August 2008 Federal Election Commission Volume 34, Number 8

Table of Contents

(continued on page 2) (continued on page 4)

 Commission

1 New Commissioners Join the 

Commission

3 Commission Statement on Davis v. 

FEC

 Court Cases

1 Davis v. FEC

6 SpeechNow v. FEC

8 Bialek v. Mukasey

8 DNC v. FEC

 Public Funding

9 Commission Certifies Primary 

Matching Fund Payments

10 Advisory Opinions

 Outreach

10 Roundtable on Pre-Election 

Communications

10 Index

Commission Court Cases

New Commissioners Join 

the Commission

On June 24, 2008, the U.S. Senate 

confirmed five new commissioners: 

Cynthia L. Bauerly, Caroline C. 

Hunter, Donald F. McGahn II, 

Matthew S. Petersen and Steven 

T. Walther. On July 10, 2008, 

the Commission elected Mr. 

McGahn as Chairman and Mr. 

Walther as Vice Chairman. The 

new commissioners join current 

Commissioner Ellen L. Weintraub.

Chairman Donald F. McGahn II

Prior to joining the Commission, 

Chairman McGahn was the head 

of McGahn & Associates PLLC, a 

Washington, DC, based law practice specializing in political law. He 

represented and advised a number 

of political clients, including federal and state candidates, Members of 

the U.S. House and Senate, national 

state and local party committees, 

leadership PACs, corporations and 

corporate PACs, non-profits, trade 

associations and others involved 

in the political process on issues 

such as campaign finance law and 

government ethics.

From 1999 to 2008, Chairman 

McGahn served as the General 

Counsel for the National Republican Congressional Committee 

Davis v. FEC

On June 26, 2008, the Supreme 

Court ruled that provisions of 

the Bipartisan Campaign Reform 

Act (BCRA) known as the “Millionaires’ Amendment” (2 U.S.C. 

§319(a) and (b)) unconstitutionally burden the First Amendment 

rights of self-financed candidates. 

The decision overturned an earlier 

ruling by the U.S. District Court for 

the District of Columbia that the 

Millionaires’ Amendment posed no 

threat to self-financed candidates’ 

First Amendment or Equal Protection rights.

Background

On March 30, 2006, Jack Davis, a candidate for the House of 

Representatives in New York’s 26th 

District, filed a Statement of Candidacy with the FEC declaring his 

intent to spend over $350,000 of his 

own funds on his campaign.

On June 6, 2006, Davis asked the 

U.S. District Court for the District 

of Columbia to declare the Millionaires’ Amendment provisions 

unconstitutional on their face, and 

to issue an injunction barring the 

FEC from enforcing those provisions. Mr. Davis argued that the 

Millionaires’ Amendment violates 

the First Amendment by chilling 
Federal Election Commission RECORD August 2008

2

Federal Election Commission

999 E Street, NW

Washington, DC 20463

800/424-9530

202/694-1100

202/501-3413 (FEC Faxline)

202/219-3336 (TDD for the

 hearing impaired)

Donald F. McGahn II, Chairman

Steven T. Walther, Vice Chairman

Cynthia L. Bauerly, 

 Commissioner

Caroline C. Hunter, 

 Commissioner

Matthew W. Petersen, 

 Commissioner

Ellen L. Weintraub, 

 Commissioner

Thomasenia Duncan, 

 General Counsel

Published by the Information

 Division of the Office of 

 Communications

Greg J. Scott, Assistant Staff

 Director

Amy L. Kort, Deputy Assistant 

 Staff Director

Meredith E. Metzler, Editor

http://www.fec.gov

Commission

(continued from page 1)

(NRCC) in Washington, DC. He 

also served as Counsel for the Illinois Republican Party from 2005 

to 2008.

Prior to serving as General 

Counsel for the NRCC, Chairman 

McGahn practiced law with the 

Washington, DC, office of Patton 

Boggs LLP as a member of the 

firm’s litigation group. He advised 

and represented elected officials, 

candidates, national and state 

parties and others on election law 

issues. In addition to political law, 

he handled all matters of complex 

litigation and was recognized for 

significant pro bono work for the 

Lawyers’ Committee for Civil 

Rights Under Law.

Chairman McGahn clerked for 

the Honorable Charles R. Alexander 

at the Court of Common Pleas in 

Clarion, PA. He received his law 

degree from Widener University 

School of Law and his undergraduate degree from the University of 

Notre Dame.

Vice Chairman Steven T. Walther 

Vice Chairman Walther, was first 

sworn in as a Commissioner on January 10, 2006, as a recess appointee. Although his name was placed 

before the Senate for confirmation 

in June 2007, his recess term expired on December 31, 2007, before 

the Senate acted. On June 24, 2008, 

he was unanimously confirmed by 

the Senate and was sworn in on 

June 27, 2008, to resume the balance of his statutory term.

Prior to his appointment, Vice 

Chairman Walther was an attorney 

in private practice at Walther, Key, 

Maupin, Oats, Cox & Legoy, which 

he co-founded in 1972. Mr. Walther 

has been active in numerous professional legal and judicial activities. 

He has served as a member of the 

Board of Governors of the American Bar Association and currently 

serves as co-chair of the ABA Center for Human Rights. He has been 

active in ABA initiatives focusing 

on international relations—especially in programs which promote 

development of fair and open election laws—and has served as the 

ABA Representative to the United 

Nations.

He was on the Board of Trustees 

of the National Judicial College and 

served for many years as a lecturer 

and educator on rule of law, human 

rights and international law issues 

for judges in both the United States 

and Russia. He is a former president of the State Bar of Nevada, the 

Western States Bar Conference and 

the National Caucus of State Bar 

Associations.

Vice Chairman Walther received 

a B.A. from the University of Notre 

Dame with a major in Russian. He 

received his J.D. from the Boalt 

Hall School of Law, University of 

California, Berkeley, and recently 

served as president of the Boalt 

Hall Alumni Association.

