UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

REPRESENTATIVE TED LIEU, et al., )

)

Plaintiffs, ) Civ. No. 16-2201 (EGS)

)

v. )

) ORAL HEARING REQUESTED

FEDERAL ELECTION COMMISSION, )

)

Defendant. )

)

PLAINTIFFS’ OPPOSITION TO THE FEDERAL ELECTION COMMISSION’S 

MOTION TO DISMISS THE FIRST AMENDED COMPLAINT

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Table of Contents

Page

TABLE OF AUTHORITIES .........................................................................................................iii

INTRODUCTION .......................................................................................................................... 1

STATEMENT OF FACTS ............................................................................................................. 4

ARGUMENT.................................................................................................................................. 5

I. Under Rule 12(b)(6), the Court Must Assume the Truth of the Plaintiff’s

Allegations and Must Construe the Complaint Liberally ................................................... 5

II. FECA’s Standard of Review—“Contrary to Law”—Affords No Deference

to the FEC’s Refusal on Constitutional Grounds to Enforce FECA’s Limit

on Contributions to Super PACs......................................................................................... 6

III. The FEC’s Dismissal of Plaintiff’s Complaint Rested on a Legal Ruling

Rather than a Discretionary Enforcement Decision, and this Dismissal Is

Subject to De Novo Review................................................................................................ 7

IV. The FEC’s Dismissal of the Plaintiffs’ Complaint Was Contrary to Law if

the Judicial Ruling on Which the FEC Relied was Contrary to Law ................................. 9

V. The Standard of Review Urged by the FEC Could Permanently Immunize

SpeechNow from Reconsideration by the Court of Appeals and from Supreme

Court Review .................................................................................................................... 10

VI. The FEC’s Advisory Opinion Acquiescing in SpeechNow Precludes Sanctioning

Super PACs for Accepting Contributions above the Statutory Limit but Does

Not Bar a Declaration that Such Contributions Are Unlawful ......................................... 11

1. FEC advisory opinions do not legalize otherwise unlawful conduct........ 12

2. A declaration that conduct is unlawful is not a “sanction”....................... 13

VII. SpeechNow Rested an Implausible Conclusion—that Contributions to Super

PACs Do Not Corrupt or Create Even an Appearance of Corruption—and on Flawed 

Reasoning.......................................................................................................................... 15

1. The Supreme Court has long recognized a distinction between 

contributions and expenditures................................................................. 16

2. The logical fallacy of SpeechNow............................................................. 17

3. The D.C. Circuit misinterpreted Citizens United...................................... 18

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4. Other decisions have rejected the logical fallacy of SpeechNow.............. 20

VIII. The Statement of the Supreme Court on which the SpeechNow Decision

Depended Was Dictum, and did Not Have the Meaning the

Court of Appeals Attributed to It...................................................................................... 22

IX. Contributions to Super PACs Cannot Reasonably Be Distinguished from

the Contributions to Candidates Whose Limitation Buckley Upheld ............................... 26

X. Developments Since SpeechNow Argue for Its Reconsideration ..................................... 28

XI. Conclusion ........................................................................................................................ 31

REQUEST FOR ORAL HEARING............................................................................................. 31

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TABLE OF AUTHORITIES

Cases Page

Akins v. FEC,

101 F.3d 731 (D.C. Cir. 1996) ............................................................................................................... 6

*Alabama v. North Carolina,

560 U.S. 330 (2010) ....................................................................................................................... 14-15

Am. Nat’l Ins. Co. v. FDIC,

642 F.3d 1137 (D.C. Cir. 2011) ............................................................................................................ 5

Brown v. Bd. of Educ.,

98 F. Supp. 797 (D. Kan. 1951) ............................................................................................................ 9

Brown v. Bd. of Educ.,

347 U.S. 483 (1954) ........................................................................................................................ 9, 10

Browning v. Clinton, 

292 F.3d 235 (D.C. Cir. 2002) .............................................................................................................. 5

*Buckley v. Valeo,

424 U.S. 1 (1976)............................................................................................................ 1, 16, 24, 26-28

Campaign Legal Center v. FEC, No. 16-CV-00752,

2018 WL 2739920 (D.D.C. June 7, 2018) ............................................................................................ 8

Caperton v. A.T. Massey Coal Co.,

556 U.S. 868 (2009) ....................................................................................................................... 24-25

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council,

467 U.S. 837 (1984) ........................................................................................................................ 6, 13

*Citizens for Responsibility and Ethics in Washington v. FEC,

209 F. Supp. 3d 77 (D.D.C. 2016) ................................................................................................. 6, 7-8

*Citizens United v. FEC,

558 U.S. 310 (2010) ....................................................................................................... 2, 16, 17, 21-25

Colo. Republican Campaign Comm. v. FEC,

518 U.S. 604 (1996) ............................................................................................................................ 20

Doe v. Stephens,

851 F.2d 1457 (D.C. Cir. 1988) .......................................................................................................... 14

*FEC v. Akins,

524 U.S. 11 (1998) ................................................................................................................................ 7

FEC v. Beaumont,

539 U.S. 146 (2003) ............................................................................................................................ 16

FEC v. Christian Coalition,

965 F. Supp. 66 (D.D.C. 1997) ........................................................................................................... 14

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FEC v. Colo. Republican Fed. Campaign Comm.,

533 U.S. 431 (2001) ............................................................................................................................ 16

FEC v. Nat’l Republican Senatorial Comm.,

877 F. Supp. 15 (D.D.C. 1995) ........................................................................................................... 14

*FEC v. Wis. Right to Life,

551 U.S. 449 (2007) ...................................................................................................................... 16, 23

Gong Lum v. Rice,

275 U.S. 78 (1927) ................................................................................................................................ 9

Hagelin v. FEC,

411 F.3d 237 (D.C. Cir. 2005) .............................................................................................................. 6

Haines v. Liggett Grp., Inc.,

975 F.2d 81 (3d Cir. 1992) .................................................................................................................... 6

Hardaway v. D.C. Hous. Auth.,

843 F.3d 973 (D.C. Cir. 2016) .............................................................................................................. 5

Heckler v. Chaney,

470 U.S. 821 (1985) ........................................................................................................................... 7-8

Hutchins v. D.C.,

188 F.3d 531 (D.C. Cir. 1999) ............................................................................................................... 5

Impro Products, Inc. v. Block,

722 F.2d 845 (D.C. Cir. 1983) ............................................................................................................ 10

Keathley v. Holder,

696 F.3d 644 (7th Cir. 2012) ............................................................................................................... 12

Knight First Amendment Inst. v. Trump, No. 17-CIV-5205,

2018 WL 2327290 (S.D.N.Y. May 23, 2018) ................................................................................ 13-14

Kokesh v. SEC,

137 S. Ct. 1635 (2017) ........................................................................................................................ 15

*LaRouche v. FEC,

28 F.3d 137 (D.C. Cir. 1994) .............................................................................................................. 15

Libertarian Nat’l Comm., Inc. v. FEC,

930 F. Supp. 2d 154 (D.D.C. 2013) .................................................................................................... 10

*McConnell v. FEC,

540 U.S. 93 (2003) .............................................................................................................................. 20

*McCutcheon v. FEC,

134 S. Ct. 1434 (2014) ............................................................................................................ 23, 25, 28

Orloski v. FEC,

795 F.2d 156 (D.C. Cir. 1986) .............................................................................................................. 6

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Perez v. Ledesma,

401 U.S. 82 (1971) .............................................................................................................................. 13

Plessy v. Ferguson,

163 U.S. 537 (1896) .............................................................................................................................. 9

PowerShare, Inc. v. Syntel, Inc.

597 F.3d 10 (1st Cir. 2010) ................................................................................................................ 6-7

Republican Nat’l Comm. v. FEC,

698 F. Supp. 2d 150 (D.D.C. 2010) .................................................................................................... 21

Republican Nat’l Comm. v. FEC,

561 U.S. 1040 (2010) .......................................................................................................................... 21

Republican Party of Louisiana. v. FEC,

219 F. Supp. 3d 86 (D.D.C. 2016) ................................................................................................. 21-22

Republican Party of Louisiana. v. FEC,

 137 S. Ct. 2178 (2017) ......................................................................................................................... 22

Rodriguez v. Hayes,

591 F.3d 1105 (9th Cir. 2010) ............................................................................................................. 14

SpeechNow.org v. FEC,

599 F.3d 686 (D.C. Cir. 2010) .................................................................................................... 1, 16-19

*Steffel v. Thompson,

415 U.S. 452 (1974) ....................................................................................................................... 13-14

U.S. Dep’t of Energy v. Ohio,

503 U.S. 607 (1992) ............................................................................................................................ 15

Ulstein Mar., Ltd. v. United States,

833 F.2d 1052 (1st Cir. 1987) ............................................................................................................. 13

United States v. Alabama,

691 F.3d 1269 (11th Cir. 2012) ........................................................................................................... 15

United States v. Albertini,

830 F.2d 985 (9th Cir. 1987) ............................................................................................................... 12

