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April 17, 1995


The opinion of the court was delivered by: I. LEO GLASSER

 GLASSER, United States District Judge:


 Plaintiffs' Claims and Relief Sought

 Plaintiffs have brought this action to challenge the constitutionality of various aspects of the current system through which congressional elections are financed. They denote the system they challenge the "wealth primary," and base their case upon the Equal Protection Clause of the Fourteenth Amendment, the First Amendment, and Article I, Section 2 of the United States Constitution. *fn1" Specifically, plaintiffs' challenge the existing laws which structure the way in which public and private funds are accumulated and used by incumbent members of the House of Representatives in seeking re-election. They define the "wealth primary" as:

"the exclusionary campaign finance process in federal elections which heavily favors incumbents, wealthy candidates, and candidates backed by affluent supporters and monied interests and which, simultaneously, prevents potential office seekers lacking personal wealth or affluent backers from competing effectively for political office."

 Complaint P2. In this action, plaintiffs have explicitly challenged the constitutionality of the Federal Election Campaign Act of 1971, 2 U.S.C. § 431 et seq. ("FECA"), and the authorization of funds for the congressional franking of mail, 39 U.S.C. § 3210. They seek the following declaratory relief: (1) the invalidation of the wealth primary in the 13th Congressional District for the State of New York; (2) the invalidation of the FECA insofar as it allows for the use of private monies in federal elections; (3) the invalidation of the franking statute unless and until equal funds are appropriated for qualified challengers to incumbent federal office holders; and (4) that members of the United States Congress be declared to be acting as private citizens when engaged in activity as a candidate, and that the government may not provide that member with a subsidy that is not shared equally by other candidates for that office.

 Parties to the Action

 All of the plaintiffs are registered voters residing in the 13th Congressional District of the State of New York. Plaintiff Albanese, a New York City Councilman, was the 1992 Democratic Party congressional candidate for the 13th District. He lost that election to Defendant Molinari who continues to represent the 13th District in the House of Representatives. Plaintiff Carl considered running for congress from the 13th District as an independent candidate in 1992, but chose not to because he did not believe he could raise the funds necessary to run effectively. The various other plaintiffs in this action are individuals who voted for Plaintiff Albanese in the 1992 election, some of whom worked on his campaign as volunteers.

 As mentioned above, Defendant Molinari is the current Representative for the 13th District, re-elected for her third term in 1994. Defendant Committee To Re-Elect Susan Molinari (the "Committee") is the entity through which money was raised and spent for Rep. Molinari's campaigns. Defendant Federal Election Commission ("FEC") is the agency established by the FECA to interpret and enforce the provisions of that statute.


 The facts underlying this action are uncontested by the parties. As previously mentioned, Plaintiff Albanese was the 1992 Democratic congressional candidate for the 13th District. In the course of that campaign, he raised $ 267,248 in support of his candidacy from political action committees and individuals. Rep. Molinari, the victorious Republican candidate, and the Committee raised $ 524,112 in support of her re-election from groups and individuals. Rep. Molinari utilized various campaign tools, such as television advertisements and district wide mailings, that her challenger claims he could not afford. Defendants concede that Rep. Molinari, as an incumbent, lawfully utilized franked mail and her office staff, in manners consistent with their respective restrictions. In the election, Ms. Molinari received 55% of the vote to 39% for Plaintiff Albanese. There is no claim that this election did not comply with the FECA and other campaign laws, or that the FEC did not discharge its responsibilities in that regard.

 In the 1994 election cycle, Plaintiff Albanese chose not to challenge Rep. Molinari again because he believed he could not raise the funds necessary to mount an effective campaign. The other plaintiffs in this action wished to support Plaintiff Albanese's candidacy but could not do so in 1994 due to his decision not to run for office.

 The defendants have brought these motions to dismiss the complaint with respect to the claims raised against each of them, respectively. *fn2" Each defendant contends that plaintiffs' complaint should be dismissed pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction, asserting that plaintiffs lack standing to maintain this action, and Fed.R.Civ.P. 12(b)(6) that the complaint fails to state a claim upon which relief can be granted.


 Standards Under Rule 12(b)

 At the outset it is important to note the standards for determining these motions. When deciding a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court must take all allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Ortiz v. Cornetta, 867 F.2d 146, 149 (2d Cir. 1989). A complaint should not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); see also Easton v. Sundram, 947 F.2d 1011, 1014-15 (2d Cir. 1991), cert. denied, 504 U.S. 911, 112 S. Ct. 1943, 118 L. Ed. 2d 548 (1992).

 However, with regard to a motion pursuant to Rule 12(b)(1), which questions the jurisdiction of a court to entertain the action, the standard may be different. As one court aptly noted recently:

Rule 12(b)(1) motions to dismiss based upon [lack of] subject matter jurisdiction generally come in two varieties. A facial attack. . .merely questions the sufficiency of the pleading. In reviewing such a facial attack, a trial court takes the allegations in the complaint as true, which is a similar safeguard employed under 12(b)(6) motions to dismiss. On the other hand, when a court reviews a complaint under a factual attack. . .no presumptive truthfulness applies to the factual allegations. . .When facts presented to the district court give rise to a factual controversy, the district court must. . .arrive at the factual predicate that subject matter jurisdiction exists or does not exist.

 Ohio Nat. Life Ins. Co. v. U.S., 922 F.2d 320 (6th Cir. 1990); see also Wright & Miller, 5A Federal Practice and Procedure §§ 1350, 1364; United Transp. Unions 385 & 77 v. Metro North Commuter, 862 F. Supp. 55, 57 (S.D.N.Y. 1994). This discussion will first address defendants' motions pursuant to Rule 12(b)(1) and then turn to their claims under Rule 12(b)(6) in the context of each aspect of plaintiffs' action.

 The Requirement for Standing - Generally

 "Article III of the Constitution confines the federal courts to adjudicating actual 'cases' and 'controversies.' As the [Supreme] Court explained in Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 471-476, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982), the 'case or controversy' requirement defines with respect to the Judicial Branch the idea of separation of powers upon which the Federal Government is founded." Allen v. Wright, 468 U.S. 737, 750, 82 L. Ed. 2d 556, 104 S. Ct. 3315 (1983). The Court in Allen adopted Judge Bork's concurring opinion in Vander Jagt v. O'Neill, 226 U.S. App. D.C. 14, 699 F.2d 1166, 1178 (D.C.Cir.), cert. den. 464 U.S. 823, 78 L. Ed. 2d 98, 104 S. Ct. 91 (1983), as follows:

All of the doctrines that cluster about Article III -- not only standing but mootness, ripeness, political question, and the like -- relate in part, and in different though overlapping ways, to an idea, which is more than an intuition but less than a rigorous and explicit theory, about the constitutional and prudential limits ...

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