoined by this court, will make such a contribution. a. As of the date of the filing of this action, no fewer than 632 individuals who are members of the class have made a campaign contribution to a candidate seeking election to the United States Senate in the August 24, 2004 Alaska primary and 10

11 November 2, 2004 Alaska general elections. As a consequence, the class is so numerous that joinder of all members is impracticable. b. There is a question of law common to the class, i.e., whether the making by each class member of a campaign contribution to a candidate seeking election to the United States Senate in the August 24, 2004 Alaska primary and November 2, 2004 Alaska general elections violates rights that the First and Fifth Amendments of the United States Constitution guarantee to the plaintiff. c. The defenses of defendants Jack Valenti and Michael Berman are typical of the defenses of the class. d. Defendants Jack Valenti and Michael Berman will fairly and adequately protect the interests of the class. e. The actions of defendant Jack Valenti and Michael Berman complained of herein are typical of, and generally applicable to, the class, making appropriate final injunctive relief and corresponding declaratory relief with respect to the class as a whole. 14. This action is brought against a class of defendants composed of defendants Haliburton Company Political Action Committee, Waste Management Employees Better Government Fund, and all other political action committees that have made a campaign contribution to a candidate seeking election to the United States Senate in the August 24, 2004 Alaska primary and November 2, 2004 Alaska general elections, or that, unless they are enjoined by 11

12 this court, will make such a contribution. a. As of the date of the filing of this action, no fewer than 313 political action committees who are members of the class have made a campaign contribution to a candidate seeking election to the United States Senate in the August 24, 2004 Alaska primary and November 2, 2004 Alaska general elections. As a consequence, the class is so numerous that joinder of all members is impracticable. b. There is a question of law common to the class, i.e., whether the making by each class member of a campaign contribution to a candidate seeking election to the United States Senate in the August 24, 2004 Alaska primary and November 2, 2004 Alaska general elections violates rights that the First and Fifth Amendments of the United States Constitution guarantee to the plaintiff. c. The defenses of defendants Haliburton Company Political Action Committee and Waste Management Employees Better Government Fund are typical of the defenses of the class. d. Defendants Haliburton Company Political Action Committee and Waste Management Employees Better Government Fund will fairly and adequately protect the interests of the class. e. The actions of defendants Haliburton Company Political Action Committee and Waste Management Employees Better Government 12

13 Fund complained of herein are typical of, and generally applicable to, the class, making appropriate final injunctive relief and corresponding declaratory relief with respect to the class as a whole. Federal Rule of Civil Procedure 19(c) Statement 15. This action seeks a declaratory judgment, and corresponding injunctive relief, regarding the making of, rather than the receipt of, certain campaign contributions. For that reason, the plaintiff has not joined Lisa Murkowski and Tony Knowles, the recipients of the contributions complained of herein, as defendants. However, the plaintiff informs the court that Ms. Murkowski and Mr. Knowles are subject to service of process pursuant to the District of Columbia s long-arm statute. STATEMENT OF FACTS Republican Form of Government 16. The delegates to the Constitutional Convention of 1787 did not intend the United States Constitution to create a democracy. Rather, the delegates intended the United States Constitution to create a republic in which the members of the national legislature would be elected by democratic means. 17. The republican form of government that the delegates to the Constitutional Convention of 1787 intended the United States 13

14 Constitution to create requires each member of the United States Senate to represent the interests of, and to be held accountable for his or her legislative acts exclusively to, the residents of the state the member represents. Since 1913 such residents have exercised that accountability directly by voting. 18. The delegates to the Constitutional Convention of 1787 intended the republican form of government to accomplish a fundamentally important societal objective. That objective is preventing factions from unduly influencing the decisions of the United States Senate to the factions pecuniary or policy advantage and to the detriment of the public good. The republican form of government accomplishes that objective through an elegant procedural means. Since voters who are members of a particular faction - e.g., employees and officers of the Haliburton and Waste Management Companies - reside in numerous states, their voting power is not concentrated enough to allow them to elect enough members of the United States Senate to form a majority that will be susceptible to the faction s influence. 19. The ability of the republican form of government to control the undue influence of factions through the procedural means described in paragraph no. 18 has been eroded to the point of disappearance by the system for financing Senate election campaigns that the FECA, as amended most recently by the BCRA, 14

