UNITED STATES COURT OF APPEALS 


FOR THE FIFTH CIRCUIT 


FEDERAL ELECTION COMMISSION, 

Plaintiff-Appellee, 

v. 

JODY L. NOVACEK, REPUBLICAN 

VICTORY COMMITTEE, INC., also 

known as REPUBLICAN VICTORY 

2004 COMMITTEE, BPO, INC., and 

BPO ADVANTAGE, LP, 

Defendants-Appellants 

No.: 10-10516 

Response to Appellee's Motion for 

Summary Affirmance 

APPELLANTS' RESPONSE TO 


APPELLEE'S MOTION FOR SUMMARY AFFIRMANCE 


NOW COMES JODY L. NOVACEK, Defendant-Appellant and files this her 

Response to Appellee's Motion for Summary Affirmance. Said motion should be denied 

as the record on appeal will show that Ms. Novacek raised genuine issues of material fact 

in response to the Federal Election Commission's ("FEC") Motion for Summary 

Judgment. That motion was improperly granted despite the genuine issues of material 

fact that were before the court. The district court also did not follow the correct summary 

judgment standard when it viewed some of the facts and drew inferences from them in 

the light most favorable to the FEC rather than in the light most favorable to Ms. 

Novacek. Accordingly, because of the lower court's oversight of genuine issues of 

material fact and its misapplication of law, the appellate process should proceed forward 

and the Appellee's Motion for Summary Affirmance should be denied. 

Appellants' Response to Appellee's Motion for Summary Affirmance Page 1 

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Standard of Review 

The Fifth Circuit Court reviews a grant of summary judgment de novo. Croft v. 

Governor ofTex. , 562 F.3d 735, 742 (5th Cir. 2009). Summary Judgment should only be 

granted if there are no genuine issues of material fact and movant is entitled to judgment 

as a matter of law. Fed. R. Civ. P. 56(c). "An issue is material if its resolution could 

affect the outcome of the action." Daniels v. City ofArlington, Tex., 246 F.3d 500, 502 

(5th Cir. 2001). "In deciding whether a fact issue had been created, the court must view 

the facts and the inferences to be drawn therefrom in the light most favorable to the 

nonmoving party." Id. 

ARGUMENT 

I. APPELLANTS RAISED GENUINE ISSUES OF MATERIAL 

FACT AND THEREFORE SUMMARY JUDGMENT SHOULD HAVE 

BEEN DENIED 

The district court incorrectly found that Appellants willing and knowingly 

violated the Act by fraudulently misrepresenting themselves as part of the Republican 

Party. Novacek offered arguments and material facts to support the Appellants' defense. 

The district court errored in its analysis of these facts and there are reversible errors of 

law, this Motion for Summary Affirmance should be DENIED. 

The FEC Claimed the Appellants "willing and knowingly" committed 

fraudulently mispresented they were part of the Republican Party. 

Appellants do not dispute that Ms. Novacek drafted the two solicitation scripts, 

hired the call centers, and authored the one mail piece. The Appellants used the term 

"Republican Party" in both scripts and the mail piece and argued to the district court that 

Appellants' Response to Appellee's Motion for Summary Affirmance Page 2 

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they had the right to do so, because they were a part of the Republican Party. Defendant's 

Amended Response to Plaintiff's Motionfor Summary JUdgment Pp. 7-8. The Court 

errored when it ruled the RVC was not part ofthe Republican Party and ruked in favor of 

the FEC when it should have upheld the pro se Appellants. Neither the FEC not the court 

cited any law that prohibited the RVC from claiming they were part of the Republican 

Party. No precedence was sited in support of the Opinion on this key issue before the 

Court. The issue was material because its resolution could affect the outcome ofthe 

action. Summary Judgment should have been denied by the District Court and any 

inference should have been in favor of the Appellants, not the FEC. 

The FEC charged the Appellants' use ofthe term "Republican Party" in it 

solicitations violated 2 U.S.C. § 44lh(b) which provides that: 

No person shall: (1) fraudulently misrepresent the person as speaking, 

writing, or otherwise acting for or on behalfof any candidate or political 

party or employee or agent thereof for the purpose of soliciting 

contributions or donations; or (2) willfully and knowingly participate in or 

conspire to participate in any plan, scheme, or design to violate paragraph 

(1). 