Commissioner Cynthia L. 

Bauerly

Prior to her appointment to the 

Commission, Ms. Bauerly served 

as Legislative Director for Senator 

Charles E. Schumer of New York. 

She directed all aspects of the Senator’s legislative agenda by setting 

and implementing legislative priorities, managing policy staff, advising the Senator on floor strategy, 

campaign finance and ethics policy, 

overseeing committee and subcommittee activities and coordinating 

with communications staff.

In 2004 and 2005, Ms. Bauerly 

specialized in intellectual property 

and business litigation with Fredrikson & Byron in Minneapolis, 

Minnesota. From February until 

November 2005, she was the policy 

director for Amy Klobuchar’s successful U.S. Senate campaign in 

Minnesota.

From 2002 to 2004, Ms. Bauerly served as Senator Schumer’s 

counsel on the Senate Judiciary and 

Rules Committees. In this position, she advised Senator Schumer 

on a broad range of policy matters 

including election reform, campaign finance, technology, telecommunications, intellectual property, 

antitrust, legal process reform and 

immigration.

Prior to her work for Senator 

Schumer, she specialized in complex litigation and appellate law at 

Jones Day in Washington, DC. She 

previously served as a judicial clerk 

for the Honorable Florence-Marie 

Cooper of the U.S. District Court 

for the Central District of California and the Honorable Theodore 

R. Boehm of the Indiana Supreme 

Court.

Ms. Bauerly graduated cum 

laude from Indiana University 

School of Law-Bloomington and 

received a Master of Public Affairs 

from Indiana University’s School of 
August 2008 Federal Election Commission RECORD

3

(continued on page 4)

Environmental and Public Affairs. 

Ms. Bauerly is a summa cum laude

graduate of Concordia College in 

Moorhead, Minnesota.

Commissioner Caroline C. 

Hunter

Ms. Hunter previously served as 

the Vice-Chair of the United States 

Election Assistance Commission 

(EAC). She was nominated to the 

EAC in 2006 and confirmed by the 

U.S. Senate on February 15, 2007.

Prior to joining the EAC, Ms. 

Hunter served as deputy director of the White House Office of 

Public Liason from January to 

October 2006. From 2005 to 2006, 

she served as executive officer at 

the U.S. Department of Homeland 

Security, Office of Citizenship and 

Immigration Services Ombudsman.

From 2001 to 2005, Ms. Hunter 

was associate counsel and then 

deputy counsel at the Republican 

National Committee, where she 

provided guidance on election law 

and the implementation of the Help 

America Vote Act.

Ms. Hunter graduated cum laude

from the University of Memphis 

School of Law and received her 

bachelor of arts degree from The 

Pennsylvania State University.

Commissioner Matthew S. 

Petersen

From 2005 until his appointment 

to the Commission, Mr. Petersen 

served as Republican chief counsel 

to the U.S. Senate Committee on 

Rules and Administration. As chief 

counsel, Mr. Petersen provided 

counsel on issues relating to federal 

campaign finance and election 

administration laws as well as the 

Standing Rules of the Senate.

Prior to his position with the 

Senate Rules Committee, Mr. Petersen served as counsel to the U.S. 

House of Representatives Committee on House Administration. 

During his tenure, Mr. Petersen was 

extensively involved in the crafting of the Help America Vote Act 

of 2002 (HAVA) and the HouseSenate negotiations that culminated 

in HAVA’s passage. From 1999 to 

2002, Mr. Petersen specialized in 

election and campaign finance law 

at the law firm of Wiley Rein LLP 

in Washington, DC.

Mr. Petersen received his law 

degree from the University of 

Virginia School of Law, where he 

was a member of the Virginia Law 

Review. He graduated magna cum 

laude with a bachelor of arts degree 

in philosophy from Brigham Young 

University. He also received an A.S. 

degree with high honors from Utah 

Valley State College.

 —Meredith Metzler

Commission Statement on 

Davis v. FEC

On June 26, 2008, the Supreme 

Court issued its decision in Davis 

v. FEC, 554 U.S. __, No. 07-320, 

and found Sections 319(a) and 

319(b) of the Bipartisan Campaign 

Reform Act of 20021—the so-called 

“Millionaires’ Amendment” (the 

“Amendment”)—unconstitutional 

because they violate the First 

Amendment to the U.S. Constitution.2 The Court’s analysis in Davis

precludes enforcement of the House 

provision and effectively precludes 

enforcement of the Senate provision 

as well.

This public statement outlines 

the general principles the Commission will apply to conform to the 

Court’s decision.

• The Commission will no longer 

enforce the Amendment and will 

initiate a rulemaking shortly to 

1 2 U.S.C. § 441a-1.

2 Under the “Millionaires’ Amendment,” 

when a candidate’s personal expenditures exceeded certain thresholds, that 

candidate’s opponent(s) became eligible 

to receive contributions from individuals 

at an increased limit and to benefit from 

enhanced coordinated party expenditures.

conform its rules to the Court’s 

decision.

• As of June 26, 2008, any FEC 

disclosure requirements related 

solely to the Amendment need not 

be followed. There is no longer 

a need to file the Declaration of 

Intent portion of the Statement of 

Candidacy (Lines 9A and 9B of 

Form 2), FEC Form 10, Form 11, 

Form 12, or Form 3Z-1. 

• All other filing obligations unrelated to the Amendment remain 

the same. For example, contributions a candidate makes to his or 

her own campaign must still be 

reported.

• As of June 26, 2008, opponents 

of self-financed candidates who 

triggered the Amendment may not 

accept increased contributions.

AO Search System 

Available

The FEC has an Advisory Opinion 

Search System available on its 

web site at http://www.fec.gov. 

This search function allows users 

to search for advisory opinions 

(AOs) by the AO number or name 

of requestor, or to enter search 

terms or perform an advanced 

search for documents. 

