UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

____________________________________

 ) 

 ) 

Rear Adm. James J Carey [Ret] ) 

6022 Knights Ridge Way ) 

Alexandria, VA 22310 ) 

 ) 

Kelly S. Eustis ) 

1431 Q Street ) 

Apt. 130 ) 

Sacramento, California 95811 ) 

 ) 

National Defense Political ) 

Action Committee ) 

6022 Knights Ridge Way ) 

Alexandria, VA 22310 ) 

 ) 

 Plaintiffs, ) 

 ) 

v. ) Civil Case No. ________________ 

)

FEDERAL ELECTION COMMISSION ) 

999 E Street, NW ) 

Washington, DC 20463, ) 

 ) 

 Defendant. ) 

____________________________________)

____________________________________________

MOTION FOR PRELIMINARY INJUNCTION 

____________________________________________

Plaintiffs move for a preliminary injunction pursuant to Fed. R. Civ. P. 65. 

Plaintiffs file their Verified Complaint for Declaratory and Injunctive Relief and 

Memorandum in Support of Preliminary Injunction Memo concurrently. 

 As described in the Verified Complaint and Memorandum, Plaintiffs complain 

against the unconstitutionality of 2 U.S.C. §§ 441a(a)(1)(C) and 441a(a)(3) as applied to 

contributions given to National Defense PAC and as applied to independent expenditures 

created by National Defense PAC, including those described in EXHIBIT F to the 

Verified Complaint. 

Case 1:11-cv-00259-RMC Document 2 Filed 01/31/11 Page 1 of 45
Case 1:11-cv-00259-RMC Document 2 Filed 01/31/11 Page 2 of 45
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

____________________________________

 ) 

REAR ADM. JAMES J. CAREY (Ret.), ) 

 ) 

NATIONAL DEFENSE PAC, and ) 

 ) 

KELLY S. EUSTIS, ) 

 ) 

 Plaintiffs, ) 

 ) 

v. ) Civil Case No. ________________ 

)

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Defendant. ) 

____________________________________)

_____________________________________________________

PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF

MOTION FOR PRELIMINARY INJUNCTION 

______________________________________________________

Dan Backer (D.C. Bar No. 996641) 

 P.O. Box 75021 

 Washington, DC 20013 

 202.210.5431 

 dbacker@dbcapitolstrategies.com 

Stephen M. Hoersting* 

 700 E Schantz Ave 

 Dayton, OH 45419 

 937.623.6102 

 hoersting@gmail.com 

Benjamin T. Barr* 

10737 Hunting Lane 

Rockville, MD 20850 

 240.863.8280 

benjamin.barr@gmail.com 

Attorneys for Plaintiffs 

 *Motions for Pro Hac Vice to be filed. 

Case 1:11-cv-00259-RMC Document 2 Filed 01/31/11 Page 3 of 45
i

TABLE OF CONTENTS 

 Page(s) 

TABLE OF AUTHORITIES...................................................... iv 

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

STATEMENT OF FACTS......................................................... 1 

I. The Advisory Opinion Request................................................... 3

II. Ensuing Harm to Plaintiffs............................................ 5

III. Ongoing Harm to Plaintiffs........................................... 6

IV. National Defense PAC’s Structure and Operations............... 8

V. Rear Admiral Carey and Kelly S. Eustis’s Activities.............. 10

ARGUMENT............................................................................ 11 

I. Plaintiffs are Substantially Likely to Succeed on the Merits...... 12

A. The Very Structure of the Federal Election Campaign 

Act Illustrates That Contribution Limits Applied Against 

Non-Connected Committees’ Independent Expenditures 

Cannot Be Upheld.................................................... 13 

1. CalMed Does Not Support the Conclusion That

A Non-Connected Committee’s Independent 

Expenditures Corrupt Candidates....................... 16 

2. A Connected Organization and Its Separate 

Segregated Fund (SSF) May Be Separate Legal

Entities, But That Does Not Mean Separate 

Accounts Do Not Stem Corruption in Non-connected 

Committees...................................................... 19 

B. As a Matter of Stare Decisis, National Defense PAC’s 

Rights Have Already Been Upheld................................. 21 

C. The FEC Cannot Demonstrate a Compelling State 

Interest in Limiting Contributions to National 

Defense PAC’s Independent Expenditures....................... 22 

Case 1:11-cv-00259-RMC Document 2 Filed 01/31/11 Page 4 of 45
ii

D. As Applied to National Defense PAC and Its

Contributors, the Contribution Limits Are Not 

Narrowly Tailored..................................................... 27 

II. Plaintiffs Will Suffer Irreparable Harm Without 

an Injunction............................................................... 29 

III. An Injunction Will Not Substantially Injure Others............... 30 

IV. An Injunction Will Further the Public Interest..................... 31

V. Plaintiffs Have Standing to Seek the Injunction.................... 32

VI. The Court Should Waive the Bond Requirement 

Under F.R.C.P 65(c)...................................................... 33 

CONCLUSION........................................................................ 34 

Case 1:11-cv-00259-RMC Document 2 Filed 01/31/11 Page 5 of 45
iii

TABLE OF AUTHORITIES 

Cases Page(s) 