United States v. DeFries,

129 F.3d 1293 (D.C. Cir. 1997) .......................................................................................................... 12

United States v. Menendez,

132 F. Supp. 3d 635 (D.N.J. 2015) ......................................................................................... 18, 19, 26

United States v. Menendez,

291 F. Supp. 3d 606 (D.N.J. 2018) ..................................................................................................... 19

United States v. Qualls,

172 F.3d 1136 (9th Cir. 1999) ............................................................................................................. 12

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United States v. Siegelman,

640 F.3d 1159 (11th Cir. 2011) ........................................................................................................... 26

United States v. Tallmadge,

829 F.2d 767 (9th Cir. 1987) ............................................................................................................... 12

W. Va. Univ. Hosps., Inc. v. Casey,

499 U.S. 83 (1991) ................................................................................................................................ 7

Statutes

5 U.S.C. § 706 ............................................................................................................................................. 5

28 U.S.C. § 636 ........................................................................................................................................... 7

28 U.S.C. § 2201 ................................................................................................................................. 13, 14

28 U.S.C. § 2401 ....................................................................................................................................... 10

52 U.S.C § 30101 ...................................................................................................................................... 27

52 U.S.C § 30108 ...................................................................................................................................... 11

52 U.S.C. § 30109 ............................................................................................................................... 4, 6, 8

52 U.S.C. § 30110 ................................................................................................................................ 10-11

52 U.S.C. § 30116 ....................................................................................................................................... 1

52 U.S.C. § 30125 ..................................................................................................................................... 27

Pub. L. 94-283 § 108.................................................................................................................................. 12

Pub. L. 93-443 § 208 ................................................................................................................................. 12

Rules

Fed. R. Civ. P. 12 ........................................................................................................................................ 5

Fed. R. Civ. P. 57 ...................................................................................................................................... 14

Law Review Articles

Albert W. Alschuler, Laurence H. Tribe, Norman L. Eisen & Richard Painter, Why Limits on 

Contributions to Super PACs Should Survive Citizens United,

86 Fordham L. Rev. 2299 (2018) ........................................................................................................ 17

Note, Working Together for an Independent Expenditure,

128 Harv. L. Rev. 1478 (2015) ............................................................................................................. 1

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Other

H.R. Conf. Rep. 94-1057 ........................................................................................................................... 13

H.R. Rep. 94-917 ....................................................................................................................................... 13

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Plaintiffs Representative Ted Lieu, Representative Walter Jones, Senator Jeff Merkley, 

State Senator (ret.) John Howe, Zephyr Teachout, and Michael Wager (collectively, “Plaintiffs”) 

respectfully submit this memorandum of points and authorities (the “Opposition”) in Opposition 

to the Motion of the Federal Election Commission (the “FEC”) to dismiss Plaintiffs’ First 

Amended Complaint (the “Complaint” or “Compl.”). 

INTRODUCTION

Forty-two years ago, in Buckley v. Valeo, 424 U.S. 1, 58 (1976) (per curiam), the 

Supreme Court upheld limits imposed by the Federal Election Campaign Act (“FECA”) on

contributions to candidates for federal office. Currently, under FECA, an individual donor may 

not contribute more than $2,700 in a single primary or general election. 52 U.S.C. 

§ 30116(a)(1)(A); Federal Election Comm’n, Contribution Limits for 2017-2018 Federal 

Elections, https://transition.fec.gov/pages/brochures/contriblimitschart.htm. FECA also limits 

contributions to political committees, other than party committees, to $5,000 per year. 52 U.S.C. 

§ 30116(a)(1)(C). In SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010) (en banc), however, 

the D.C. Circuit held that limit unconstitutional as applied to committees that neither contribute 

to candidates nor coordinate their spending with candidates. Donors now may give unlimited 

amounts to electoral efforts in support of particular candidates, as long as the donors funnel their 

contributions through such committees, which commonly are known as “super PACs.” 

Super PACs supporting particular candidates often collect more money than the 

candidates’ own campaigns. See Note, Working Together for an Independent Expenditure, 128 

Harv. L. Rev. 1478, 1484 (2015). Super PACs also often place more advertising in support of 

particular candidates than the candidates’ own campaigns, creating the appearance that some 

campaigns “outsource” their own advertising. See Peter Overby et al., As Bush Campaign Goes 

Down, The Knives Come Out, NPR, Feb. 23, 2016, https://n.pr/2J0K681 (reporting that the 

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campaign committee for presidential candidate Jeb Bush “essentially outsourced its media 

operation to the supposedly independent superPAC”).

No legislator voted in favor of this system of campaign financing. Although the Supreme 

Court held in Buckley that Congress may limit the amount of contributions to an official 

campaign because large contributions are corrupting or create an appearance of corruption, the 

D.C. Circuit held in SpeechNow that Congress may not prohibit even a $30 million contribution 

to a super PAC because, according to the D.C. Circuit, no super PAC contribution can ever 

corrupt or create even an appearance of corruption. The D.C. Circuit offered no empirical 

support for that conclusion. Nor did the court explain why contributions to a candidate’s 

campaign can corrupt or create the appearance of corruption while contributions to super PACS 

supporting that candidate supposedly cannot. Instead, as discussed below, the SpeechNow ruling 

rested entirely on faulty logic starting from a misinterpretation of a single sentence of the 

Supreme Court’s opinion in Citizens United v. FEC, 558 U.S. 310 (2010).

The Justice Department did not seek Supreme Court review of SpeechNow. When 

explaining the Department’s decision not to ask the Supreme Court to weigh in, Attorney 

General Holder predicted, incorrectly, that SpeechNow “will affect only a small subset of 

federally regulated contributions.” Letter from Atty. Gen. Eric Holder to Sen. Harry Reid, July 

10, 2010, https://www.justice.gov/sites/default/files/oip/legacy/2014/07/23/06-16-2010.pdf. In 

fact, a massive change in election expenditures and fundraising practices ensued. And, over the 

eight years since SpeechNow was decided, the Supreme Court has had no opportunity to consider 

whether Congress’s limits on contributions to super PACs are valid.

Citing SpeechNow, the FEC has refused to enforce limits on super PAC contributions. 

As alleged in Plaintiffs’ Complaint, the FEC’s failure to enforce federal contribution limits 

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against super PACs is “contrary to law”—specifically, FECA and Buckley. Plaintiffs have filed 

this action to give the Supreme Court the opportunity to reaffirm Buckley, reaffirm that FECA 

limits are enforceable where unlimited contributions could corrupt or create the appearance of 

corruption, and correct the errors of SpeechNow. 

This Opposition makes three main points. 

First, the “contrary to law” standard mandates de novo review when, as here, an agency 

action is not entitled to deference under Chevron or any other doctrine. The FEC’s dismissal of 

Plaintiffs’ administrative complaint was not based on an exercise of enforcement discretion or a 

legal interpretation of a regulatory statute that might merit Chevron deference. Instead, the FEC 

made a legal ruling about the Constitution and judicial precedent. The FEC’s ruling should be 

reviewed de novo and held to be contrary to law because the Constitution does not invalidate 

FECA limits on contributions to super PACs and, though the FEC relied on SpeechNow, that 

decision also was contrary to law. 

Second, the FEC’s 2010 FEC advisory opinion does not foreclose this action because this 

action seeks no sanctions or coercive relief against super PACs. Plaintiffs merely seek a noncoercive declaratory judgment. An FEC advisory opinion may well shield super PACs against 

sanctions (penalties or coercive relief), but the FEC cannot render unlawful conduct lawful, and 

no federal court has ever held otherwise. 

Finally, while this Court is bound by the Court of Appeals decision in SpeechNow, 

SpeechNow should be overruled. This Court therefore should address the constitutional issues 

raised here, so that Plaintiffs may raise their arguments to appellate courts and thereby rectify the 

appearance of endemic corruption in U.S. elections that SpeechNow has wrought. 

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STATEMENT OF FACTS

Plaintiffs are a U.S. Senator, two Members of the U.S. House of Representatives, and 

House candidates of both parties from the 2016 election. All of them faced opposition from

super PACs that accepted contributions orders of magnitude above the statutory limit. 

On July 7, 2016, Plaintiffs filed an administrative complaint with the FEC alleging that 

the contributions to those super PACs violated FECA. See 52 U.S.C. § 30109(a)(1) (permitting 

anyone who believes a violation of the Act has occurred to complain to the FEC). In their 

administrative complaint, Plaintiffs documented contributions to super PACs that exceeded 

statutory limits by millions of dollars. 

Plaintiffs’ administrative complaint also demonstrated that:

• super PACs, in many cases, have eclipsed campaigns themselves in fundraising 

and spending in support of candidates;

• interviews with former Members of Congress, campaign and legislative staff, and 

political operatives reveal that federal candidate fundraising provides 

opportunities for quid pro quo corruption through super PAC contributions that is 

at least as great as opportunities through direct campaign contributions; and 

• public opinion surveys show that the overwhelming majority of Americans, 

including strong majorities of both Republicans and Democrats, agree that large 

contributions to super PACs present an unacceptable risk of corruption. 