 The system quickly provides 

relevant AOs, along with all 

related documents including 

advisory opinion requests, 

comments and any concurring 

or dissenting opinions issued 

by Commissioners. The search 

function also provides summary 

material and links to other AOs 

cited in the opinion. 

 When the search system was 

first launched, it included AOs 

issued from 1997 to the present. 

The system has now been updated 

to include AOs dating back to 

1990. The AO search system is 

available at http://saos.nictusa.

com/saos/searchao.
Federal Election Commission RECORD August 2008

4

Commission

(continued from page 3)

Court Cases

(continued from page 1)

• As of June 26, 2008, political parties may no longer make increased 

coordinated expenditures on behalf of opponents of self-financed 

candidates whose personal expenditures would have triggered the 

Amendment.

Regarding pending FEC matters 

that have not reached a final resolution, the Commission intends to 

proceed as follows:

• The Commission is reviewing 

all pending matters involving the 

Amendment and will no longer 

pursue claims solely involving 

violations of the Amendment.

Moreover, the Commission will no 

longer pursue information requests 

or audit issues solely concerning potential compliance with the 

Amendment. However, not all 

activity related to the Amendment 

was affected by the Davis decision. If, for example, someone 

accepted a contribution above

the amount allowed under the 

Amendment’s increased limits, or 

accepted increased contributions 

without being eligible, the Commission will consider such matters speech by self-financed candidates, 

and violates the Equal Protection 

Clause of the Fifth Amendment 

by giving a competitive advantage 

to self-financed candidates’ opponents. 

Under the Millionaires’ Amendment, candidates who spend more 

than certain threshold amounts of 

their own personal funds on their 

campaigns may render their opponents eligible to receive contributions from individuals at an 

increased limit. 2 U.S.C. 

§ 441a-1. For House candidates, the 

threshold amount is $350,000. This 

level of personal campaign spending could trigger increased limits 

for the self-financed candidate’s 

opponent depending upon the opponent’s own campaign expenditures 

from personal funds and the amount 

of funds the candidate has raised 

from other sources in the year 

prior to the year of the election. If 

increased limits are triggered, then 

the eligible candidate may receive 

contributions from individuals at 

three times the usual limit of $2,300 

per election and may benefit from 

party coordinated expenditures in 

excess of the usual limit.

District Court Decision 

The district court held that Mr. 

Davis’s First Amendment challenge failed at the outset because 

the Millionaires’ Amendment did 

not “burden the exercise of political 

speech.”

According to the district court, 

the Millionaires’ Amendment 

“places no restrictions on a candidate’s ability to spend unlimited 

amounts of his personal wealth to 

communicate his message to voters, nor does it reduce the amount 

of money he is able to raise from 

contributors. Rather, the Millionaires’ Amendment accomplishes its 

sponsors’ aim to preserve core First 

Amendment values by protecting 

the candidate’s ability to enhance 

his participation in the political 

marketplace.” In particular, the 

court cited the fact that Mr. Davis 

himself has twice chosen to selffinance his campaign. The court 

found that Mr. Davis failed to show 

how his speech had been limited by 

the benefits his opponents receive 

under the statute. 

Mr. Davis additionally alleged 

that the disclosure requirements 

for self-financed candidates under the Millionaires’ Amendment 

imposed an unfair burden on his 

right to speak in support of his own 

candidacy. The district court found 

that the Millionaires’ Amendment 

reporting requirements are no more 

burdensome than other BCRA 

reporting requirements that the Supreme Court has already upheld.

The court also rejected the 

second prong of Mr. Davis’s facial 

challenge, regarding the Equal 

Protection provision of the Fifth 

Amendment. In order to argue that 

a statute violates the Equal ProtecNew Campaign Guide 

Available

 The 2008 Campaign Guide for 

Nonconnected Committees is now 

available on the Commission web 

site at http://www.fec.gov/info/publications.shtml. Paper copies will be 

available by September 2008.

 For each type of committee, a 

Campaign Guide explains, in clear 

English, the complex regulations 

regarding the activity of political 

committees. It shows readers, for 

example, how to fill out FEC reports 

and illustrates how the law applies to 

practical situations.

 Please contact the Information Division at 800/424-9530 to order paper 

copies.

as part of its normal enforcement 

process. 

• The Commission will not require 

that candidates who received 

increased contributions in accordance with the Amendment before 

June 26, 2008, return those funds 

so long as the funds are properly 

expended in connection with the 

election for which they were 

raised. Similarly, the Commission will not request that political 

parties, if any, that made increased 

coordinated expenditures before June 26 consistent with the 

Amendment take any remedial 

action. Additionally, the Commission will not pursue individual 

contributors who made increased 

contributions, that were in accordance with the Amendment, 

before June 26, 2008. 

Campaigns or party organizations with specific questions regarding their reporting obligations may 

contact the Reports Analysis Division at (800) 424-9530.
August 2008 Federal Election Commission RECORD

5

(continued on page 6)

Enforcement Query 

System Available on 

FEC Web Site

 The FEC continues to update 

and expand its Enforcement 

Query System (EQS), a webbased search tool that allows 

users to find and examine public 

documents regarding closed 

Commission enforcement matters. 

Using current scanning, optical 

character recognition and text 

search technologies, the system 

permits intuitive and flexible 

searches of case documents and 

other materials. 

 Users of the system can search 

for specific words or phrases 

from the text of all public case 

documents. They can also 

identify single matters under 

review (MURs) or groups of 

cases by searching additional 

identifying information about 

cases prepared as part of the 

Case Management System. 

Included among these criteria 

are case names and numbers, 

complainants and respondents, 

timeframes, dispositions, legal 

issues and penalty amounts. The 

Enforcement Query System may 

be accessed on the Commission’s 

web site at http://www.fec.gov.