The question before the district Court was not if the Appellants used the term 

"Republican Party". The Appellants' never denied this fact. The question before the 

Court was ifthey were part ofthe Republican Party?At a minimum, Novacek believed at 

the time, the RVC was part ofthe Republican Party as she does today. And as such, the 

Court errored in ruling the Appellant's actions "willing" and "knowingly" violated the 

Act. 

The FEC did not reference any law or court case in support of its claim that 

Appellants were not a part ofthe Republican Party. In fact there is no such law, 

regulation or process to become an officially certified part ofthe Republican Party. The 

Appellants' Response to Appellee's Motion for Summary Affirmance Page 3 

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Act has many definitions of political committees and entities and many types of federal 

election activities, but it does not have a definition that constitutes whether a group is, or 

is not, a part of a political party. 

There are many committees, organizations, and groups that make up the 

Republican Party, as well as its individual members. There are even opposing factions 

within the Republican Party such as pro-life and pro-choice Republican groups. The 

affiliated groups span the philosophical spectrum from Conservative to Progressive 

depending on the issue of focus. For example, the Republican Hispanic Committee, the 

Republican Women's group, the Young Republicans, the National Republican Senatorial 

Committee, the Republican Congressional Committee all are part of the Republican 

Party. All these committees raise money as part of the Republican Party. There is no 

formal process for any to be "certified" as part ofthe Party. Further, there is no entity 

charged with the power to "certify" groups as official "republican groups". All these 

entities, including RVC, were started and "self-declared" as part of the Republican Party. 

Additionally, in the Person Affidavit provided by the RNC, it clearly states that the RNC 

does not have authority over entities of the Republican Party. " ...however, the RNC is an 

independent entity that does not maintain control over state parties ..." Apx 570 at 6-7. 

The RNC also does not maintain authority over national repUblican groups such as the 

National Republican Senatorial Committee, for example. 

These groups and their political speech are protected by the First Amendment just 

as it protects the political speech of individuals. Likewise, for individuals there is no 

formal process to be approved as a member ofthe Republican Party. An individual fills 

out a voter registration card and they "self-declare" membership into the Party. A 

Appellants' Response to Appellee's Motion for Summary Affirmance Page 4 

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committee/group/organization has the same right to "self-declare" its affiliation. All the 

groups above work under this self-declaration, as did the RVe. The district court ruled 

that the Appellants' argument that RVC was a part of the Republican Party and had the 

right to represent itself as such was a position that was "unsupportable". The court stated, 

"This position is unsupportable. The Republican Party is an unincorporated association 

under the general management ofthe Republican National Committee." Op. p. 10. The 

court errored in this reasoning. What is unsupportable is the court's opinion that the RNC 

had the right to disassociate any group at will, with disregard for the First Amendment 

rights of that group. Further the FEC did not reference any process or authority within the 

RNC to exclude groups and forbid then from speaking as part ofthe Party. 

Any entity or law given this authority would have the power to chill political 

speech at will and therefore any such authority given would be unconstitutional. Speech 

itself is of primary importance to the integrity ofthe election process, any speech 

arguably within the reach ofrules created for regulating political speech is chilled. As 

supported in Citizens United v. FEC, a speaker wishing to avoid civil or criminal liability 

threats and the heavy costs of defending against FEC enforcement must ask a 

governmental agency (or in this case, ifthe district court's Opinion is upheld, the 

National Republican Party) for prior permission to speak. The restrictions thus function 

as the equivalent ofa prior restraint, giving the FEC (in this case, the RNC) power 

analogous to the type of government practices that the First Amendment was drawn to 

prohibit. The ongoing chill on speech makes it necessary to invoke the earlier precedents 

that a statue that chills speech can and must be invalidated where its facial invalidity has 

been demonstrated. Citizen United v. FEC, Pp. J2-20. In this case, there simply is no 

Appellants' Response to Appellee's Motion for Summary Affirmance PageS 

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internal rule or regulation and the Court errored in implying there was one in favor of the 

FEC. 

Because speech is an essential mechanism of democracy-it is the means to hold 

officials accountable to the people including leaders ofany political party-political 

speech must prevail against laws that would suppress it by design or inadvertence. Laws 

burdening such speech are subject to strict scrutiny. If the Court's and FEC's 

interpretation of a political parties bylaws, granting day-to-day management of the party 

is upheld, political speech will be chilled for corporations and potentially for individuals. 