Ashcroft v. ACLU, 542 U.S. 656 (2004)........................................ 12 

Austin v. Michigan Chamber of Commerce,

494 U.S. 690 (1990), rev’d. Citizens United v. FEC, 

130 S. Ct. 876 (2010).............................................................. 15 

Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289 (1979)........ 32 

*Buckley v. Valeo, 424 U.S. 1 (1976)........................................... 14, 22, 23, 24, 

26, 27

*California Medical Association v. FEC, 453 U.S. 182 (1981)............. 16, 17, 18, 19, 

21, 27, 30, 31 

Chamber of Commerce v. FEC, 69 F.3d 600 (D.C. Cir. 1995).............. 32 

Chaplaincy of Full Gospel Churches v. England,

454 F.3d 290 (D.C. Cir. 2006)................................................... 12, 29 

*Citizens Against Rent Control v. Berkeley, 454 U.S. 290 (1981).......... 13, 22, 23, 24, 

25, 26, 30 

Citizens United v. FEC, _ U.S. _; 130 S. Ct. 876 (2010)..................... 2, 14, 15, 16, 

19, 22, 26, 29 

Cobell v. Norton, 225 F.R.D. 41 (D.D.C. 2004)............................... 34 

Comm. on Jobs Candidate Advocacy Fund v. Herrera, 07-03199, 

2007 U.S. Dist. LEXIS 73736 (N.D. Cal. Sept. 20, 2007)................... 34 

Democratic Senatorial Campaign Committee v. FEC,

918 F. Supp. 1 (D.D.C. 1994)............................................................... 5

Dombrowski v. Pfister, 380 U.S. 479 (1965)................................... 32 

Elrod v. Burns, 427 U.S. 347 (1976)............................................. 28 

*EMILY’s List v. FEC, 581 F.3d 1 (D.C. Cir. 2009)............................ 2, 11, 12, 16, 

21, 22, 24, 25 

FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986).......... 23, 27 

Case 1:11-cv-00259-RMC Document 2 Filed 01/31/11 Page 6 of 45
iv

*FEC v. Nat’l Conservative Political Action Comm., 

470 U.S. 480 (1985)............................................................... 13, 22, 23, 24, 

25, 26, 27, 28 

FEC v. Nat'l Rifle Ass'n of Am., 254 F.3d 173 (D.C. Cir. 2001)............. 33 

FEC v. Wisc. Right to Life, Inc. 551 U.S. 449 (2007)..................... 27, 30

First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765 (1978).................. 23 

Garrison v. Louisiana, 379 U.S. 64 (1964)...................................... 30

Gonzales v. O Centro Espirita Beneficente Unaio do Vegetal, 

546 U.S. 418 (2006)................................................................ 12 

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)........................... 31

Marks v. United States, 430 U.S. 188 (1977).................................... 18

McConnell v. FEC, 540 U.S. 93 (2003).......................................... 14 

Mills v. Alabama, 384 U.S. 214 (1966)........................................... 30 

NAACP v. Alabama, 357 U.S. 449 (1958)....................................... 23 

N.C. Right to Life, Inc. v. Leake, 482 F. Supp. 2d 686 (W.D. N.C. 2007)... 28 

N.Y. Times v. Sullivan, 376 U.S. 254 (1964)..................................... 31 

Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000).......... 13 

Odgen v. Marendt, 264 F. Supp. 2d 785 (S.D. Ind. 2003).................... 34 

Randall v. Sorrell, 548 U.S. 230 (2006)...................................... 26, 27

Smith v. Bd. of Election Comm’rs, 591 F. Supp. 70 (N.D. Ill. 1984)......... 34

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010)....................... 2, 13 

Temple Univ. v. White, 941 F.2d 201 (3d Cir. 1991)........................... 34 

Unity ’08 v. FEC, 596 F.3d 861 (D.C. Cir. 2010)............................... 5, 33 