 Currently, the EQS contains 

complete public case files for all 

MURs closed since January 1, 

1999. In addition to adding all 

cases closed subsequently, staff is 

working to add cases closed prior 

to 1999. Within the past year, 

Alternative Dispute Resolution 

(ADR) cases were added to the 

system. All cases closed since the 

ADR program’s October 2000 

inception can be accessed through 

the system.

tion Clause of the Fifth Amendment, a plaintiff must show that 

the statute treats similarly situated 

entities differently.

The district court found that 

the Millionaires’ Amendment did 

not violate the Equal Protection 

Clause of the Fifth Amendment 

because Mr. Davis could not show 

that the statute treated similarly 

situated entities differently. The 

district court held that self-funded 

candidates, who can choose to use 

unlimited amounts of their personal 

funds for their campaigns, and 

candidates who raise their funds 

from limited contributions are not 

similarly situated. According to 

the court, “the reasonable premise 

of the Millionaires’ Amendment 

is that self-financed candidates are 

situated differently from those who 

lack the resources to fund their own 

campaigns and that this difference 

creates adverse consequences dangerous to the perception of electoral 

fairness.” Thus, the court found no 

violation of the Fifth Amendment.

The District court granted the 

FEC’s request for summary judgment in this case and denied Mr. 

Davis’s request for summary judgment.

Supreme Court Decision

On June 26, 2008, the Supreme 

Court issued an opinion reversing 

the district court’s decision. The 

Court held that the Millionaires’ 

Amendment unconstitutionally 

violated self-financed candidates’ 

First Amendment or Equal Protection rights. The Court also rejected 

the FEC’s arguments that Davis 

lacked standing and that the case 

was moot.

Standing. The FEC argued that 

Davis lacked standing to challenge 

the unequal contribution limits of 

the Millionaires’ Amendment, 2 

U.S.C. §319(a), because Davis’ opponent never received contributions 

at the increased limit and therefore, 

Davis had suffered no injury. The 

Court rejected this argument, noting that a party facing prospective 

injury has standing whenever the 

threat of injury is real, immediate 

and direct. The Court further noted 

that Davis faced such a prospect of 

injury from increased contribution 

limits at the time he filed his suit.

Mootness. The FEC also argued 

that Davis’ argument was moot because the 2006 election had passed 

and Davis’ claim would be capable 

of repetition only if Davis planned 

to self-finance another election for 

the U.S. House of Representatives. 

The FEC also argued that Davis’ 

claim would not evade review as he 

could challenge the Amendment in 

court should the Commission file 

an enforcement action regarding his 

failure to file personal expenditure 

reports. Considering that Davis 

had subsequently made a public 

statement expressing his intent to 

run for a House seat and trigger the 

Millionaires’ Amendment again, the 

Court concluded that Davis’ challenge is not moot. 

First Amendment and Equal Protection. In considering Davis’ claim 

that imposing different fundraising 

limits on candidates running against 

one another impermissibly burdens 

his First Amendment right to free 

speech, the Court noted that it has 

never upheld the constitutionality 

of such a law. The Court referred 

to Buckley v. Valeo, in which it 

rejected a cap on a candidate’s 

expenditure of personal funds for 

campaign speech and upheld the 

right of a candidate to “vigorously 

and tirelessly” advocate his or her 

own election. While the Millionaires’ Amendment did not impose 

a spending cap on candidates, it 

effectively penalized candidates 

who spent large amounts of their 

own funds on their campaigns by 

increasing their opponents’ contribution limits. The Court determined 

that the burden thus placed on 

wealthy candidates is not justified 

by any governmental interest in 

preventing corruption or the appearance of corruption, and that 

equalizing electoral opportunities 

for candidates of different personal 

wealth was not a permissible Congressional purpose. 
Federal Election Commission RECORD August 2008

6

Court Cases

(continued from page 5)

SpeechNow.org v. FEC

On July 1, 2008, the U.S. District 

Court for the District of Columbia 

denied SpeechNow.org’s (SpeechNow) request for a preliminary 

injunction and rejected the group’s 

argument that it is likely to succeed 

on the merits of the case.

Background

On February 14, 2008, SpeechNow, a group formed to make 

independent expenditures, and 

several individual plaintiffs, filed a 

complaint in the U.S. District Court 

for the District of Columbia challenging the constitutionality of the 

Federal Election Campaign Act (the 

Act) provisions governing political 

committee registration, contribution 

limits and disclosure. 

The plaintiffs seek a declaration 

that, as applied, those provisions 

unconstitutionally abridge their 

rights of free speech and association. Additionally, they request preliminary and permanent injunctions 

blocking the FEC from enforcing 

the provisions against them.

Under the Act, a group whose 

major purpose is to influence the 

election of candidates to office 

becomes a “political committee” 

when it collects contributions or 

makes expenditures in excess of 

$1,000 during a calendar year. 2 

U.S.C. §431(4). The definition of 

“contribution” includes any gift, 

loan or anything of value made by 

any person to influence an election 

for federal office. 2 U.S.C. §431(8). 

Similarly, an “expenditure” includes any purchase, payment or 

anything of value made by any person to influence a federal election. 2 

U.S.C. §431(9). 

Political committees must register with the FEC and are subject to 

limits on the contributions they receive and make. 2 U.S.C. §441a(a). 

They also must periodically disclose their receipts and disbursements. 2 U.S.C. §434(a) and (b).

A political committee may make 

unlimited “independent expenditures,” which are defined as expenditures expressly advocating 

the election or defeat of a clearly 

identified candidate that are not 

made in concert or coordination 

with a candidate or a political party. 

2 U.S.C. §431(17). 

Individuals may make unlimited 

independent expenditures from their 

personal funds. An individual who 

makes such expenditures may have 

reporting requirements but will not 

trigger registration with the FEC 

as a political committee. 2 U.S.C. 

§434(c). Individual contributions 

are subject to limits, including an 

overall biennial limit on federal 

contributions. 