15 authorizes. The erosion has occurred because the FECA and BCRA authorize members of factions who are not residents of - and are not eligible to vote in - the state of a candidate seeking election to the United States Senate to influence the outcome of the candidate s election by making and withholding campaign contributions. The practical consequence is that a successful candidate, i.e., a United States Senator, now is as accountable for his or her votes in committee and on the floor of the Senate to the nonresidents of his or her state who finance the candidate s election (and reelection) campaigns as the candidate is to the residents of the candidate s state who are registered to vote. The Cost of Waging a Successful Campaign for Election to the United States Senate. 20. To win election to the United States Senate a candidate must communicate information about him or herself and about his or her positions on public issues to voters who reside in the candidate's state. During the eighteenth and nineteenth centuries, candidate-voter communication was conducted by candidates and their surrogates speaking personally to voters and by the publication of information about the candidate, and his views on issues, in newspapers and periodicals. 21. During the first decades of the twentieth century advances in communication technologies began to radically reorder candidate-voter communication. Today, candidates employ those new technologies to communicate with voters through radio and 15

16 television advertisements, computer-generated direct mail, , and other means. The new technologies, and particularly radio and television advertisements, share the common attributes of costing money and being insatiable in their applications. Since no amount of candidate-voter communication is too much communication, however much money a candidate has available to spend on voter communication is the amount the candidate will, and indeed must, spend. 22. The advances in the technologies of candidate-voter communication have dramatically increased the cost of Senate election campaigns. For example, in 1970 Ted Stevens, who in 1968 had been appointed to represent Alaska in the United States Senate, ran a campaign that spent less than $200,000 to win reelection in an election that was vigorously contested. In 2002 Ted Stevens ran a campaign that spent $2.3 million to win reelection in an election that was not seriously contested because the competing candidates could not raise a comparable amount of money. The Federal Election Campaign Act 23. The FECA, as amended most recently by the BCRA, regulates the terms and conditions pursuant to which persons are authorized to make campaign contributions to candidates seeking 16

17 election to the United States Senate. The FECA authorizes persons of whom, as a matter of policy, Congress approves, to make contributions of which, as a matter of policy, Congress approves, while imposing criminal penalties on persons who make contributions of which, as a matter of policy, Congress disapproves. 24. The FECA prohibits foreign nationals who reside in the United States but who have not been admitted for permanent residence, corporations, and labor unions from making any contribution to any candidate for election to the United States Senate. Congress also has prohibited employees of defendant Federal Election Commission from making contributions to candidates for election to the United States Senate. And Congress has prohibited employees of members of the United States Senate from making contributions to the campaigns of their candidate employers. 25. With respect to persons other than those described in paragraph no. 24, the FECA, as amended most recently by the BCRA, authorizes every such person to contribute $2,000 to any candidate seeking election to the United States Senate, even if the candidate to whom the contribution is made is seeking election to the United States Senate from a state other than the state in which the contributor resides. The FECA also authorizes such persons to organize political action committees such as defendants 17

18 Haliburton Company Political Action Committee and Waste Management Employees Better Government Fund, and authorizes any such person to contribute $5,000 annually to such committee. In turn, the FECA authorizes a political action committee to contribute $5,000 to any candidate seeking election to the United States Senate. The FECA, as amended most recently by the BCRA, authorizes such persons to contribute $25,000 annually to defendants Democratic Senatorial Campaign Committee and National Republican Senatorial Committee, and authorizes those defendants to each contribute $35,000 to any candidate seeking election to the United States Senate. 26. The FECA campaign finance system described in paragraph no. 25 authorizes persons to make campaign contributions - both individually and by washing their contributions through a political action committee or a senatorial campaign committee - to candidates seeking election to the United States Senate in states in which the persons who make the contributions do not reside. All such contributions are made for the purpose of influencing the outcome of elections in which the nonresident contributors have no cognizable constitutionally protected interest because the contributors have no right to vote. Many nonresident contributors also make contributions to candidates for whom the contributors have no right to vote in order to incur the psychological debt of the candidate to whom the contribution is made so that, if the 18

