RNC (Cao) v. FEC: FEC’s response to Plaintiffs’ motion to certify questions of constitutionality to the Court of Appeals

Jan 27, 2009

Defendant FEC’s Response to Plaintiffs’ Motion to Certify Questions of Constitutionality to the Court of Appeals en banc. Defendant argues that  many of the questions plaintiffs have proposed for certification to the en banc Court of Appeals under 2 U.S.C. § 437h are not sufficiently substantial for that extraordinary procedure. In any event, certification of any question is premature, because several of plaintiffs’ constitutional claims first require clarification, statutory or regulatory interpretation, and the development of an adequate factual record. Accordingly, the Court should set a discovery schedule to be followed by the submission of proposed factual findings, briefing on those proposed findings, and subsequent legal briefing as to the certification of the questions plaintiffs have raised.

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