Complaint

SpeechNow is a nonprofit, unincorporated association organized as 

a section 527 entity under the Internal Revenue Code. The organization was formed by individuals who 

seek to pool their resources to make 

independent expenditures expressly 

advocating the election or defeat 

of federal candidates. SpeechNow 

plans to accept contributions only 

from individuals, not corporations 

or other sources prohibited under 

the Act. The individual plaintiffs 

wish to contribute to SpeechNow, 

both in federally permissible 

amounts and in amounts exceeding 

the federal limits. 

SpeechNow submitted an advisory opinion request with the Commission on November 19, 2007, 

asking whether its activities, raising 

funds from individuals to pay for 

independent communications that 

contained express advocacy, would 

require it to register as a political committee under the Act. The 

General Counsel’s Office prepared 

a draft opinion for Commission 

discussion stating that contribution 

limits would apply to contributions given to SpeechNow, and 

that SpeechNow would be required 

to register as a political committee once it raised or spent more 

than $1,000 in a calendar year for 

the purpose of influencing federal 

elections. Since the Commission 

only had two of the requisite four 

members at the time the draft was 

considered, it could not issue an 

advisory opinion. The Commission 

notified SpeechNow of that fact on 

January 28, 2008.

The plaintiffs contend that the 

Act unconstitutionally restricts their 

Commission 

Calendar Always 

Up-to-Date 

 Between issues of the Record, 

you can stay up-to-date on the 

latest FEC activity by visiting 

the Commission Calendar on 

our web site at http://www.fec.

gov/calendar/calendar.shtml.

The Calendar lists Commission 

meetings, reporting deadlines, 

conferences and outreach events, 

advisory opinion and rulemaking 

comment periods and other useful 

information. Each calendar entry 

links directly to the relevant 

documents, so you can quickly 

access detailed information on the 

subjects that interest you. 

 While you’re visiting www.fec.

gov, be sure to explore the rest 

of our site to review the latest 

campaign finance reports and 

data, research enforcement actions 

and litigation, read press releases 

and get help complying with the 

law. Visit today and add our site to 

your favorites.

The Court remanded the matter 

for action consistent with its decision. On June 26, 2008, the Commission issued a public statement 

outlining the general principles the 

Commission will apply to conform 

to the Court’s decision. The full 

statement is printed on page 3.

U.S. Supreme Court, No. 07-320.

 —Gary Mullen
August 2008 Federal Election Commission RECORD

7

freedom of speech and freedom of 

association guaranteed under the 

First Amendment. By requiring 

registration as a political committee 

and limiting the monetary amount 

that an individual may contribute to 

a political committee, SpeechNow 

and the other plaintiffs assert that 

the Act unconstitutionally restricts 

the individuals’ freedom of speech 

by limiting the amount that an individual can contribute to SpeechNow 

and thus the amount the organization may spend. SpeechNow also 

argues that the reporting required of 

political committees is unconstitutionally burdensome.

The plaintiffs asked the court to 

find the contribution limits, reporting requirements and political 

committee registration requirements 

unconstitutional as applied to their 

proposed activities. The plaintiffs 

also requested that the court preliminarily and permanently enjoin the 

FEC from enforcing these provisions against SpeechNow and the 

individual plaintiffs.

District Court Decision on 

Preliminary Injunction

The District Court denied 

SpeechNow’s request for a preliminary injunction, refusing to 

apply strict scrutiny review and 

holding that sufficiently important government interests support 

limits on contributions to political 

committees, including groups like 

SpeechNow who intend to spend 

all of their money on independent 

expenditures. 

SpeechNow argued that limits 

on contributions to committees 

that make only independent expenditures implicate the same First 

Amendment interests as limits on 

independent expenditures themselves, and therefore should be 

subject to strict scrutiny as expenditure limits generally are. The 

court disagreed, finding that limits 

on contributions to committees 

that make only independent expenditures are not the same as direct 

limits on expenditures of either the 

organization or its donors. 

“[C]ontributors to SpeechNow are 

not, through their donations,” the 

court explained, “engaging in direct 

speech. SpeechNow, as a legally 

separate organization, is speaking 

as their proxy.” Citing Buckley and 

McConnell, the court held that strict 

scrutiny did not apply because the 

limits do not restrict the amount 

that the political committee can 

spend on independent expenditures, 

but rather limit the source and 

amounts of contributions. Accordingly, the court concluded that the 

$5,000 limit is subject to intermediate scrutiny, meaning that the regulation need only be “closely drawn” 

to further a “sufficiently important” 

government interest.

 Applying intermediate scrutiny, 

the district court held that limits on 

contributions to committees making solely independent expenditures 

serve important government interests by preventing actual and apparent corruption. Looking to the past 

behavior of so-called “527 groups” 

that did not register with the Commission yet had close ties with the 

major political parties and made 

millions of dollars of expenditures 

influencing the federal elections 

of 2004, the court found that such 

“nominally independent” organizations are “uniquely positioned to 

serve as conduits for corruption 

both in terms of the sale of access 

and the circumvention of the soft 

money ban.”

Additionally, the court explained 

that the $5,000 limit on contributions to political committees 

like SpeechNow “promotes the 

important government interests 

underlying the Act’s disclaimer 

requirements.” The court held that 

SpeechNow’s proposed course of 

action would conceal from the public the source of the advertisement’s 

funding in the advertisement itself 

and would allow wealthy donors to 

hide behind “dubious and misleading names,” thus evading the Act’s 

disclaimer requirements.

(continued on page 8)

In denying the preliminary injunction, the Court stated that since 

the regulations are “closely drawn 

to match the government interests 

in preventing corruption and the circumvention of the Act’s disclaimer 

requirements, plaintiffs have failed 

to demonstrate a likelihood of success on their claim that [the Act’s] 

$5,000 contribution limit is unconstitutional as applied to independent 

expenditure committees.”

U.S. District Court for the District of Columbia, 1:08-cv-00248-

JR.

 —Meredith Metzler

Back Issues of the 

Record Available on 

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to find monthly Record issues. 

