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Graves Garrett LLC 

Todd P. Graves Edward D. Greim 

Direct Dial: (816) 256-3173 Direct Dial: (816) 256-4144 

Fax:(816)817-0780 Fax:(816) 817-0863 

tgraves@gravesgarrett.com edgreim@gravesgarrett.com 

May 4, 2015 

Via U.S. Mail and Electronic Mail to fhampton@fec.gov 

Jeff S. Jordan 

Assistant General Counsel 

Federal Election Commission 

^ Office of Complaints Examination 

T and Legal Administration 

I 999 E Street, NW 

4 Washington, DC 20436 

9 4 Re: Now or Never PAC (Matter Number MUR 6920) 

Dear Mr. Jordan: 

Our client. Now or Never PAC, ("Now or Never") submits this letter in response to a Complaint filed 

by Citizens for Responsibility and Ethics in Washington ("CREW"). CREW's Complaint alleges that Now 

or Never and its treasurer, James C. Thomas; violated the Federal Election Campaign Act of 1971, as 

amended ("FECA"), and Federal Election Commission ("FEC") regulations by knowingly accepting a 

contribution in the name of another. The Complaint, filed by a self-titled "watchdog" group that regularly 

brings frivolous complaints against conservative-leaning entities, is baseless. We respectfully request that the 

Commission dismiss the Complaint in this matter, as it is not worthy of the Commission's limited time and 

resources. 

I. Background 

Now or Never is an independent expenditure-only committee (Super PAC) formed in 2012. During 

the 2012 election cycle, it received $8,250,500 in contributions and spent $7,760,174 on independent 

expenditures, which it reported to the FEC. 

The Complaint focuses on an October 31, 2012 contribution Now or Never received from 

American Conservative Union (ACU) via wire transfer in the amount of $1.71 million. The Committee 

timely reported this contribution to the FEC on December 5, 2012. 

The Complaint alleges that the funds for this contribution were not from ACU, and as a result, 

ACU knowingly made a contribution in the name of another in violation of FEC rules. The Complaint 

relies on an 2014 amendment to ACU's IRS Form 990 tax return, which apparently included language 

by ACU's auditors that stated that the $1.71 million was "a political contribution received by [ACU] and 

1100 Main street. Suite 2700 Kansas City. MO 64105 pli 816.256.3181 www.gravesgarrett.cam 
Graves Garrett LLC 

promptly and directly delivered to a separate political organization." Complaint at ^ 19. With respect to 

Now or Never, the Complaint further alleges that Now or Never violated FECA and PEC regulations "if 

Now or Never PAC knowingly accepted a $1.71 million contribution from ACU made in the name of 

another". Complaint at TI 25. 

II. Legal Analysis 

As an independent expenditure-only committee, Now or Never may raise unlimited sums of 

money from corporations, unions, individuals, and associations, including 501(c)(4) nonprofit 

organizations such as ACU. It may also spend unlimited sums to advocate for or against federal 

candidates, while reporting its donors to the EEC. During the 2012 election cycle. Now or Never 

lawfully raised and spent money to advocate for and against candidates and complied with all reporting 

requirements by publicly disclosing its contributions, including the contribution received from ACU. 

A. Section 441 f is designed to prevent the circumvention of contribution limits, which do 

not apply to Super PACs like Now or Never 

The Complaint alleges that if Now or Never knowingly accepted the contribution from ACU 

• made in the name of another, it violated 2 U.S.C. § 44 If (current version at 52 U.S.C. § 30122). Section 

44If provides that "no person shall make a contribution in the name of another person or knowingly 

permit his name to be sued to effect such a contribution, and no person shall knowingly accept a 

contribution made by one person in the name of another person." Id. 

Section 44If, which has been enforced in situations where contributions have been made to 

candidates, separate segregated funds, and traditional PACs, was designed to prevent the circumvention 

of contribution limits. In an amicus brief filed in 2009, the EEC highlighted the anti-circumvention goal 

of section 44If, recognizing "section 44irs anti-circumvention purpose" and noting that 441 f is 

designed to prevent the circumvention of contribution limits.' As the Commission noted, the Supreme 

Court has even observed section 44IPs goal of "deterrence of 'corruption by conduit,' i.e., 'donations 

by parents through their minor children to circumvent contribution limits applicable to the parents.'" 