See AR 18-21 ¶¶ 38-42.

On November 4, 2016, with the administrative complaint still pending and the 2016 

election approaching, Plaintiffs filed this lawsuit, alleging that the FEC’s failure to rule on their

complaint was contrary to law. See 52 U.S.C. § 30109(a)(8) (permitting “party aggrieved” by 

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FEC order “dismissing a complaint” or by FEC “failure . . . to act” to file an action seeking a 

declaration that “the dismissal of the complaint or the failure to act is contrary to law”). The 

FEC dismissed Plaintiff’s administrative complaint on June 1, 2017. On March 7, 2018, this 

Court granted Plaintiffs leave to amend their complaint to allege that the dismissal was contrary 

to law. Minute Order, Mar. 7, 2018; Compl., ECF No. 36. On May 7, 2018, the FEC moved to 

dismiss the amended complaint. Mot. to Dismiss, ECF No. 39.

1

ARGUMENT

I. Under Rule 12(b)(6), the Court Must Assume the Truth of the Plaintiff’s Allegations 

and Must Construe the Complaint Liberally

A motion to dismiss under Fed. R. Civ. P. 12(b)(6) “tests the legal sufficiency of a 

complaint.” Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). Since the FEC’s written 

basis for decision reflected no fact-finding or evaluation of facts and did not question any of the 

factual allegations in the administrative complaint, this case involves no factual disputes. In 

reviewing this motion, the court must “assume the truth of all material factual allegations in the 

complaint and construe the complaint liberally, granting plaintiff the benefit of all inferences that 

can be derived from the facts alleged.” Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. 

Cir. 2011) (internal quotation marks omitted).2

 1 Plaintiffs do not oppose dismissal of Count II, alleging that the FEC’s dismissal of the 

plaintiffs’ complaint violated the Administrative Procedure Act. See 5 U.S.C. § 706(2). 

2 The FEC asserts in a footnote that the claims of two Plaintiffs are moot because they did not 

file for candidacy for federal office in 2018. Mot. to Dismiss 22 n.5. The Court need not 

address that argument for two reasons. First, as long as some of the plaintiffs have live claims, 

the Court need not consider whether others do as well. See Hardaway v. D.C. Hous. Auth., 843 

F.3d 973, 979 (D.C. Cir. 2016) (“‘For each claim, if . . . standing can be shown for at least one 

plaintiff, we need not consider the standing of the other plaintiffs to raise that claim.’”) (quoting 

Mountain States Legal Found. v. Glickman, 92 F.3d 1228, 1232 (D.C. Cir. 1996)). Second, the

Court “need not consider cursory arguments made only in a footnote.” Hutchins v. D.C., 188 

F.3d 531, 539 n.3 (D.C. Cir. 1999) (en banc). 

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II. FECA’s Standard of Review—“Contrary to Law”—Affords No Deference to the 

FEC’s Refusal on Constitutional Grounds to Enforce FECA’s Limit on 

Contributions to Super PACs

The plaintiffs are entitled to declaratory relief if the FEC’s dismissal of their complaint 

was “contrary to law.” 52 U.S.C. § 30109(a)(8)(C). When the FEC rests its dismissal of a 

complaint on an interpretation of FECA, which it administers, its statutory interpretation is 

entitled to deference. See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837, 843-44

(1984); Orloski v. FEC, 795 F.2d 156, 161-62 (D.C. Cir. 1986). Similarly, when the dismissal of 

a complaint rests on a factual determination, a court must defer to such a determination if it is 

supported by substantial evidence. See Hagelin v. FEC, 411 F.3d 237, 242-43 (D.C. Cir. 2005). 

Here, however, the FEC is not entitled to deference under either of those principles, and the FEC 

does not argue to the contrary. 

As the FEC recognizes, “courts are not obligated to give binding deference to an 

administrative agency’s interpretation of judicial precedent or of the Constitution.” Mot. to 

Dismiss 11. See also Akins v. FEC, 101 F.3d 731, 740 (D.C. Cir. 1996) (en banc) (“We are not 

obliged to defer to an agency’s interpretation of Supreme Court precedent under Chevron or any 

other principle”); Citizens for Responsibility and Ethics in Washington v. FEC, 209 F. Supp. 3d 

77, 81 (D.D.C. 2016), appeal dismissed, No. 16-5343 (D.C. Cir. Apr. 4, 2017) (“Finding that the 

controlling [FEC] Commissioners premised their conclusion on an erroneous interpretation of 

Supreme Court precedent and the First Amendment, the Court agrees with CREW that the 

dismissals [of its administrative complaints] were contrary to law.”).

Here, the phrase “contrary to law” requires de novo review of legal rulings in accordance 

with its plain meaning: “illegal; unlawful; conflicting with established law.” Black’s Law 

Dictionary (10th ed. 2014). See, e.g., Haines v. Liggett Grp., Inc., 975 F.2d 81, 91 (3d Cir. 1992) 

(interpreting phrase “contrary to law” in Federal Magistrate Act to require “plenary review as to 

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matters of law”);

3 accord PowerShare, Inc. v. Syntel, Inc., 597 F.3d 10, 15 (1st Cir. 2010) 

(“[F]or questions of law, there is no practical difference between review under Rule 72(a)’s 

‘contrary to law’ standard and review under Rule 72(b)’s de novo standard [for dispositive 

orders].”).

III. The FEC’s Dismissal of Plaintiffs’ Complaint Rested on a Legal Ruling Rather than 

a Discretionary Enforcement Decision, and the Dismissal Is Subject to De Novo 

Review

Although the FEC acknowledges that agency rulings on constitutional questions are 

subject to de novo review, it argues that courts must be “highly deferential” to agency 

“enforcement decisions.” Mot. to Dismiss 11. It cites Heckler v. Chaney, 470 U.S. 821, 831 

(1985), in which the Supreme Court said that “an agency decision not to enforce often involves a 

complicated balancing of a number of factors,” such as “whether agency resources are best spent 

on this violation or another . . . and, indeed, whether the agency has enough resources to 

undertake the action at all.”

The Supreme Court has held, however, that FECA’s express requirement that courts 

review FEC non-enforcement decisions overrides Heckler’s presumption that enforcement 

decisions are not reviewable. See FEC v. Akins, 524 U.S. 11, 26 (1998) (“In Heckler, this Court 

noted that agency enforcement decisions ‘have traditionally been ‘committed to agency 

discretion,’ ’ and concluded that Congress did not intend to alter that tradition in enacting the 

APA . . . We deal here with a statute [FECA] that explicitly indicates the contrary.”); CREW, 209 

 3 Congress added the “contrary to law” standard to FECA in May 1976. See Federal Elections 

Campaign Act Amendments of 1976, Pub. L. No. 94-283, sec. 109, 90 Stat. 475 (May 11, 1976). 

Five months later, it used the same standard in the Federal Magistrate Act. Pub. L. No. 94-577, 

90 Stat. 2729 (Oct. 21, 1976) (codified at 28 U.S.C. § 636). When construing a statutory term or 

phrase, courts often look to how Congress has used that term or phrase in other statutes, 

especially when these statutes have been enacted by the same Congress. See, e.g., W. Va. Univ. 

Hosps., Inc. v. Casey, 499 U.S. 83, 88 (1991) (Scalia, J.).

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F. Supp. 3d at 88 n.7 (concluding that FECA’s express provision for the judicial review of FEC 

dismissal decisions rebuts Heckler’s presumption of non-reviewability of agency decisions not to 

enforce and declaring that the court would “apply the contrary-to-law standard, as Congress has 

instructed it to”); see also Heckler, 470 U.S. at 834 (distinguishing an earlier decision because it 

arose under a statute that, like FECA, “provided guidelines for exercise of [the agency’s] 

enforcement power”). 

Moreover, the FEC’s legal ruling here merely reflected its interpretation of constitutional 

law and was not an exercise of prosecutorial or enforcement discretion. In Heckler, the Supreme 

Court considered an agency’s decision not to proceed even though a violation may have 

occurred—a decision analogous to a prosecutor’s decision not to file criminal charges. By 

contrast, the FEC’s ruling in this case had nothing to do with marshaling limited resources and 

involved no exercise of discretion. The FEC simply made a legal ruling, concluding that there 

was “no reason to believe that the Respondent Committees violated” FECA. AR 295-96. The 

FEC applied FECA as if the statutory limit did not exist because the D.C. Circuit had held in 

SpeechNow that FECA’s limit on super PAC contributions was unconstitutional.

4

Because the FEC’s dismissal of the plaintiffs’ complaint was based solely on its 

acquiescence to a D.C. Circuit ruling about constitutional law, the dismissal is subject to de novo

review, and no deference to the FEC is warranted. 