 The web site also provides 

copies of the Annual Record Index

for each completed year of the 

Record, dating back to 1996. The 

Annual Record Index list Record

articles for each year by topic, 

type of Commission action and, in 

the case of advisory opinions, the 

names of individuals requesting 

Commission action.

You will need Adobe® Acrobat® Reader software to view the 

publication. The FEC’s web site 

has a link that will take you to 

Adobe’s web site, where you can 

download the latest version of the 

software for free.
Federal Election Commission RECORD August 2008

8

Court Cases

(continued from page 7)

DNC v. FEC

On June 24, 2008, the Democratic 

National Committee (DNC) filed a 

complaint in the U.S. District Court 

for the District of Columbia alleging that the Commission failed to 

act timely upon the DNC’s administrative complaint filed with the 

Commission against Senator John 

McCain’s Presidential campaign.

Background

According to the court complaint, 

the DNC filed an administrative 

complaint with the Commission on 

February 25, 2008, alleging that 

Senator McCain and his Presidential 

campaign violated the Presidential 

Primary Matching Payment Account 

Act (the Matching Payment Act). 

The DNC alleged that Senator McCain’s campaign entered into a binding agreement with the Commission 

for the receipt of primary matching 

funds. Senator McCain subsequently 

informed the Commission that he 

was withdrawing from the Matching 

Payment Act Program, but the DNC 

alleged that his purported withdrawal violated the Matching Payment 

Act. The DNC alleged that Senator 

Bialek v. Mukasey

On June 24, 2008, the U.S. Court 

of Appeals for the 10th Circuit affirmed the District Court’s dismissal 

of plaintiff Barry Bialek’s suit 

against the U.S. Attorney General 

and the FEC, agreeing that the 

Attorney General has discretion 

over whether to investigate and 

prosecute criminal violations of the 

Federal Election Campaign Act (the 

Act) and is not required to wait for 

a referral from the Commission.

Background

According to the complaint filed 

February 14, 2007, Mr. Bialek 

made contributions towards John 

Edwards’ 2004 Presidential campaign. In November 2005, the U.S. 

Attorney General began an investigation into possible violations of 

the Act by the plaintiff. See April 

2007 Record, page 5.

The plaintiff filed a complaint 

with the District Court in Colorado, 

alleging that the Commission must 

refer, by a vote of the majority of 

the Commission, a matter to the Attorney General prior to the Attorney 

General investigating or prosecuting a violation of the Act. 

In June 2007, the District Court 

granted the Commission’s motion 

to dismiss the plaintiff’s suit with 

prejudice, holding that the Attorney 

General’s discretion over whether 

to investigate a potential criminal 

violation of the Act does not require 

a referral from the Commission. 

See August 2007 Record, page 3.

Court Decision

The appellate court affirmed the 

district court’s decision. The appellate court agreed with the district 

court that Congress did not expressly limit the Attorney General’s 

authority to investigate and prosecute criminal violations of the Act 

and that the Commission’s actions 

are not a prerequisite to the Attorney General’s investigation. 

The Act provides the Commission with exclusive jurisdiction to 

enforce the civil provisions of the 

Act. 2 U.S.C. 437c(b)(1). The Commission may refer a violation to the 

Attorney General if, by four votes 

of the Commissioners, the Commission determines that there is probable cause to believe that a “knowing 

and willful” violation occurred. 2 

U.S.C. 437g(a)(5)(C). 

The plaintiff claimed that because the Act grants the Commission exclusive jurisdiction over civil 

violations and contains a referral 

provision, criminal violations must 

first be handled by the Commission, and the Attorney General may 

only become involved in the matter 

once the Commission has voted to 

refer the violation. The appellate 

court agreed with the district court’s 

rejection of the argument, holding 

that there is a presumption against 

any limitation on the Attorney 

General’s prosecutorial authority 

and Congress must show “clear 

and unambiguous” intent to restrict 

the Attorney General’s authority to 

investigate and prosecute criminal 

offenses. The Act does not explicitly limit the Attorney General in 

any way. The court held that nothing in the plain language of the Act 

nor the legislative history required a 

referral prior to prosecution by the 

Attorney General.

The appellate court found that 

the Commission and the Department of Justice have concurrent 

jurisdiction to investigate knowing 

and willful violations of the Act. 

Both agencies may initiate investigations and make referrals to each 

other. 

U.S. Court of Appeals for the 

Tenth Circuit, 07-cv-00321-WYDPAC.

 —Meredith Metzler

FEC Accepts Credit 

Cards

 The Federal Election 

Commission now accepts 

American Express, Diners Club 

and Discover Cards in addition 

to Visa and MasterCard. While 

most FEC materials are available 

free of charge, some campaign 

finance reports and statements, 

statistical compilations, indexes 

and directories require payment.

 Walk-in visitors and those 

placing requests by telephone may 

use any of the above-listed credit 

cards, cash or checks. Individuals 

and organizations may also place 

funds on deposit with the office 

to purchase these items. Since prepayment is required, using a credit 

card or funds placed on deposit 

can speed the process and delivery 

of orders. For further information, 

contact the Public Records Office 

at 800/424-9530 or 202/694-1120.
August 2008 Federal Election Commission RECORD

9

McCain had pledged the matching 

funds as collateral for a bank loan 

and thus may not withdraw from the 

program.

The DNC filed a court complaint 

on April 14, 2008, that is similar to 

its June 24 complaint. The DNC’s 

April complaint claimed that the 

Commission would not be able to 

act on its administrative complaint in 

a timely manner and thus the court 

should grant the DNC the right to 

pursue enforcement of the Act in 

court against Senator McCain and 

his committee. The District Court 

dismissed the April complaint, stating that it lacked jurisdiction to hear 

the case because the Federal Election Campaign Act (the Act) allows 

a party to file in court only after 120 

days have passed from the filing of 

an administrative complaint. See 2 

U.S.C. §437g(a)(8)(A) and the June 

2008 Record, page 3. The Act requires the affirmative vote of at least 

four commissioners to take certain 

actions on administrative complaints. Although the Commission 

currently has six commissioners, 

when the DNC’s February administrative complaint and April court 

complaint were filed, the Commission only had two commissioners. 