There is no basis for the proposition that, in the political speech context, the Government 

may impose restrictions on certain disfavored speakers. Both history and logic lead to this 

conclusion. Citizen United v. FEC Pp. 20-25. Therefore, the question is can the RNC 

disfavored speakers? The RVC was in disfavor with the RNC because it was using a call 

center in India Apx 487, and unbeknown to Novacek, the RNC had a history of 

"problems" tied to India. Apx 604-612. 

Similar to Appellants' activity in 2004, recently former Bush Chief of Staff, Carl 

Rove and former Chairmen of the Republican National Committee, Ed Gillespie, have 

founded several organizations that are raising money to support Republicans. (See 

attached news articles.) Also reported, Michael Steel, the current Chairman of the RNC, 

is at odds with these new groups and founders. Rove and company are considered 

Republican power-players and with resources of a reported $30 million, can certainly 

defend any challenge by the RNC to their right to declare they are part of the Republican 

Party or their rights to raise money on behalf of the Party and spend it as they see fit in 

support of Republican candidates or in opposition to other candidates. One 

Appellants' Response to Appellee's Motion for Summary Affirmance Page 6 

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article states that they formed these groups to "go around the National Republican 

Committee" to raise funds. 

Ironically, Gillespie was Chairman of the RNC when it filed the FEC complaint 

and now he is a leader ofthe same type of group. Raising funds to support RepUblicans is 

exactly what Novacek was trying to do in 2004 when she founded RVC. Her deposition 

states she wanted to "build a better mousetrap" to help Republicans win more elections. 

Apx 60-61. The Appellants have violated no law in "self-declaring" they are part of the 

Republican Party and raising money. The RNC in filing their complaint against the 

Appellants attempted to chill a small "Washington outsider" political voice. The court 

drew inference in the FEC's favor on this issue with no law or case precedence to support 

it's Opinion. The First Amendment and decisions noted above support the Appellant's 

pro se arguments. Summary Judgment should have been denied as should Appellee's 

Motion four Summary Affirmance. 

The FEC Alleged the Appellants "willing and knowingly" fraudulently 

misrepresented they were part of the National Republican Committee (RNC). 

Novacek denied all allegations that the Appellants said they were the RNC 

Defendant's Amended Response to Plaintiff's Motion for Summary Judgment p. 8; 

Novacek Affidavit p. 5. and provided evidence to support her argument. Improperly, the 

FEC co-mingled the RNC allegation with the Republican Party allegation, as does the 

Court in its Opinion. Op. Pp. 10. However, these allegations are distinct from one 

another as are the RNC and the Republican Party. The Court should have treated then as 

distinct allegations. As part of the Republican Party, the RVC could make the claim to be 

a part of the party. However, RVC could not claim they were part of or acting on behalf 

Appellants' Response to Appellee's Motion for Summary Affrrmance Page 7 

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of the RNC, and they did not. Novacek disputed the Appellants told anyone they were 

raising money for the RNC and never represented to anyone they were affiliated with the 

RNC. Apx 150-152; Apx 171-172; Apx 174-175. at 17-25; NovacekAfJidavitp.5 at 8-9. 

However, the Commission argued and the court erroneously agreed that evidence 

supported these claims of fraudulent misrepresentation. At most, FEC's view ofthe 

evidence creates a genuine issue of material fact and Summary Judgment should not have 

been granted. Accordingly, the Appellee's Motion for Summary Affirmance should be 

denied and Appeallants should be allowed to continue in the Appeals process and have 

their "day in court", 

The Appellants' don't dispute the scripts contained a reference to the "Republican 

National Committee". However, they argued its use does not constituted "willing and 

knowingly" fraudulent misrepresentation. The only reference to the RNC in the script is 

contained in the rebuttal section ofthe script. Apx 479-483. "Rebuttal" is an old-time 

telemarketing term. A more modem term would be "Questions and Answers" (Q&A) 

section. As the Appellants' argued, this is information provided to assist any solicitee 

who may have needed information about other Republican groups and the highest quality 

standard of telemarketing. Defendant'S Amended Response to Plaintiff's Motionfor 

Summary Judgment p.4. Ifthe Appellants' were representing their calls were on 

behalf of the RNC, the script would have read, "I can give you QY!. national office phone 

number in Washington DC or our web address." 