 4 This case is very different from a recent decision in which the district court concluded that the 

FEC made no legal ruling at all, but instead declined to investigate a complaint because recently 

unsettled law was confusing. Campaign Legal Center v. FEC, No. 16-CV-00752, 2018 WL 

2739920 at *15 (D.D.C. June 7, 2018). There, the district court reviewed a decision not to 

proceed even if a violation of law might have occurred—a discretionary enforcement decision. 

Here, the plaintiffs ask the Court to review the FEC’s determination that, because of the judicial 

ruling in SpeechNow, no violation of law occurred. 

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IV. The FEC’s Dismissal of the Plaintiffs’ Complaint Was Contrary to Law if the 

Judicial Ruling on Which the FEC Relied was Contrary to Law

The FEC argues that its decision not to challenge SpeechNow was “reasonable.” Mot. to 

Dismiss 12. But the question posed by 52 U.S.C. § 30109(a)(8)(C) is not whether the FEC’s 

decision was “reasonable.” Rather, it is whether its dismissal of the plaintiffs’ complaint was 

“contrary to law.”

The FEC maintains that its dismissal of Plaintiffs’ administrative complaint was not 

contrary to law because SpeechNow was correctly decided and, even if SpeechNow was 

incorrectly decided, the FEC acted reasonably in relying on the erroneous decision. If accepted, 

that reasoning could permanently immunize SpeechNow from reconsideration by the D.C. 

Circuit and the Supreme Court.

The history of our country’s civil rights precedents is instructive on how federal district 

courts should respond in situations, like this one, in which a litigant questions whether a binding 

adverse precedent is contrary to law. In Brown v. Bd. of Educ., 98 F. Supp. 797 (D. Kan. 1951), 

rev’d, 347 U.S. 483 (1954), the district court offered no defense of racially segregated schools. 

It said, in fact, that it was “difficult to see” why segregation was not a violation of due process. 

Id. at 800. The Court nevertheless denied relief to plaintiffs who challenged school segregation, 

declaring that Plessy v. Ferguson, 163 U.S. 537 (1896), and Gong Lum v. Rice, 275 U.S. 78 

(1927), “have not been overruled and . . . still presently are authority for the maintenance of a 

segregated school system.” Brown, 98 F. Supp. at 800.

When the Brown plaintiffs appealed, the Supreme Court did not ask whether the district 

court’s decision was “reasonable,” or whether the district court should have disregarded Plessy

and Gong Lum. The Supreme Court nevertheless reversed the district court—something it could 

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not have done unless it found that the district court’s decision, and the precedents on which it 

relied, were contrary to law. See Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954). 

If the Supreme Court had asked in Brown only whether the district court’s adherence to 

Plessy and Gong Lum was reasonable, the answer would have been yes. Schools would have 

remained segregated and precedents that were inconsistent with the Court’s constitutional 

understanding would have endured. 

V. The Standard of Review Urged by the FEC Could Permanently Immunize 

SpeechNow from Reconsideration by the Court of Appeals and from Supreme Court 

Review

Although the FEC seeks to bar the reconsideration or review of SpeechNow here, the 

FEC also asserts that someone might be able to raise the issue in another case. Mot. to Dismiss 

21. The FEC’s suggestion has no bearing on whether Plaintiffs’ Complaint states a valid claim

for relief, but, in any event, the FEC overstates the availability of procedural alternatives and 

minimizes the adverse consequences that dismissal of Plaintiffs’ Complaint could have.

State and local limits on super PAC contributions have been unenforced since 2013, the 

date of the last Court of Appeals decision declaring such limits unconstitutional. Even if a state 

or local government tries to enforce such limits and they are challenged, a successful defense of 

such limits would not provide relief to Plaintiffs in a meaningful time frame. And nobody knows 

whether or when such a case will ever find its way to the courts. 

What the FEC calls a “direct challenge” to the FEC advisory opinion that acquiesced in 

SpeechNow appears to be precluded by the statute of limitations. See 28 U.S.C. § 2401(a); Impro 

Products, Inc. v. Block, 722 F.2d 845, 849-50 & n.8 (D.C. Cir. 1983). 

What the FEC calls the “special review provision” contained in 52 U.S.C. § 30110 is 

largely unavailable to plaintiffs who challenge “settled principles of law.” Libertarian Nat’l 

Comm., Inc. v. FEC, 930 F. Supp. 2d 154, 161 (D.D.C. 2013) (citing Khachaturian v. FEC, 980 

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F.2d 330, 331 (5th Cir. 1992)). Because the Supreme Court has not yet considered the validity 

of Congress’s limit on super PAC contributions, this constitutional question remains unsettled, 

but the FEC essentially argues here that the question is settled. Mot. to Dismiss 14-15 & n.4. If 

Plaintiffs or someone else filed a § 30110 action, the FEC almost certainly would contend that 

SpeechNow established “settled principles of law” and, accordingly, that no relief is available 

under § 30110.

The FEC objects that, unlike the procedures it proposes, the procedure initiated by 

Plaintiffs could affect “the reliance interests of administrative respondents” and could impose 

“compliance costs on third-parties that ha[ve] relied on Commission guidance in good faith.” 

Mot. to Dismiss 21. But Plaintiffs seek only declaratory relief that would affect the respondents 

and third parties in the same way that resurrecting FEC enforcement of contribution limits 

through any other procedure would affect them.

VI. The FEC’s Advisory Opinion Acquiescing in SpeechNow Precludes Sanctioning 

Super PACs for Accepting Contributions above the Statutory Limit but Does Not 

Bar a Declaration that Such Contributions Are Unlawful

In FEC Advisory Op. 2010-11 (Commonsense Ten), 

https://www.fec.gov/files/legal/aos/76050.pdf (July 22, 2010), the FEC announced that it would 

accept the D.C. Circuit’s ruling that limits on contributions to super PACs are unconstitutional 

and, accordingly, that it no longer would enforce those limits. FECA provides that anyone who 

relies in good faith on an FEC advisory opinion “shall not . . . be subject to any sanction provided 

by this Act.” 52 U.S.C § 30108(c)(2). The FEC argues that its advisory opinion blocks 

reconsideration of SpeechNow for two reasons: (1) the opinion precludes a finding that anyone 

who reasonably relied on it violated FECA, and (2) it precludes the declaratory relief the 

plaintiffs seek. Mot. to Dismiss 23-25. The FEC is wrong on both points. People who relied on 

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the opinion may not be sanctioned, but that does not mean that their contributions actually were 

lawful. The FEC opinion did not and could not change the law.

1. FEC advisory opinions do not legalize otherwise unlawful conduct

The FEC cites no authority for the claim that its advisory opinions can not only exempt 

conduct from punishment but also render it lawful. The statute’s bar on administrative sanctions 

when people have relied reasonably on FEC advisory opinions closely resembles doctrines that

bar criminal punishment when defendants have relied reasonably on apparently authoritative 

assurances that their conduct would be lawful. These doctrines have such names as “official 

authorization,” Keathley v. Holder, 696 F.3d 644, 646-47 (7th Cir. 2012), “entrapment by 

estoppel,” United States v. Tallmadge, 829 F.2d 767, 773-75 (9th Cir. 1987), “advice of 

counsel,” United States v. DeFries, 129 F.3d 1293, 1308 (D.C. Cir. 1997), and “mistake of law,” 

United States v. Albertini, 830 F.2d 985, 989 (9th Cir. 1987), overruled in part on other grounds, 

United States v. Qualls, 172 F.3d 1136 (9th Cir. 1999). Although these doctrines sometimes 

excuse an actor’s unlawful conduct, the conduct remains unlawful. 

The point of these doctrines is to protect people who act in good faith from being unfairly 

punished, not to change the background law. This is readily apparent from changes that have 

been made to FECA over the years. The version of FECA Congress approved in 1974 provided

that “[a]ny person with respect to whom an advisory opinion is rendered . . . who acts in good 

faith in accordance with the provisions and findings of such advisory opinion shall be presumed 

to be in compliance with the provision of this Act . . . with respect to which such advisory 

opinion is rendered.” FECA Amendments of 1974, Pub. L. 93-443 § 208, sec. 313, 88 Stat. 

1263, 1283-84 (Oct. 15, 1974) (emphasis added). In 1976, however, Congress repealed that 

provision and substituted one materially identical to § 30108(c)(2). See FECA Amendments of 

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1976, Pub. L. 94-283 § 108, sec. 312, 90 Stat. 475, 482 (May 11, 1976) (stating that a person 

relying in good faith on an advisory opinion “shall not, as a result of any such act, be subject to 

any sanction provided by this Act”). A conference report explained, “Subsection (b)(1) provides 

that any person who relies on an advisory opinion and who acts in good faith in accordance with 

the advisory opinion may not be penalized under the Act . . . as the result of any such action.” 

H.R. Conf. Rep. 94-1057 at 44, 1976 U.S.C.C.A.N. 946, 959 (Apr. 28, 1976); see also H.R. Rep. 

94-917 at 62 (Mar. 17, 1976) (same). The revised statute and the conference report show that, 

although advisory opinions bar the imposition of sanctions, they do not legalize anything. 