Complaint

The DNC asks the court to: 

• Declare that the Commission’s 

alleged failure to act on the DNC’s 

administrative complaint is contrary to law; and

• Enter an order directing the FEC to 

conform to such declaration within 

30 days and authorizing the DNC 

to bring a civil action against the 

McCain campaign to remedy the 

violations if the Commission does 

not resolve the complaint within 30 

days. 

U.S. District Court for the District 

of Columbia, 1:08-cv-01083.

 —Meredith Metzler

Matching Funds for 2008 Presidential Candidates:

July Certification

Candidate Certification Amount

Joseph Biden (D) $1,135,035.94

Christopher Dodd (D) $514,173.62

John Edwards (D) $4,057,452.60

Duncan Hunter (R) $353,527.32

Dennis Kucinich (D) $970,521.05

Ralph Nader (I) $411,187.85

Total $7,441,898.38

Public 

Funding

Commission Certifies 

Primary Matching Fund 

Payments

On July 15, 2008, the Commission certified $7,441,898.38 in federal matching funds to six Presidential 

candidates for the 2008 election.1 

This brings the total matching fund 

certifications for the 2008 campaign 

thus far to $26,729,403.03. The 

Commission also determined that 

the independent campaign of Ralph 

Nader is eligible to receive matching 

funds.

Under the Presidential Primary 

Matching Payment Account Act, 

the federal government will match 

up to $250 of an individual’s total 

contributions to an eligible Presidential primary candidate. A candidate 

must establish eligibility to receive 

matching payments by raising in excess of $5,000 in each of at least 20 

states (i.e. over $100,000). Although 

an individual may contribute up to 

$2,300 to a primary candidate, only 

a maximum of $250 per individual 

applies toward the $5,000 threshold 

in each state. Candidates who receive matching payments must agree 

to limit their spending and submit 

to an audit by the Commission. 26 

U.S.C. §§9033(a) and (b); 11 CFR 

9033.1 and 9033.3.

These totals, shown in the chart 

below, reflect matching funds for 

contributions submitted by qualified 

candidates from January through 

June. The Commission certifies payments to the Secretary of the Treasury and then funds are disbursed. 

Although the Treasury had matching 

funds available for payments during 

the latter part of that period (see the 

February 2008 Record, page 3, for 

information concerning a prior lack 

of sufficient funds), the Commission 

had been unable to make certifications until recently when its quorum 

was restored. With a full complement of six members now serving, 

the Commission unanimously approved the certifications. Additional 

contributions may be submitted for 

certification depending on the specific financial circumstances for each 

eligible campaign.

The Presidential public funding 

program is financed through the $3 

checkoff that appears on individual 

income tax returns. The program 

has three elements: grants to parties to help fund their nominating 

conventions ($16,820,000 to each 

major party), grants available to 

nominees to pay for the general election campaign ($84,100,000 to each 

major party nominee who chooses to 1

 Please note that other candidates have 

declined to participate in the Matching 

Fund program. (continued on page 10)
Federal Election Commission RECORD August 2008

10

Index

The first number in each citation refers to the numeric month of 

the 2008 Record issue in which the 

article appeared. The second number, following the colon, indicates 

the page number in that issue. For 

example, “1:4” means that the article 

is in the January issue on page four.

Administrative Fines

Update, 2:4; 4:9

Advisory Opinions

Alternative Disposition of Advisory 

Opinion Requests, AOR 2007-36, 

3:8; AOR 2008-3, 8:10

2007-19: Nonprofit Corporation 

Qualifies as Membership Organization, 1:15

Roundtable on Pre-Election 

Communications

On August 27, 2008, the Commission will host a roundtable 

workshop at its Washington, D.C., 

headquarters on rules for specific 

types of pre-election communications, including:

Outreach

Campaign Guides 

Available

 For each type of committee, a 

Campaign Guide explains, in clear 

English, the complex regulations 

regarding the activity of political 

committees. It shows readers, 

for example, how to fill out FEC 

reports and illustrates how the law 

applies to practical situations.

 The FEC publishes four 

Campaign Guides, each for a 

different type of committee, 

and we are happy to mail your 

committee as many copies as 

you need, free of charge. We 

encourage you to view them on 

our web site www.fec.gov.

 If you would like to place an 

order for paper copies of the 

Campaign Guides, please call the 

Information Division at 800/424-

9530.

Advisory 

Opinions

Advisory Opinion Requests

AOR 2008-06

Preparation and distribution of 

slate cards by a state party committee (Democratic Party of Virginia, 

June 30, 2008)

AOR 2008-07

Use of campaign funds for Senator’s legal expenses (Senator David 

Vitter and David Vitter for U.S. Senate, July 9, 2008)

Alternative Disposition of 

Advisory Opinion Request 

AOR 2008-3

On July 14, 2008, the requester 

withdrew its request for an advisory 

opinion. MovingAds had sought 

guidance concerning the application 

of disclaimer requirements to mobile 

billboard advertisements.

Public Funding

(continued from page 1)

participate by agreeing not to accept 

private contributions for the general 

election) and matching payments to 

participating candidates during the 

primary campaign (up to a maximum of $21,025,000).

 —Meredith Metzler

• Electioneering communications 

disseminated within 60 days of the 

general election, 

• Independent expenditures; and 

• Coordinated communications (including revised time frames). 

These types of communications 

have been the subject of recent litigation and rulemakings, which will 

be highlighted during the workshop.

The registration fee for this 

workshop is $75. Payment by credit 

card is required prior to the seminar. 

A full refund will be made for all 

cancellations received before 5 p.m. 