Additionally, the FEC provided no evidence from actual call transcripts or 

otherwise, that any caller used the section ofthe script that references the RNC. The FEC 

provided transcripts of eight telephone calls. Apx 613-633. The Commission also 

Appellants' Response to Appellee's Motion for Summary Affinnance PageS 

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provided twelve recordings of additional calls and despite promises to provide Novacek 

the transcripts of these additional calls, never has. Plus, the FEC provided a Declaration 

ofSrini Vasan. Apx 601-602. as evidence the transcripts were authentic and true and 

accurate recordings ofphone solicitations. However, nowhere in any of the transcripts is 

there any evidence this section ofthe script referencing the RNC was ever used by any 

caller and communicated to any solicitee. 

The FEC all edged many people believed they were contribution to the Republican 

Party, the RNC, the GOP or Bush-Cheney '04, as evidenced by the fact that nearly 100 

checks deposited by Novacek were either made payable to those organizations, 

or the memo lines indicated that the money was intended for those entities. In support of 

this, the FEC provided 122 copies of checks with some duplicates out of almost 1,800 

checks mailed to the RVC. Apx 442-747. These 122 checks total $3,180.00 of the roughly 

$50,000 RVC received as a result of these solicitations. Gp. p. 2. Of the "almost 100 

checks" claimed by the FEC, only seven were made out to RNC and an additional three 

had RNC noted on the memo line. An accounting of those checks follows: 

Apx# Made out to Memo Line Amount 

740 RNC George Bush ~50.00 

737 RNC none ~15.00 

736 RNC none ~25.00 

730 Victo!),: 2004 RNC $10.00 

717 Victoty 2004 RNC 2004 ~25.00 

673 Victo!)': 2004 RNC $10.00 

709 RNC none $60.00 

695 RNC Presidential none $25.00 

Victoty Team 

710 either RNC or RVC nQne ~20.00 

464? RNC none $60.00 

(code blocked) 

Total $300.00 

$300.00 is less than ] % of the roughly $50,000 raised. Seven checks are less than I % of 

Appellants' Response to Appellee's Motion for Summary Affirmance Page 9 

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the roughly 1,800 checks received. The evidence does not support the court's ruling that 

many people thought they were contributing to the RNC and at best creates a contested 

issue ofmaterial fact. 

And, there are material facts that indicate the Appellants'made attempts to get the 

solicitee to fill out their check correctly, further evidence they in did not "willing and 

knowingly" try to misrepresent they were the RNC. The transcripts provided by the 

FEC validate this. " ...just to confirm I spoke with you, I do need the number ofthe check 

that you plan to use ... " Apx 615. This is an attempt to have the person go get their 

checkbook so that the caller could instruct them how to fill it out, so the check was ready 

when the mail piece arrived. Defendant's Amended Response to Plaintiff's Motionfor 

Summary Judgment p. 5; p. 9. Novacek's deposition Apx 124-125. Contrary to the FEC's 

assertions, the mail piece submitted as evidence the Motion for Summary Judgment 

clearly indicates it's from The Republican Victory Committee and to make the check 

payable to Victory 2004, not the RNC (or Bush-Cheney '04. And, it's printed in boldface 

type and underlined for emphasis. Apx 484. A donor was only able to mail in a check 

after they received the follow-up letter which included as self-addressed, postage paid 

return envelope, further indicating who the donation was going to. The fulfillment letter 

directly contradicts that the Appellants' "willingly and knowingly" fraudulently 

misrepresented who was conducting the fundraising. The mail piece had no reference 

whatsoever to the RNC. Additionally, the Appellants argued the logic of how a person 

fills out a check does not indicate the Appellants' "willing and knowingly" committed 

misrepresentation. Defendant's Amended Response to Plaintiff's Motionfor Summary 

Judgment Pp. 9-10. 