2. A declaration that conduct is unlawful is not a “sanction”

Plaintiffs have sought only declaratory relief, which is not a sanction. Mot. to Dismiss

22-25. The function of a declaratory judgment is to “declare the rights and other legal relations 

of any interested party.” 28 U.S.C. § 2201(a). It tells people what the law is. Although a losing 

party must comply with the law going forward, so must everyone else. The losing party incurs 

no distinctive burden. No one who uses English in the ordinary way would say he was 

sanctioned because someone told him what the law is. Consequently, there was no statutory 

ambiguity for the FEC to resolve and no reason for the court to defer to the agency’s unusual 

interpretation of a common English word. Cf. Chevron, 467 U.S. at 842-43 & n.9.

Courts repeatedly have emphasized that declaratory judgments are not coercive. See 

Steffel v. Thompson, 415 U.S. 452, 471 (1974) (“a declaratory judgment . . . is not ultimately 

coercive” (internal quotations omitted)); Ulstein Mar., Ltd. v. United States, 833 F.2d 1052, 1055 

(1st Cir. 1987) (“[a declaratory judgment] does not, in itself, coerce any party”). Declaratory 

judgments, unlike injunctions, do not mandate or prohibit conduct. See, e.g., Perez v. Ledesma, 

401 U.S. 82, 124 (1971) (Brennan, J., concurring in part and dissenting in part) (“A declaratory 

judgment . . . neither mandates nor prohibits state action.”); Knight First Amendment Inst. v. 

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Trump, No. 17-CIV-5205, 2018 WL 2327290, at *24 (S.D.N.Y. May 23, 2018) (contrasting “the 

strong remedy of injunction” with declaratory judgment, which simply relies on the presumption 

that “once the judiciary has said what the law is,” compliance will follow). Violation of a 

declaratory judgment is not punishable as contempt. See Steffel, 415 U.S. at 471; Rodriguez v. 

Hayes, 591 F.3d 1105, 1120 (9th Cir. 2010). 

Declaratory judgments are an alternative to penalties or other coercive relief and are 

available even where those other forms of relief are barred. See 28 U.S.C. § 2201(a) (“[A]ny 

court of the United States . . . may declare the rights and other legal relations of any interested 

party seeking such declaration, whether or not further relief is or could be sought.”); see also 

Fed. R. Civ. P. 57, Advisory Cmte. notes (1937) (noting that “when coercive relief . . . is deemed 

ungrantable or inappropriate,” a court may issue a declaratory judgment). Courts often grant 

declaratory relief even when they deny an injunction in the same case. See, e.g., Doe v. 

Stephens, 851 F.2d 1457, 1467 (D.C. Cir. 1988); Knight First Amendment Inst., 2018 WL 

2327290 at *24. Indeed, the FEC itself has successfully argued before this Court that it may 

seek declaratory relief for FECA violations even where penalties for those violations are timebarred. FEC v. Christian Coalition, 965 F. Supp. 66, 69-72 (D.D.C. 1997); FEC v. Nat’l 

Republican Senatorial Comm., 877 F. Supp. 15, 20-21 (D.D.C. 1995).

The FEC’s construction of the word “sanction” is unsupported by precedent. In Alabama 

v. North Carolina, 560 U.S. 330 (2010), the Supreme Court defined the “ordinary meaning” of 

the word “sanction” in two ways: “‘[t]he detriment[al] loss of reward, or other coercive 

intervention, annexed to a violation of a law as a means of enforcing the law,’” and “‘[a] penalty 

or coercive measure that results from failure to comply with a law, rule, or order.’” Id. at 340 

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(quoting Webster’s New International Dictionary 2211 (2d ed. 1954) and Black’s Law Dictionary 

1458 (9th ed. 2009)). 

The D.C. Circuit also narrowly construed the meaning of the word “sanction” in 

LaRouche v. FEC, 28 F.3d 137 (D.C. Cir. 1994), a case in which a candidate challenged an FEC 

order to repay federal matching funds. He claimed that, in obtaining the funds, he had relied in 

good faith on FEC rules and regulations, but the D.C. Circuit held the candidate’s good faith 

immaterial. “[A]ll the good faith in the world will not save petitioners because the request that 

they repay the . . . matching funds was not a sanction.” LaRouche, 28 F.3d at 142 (emphasis 

added) (construing similar “sanction” provision in 52 U.S.C. § 30111(e)).

5

The FEC notes that sanctions can include nonmonetary obligations and restrictions on 

future activities, but only when, as in the cases cited by the FEC, such obligations and restrictions 

are imposed because someone has violated the law and when these sanctions burden the 

wrongdoer in ways they do not burden the general public. See U.S. Dep’t of Energy v. Ohio, 503 

U.S. 607, 621 (1992); Alabama v. North Carolina, 560 U.S. 330, 340-41 (2010); United States v. 

Alabama, 691 F.3d 1269, 1289 (11th Cir. 2012). The declaration here will merely clarify the law 

for everyone and affect everyone the same way.

VII. SpeechNow Rested an Implausible Conclusion—that Contributions to Super PACs 

Do Not Corrupt or Create Even an Appearance of Corruption—and on Flawed 

Reasoning

The remainder of this Opposition argues for overruling SpeechNow, something this Court 

cannot do. Plaintiffs submit the following arguments to preserve them for appeal and underscore 

the extraordinarily high stakes of this litigation.

 5 The FEC questions whether LaRouche survives Kokesh v. SEC, 137 S. Ct. 1635, 1644 (2017), 

Mot. to Dismiss 24, but Kokesh strongly reinforces LaRouche. The Supreme Court emphasized 

that disgorgement does not constitute a penalty when its purpose is compensatory, as the purpose 

of the disgorgement in LaRouche certainly was. 137 S. Ct. at 1642-43. 

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1. The Supreme Court has long recognized a distinction between

contributions and expenditures 

Different constitutional standards apply to limits on contributions to campaigns and limits 

on expenditures by campaigns. Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), upheld federal 

limits on contributions while striking down limits on expenditures. Id. at 23-35, 39-51. In the 

forty-two years since Buckley, the Supreme Court has continued to distinguish sharply between 

contribution limits and expenditure limits. See FEC v. Colo. Republican Fed. Campaign Comm.

(Colorado II), 533 U.S. 431, 441-42 (2001) (“[W]e have routinely struck down limitations on 

independent expenditures by candidates, other individuals, and groups, while repeatedly 

upholding contribution limits.” (internal citations omitted)). The Court has held that limits on 

expenditures are subject to strict scrutiny; they must “further a compelling interest” and must be 

“narrowly tailored to achieve that interest.” FEC v. Wis. Right to Life, 551 U.S. 449, 464 (2007). 

Contribution limits, however, are not subject to strict scrutiny. These limits must merely be 

“closely drawn” to match a “sufficiently important interest.” FEC v. Beaumont, 539 U.S. 146, 

162 (2003).

In Citizens United v. FEC, 558 U.S. 310 (2010), the Court adhered to the pattern. It 

struck down a restriction on a group’s expenditures while reiterating that “contribution limits . . . 

unlike limits on independent expenditures, have been an accepted means to prevent quid pro quo

corruption.” Id. at 359.

In SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010) (en banc), however, the D.C. 

Circuit struck down limits on contributions to super PACs. Although the court assumed that 

contribution limits were not subject to strict scrutiny, id. at 695-96, it concluded that Citizens 

United implicitly held them unconstitutional.

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2. The logical fallacy of SpeechNow

SpeechNow rested on a logical fallacy. Since the Supreme Court had held in Citizens

United that independent expenditures could not give rise to corruption or the appearance of 

corruption, the D.C. Circuit assumed that contributions to entities that make independent 

expenditures could not give rise to corruption or the appearance of corruption. The D.C. Circuit 

was incorrect both logically and empirically.

In Citizens United, the Supreme Court said, “[W]e now conclude that independent 

expenditures . . . do not give rise to corruption or the appearance of corruption,” 558 U.S. at 357, 

and the D.C. Circuit reasoned, “[i]n light of the Court’s holding as a matter of law that 

independent expenditures do not corrupt or create the appearance of quid pro quo corruption, 

contributions to groups that make only independent expenditures also cannot corrupt or create 

the appearance of corruption.” 599 F.3d at 694. See also Albert W. Alschuler, Laurence H. 

Tribe, Norman L. Eisen & Richard Painter, Why Limits on Contributions to Super PACs Should 

Survive Citizens United, 86 Fordham L. Rev. 2299, 2303 (2018) [hereinafter Alschuler et al.]

(calling the Court’s analysis “the SpeechNow syllogism”).6

The D.C. Circuit declared that its analysis made the standard of review immaterial: 

[B]ecause Citizens United holds that independent expenditures do not corrupt or 

give the appearance of corruption as a matter of law, then the government can have 

no anti-corruption interest in limiting contributions to independent expenditure-only 

organizations. No matter which standard of review governs contribution limits, the 

limits on contributions to SpeechNow cannot stand.