19 candidate is elected to the United States Senate, the person who made the contribution - or that person s representative, i.e., lobbyist, - will have access to the Senator that such person or representative will use to try and influence the Senator to cast votes in the United States Senate that will advance the pecuniary or policy interests of the contributor. 27. Until their voluntary retirement, a principal objective of every candidate who has been elected to the United States Senate is to be reelected. To achieve that objective, as soon as a successful candidate is sworn into office, for the reasons described in paragraph nos. 21 and 22, he or she must begin anew the cycle of soliciting campaign contributions from individuals who are not residents of the state the Senator represents, and, hence, are not the Senator s constituents in the sense that political science defines the word. However, for the purposes of raising the money that today must be raised in order to finance a successful campaign for the United States Senate, such nonresident contributors are constituents in a practical sense. Because they are, every member of the United States Senate is as accountable to their nonresident individual and committee contributors for their legislative acts (including affording personal access) as they are to voters who are residents of the state the Senator represents. That stark reality is a consequence of the FECA campaign finance system, and a distortion of the 19

20 republican form of government that the delegates to the Constitutional Convention of 1787 intended the United States Constitution to enshrine. The November 2, 2004 Alaska Election 28. Alaska has a long history of independent voters and independent and third-party candidacies. Today, 240,297 (51.3 percent) of Alaska s 467,915 registered voters are not members of any political party. Another 36,945 (7.9 percent) registered voters are members of a political party other than the Democratic and Republican Parties, including the Green Party of which the plaintiff is a member. In 1978 an independent candidate won 12 percent of the vote in that year s gubernatorial election. In 1978, 1980, and 1984 candidates from the Alaska Libertarian Party were elected to the Alaska State Legislature. In 1990 Walter Hickel, the nominee of the Alaska Independence Party, was elected governor of Alaska. 29. In 1990 the plaintiff, the nominee of the Green Party, won 3.3 percent of the vote in that year s Alaska gubernatorial election. In 1994 the plaintiff won 4.1 percent of the vote in that year s Alaska gubernatorial election. Also in 1994, Joni Whitmore, the nominee of the Green Party, won 10.2 percent of the vote in the election for Alaska s seat in the United States House of Representatives. In 2002 the plaintiff won 7.24 percent of the vote in the election for the Alaska seat in the United States Senate that Ted Stevens continues to occupy. Also in 2002, Russell deforest, the nominee of the Green Party, won

21 percent of the vote in the election for Alaska s seat in the United States House of Representatives. 30. Over the years, the plaintiff and other third party candidates have failed to attract more than 10 percent of the vote in elections for statewide federal office for a simple reason. With the exception of Walter Hickel, who financed much of his successful 1990 gubernatorial campaign with his own personal wealth, third party candidates have not been able to attract sufficient campaign contributions from the small group of persons, many of whom have special interest agendas such as those of the individual and committee defendants in this action, who contribute to Democratic and Republican candidates. 31. The November 2, 2004 Alaska general election in which the plaintiff is a candidate for election to the United States Senate illustrates the situation described in paragraph no. 30. Of 467,916 registered voters in Alaska, to date Lisa Murkowski, the Republican Party s presumptive nominee, and Tony Knowles, the Democratic Party s presumptive nominee, have received campaign contributions in any amount from, at most, 2,000 Alaska residents. As a consequence, they are financing the campaigns that are competing against the plaintiff s campaign with contributions they have solicited from individuals who are not Alaska residents and 21