Amicus at 14, citing McConnell v. FEC, 540 U.S. 93, 232 (2003). 

Legislative history also shows the purpose of 44If was to prevent individuals from using 

conduits to evade contribution limits. For example, during the Senate floor debate on the bill that 

eventually became Section 441 f, one of the bill's principal sponsors directly addressed the problem of 

wealthy individuals using conduit contributors to evade the individual contribution limits: 

' See United States v. O 'Donnell, Case No. 09-50296 (9"' Cir. 2010), (brief amicus curiae of the FEC discussing 

the "purpose of section 44 If in particular and of the provision's role in the broader context of the Federal Election 

Campaign Act",), available at http://www.fec.gov/law/lUigation/odonnell Jec_amicus.pdf 

1100 Main street. Suite 2700 Kansos City. MO 64105 pti 816.256.3181 www.gravesgorrett.com 
Graves Garrett uc 

If he is limited to $5,000, what does he do? He has uo limitation on his own 

money. He is a man of influence. He wants to find $200,000. He finds 40 fiiends 

and gives it to them and each of them gives back $5,000. Let us close that 

loophole and go after the man who would bribe the election because he is so well 

fixed. 

117 Cong. Rec. S29295 (daily ed. Aug. 4, 1971) (statement of Sen. Scott). 

Section 44If is a inle designed to prevent circumvention of contribution limits. Here, no 

contribution limits apply to Now or Never, as it is an independent expenditure-only conunittee. 

Ciicumveution of conhibution limits is not a concern for contr ibutions to Super PACs like Now or 

Never, as it may accept unlimited contributions and the Supreme Coui-t has foimd there is no risk of 

corruption. Indeed, since Buckley v. Vnleo, the Supreme Court has recogirized there is a major 

distinction between independent expenditmes and corrtributions to candidates. 424 U.S. 1, 26-27 (1976). 

Contributions to candidates may be restricted because of the risk that they will result in quid pro quo 

corruption, a lestraint strengthened by the enforcement of section 441 f. However, independent 

expenditures—like tlrose made by Now or Never—present no corresponding threat of comrption. See 

Buckley, 424 U.S. at 45; Citizens United v. FEC, 558 U.S. 310, 357 (2010) ("independent 

expenditmes... do not give rise to conription or the appearance of corruption."). 

Section 44If was enacted to address the concern that contributions to candidates risk quid pro 

quo corrription. Indepeudent expenditure-only conuuittees like Now or Never present no such risk. 

B. Now or Never did not violate section 441f 

Now or Never PAC received a contribution fioirr ACU and publicly disclosed the contribution as 

required by law. Now or Never PACs receipt of the contribution did not violate section 44If. As the 

FEC has noted, section 44 If is desigtred to prevent the circumvention of contribution lirnits—lirrrits that 

do irot apply to Now or Never PAC. 

We could find no case or enforcement action where the FEC has applied section 44If to an 

independent expenditure-only conunittee such as Now or Never. Because there is no arrti-corruption 

interest met by etrforcing section 44If against irrdependent expenditiue-ouly committees, this is 

lursuiprising. Irrdeed, the justification for contribution limits—the risk of quid pro quo comrptioir—is 

elimirrated in the context of Super PACs. 

III. Conclusion 

Sectioir 441 f was enacted bug before the advent of Super PACs, and Congress simply did not 

envision independent expenditure-only conuuittees when it wrote 44If. At best, the issue is far* fi:om 

settled, and the FEC shoirld decline use this enforcement action to rewrite 44 If to apply to Super PACs. 

I ICQ Main street. Suite 2700 tioruasClty. MO64I0S pti8IS.2S6.3l8i www.gravesgorrett.com 
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Graves Garrett ac 

Thank you for yoiu" consideration of this matter. Please do not hesitate to contact me with any 

questions. 

Vei7 tinly yoius. 

Edward D. Greim 

1100 Moin Sheet. Suite 2700 Kai'iios City. MO 6410S ph 816.256.3181 www.gfavesgariett.com