Appellants' Response to Appellee's Motion for Summary Affirmance Page 10 

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The only evidence provided that any solicitee was ever told this was the RNC was 

provided by Novacek in her deposition. Apx 173-174. During monitoring, Novacek heard 

one caller answer "yes" when asked if this was the RNC. The testimony also states that 

the caller was immediately re-trained on this issue, the solicitee in question did not 

contribute and if they had, the pledge would have been held in quality verification, 

instead of being mailed the fulfillment mail piece, and called back to correct the mistake. 

This was not disputed by the FEC. Novacek Affidavit Pp. 5-6. 

Additionally Novacek testified that she felt the caller didn't even realize they had 

given out wrong information. Because of "speech mannerisms" within the Indian culture, 

they positively respond to questions as a mannerism, not an answer. They say "yes" after 

questions as an acknowledgment of the question, not an answer. None-the-Iess the caller 

needed immediate retraining and that's what occurred. The FEC never disputed this 

testimony nor did they offer any other evidence that any solicitees were ever told this was 

RNC fundraising. 

Furthermore, the FEC all edged that the Appellants represented they were 

associated with the RNC to vendors (call center Apex). In support of this, they produced 

an Affidavit by Apex employee Tom Maddux. Apx 550-555. Novacek's Affidavit 

disputes the Maddux Affidavit and creates a genuine issue of material fact. Novacek 

AffidavitPp. 1-3; Pp. 9-10. The court said, "Although there is evidence in the record 

supporting this contention, (See Appx. At 149-52, 158-60.) Novacek's discussions with 

Maddux and Apex are relevant only as to whether those non-parties were also complicit 

in the fraudulent scheme." Op. p. 7. The contradicting evidence of the two affidavits are 

material in that they go to Novacek's state of knowledge and her motivation and raise 

Appellants' Response to Appellee's Motion for Summary Affirmance Page 11 

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another genuine issue ofmaterial fact on this issue. 

The material facts simply do not support this allegation by the FEC and the court 

drew inference in the FEC's favor when the evidence supports Appellants. This creates 

genuine issue ofmaterial fact. The Motion for Summary Judgment should have been 

denied by the District Court and the Appellee's Motion for Summary Affirmance should 

be denied by this Court. 

The FEC Alledged the Appellants "willing and knowingly" fraudulently 

mispresented they were part of Bush-Cheney '04 

The FEC all edged the Appellants told solicitees they were with Bush-Cheney '04. 

Op. p. 5. The rebuttal section of the script contains information related to Bush-Cheney: 

"Unhappy with President Bush. Your money will not go to President Bush. The 

Republican Victory 2004 Committee is a national group that supports state and 

local candidates ..." Apx 481. 

"Bush-Cheney Campaign: The national headquarters is in Arlington, VA. The 

number is 703-647-2700. The web site is GeorgeBush.com." Apx 483. 

"Bush Bumper Stickers: You'll need to get those from the Bush-Cheney 

campaign. I can give you their web site. GerorgeWBush.com. Ifyou go to the 

bottom ofthe home page you will find "W Stuff". You should find bumper 

stickers there." Apx 483. 

This evidence does not lend any support to the FEC's allegations that the RVC was 

attempting to mislead the solicitees that the calls were from Bush-Cheney '04. In fact the 

"Unhappy with President Bush" rebuttal and the scripting, "I can give you their web 

site." clearly indicates RVC was not Bush-Cheney '04, The court's opinion is not 

supported by the material facts on this issue and the court needed to draw all inferences 

from the evidence in the Appellants favor. 

Appellants' Response to Appellee's Motion for Summary Affirmance Page 12 

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The Court Inferred the RVC needed to donate funds raised to a 


Republican Candidate or Committee. 


The Court incorrectly concluded that the FEe's allegation that Appellants made 

no contributions to Republican candidates or committees was evidence the Appllants 

"willing and knowingly" fraudulently misrepresented they were part of the Republican 

Party. Opinion P. 6. Based on the definitions delineated by the Act, RVC was a "political 

committee", but neither an "authorized committee" nor a "connected organization". See 

2 U.S.c. §431(4)(A); 2 U.S.C. §431(6); 2 U.S.C. §431(7). As defined by the Act, RVC 

conducted both "electioneering communication" and "federal election activity" with the 

second telephone calls made by the call center Advantage in October 2004 within weeks 

of the federal election. By doing so, RVC contributed to Republican candidates running 

in the 2004 general election. Interestingly, neither the court nor the FEC referenced a law 

that required Appellants to make contributions to any political candidate or committee. 