22 are not eligible to vote in Alaska, many of whom, like defendants Jack Valenti and Michael Berman, are professional lobbyists or otherwise have parochial pecuniary and policy agendas whose achievement they intend the making of their contributions to advance. Ms. Murkowski and Mr. Knowles also are financing their campaigns with contributions they have solicited from defendants Haliburton Company Political Action Committee, Waste Management Employees Better Government Fund, and other political action committees, and defendants Democratic Senatorial Campaign Committee and National Republican Senatorial Committee, whose parochial pecuniary and policy agendas are even more explicit than those of the individual defendants. As of the date of the filing of this action, defendant Federal Election Commission reports that Ms. Murkowski and Mr. Knowles have received the following campaign contributions from the following sources: LISA MURKOWSKI TONY KNOWLES Transfers from Authorized Committees $110,545 Individual Contributions 1,055,364 $872,419 Reported Alaska residents 401, ,703 Reported NonAlaska residents 554, ,050 Political Action Committees 662, ,977 Republican and Democratic Party Committees 28,450 34,000 Total Receipts $1,880,495 $1,045,396 22

23 32. During the 2004 Alaska Senate election the plaintiff expects to receive campaign contributions from Alaska residents that total $500,000. Even if he solicited them, the plaintiff would receive few, if any, contributions from defendants Jack Valenti and Michael Berman and other non-alaska residents, no contributions from defendants Haliburton Company Political Action Committee and Waste Management Employees Better Government Fund and other political action committees, and no contributions from defendants Democratic Senatorial Campaign Committee and National Republican Senatorial Committee. The data set out in paragraph no. 31 demonstrate that, if the FECA required a candidate seeking election to the United States Senate to obtain campaign contributions only from residents of the state the candidate seeks to represent, plaintiff Sykes would have an opportunity to run a campaign that, with respect to the purchase of candidate-voter communication, would be comparable to the amount of candidatevoter communication Ms. Murkowski and Tony Knowles would have money available to purchase. And as the delegates to the Constitutional Convention of 1787 intended, whichever candidate 23

24 Alaska voters elected would be accountable for his or her subsequent votes cast in committee and on the floor of the Senate exclusively to his or her constituents: the residents of Alaska. As the delegates intended, they also would not be susceptible to the influence that individuals such as defendants Jack Valenti and Michael Berman, and lobbyists who represent political action committees such as defendants Haliburton Company Political Action Committee and Waste Management Employees Better Government Fund, wield by making and withholding campaign contributions. IRREPARABLE HARM 33. Unless individuals who are not residents of Alaska are enjoined by this court from making campaign contributions (both individually and through a political action and senatorial campaign committee) to candidates seeking election to the United States Senate in the November 2, 2004 Alaska general election, between the date of filing of this action and the November 2, 2004 general election, the candidates who have received such contributions and against whom the plaintiff is competing in that election will expend the monies they receive from such nonresident contributors to purchase radio and television commercials, computer-generated mailings, and other forms of candidate-voter communication far in excess of the amount of candidate-voter communication they could purchase if the FECA required the candidates to finance their campaigns exclusively with contributions made by Alaska residents. 34. The excessive expenditures for candidate-voter communication described in paragraph no. 33 will substantially and 24

25 purposefully interfere with, disrupt, infringe upon, and drown out the plaintiff s communication with Alaska voters, and, in so doing, will significantly and severely burden the plaintiff s exercise of his right to associate politically with Alaska voters for the purpose of persuading such voters to support his candidacy for election to the United States Senate. 35. The plaintiff has no adequate remedy at law to prevent the interferences, disruptions, and infringements described in paragraph no 34. FIRST CLAIM FOR RELIEF 36. The plaintiff incorporates paragraph nos. 1 through 35 by reference. 37. The right of the plaintiff to associate politically, both as a candidate and as a voter, with other Alaska voters for the purpose of electing one of their number to represent such voters, as well as all other Alaska residents, in the United States Senate is a fundamental right that the First Amendment of the United States Constitution guarantees to the plaintiff. 38. The FECA, as amended most recently by the BCRA, authorizes the individual and committee defendants in this action to make contributions to the candidates against whom the plaintiff is competing for election to the United States Senate in the November 2, 2004 Alaska general election. 25