Eastern Time, August 22. Complete 

information and the registration form 

are available on the FEC web site at 

http://www.fec.gov/info/outreach.

shtml#roundtables. Attendance is 

limited and registration will be accepted on a first-come, first-served 

basis. 

Further questions about the 

workshop should be directed to the 

Information Division by phone at 

800/424-9530 (press 6) or locally 

at 202/694-1100, or via e-mail to 

Conferences@fec.gov.

 —Dorothy Yeager

2007-22: Campaign Committee May 

Accept Volunteer Services from 

Foreign Nationals, 1:16

2007-23: State Party Committee 

Status for Independence Party of 

New York, 1:17

2007-24: Payment for Joint campaign Activities, 1:18

2007-25: Limited Liability Partnership Taxed as a Corporation, 2:7

2007-26: Disposal of Excess State 

Campaign Funds by Federal Candidate, 1:19

2007-27: Nonconnected Committee 

Solicitations for SSF Contributions, 2:8

2007-28: Federal Candidates/Officeholders Fundraising for Ballot 

Measure Committees, 2:8

2007-29: Donation to a Candidate 

for Local Party Office is Not Personal Use, 1:21

2007-30: Matching Credit Card 

Contributions Under Public Funding Program, 1:21

2007-31: Earmarked Contributions Forwarded to a Presidential 

Candidate by a Nonconnected 

Committee’s Checks Not Matchable, 2:9
August 2008 Federal Election Commission RECORD

11

2007-32: Political Committee Status 

of Independent Expenditure Organization, 3:8

2007-34: Federal Candidate’s Endorsement of Nonfederal Candidate, 2:10

2007-35: Internet Toolbar Affinity 

Program for Political Committees, 

3:8

2008-2: Eligibility for Candidate 

Salary Payments, 6:4

Alternative Dispute Resolution

Update, 3:4; 5:4

Commission

Commission Amends Rules that 

Govern its Procedures, 3:3

Commission Publishes Notice of 

New and Revised Systems of 

Records, 2:4

Commission Statement on Davis v. 

FEC, 8:3

Message from the Chairman, 1:1

New Chairman Elected, 1:2

New Commissioners Join the Commission, 8:1

New Vice Chair Elected, 3:2

Compliance

MUR 5888: Failure to File Timely 

Under Millionaires’ Amendment, 

2:1

MUR 5895: Personal Use and Prohibited Contributions, 3:1

Nonfilers, 3:4; 4:9; 6:5; 7:6

Correction

2008 Coordinated Party Expenditure 

Limits, 4:10

Court Cases

______ v. FEC

– Citizens United, 2:1

– Davis, 8:1

– DNC, 6:2, 8:8

– Morgan, 1:4

– SpeechNow.org, 4:6, 8:6

– Shays III, 6:1, 7:1

– Tierney, 5:2

Beam v. Gonzales, 5:3

Bialek v. Mukasey, 8:8

FEC v. ______

– Adams, 5:1

– Hearn, 1:5

– Reform Party of the USA, 4:1

Marcus v. Mukasey, 5:3

Legislation

House Delegate for Northern Mariana Islands, 6:5

Public Funding

Commission Certifies Primary 

Matching Fund Payments, 2:3, 8:9

Dodd and Biden Certified for Matching Funds, 1:22

Kucinich and Hunter Certified for 

Matching Funds, 2:4

Outreach

Conference for Corporations and 

their PACs, 2:10

Conferences Scheduled for 2008, 

1:23; 2:11; 3:14; 4:10

June 23-24 Conference for Trade Associations, Membership Organizations and Labor Organizations, 

5:6; 6:6

Orlando Regional Conference for 

House and Senate Campaigns, 

Political Party Committees and 

Corporate/Labor/Trade PACs, 

1:23

Roundtable on Pre-Election Communications, 8:10

Seminar for Nonconnected Political 

Action Committees, 4:10; 5:6

Party Activities

2008 Coordinated Party Expenditure 

Limits, 3:6; 4:10

Regulations

Final Rules and Explanation for 

Electioneering Communications, 

1:1

Reports

April Reporting Reminder, 4:1

California Special Election Reporting: 12th District, 3:4

Illinois 14th District Special Election Reporting, 1:13

Indiana Special Election Reporting: 

7th District, 2:5

July Reporting Reminder, 7:1

Louisiana Special Election Reporting: 1st and 6th Districts, 2:6 

Maryland Special Election Reporting: 4th District, 6:4

Mississippi Special Election Reporting: 1st District, 4:3

Reports Due in 2008, 1:5

Statistics

House and Senate Candidate Committees Raise $507 Million in 

2007, 5:1

Number of PACs Increases Slightly 

in 2007, 3:7

Party Activity Summary through 

April 2008, 7:5

Party Committee Contributions 

Update, 4:7

Web Site

Enhanced Presidential Campaign 

Finance Map, 6:5

FEC Web Site Offers 

Podcasts

In an effort to provide more 

information to the regulated 

community and the public, the 

Commission is making its open 

meetings and public hearings 

available as audio recordings 

through the FEC web site, as well 

as by podcasts. The audio files, 

and directions on how to subscribe 

to the podcasts are available 

under Audio Recordings through 

the Commission Meetings tab at 

http://www.fec.gov. 

The audio files are divided into 

tracks corresponding to each 

portion of the agenda for ease 

of use. To listen to the open 

meeting without subscribing to 

the podcasts, click the icon next 

to each agenda item. Although the 

service is free, anyone interested 

in listening to podcasts must 

download the appropriate software 

listed on the web site. Podcast 

subscribers will automatically 

receive the files as soon as they 

become available–typically a day 

or two after the meeting. 
Federal Election Commission RECORD August 2008

PRESORTED STANDARD

U.S. POSTAGE

PAID

FEDERAL ELECTION COMMISSION

FEDERAL ELECTION COMMISSION 

999 E Street, NW

Washington, DC 20463

Official Business

Penalty for Private Use, $300