Rather according to the law, Appellants could conduct its own "electioneering 

communications" which is what it did. 

The FEC argued that the Appellants scripts were "electioneering 

communications" as defined by 2 U.S.C. § 434(f)(3). Appellants do not dispute this. The 

second program in October 2004 meets the requirements of "electioneering 

communications". It was performed within 60 days of a general election and was 

targeted to a relevant electorate. Contrary to the FEC's assertion and the court's 

conclusion, the calls contributed to Republican candidates by promoting and supporting 

them. The calls also contributed by attacking and opposing Democratic candidates and 

getting the solicitee out to vote for Republicans and against Democrats. Apx 385 Pp. 1. 

Appellants' Response to Appellee's Motion for Summary Affinnance Page 13 

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There is no law that required the Appellants to make a monetary contribution to 

any candidate or committee. Under the Act, the Appellants could raise funds and 

implement their own electioneering communications in support ofRepublicans at all 

levels, including for Federal office, and that's exactly what they did. The court errored 

when it said Appellants did not make a contribution to a candidate or political committee 

and used the incorrect conclusion to infer that Appellants "willingly and knowingly" 

committed fraud and misrepresentation. 

Appellants are not the first group to spend their raised funds in support of 

candidates without making direct monetary contributions to the candidate or a committee. 

Examples ofthis abound. The National Rifle Association raises funds and spends them 

to impact elections. The US Chamber of Commerce did a huge telephone program in 

2000 in support ofRepublicans to advance their pro-business agenda, including President 

Bush. 

Appellants initiated their own "expenditure" as defined by the Act. See 2 U.S.C. 

§ 431(9). Appellants' expenditure was partisan (vote Republican) by Election Law. 

Additionally, Appellants' second script was a "Federal election activity" as defined by 

Election Law. See 2 U.s.C. § 431(20)(A). 

From the Court's inference that Appellants did not make any contributions to 

Republican candidates or committees it took a leap in logic and concluded that 

Appellants did nothing to "qualify" as part ofthe Republican Party and therefore by 

erroneously concluding that they made no contributions, further supported its ultimate 

conclusion that the Appellants' activities were "willing and knowingly fraudulent 

misrepresentations". The facts and definitions within the Act do not support this finding. 

Appellants' Response to Appellee's Motion for Summary Affinnance Page 14 

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The second script shows that Appellants did support Republicans and oppose 

Democratics with funds raised. The court drew in favor ofthe FEC on this issue, 

erroneously. 

The FEC Inferred the Appellants misused funds. 

The FEC implied and the court concurred that, "After paying Apex and 

Advantage, Novacek appears to have directed the remaining funds to the BPO entities." 

Op Pp. 6 at 22-23, p. 7. 

The FEC investigated the finances of all the Appellants for almost 5 years (June 

2004 -March 2010) including all bank accounts, expenditures, etc. If there were any 

issues offinancial wrong doing, the FEC via the Justice Department would have filed 

official charges. Instead the FEC continues to insinuate there was financial wrong doing 

in their pleadings to this court. Appellee Motion for Summary Affirmance p. 7. These are 

unsubstantiated assertions, suggestions and arguments that the district court used to 

support it's decision Appellants "willing and knowingly" committed fraudulent 

misrepresentation. In fact, the Act requires that companies performing Federal election 

activity be paid. Accordingly, the FEC's Motion for Summary Judgment should have 

been denied by the District Court and its Motion for Summary Affirmance must be 

denied by this Court. 

The FEC Alledged Donors were confused about who was making the calls. 

There was no evidence that Appellants were aware of any confusion on the part of 

donors as to who was calling and for what purpose. Despite the FEC's statements to the 

contrary, Novacek admitted no such thing and there was no evidence submitted by the 

FEC that shows otherwise. This is fabrication or at best, speculation on the part of the 

Appellants' Response to Appellee's Motion for Summary Affirmance Page 15 

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FEC. During Novacek's deposition, the FEC asked about the "confusion issue". 