SpeechNow, 599 F.3d at 696. According to the D.C. Circuit, “the [Supreme] Court held that the 

government ha[d] no anti-corruption interest in limiting independent expenditures.” Id. at 693

 6 This article by four of the plaintiffs’ lawyers addresses many of the issues arising in this 

litigation. For the Court’s convenience, it is appended to this Response.

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(emphasis in the original). Whatever the standard of review might be, the Court said, “something 

. . . outweighs nothing every time.” Id. at 695. 

Acknowledging any regulatory interest at all would have undercut the SpeechNow court’s 

analysis. Acknowledging such an interest would have required the court to assess its strength, 

recognizing that an interest too weak to justify an expenditure limit still may justify a 

contribution limit. Since the Supreme Court did not in fact hold as a matter of law that 

Congress’s interest in restricting independent expenditures was nonexistent, the SpeechNow

analysis was faulty. 

3. The D.C. Circuit misinterpreted Citizens United

What the D.C. Circuit called Citizen’s United’s “holding” was, in fact, dictum. 

Moreover, the Supreme Court almost certainly did not score the government interest in 

regulating independent expenditures at zero. Even apart from those difficulties, however, the 

D.C. Circuit’s reasoning is unconvincing in light of the actual effects of SpeechNow in the real 

world.

The bottom-line of the SpeechNow opinion—that contributions to super PACs cannot 

corrupt—is plainly wrong. A federal grand jury took a different view when, in 2015, it indicted 

Senator Robert Menendez and Dr. Salomon Melgen for bribery. The indictment alleged that 

Melgen made two $300,000 contributions to a super PAC supporting Menendez’s reelection in 

exchange for Menendez’s aid in resolving a Medicare billing dispute.

The defendants moved to dismiss the charges based on the super PAC contributions. 

They maintained that “no quid pro quo corruption can arise when a private citizen contributes to 

a bona fide Super PAC, because a bona fide Super PAC does not coordinate its expenditures 

with a candidate.” United States v. Menendez, 132 F. Supp. 3d 635, 639 (D.N.J. 2015) (quoting 

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Defendants’ Motion to Dismiss). A federal district court denied the motion to dismiss, noting 

that the federal bribery statute forbids corruptly seeking “anything of value personally or for any 

other person or entity, in return for being influenced in the performance of any official act.” Id. 

at 640 (quoting 18 U.S.C. § 201(b)(2)) (emphasis added by the court). Just as a bribe giver

cannot escape a bribery conviction by saying, “I’ll pay the money to your sister,” he cannot 

avoid conviction by saying, “I’ll pay the money to a super PAC.” Designating an “independent 

expenditure group” as the recipient of a bribe giver’s payment cannot legalize bribe-giving, and 

it cannot make bribe-giving a First Amendment right.7

The D.C. Circuit disclaimed responsibility for its unfounded conclusion by pointing to 

the Supreme Court’s statement that “independent expenditures . . . do not give rise to corruption 

or the appearance of corruption.” SpeechNow, 599 F.3d at 694. But the corrupting effect of a 

contribution does not depend on whether its recipient spends it under the direction of the 

candidate. Bribes and other corrupting payments do not lose their corrupting character when 

they are directed to innocent third parties, as they often are. See Raymond Hernandez & David 

W. Chen, Gifts to Pet Charities Keep Lawmakers Happy, N.Y. Times, Oct. 19, 2008, 

https://nyti.ms/2Jxw61E. Consider a senator who agreed to vote in favor of widget subsidies in 

exchange for a widget maker’s donation to the Feed the Hungry Foundation. Even if the 

Foundation never spent the widget maker’s contribution, the donor and the senator would be 

guilty of bribery. Moreover, if the Foundation used the donation for the benevolent purposes the 

 

 7 After a jury failed to reach a verdict on the charges against Menendez and Melgen, the district 

court again rejected the defendants’ contention that a contribution to an independent expenditure 

group cannot be a bribe. United States v. Menendez, 291 F. Supp. 3d 606, 621-22 (D.N.J. 2018). 

The court, however, dismissed the charges based on Melgen’s political contributions because the 

government’s evidence at trial failed to establish the sort of quid pro quo the law required. Id. at 

623-24. 

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senator intended, few would say that the donor’s contribution could not corrupt just because the 

Foundation’s expenditures to feed the hungry did not corrupt. 

4. Other decisions have rejected the logical fallacy of SpeechNow

SpeechNow is inconsistent with the reasoning of other Supreme Court precedent. For 

example, the Supreme Court’s ruling in McConnell v. FEC, 540 U.S. 93 (2003), cannot be 

reconciled with the D.C. Circuit’s reasoning in SpeechNow. In a portion of McConnell that the 

Supreme Court specifically reaffirmed after its decision in Citizens United, the Court upheld 

restrictions on contributions that parties would use to make independent expenditures. 

The reaffirmed portion of McConnell concerned restrictions on the donation of “soft 

money” to political parties—money the parties would use for such purposes as turning out voters 

and addressing election issues rather than advocating the election of identified candidates. No 

evidence indicated that soft money expenditures had been coordinated with the expenditures of 

candidates in the past or that future expenditures would be. 

For Justice Kennedy, writing in dissent, the fact that soft money expenditures were not 

coordinated with those of any candidate was decisive. He wrote, “[I]ndependent party activity, 

which by definition includes independent receipt and spending of soft money, lacks a possibility 

for quid pro quo corruption by federal office holders.” Id. at 301 (Kennedy, J., dissenting). The 

Court, however, rejected Justice Kennedy’s position, calling it “crabbed” and declaring that it 

ignored “precedent, common sense, and the realities of political fundraising.” Id. at 152. The 

Court observed in a footnote that Congress could validly limit contributions made for the 

purpose of funding “express advocacy and numerous other noncoordinated expenditures.” Id. at 

152 n.48; see also Colo. Republican Campaign Comm. v. FEC (Colorado I), 518 U.S. 604, 617 

(1996) (opinion of Breyer, J.) (“The greatest danger of corruption, therefore, appears to be from 

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the ability of donors to give sums up to $20,000 to a party which may be used for independent 

party expenditures for the benefit of a particular candidate.”).

In SpeechNow, the D.C. Circuit did not attempt to distinguish limits on contributions to 

super PACs from the limits on soft money contributions McConnell upheld. Moreover, on the 

day that the D.C. Circuit decided SpeechNow, a three-judge federal district court in the District 

of Columbia held that McConnell’s approval of limits on soft money contributions survived 

Citizens United. See Republican Nat’l Comm. v. FEC, 698 F. Supp. 2d 150 (D.D.C. 2010). The 

Supreme Court later summarily affirmed the three-judge court’s ruling. Republican Nat’l Comm. 

v. FEC, 561 U.S. 1040 (2010).8

A more recent decision by a three-judge federal district court in the District of Columbia 

expressly contradicted the SpeechNow syllogism. In Republican Party of Louisiana. v. FEC, 219 

F. Supp. 3d 86 (D.D.C. 2016), aff’d, 137 S. Ct. 2178 (2017), a state political party challenged 

federal restrictions on its ability to accept soft money contributions that it would use to benefit 

federal candidates. The party declared that its “activity would be ‘independent,’ in that . . . [it]

would conduct the activity without any coordination with a federal candidate or campaign.” Id. 

at 91. The three-judge court disagreed, holding that the absence of coordination was immaterial. 

The court found that contributions can corrupt even when expenditures do not: 

[P]laintiffs misunderstand the way in which large soft-money contributions to 

political parties create a risk of quid pro quo corruption. . . . [T]he inducement 

occasioning the prospect of indebtedness on the part of a federal officeholder is not 

the spending of soft money by the political party. The inducement instead comes 

from the contribution of soft money to the party in the first place. 

Id. at 97 (emphasis in the original).

 8 Citizens United overruled McConnell’s holding that Congress could prohibit electioneering 

communications by corporations and labor unions, 558 U.S. at 355-56, but, as noted here, shortly 

after Citizens United the Court specifically reaffirmed McConnell’s holding that limits on softmoney contributions are valid. 

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The FEC says that Republican Party of Louisiana does not “undermine the logic of 

SpeechNow” because Republican Party of Louisiana did not involve super PACs and instead 

involved “political parties, which the courts have treated differently in light of their close 

relationship with officeholders and candidates.” Mot. to Dismiss 17. Indeed, the district court 

itself purported to distinguish SpeechNow on that basis. 219 F. Supp. 3d at 98. But SpeechNow

did not offer an empirical judgment about the closeness of the relationship between the 

candidates and the groups making independent expenditures in support of the candidates. What

mattered to the D.C. Circuit in SpeechNow was simply the fact that the super PACs made

independent expenditures. SpeechNow thus rested on a leap of logic that the three-judge panel 

flatly rejected when it was articulated by the Republican Party of Louisiana. The Supreme Court 

summarily affirmed the three-judge court’s decision. Republican Party v. FEC, 137 S. Ct. 2178 

(2017).