26 39. Pursuant to the authorization described in paragraph no. 38, the individual and committee defendants have made the contributions described in paragraph nos. 7 through 12, 13a, 14a, 31, 38 and 39. And the FECA acknowledges that the defendants have done so for the explicit purpose of having their money influence the outcome of the election in which the plaintiff is a candidate. 40. The authorizations in the FECA, as amended most recently by the BCRA, and the campaign contributions of the defendants described in paragraph nos. 7 through 12, 13a, 14a, 31, 38 and 39, significantly and severely burden the plaintiff s exercise, both as a candidate and voter, of his right to political association described in paragraph no The significant and severe burden that the authorizations in the FECA, as amended most recently by the BCRA, and the contributions of the defendants described in paragraph nos. 7 through 12, 13a, 14a, 31, 38 and 39, impose upon the plaintiff s exercise of his right to political association described in paragraph no. 37 is not justified because necessary to advance any compelling governmental interest. As a consequence, to the extent that provisions of the FECA, as amended most recently by the BCRA, authorize such burden to be imposed upon the plaintiff s exercise of his right to political association, such provisions violate rights that the First and Fifth Amendment of the United States Constitution guarantee to the 26

27 plaintiff. SECOND CLAIM FOR RELIEF 42. The plaintiff incorporates paragraph nos. 1 through 41 by reference. 43. If the significant and severe burden upon the plaintiff s exercise of his right to political association described in paragraph no. 37 is justified because necessary to advance a compelling governmental interest, the provisions of the FECA, as amended most recently by the BCRA, that authorize the imposition of that burden are not narrowly tailored. As a consequence, such provisions violate rights that the First and Fifth Amendment of the United States Constitution guarantee to the plaintiff. PRAYER WHEREFORE the plaintiff requests that this court: 1. Certify this action as a class action; 2. As appropriate, a. Pursuant to section 403 of the BCRA, convene a three-judge court pursuant to 28 U.S.C. 2284, or b. Pursuant to 2 U.S.C. 437(h), certify the following questions to the United States Court of Appeals for the District of Columbia Circuit: i. To the extent that provisions of the FECA, as amended most recently by the BCRA, authorize individuals 27

28 who are not Alaska residents to make campaign contributions (both individually and through a political action or senatorial campaign committee) to candidates seeking election to the United States Senate in the November 2, 2004 Alaska general election for the purpose of influencing the outcome of that election, do such provisions and contributions significantly and severely burden the plaintiff s exercise of his right, both as a candidate and as a voter, to associate politically with other Alaska voters? ii. If the answer to the previous question is yes, is the significant and severe burden imposed upon the plaintiff s exercise of his right to political association justified in order to advance a compelling governmental interest? iii. If the answer to the previous question is yes, are the provisions of the FECA, as amended mostly recently by the BCRA, that authorize the significant and severe burden that is being imposed upon the plaintiff s exercise of his right to political association narrowly tailored? 3. Enter a declaratory judgment that to the extent provisions of the FECA, as amended most recently by the BCRA, authorize individuals who are not Alaska residents to make 28

29 campaign contributions (both individually and through a political action or senatorial campaign committee) to candidates seeking election to the United States Senate in the November 2, 2004 Alaska general election for the purpose of influencing the outcome of that election, such provisions and such contributions significantly and severely burden the plaintiff s exercise of his right to political association in violation of rights that the First and Fifth Amendment of the United States Constitution guarantee to the plaintiff. 4. Enter both a preliminary and a permanent injunction enjoining the individual, political action committee, and senatorial campaign committee defendants in this action and the members of the classes they represent from making campaign contributions to candidates seeking election to the United States Senate in the November 2, 2004 Alaska general election, and directing such defendants and class members to seek the return of contributions made prior to the entry of the court s injunction. 5. Award the plaintiff his costs and a reasonable attorney's fee; and 6. Award the plaintiff such other relief as the court deems just. DATED: February 24,

30 Donald Craig Mitchell DC Bar No F Street Anchorage, Alaska (907) (907) Fax Attorney for Plaintiff 30