Novacek stated from her past work in political fundraising, because there are so many 

different Republican groups out raising money, there can be confusion in the 

marketplace. Apx 146-148. Because ofthat, she worked especially hard to provide the 

call centers with the proper training, scripted rebuttals, quality control monitoring, 100% 

pledge confinnation and a requirement that the script be adhered to verbatim. Apx 408, 

Script and Rebuttal Adherence. The FEC provided no evidence of any confusion by the 

solicitees called on this program. The transcripts of calls the FEC claimed are 

representative of the hundreds ofthousands of calls made have no indication of any 

confusion by the solicitees. Apx 613-633. 

The FEC claimed people asking about a Bush-Cheney bumper sticker indicated 

they thought the calls were from Bush-Cheney '04. Novacek certainly wanted to 

promote Republicans in anyway possible. Her career has been in the telemarketing field 

(not the political fundraising field as the FEC alleged) and she believes in conducting the 

highest quality telemarketing programs. Novacek took the time to call the Bush-Cheney 

campaign and found out how to get a bumper sticker. She then added this infonnation to 

the program so that the callers could assist a solicitee when they asked, "Do you know 

how I can get a Bush-Cheney bumper sticker?" Apx 483. A solicitee inquiring about 

bumper stickers does not imply that they are confused about who is calling. Rather, the 

only inference that can be drawn is that they had seen cars with the bumper sticker and 

wanted one. Furthennore, within the scripting, it clearly states the money was NOT going 

to Bush. Apx 481. 

The Court Ruled the Appellants did not state the calls were not authorized 

by the Republican Party 

Appellants' Response to Appellee's Motion for Summary Affirmance Page 16 

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The court incorrectly ruled the Appellants needed to state their calls were not 

authorized by the Republican Party. "The callers did not state that RVC was not 

authorized by the Republican Party ..." Op p 5. The Act does not require any group to 

state their calls are not authorized by a political party. The court sited no reference to the 

Act or any other law in making this statement in error. 

The FEC AUedged RVC should not have made the second call because they 

received a Cease-and-Desist Letter from the RNC 

The Appellants' don't dispute that they conducted a second call after receiving a 

cease-and-desist letter from the RNC. The Appellant does dispute that the cease-anddesist letter is relevant evidence to support the Appellants "willing and knowingly" 

violated 2 U.S.C. 44Ih(b). 

The Court's opinion states, "In June 2004, Novacek received a cease-and-desist 

letter from the RNC demanding that she stop holding out RVC to the public as an official 

representative ofthe Republican Party." Op. p. 2. This is not what the cease-and-desist 

letter demanded and the judge errored in using it to support the FECs pleadings. Apx 366 

p.l. 

The RNC Cease-and-Desist letter doesn't claim any authority over the Republican 

Party. It only states that the RVC efforts "constitutes trademark infringement ...and a 

violation of the Texas Deceptive Trade Practices Act." However, the FEC has not 

claimed, nor has the RNC filed any trademark violation charges in any court in more than 

six years since the RVC conducted calls. Additionally, in the RNC complaint they state 

the following, "Furthermore, the RNC claims no ownership ofthe term, "Victory 

Committee," Apx 475. The RNC's complaint is also void ofany claim ofownership to 

the words "Republican" or "Republican Party" and the FEC referenced no law that was 

Appellants' Response to Appellee's Motion for Summary Affirmance Page 17 

Case: 10-10516 Document: 00511212432 Page: 17 Date Filed: 08/23/2010
violated by the Appellants with regard to the use of "Republican Victory Committee." 

The Appellants received a copy of the RNC's complaint before they engaged in the 

second phone call in October 2004 and thus knew that the RNC's cease-and-desist letter 

was a veiled attempt to intimidate the Appellants, and nothing more. 

The cease-and-desist letter demanded Novacek stop all solicitation activity 

immediately. At the time of the letter, June 2004, no activity was being conducted. The 

campaign ran at Apex in January and February of 2004. 

The letter also requested Novacek contact Jill Vogel, the RNC's Chief Counsel, 

by telephone. Apx 367p.2. When contacted, Ms. Vogel expressed concern over only two 

issues. The first concern was that Appellants were using a call center located in India. 