VIII. The Statement of the Supreme Court on which the SpeechNow Decision Depended 

Was Dictum, and did Not Have the Meaning the Court of Appeals Attributed to It

In Citizens United, the Supreme Court declared restrictions on independent 

expenditures unconstitutional. It said, “The anticorruption interest is not sufficient to 

displace the speech here in question.” 558 U.S. at 357. The sentence that drove the 

SpeechNow decision came three sentences later: “[W]e now conclude that independent 

expenditures . . . do not give rise to corruption or the appearance of corruption.” Id. The 

statement that the government’s interest was insufficient to justify any restriction of 

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independent expenditures fully resolved the case.

9 If the Court’s subsequent statement is 

read to declare the government’s regulatory interest nonexistent, that statement goes far 

beyond any issue before the Court. If read as the D.C. Circuit read it, this statement was 

unmistakably dictum. 

Perhaps, as the D.C. Circuit concluded, the Supreme Court truly meant that 

independent expenditures do not corrupt even a smidgen, but it seems more likely that the 

Court did not mean its statement to be taken the way the D.C. Circuit took it.

Certainly two of the Justices who joined the majority opinion could not have meant

that independent expenditures cannot corrupt. Justices Roberts and Alito said the opposite

very forcefully three years earlier, declaring, “[I]t may be that, in some circumstances, ‘large 

independent expenditures pose the same dangers of actual or apparent quid pro quo

arrangements as do large contributions.’” FEC v. Wis. Right to Life, 551 U.S. 449, 478 

(2007) (opinion by Roberts, C.J., announcing the judgment of the Court and joined by Alito, 

J., in the portion of the opinion quoted). Those Justices noted, in fact, “We have suggested 

that this interest might . . . justify limits on electioneering expenditures.” Id. 

 9 Indeed, it fully resolved the case a second time. Citizens United’s principal holding was that 

“the Government cannot restrict political speech based on the speaker’s corporate identity.” 558 

U.S. at 346. This holding did not depend on the strength of the government’s regulatory interest, 

but rather the identity of the speaker. The Court, however, discussed the strength of the 

government’s regulatory interest at length, concluding that it was insufficient to justify any 

restriction of independent expenditures. Either branch of the Court’s opinion would have 

sufficed without the other. Once the Court held that the government may not restrict 

independent expenditures on the basis of corporate identity, there was no reason for it to consider 

whether the government may not restrict independent expenditures at all. Four Supreme Court 

Justices have accordingly described Citizens United’s description of the kind of corruption 

needed to justify a restriction of independent expenditures “as dictum, as an overstatement, or as 

limited to the context in which it appears.” McCutcheon v. FEC, 134 S. Ct. 1434, 1471 (2014) 

(Breyer, J., joined by Ginsburg, Sotomayor, and Kagan, JJ., dissenting).

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Citizens United is best construed as being consistent with those views, which 

acknowledge the existence of some government interest in preventing corruption and the 

appearance of corruption in connection with independent election activities. The existence 

of such a government interest also was expressed in the reasoning of Buckley, which Citizens 

United appeared to embrace: “This confirms Buckley’s reasoning that independent 

expenditures do not lead to, or create the appearance of, quid pro quo corruption.” Citizens 

United, 558 U.S. at 360. Buckley never said that there can be no legitimate government 

interest whatsoever in regulating conduct relating to organizations making independent 

expenditures. The Court stated in Buckley that the government interest was too small to 

justify the limits imposed: “We find that the governmental interest in preventing corruption 

and the appearance of corruption is inadequate to justify § 608(e)(1)’s ceiling on independent 

expenditures.” Buckley, 424 U.S. at 45 (emphasis added). 

A decision less than a year before Citizens United further confirms that the Court did 

not intend to pronounce any and all independent expenditures as non-corrupting. Caperton v. 

A.T. Massey Coal Co., 556 U.S. 868 (2009), examined the combined effect of campaign 

contributions and independent expenditures by Don Blankenship, the Chief Executive of the 

Massey Coal Company. While Massey was appealing a $50 million verdict against it to a 

state supreme court, Blankenship spent more than $3 million to prevent the reelection of one 

of that court’s justices. The defeated justice’s replacement then provided the decisive vote 

for reversing the $50 million verdict. 

The Court held that the newly elected justice’s refusal to recuse himself from the coal 

company’s appeal violated the Due Process Clause. The Court’s opinion was written by 

Justice Kennedy, who also would write for the Court in Citizens United. The opinion

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declared, “We conclude that there is a serious risk of actual bias . . . when a person with a 

personal stake in a particular case had a significant and disproportionate influence in placing 

the judge on the case by raising funds . . . when the case was pending or imminent.” Id. at 

884. In Citizens United, the Court distinguished Caperton by noting that Caperton’s 

“holding was limited to the rule that the judge must be recused, not that the litigant’s political 

speech could be banned.” Citizens United, 558 U.S. at 360.

Judicial recusal and limiting independent expenditures are indeed different remedies, 

but if Blankenship’s expenditures did “not give rise to corruption or the appearance of 

corruption,” no remedy would have been required. Caperton cannot be reconciled with the 

proposition erroneously attributed to the Supreme Court by SpeechNow—that independent

expenditures can never corrupt. 

A decision subsequent to SpeechNow is also inconsistent with the contention that the 

Court meant to declare independent expenditures non-corrupting. In McCutcheon v. FEC, 

134 S. Ct. 1434 (2014), four members of the Citizens United majority joined a plurality 

opinion written by Chief Justice Roberts. The opinion reiterated Buckley’s statement that

“[t]he absence of prearrangement and coordination of an expenditure with the candidate or 

his agent . . . undermines the value of the expenditure to the candidate” and then declared, 

“But probably not by 95 percent.” Id. at 1454. The plurality thus recognized that the lack of 

coordination may make an expenditure worth less but does not make it worthless. 

In SpeechNow, the D.C. Circuit based the right to give $30 million to a super PAC on an 

imprecise Supreme Court dictum. The Supreme Court did not hold, and did not intend to imply, 

that contributions to super PACs can never corrupt or give the appearance of corruption. 

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IX. Contributions to Super PACs Cannot Reasonably Be Distinguished from the 

Contributions to Candidates Whose Limitation Buckley Upheld

SpeechNow failed to address what should have been the central issue in the case—

whether limitations on contributions to super PACs can be distinguished from the limitations 

on contributions to candidates that Buckley upheld. 

Buckley’s distinction between contributions and expenditures did not rest on the 

proposition that candidates cannot be corrupted by funds given to and spent by others—a 

plainly untenable proposition. See United States v. Menendez, 132 F. Supp. 3d 635, 639 

(D.N.J. 2015) (discussed above); United States v. Siegelman, 640 F.3d 1159 (11th Cir. 2011) 

(affirming a former governor’s conviction of bribery although the alleged bribe consisted of a 

contribution to a group supporting a referendum the governor favored and did not benefit him 

personally). Buckley instead offered three reasons for concluding that contributions to 

candidates have less communicative value than independent expenditures and two reasons for 

concluding that contributions are more corrupting. All five of Buckley’s reasons for 

distinguishing contributions from expenditures would place contributions to super PACs on 

the “contribution” side of that line and support dollar limits on those contributions.

First, the Court said, “[a] contribution serves as a general expression of support for the 

candidate and his views, but does not communicate the underlying basis for the support.” 

Buckley, 424 U.S. at 21. Equally, a contribution to a super PAC does not communicate the 

underlying basis for the contributor’s support. 

Second, the Court said, “the transformation of contributions into political debate 

involves speech by someone other than the contributor.” Id. Transforming a contribution to 

a super PAC into political debate also “involves speech by someone other than the 

contributor.”

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Third, the Court said, limiting the amount of an individual’s contribution “permits the 

symbolic expression of support evidenced by a contribution but does not in any way infringe 

the contributor’s freedom to discuss candidates and issues.” Id. Again, contributions to super 

PACs are no different. Limiting a contribution to a super PAC allows the contribution to 

serve as an expression of support but does not limit a contributor’s freedom to discuss 

candidates and issues.

Like all of Buckley’s reasons for treating contributions as low-value speech, the first 

of Buckley’s reasons for viewing contributions as more corrupting than expenditures does not 

distinguish contributions to candidates from super PAC contributions. The Court declared,

“The absence of prearrangement and coordination of an expenditure with the candidate or his 

agent . . . alleviates the danger that expenditures will be given as a quid pro quo for improper 

commitments from the candidate.” Buckley, 424 U.S. at 47. 

Anti-coordination rules may inhibit improper communication between candidates and 

the people who determine how a super PAC’s funds will be spent, but those rules do not 

inhibit communication between candidates and super PAC donors. Because there can be 

coordination between candidates and donors to super PACs, the same concerns applicable to 

contributions to candidates also apply to contributions to super PACs. The rules do not limit 

what candidates and donors may say to one another. If candidates wish to tell donors how 

they wish super PAC funds be spent, they may do so freely, as long as the donors do not then 

act as the candidates’ agents by conveying their wishes to the people who will actually 

determine how the donated funds are spent. See 52 U.S.C § 30101(17). And if candidates 

wish to advise donors how the donors’ own funds should be spent—namely, by donating 

them to a super PAC—again the candidates may do so under the rules. See 52 U.S.C. § 

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30125(e)(1); FEC, Advisory Op. 2011-12 (June 30, 2011), 

https://www.fec.gov/files/legal/aos/76345.pdf. Finally, the rules do not limit the donor’s 

ability to state the “quo” that he expects in return for his “quid.”

The second of Buckley’s reasons for regarding independent expenditures as less 

corrupting than contributions was that expenditures usually have less value to a candidate. 

See 424 U.S. at 46. Of the five reasons Buckley offered for distinguishing independent 

expenditures from contributions, only this one also may distinguish contributions to super 

PACs from contributions to candidates. A candidate may value a $5,500 contribution to a 

super PAC urging his election less than a $5,500 contribution to his own campaign. 

But reduced value is not the same as no value at all. As noted above, Chief Justice 

Roberts’s plurality opinion in McCutcheon v. FEC, 134 S. Ct. 1434 (2014), reiterated 

Buckley’s statement that the absence of coordination diminishes the value of an independent 

expenditure to a candidate and then acknowledged, “But probably not by 95 percent.” Id. at

1454. Similarly, a candidate might value a $5,500 contribution to a super PAC less than a 

$5,500 contribution to his own campaign, but “probably not by 95 percent.” A $1 million 

super PAC contribution produces vastly more corruption and/or appearance of corruption 

than a $5,500 campaign contribution. If Congress may prohibit the campaign contribution 

(as it may and has), it should be allowed to prohibit the super PAC contribution as well. If 

Buckley still stands—and Citizens United says it does—then SpeechNow was wrongly 

decided. Limits on contributions to super PACs cannot reasonably be distinguished from the 

limits on contributions to candidates that Buckley upheld.

X. Developments Since SpeechNow Argue for Its Reconsideration

Since SpeechNow, super PACs have transformed U.S. elections. In 2016, 2,392 super 

PACs campaigning in federal elections raised $1.8 billion. See Ctr. for Responsive Politics, 

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2016 Outside Spending, by Super PAC, https://www.opensecrets.org/outsidespending/

summ.php?cycle=2016&chrt=V&disp=O&type=S (visited June 11, 2018). Sixty percent of 

this amount came from just 100 donors. See Ctr. for Responsive Politics, 2016 Super PACs: 

How Many Donors Give?, https://www.opensecrets.org/outsidespending/

donor_stats.php?cycle=2016&type=B (visited Aug. 15, 2017).

At the time of the SpeechNow decision, few recognized the extent to which it would 

remake American politics. As noted above, Attorney General Holder explained that the 

Justice Department did not seek certiorari in SpeechNow because this decision would “affect 

only a small subset of federally regulated contributions.” Letter from Atty. Gen. Eric Holder 

to Sen. Harry Reid, June 16, 2010, https://www.justice.gov/sites/default/files/oip/legacy/

2014/07/23/06-16-2010.pdf. David Keating, the president of SpeechNow.org and the 

principal architect of the SpeechNow litigation, acknowledged five years after the Court of 

Appeals decision that using an independent expenditure group to promote a particular 

candidate “just never entered my mind.” Alex Altman, Meet the Man Who Invented the 

Super PAC, Time, May 13, 2015, http://ti.me/2wFgp1t. 

Since 2010, the appearance of corruption has become widespread and intense to an 

extent that was not foreseen by most observers when SpeechNow was decided. For example, 

in an October 2012 survey, 59% of voters in fifty-four competitive congressional districts 

agreed that “[w]hen someone gives 1 million dollars to a super PAC, they want something 

big in return from the candidates they are trying to elect.” Compl. 8 ¶ 19. In an April 2012 

survey, 69% of respondents (including 74% of Republicans and 73% of Democrats) agreed 

that “new rules that let corporations, unions and people give unlimited money to Super PACs 

will lead to corruption.” Id. Seventy-three percent of respondents (75% of Republicans, 78% 

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of Democrats) agreed that “there would be less corruption if there were limits on how much 

could be given to Super PACs.” Id.

The appearance of corruption caused by large super PAC contributions has 

contributed to an unprecedented appearance of corruption and a crisis of democratic 

legitimacy. A 2015 Gallup survey reported, for example, that 75% of Americans view 

government corruption as “widespread,” an increase from 66% in 2009. Compl. 8 ¶ 18. A 

2016 Rasmussen survey found that 61% of likely voters believe that most members of 

Congress are “willing to sell their vote for either cash or a campaign contribution.” Id. A 

survey conducted during the 2016 presidential campaign reported that 92% of registered 

voters believe that the government is “pretty much run by a few big interests looking out for 

themselves.” This number had grown from 81% only six years earlier. Voice of the People, 

Voter Anger with Government and the 2016 Election: A Survey of American Voters 

Conducted by the Program for Public Consultation, School of Public Policy, University of 

Maryland 5 (Nov. 2016), http://vop.org/wpcontent/uploads/2016/11/

Dissatisfaction_Report.pdf. See also Alschuler et al. at 2327-44 (presenting other evidence 

that SpeechNow has “helped to reduce faith in our democracy to a nadir”). 

These arguments for overruling SpeechNow have never been presented to any court.

While the FEC’s pre-Citizens United brief to the D.C. Circuit in SpeechNow itself did 

contend that contributions to super PACs should be regulated as contributions rather than 

expenditures, neither the FEC nor any party in post-SpeechNow litigation in any circuit 

argued that: (1) the premise of the SpeechNow syllogism was dictum; (2) the Supreme Court 

did not mean that dictum to be taken in the way the D.C. Circuit took it; (3) the logic of the 

supposed syllogism was erroneous; (4) Buckley’s reasons for distinguishing contributions 

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from expenditures show that limits on contributions to super PACs cannot reasonably be 

distinguished from limits on contributions to candidates; or (5) that post-SpeechNow 

developments, including McCutcheon and Republican Party of Louisiana, cast SpeechNow’s 

premises into doubt. Contrary to the FEC’s contention, Plaintiffs’ arguments are not rehashes 

of arguments already rejected by the courts. They deserve a chance for review on the merits.

XI. Conclusion

SpeechNow—and the FEC’s response to it—have caused widespread mistrust of our 

country’s electoral system. Although this Court does not have the authority to reconsider 

SpeechNow, this Court can and should reject the FEC’s strained arguments for preventing 

reconsideration and review of SpeechNow by the Court of Appeals and the Supreme Court. 

REQUEST FOR ORAL HEARING

Pursuant to Local Civil Rule 7(f), Plaintiffs request an oral hearing on this motion.

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Dated: June 13, 2018

Respectfully submitted,

/s/ Stephen A. Weisbrod

Stephen A. Weisbrod (D.C. Bar No. 439152)

WEISBROD MATTEIS & COPLEY PLLC

1200 New Hampshire Ave., NW, Suite 600

Washington, DC 20036

(202) 499-7900

sweisbrod@wmclaw.com

Brad Deutsch (D.C. Bar No. 469636)

GARVEY SCHUBERT BARER

Flour Mill Building

1000 Potomac Street NW, Suite 200

Washington, DC 20007-3501

(202) 965-7880

BDeutsch@gsblaw.com

Malcolm Seymour 

Andrew Goodman 

GARVEY SCHUBERT BARER

100 Wall Street, 20th Floor

New York, NY 10005

(212) 431-8700

mseymour@gsblaw.com

agoodman@gsblaw.com

Laurence H. Tribe (admitted pro hac vice)

Of Counsel

Hauser Hall 420

Harvard University*

Cambridge, MA 02138

(617) 495-1767

Ambassador (ret.) Norman Eisen (D.C. Bar No. 

435051)

Of Counsel

2022 Columbia Rd. NW, #214

Washington, DC 20009

(202) 462-2903

Attorneys for Plaintiffs

Ronald A. Fein (admitted pro hac vice)

John C. Bonifaz 

FREE SPEECH FOR PEOPLE

1340 Centre St. #209

Newton, MA 02459

(617) 244-0234

rfein@freespeechforpeople.org

Anne Weismann (D.C. Bar No. 298190)

6117 Durbin Road

Bethesda, MD 20817 

Albert W. Alschuler 

Of Counsel

220 Tuttle Road

Cumberland, ME 04021

(207) 829-3963

Richard Painter

Of Counsel

Mondale Hall, Office 318

University of Minnesota Law School*

229 19th Avenue South 

Minneapolis, MN 55455

(612) 626-9707

*University affiliation noted for identification purposes only.

Case 1:16-cv-02201-EGS Document 42 Filed 06/13/18 Page 40 of 41
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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that, on June 13, 2018, the foregoing was caused to be served on 

counsel of record for Defendant by the Court’s electronic filing system. 

Dated: June 13, 2018 /s/ Stephen A. Weisbrod__

Stephen A. Weisbrod 

Case 1:16-cv-02201-EGS Document 42 Filed 06/13/18 Page 41 of 41