Apx 161. Based on news reports from various sources in India and the United States, an 

Indian company, HCL, made 8 million fundraising calls to GOP voters between May 

2002 and July 2003. Apx 604-612. Appellants were not aware ofthe RNCs "problems" in 

India nor the '''urban legend" claiming that RNC outsourced calls to India at the time they 

made calls from India in January and February 2004. Apx 487. Novacek learned ofthis 

issue via an email from Maddux in the Spring of 2004, prior to receiving the cease-anddesist letter. From the call with Vogel, Novacek asserted the "real issue" was not 

misrepresentation, but rather Vogel's ranting that the Appellants' India calls were 

refueling the RNC problems. Novacek told Vogel there was no law prohibiting the use of 

off-shore call centers and that she could put Vogel in contact with individuals in India 

that had worked on the "problem" RNC program if she wanted to get information on the 

organization who had been making calls from India, stating they were the RNC, which 

was not the Appellants' program. Novacek could do this because Apex, had hired people 

Appellants' Response to Appellee's Motion for Summary Affirmance Page 18 

Case: 10-10516 Document: 00511212432 Page: 18 Date Filed: 08/23/2010
who claimed to have worked RNC programs at HCL, a neighboring call center to Apex. 

Some of these employees still worked at Apex. Novacek offered to give Vogel the Apex 

call center manager's name, email address and phone number. Vogel told Novacek, "I'll 

get back to you on that," but never did. It should also be noted the RNC leaked its FEC 

complaint against Appellants to an AP reporter, a violation 2 U.S.C 437g (a) 12. Novacek 

Deposition Apx 4. This was done in an attempt to defer the negative publicity the RNC 

had received prior to the RVC calls onto the Appellants. . 

The second issue Vogel raised with Novacek was the name "Republican Victory 

Committee". Vogel informed Novacek that the RNC had implemented a fundraising 

program/campaign called "Republican Victory Committee" and that spring had released a 

huge mailing with this promotional name and thus they were upset there was now a 

political committee with the same name. 

The RNC never stated the RVC could not raise money as part ofthe Republican 

Party. The RNC was trying to chill political speech ofthe RVC because it used an offshore call center. The Cease-and-Desist letter does not support any relevant facts or 

issues of this case and the court errored in looking to it to support its opinion. 

2 U.S.C. § 441d (a) and (e) 

Rules ofthe Court instruct that the Appellants' Response to the Appellee's 

Motion for Summary Affirmance needs to be limited to 20 pages. Given the recent 

holding in Citizens United v. FEC, Appellants believe the District Court's and FEC's 

interpretation of2 U.S.C. § 441d may be unconstitutional. In the Appellant's Appeal 

Brief, they will be supporting the assertion that they did not violate the Act and that the 

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Act chills freedom ofspeech by favoring certain preferred speakers and imposing 

restrictions on certain disfavored speakers. 

Furthermore, the Appellants will be including evidence that when the District 

Court issued its Order, the Court clearly separated the activities ofthe Appellants into 

two distinct programs and assessed civil penalties accordingly. The activity outsourced to 

Apex in January and February 2004 and the activity outsourced to Advantage in October 

2004. In doing so, the Court brings into consideration that the FEC's statue oflimitations 

had expired on the Apex activity performed in January and February 2004. The FEC filed 

this case in District Court on March 9,2009.2 V.S.c. § 455. 

CONCLUSION 

As evident by this extensive Response to the Appellee's Motion for Summary 

Affirmance, the Appellants' raised many genuine issues ofmaterial fact which were 

overlooked by the District Court resulting in a ruling in favor ofthe FEC when in fact it 

the District court should have denied the FEC's Motion for Summary Judgement and 

why this Court should deny the Appellee's Motion for Summary Affirmance, allowing 

the Appellants to continue in the Appeal process and be granted "their day in court." 

Respectfully submitted, 

/s/ Jody L. Novacek 

Jody L. Novacek 

For the Appellants 

jodylnovacek@hotmaiLcom 

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Case: 10-10516 Document: 00511212432 Page: 20 Date Filed: 08/23/2010
CERTIFICATE OF SERVICE 

I certify that a true and correct copy of the foregoing instrument was delivered to 

counsel of record, Greg J. Mueller, Federal Election Commission in accordance with the 

Federal Rules of Civil Procedure via the Slh Circuit's electronic filing notification upon 

the filing hereof on this 23rd day of August, 20 I O. 

lsI Jody L. Novacek 

Jody L. Novacek 

AppeJlants' Response to Appellee's Motion for Summary Affirmance Page 21 

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