Virginia v. American Booksellers Ass’n, Inc., 484 U.S. 383 (1988).......... 32 

Virginia Soc’y for Human Life, Inc. v. FEC,

Case 1:11-cv-00259-RMC Document 2 Filed 01/31/11 Page 7 of 45
v

263 F.3d 379 (4th Cir. 2001)....................................................... 32, 33 

Codes, Rules and Statutes 

Bipartisan Campaign Reform Act of 2002, 

Pub. Law 107-155 (Mar. 27, 2002)................................................14 

F.R.C.P. 65(c)....................................................................... 33 

2 U.S.C. § 431(17).................................................................. 9 

2 U.S.C. § 437g...................................................................... 5 

2 U.S.C. § 437f....................................................................... 3, 5, 12 

2 U.S.C. § 441a(a)(1)(C)............................................................passim 

2 U.S.C. § 441a(a)(3)................................................................passim 

11 CFR 100.5......................................................................... 20 

11 CFR 102.5......................................................................... 20 

11 CFR 109........................................................................... 9 

11 CFR 112.1......................................................................... 4 

11 CFR 112.4......................................................................... 4, 5 

11 CFR 104........................................................................... .20 

72 Fed. Reg. 32,160 (July 7, 2009)................................................. 5

Case 1:11-cv-00259-RMC Document 2 Filed 01/31/11 Page 8 of 45
1

INTRODUCTION

 This case is a constitutional challenge to laws that, as interpreted by the Federal 

Election Commission (“FEC” or “Commission”), prevent plaintiffs from joining together 

to exercise their First Amendment rights to speech and association. Plaintiff National 

Defense PAC is a non-connected political action committee that plans to make 

contributions to candidates for federal office and independent expenditures in support of, 

or in opposition to, candidates for federal office. Specifically, it plans to distribute 

banner advertisements over various websites during the 2012 election cycle in the 

districts of congressional candidates that hyperlink to pages containing material expressly 

advocating the election or defeat of these candidates. National Defense PAC and its 

Chairman, Retired Rear Admiral James J. Carey, have prepared scripts for such ads and 

are prepared to raise funds to support their distribution. Plaintiff Kelly S. Eustis is 

willing and able to contribute $6300 this year to the independent expenditure advertising 

campaign. Contribution limits at 2 U.S.C. §§ 441a(a)(1)(C) and 441a(a)(3), however, 

and more specifically their incorrect interpretation by the FEC, prevent National Defense 

PAC from accepting the individual Plaintiffs’ contributions and thus prevent it and its 

supporters from exercising their rights to speech and association. Plaintiffs are entitled to 

a preliminary injunction that prevents the FEC from enforcing those laws against the 

Plaintiffs.

STATEMENT OF FACTS 

Plaintiff Rear Adm. James J. Carey (Ret.) is a registered voter residing in 

Alexandria, Virginia, and the founder and treasurer of National Defense PAC. Verified 

Complaint at ¶ 8 [hereinafter “VC”]. He has served in that capacity since 2000. Id.

Case 1:11-cv-00259-RMC Document 2 Filed 01/31/11 Page 9 of 45
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Plaintiff National Defense PAC is a non-partisan, non-connected political action 

committee registered with the Federal Election Commission with its principal mailing 

address in Washington, DC. Id. at ¶ 10. Plaintiff Kelly Eustis is a registered voter who 

resides in Sacramento, California, id. at ¶9, and wishes to associate and speak with 

National Defense PAC.

A group of military veterans established National Defense PAC with the desire to 

promote shared patriotic values in government. National Defense PAC advocates in 

favor of limited government, upholding a national commitment to this nation’s veterans, 

and publicly defends the rights of American soldiers. In this role, National Defense PAC 

raises and expends funds in support of candidates for federal office who are military 

veterans and agree with its values. Such funds are raised subject to the amount and 

source limits detailed at 2 U.S.C. § 441a(a)(1)(C). VC at ¶ 12. National Defense PAC 

makes contributions to candidates for federal office up to the applicable limit and would 

like to make independent expenditures in support or opposition of candidates.

In the wake of what most legal experts have deemed a sea change in election law 

through Citizens United v. FEC, 130 S.Ct. 876 (2010), SpeechNow.org v. Federal 

Election Commission, 599 F.3d 686 (D.C. Cir. 2010), and EMILY’s List v. Federal 

Election Commission, 581 F.3d 1 (D.C. Cir. 2009), plaintiffs hoped to secure and use to 

the fullest extent of their recently recognized, but always existing, First Amendment 

rights in two separate ways. First, National Defense PAC sought to engage in 

independent expenditure campaigns, that is, campaigns advocating the election or defeat 

of clearly identified candidates for federal office. Part and parcel of National Defense 

PAC’s ability to engage in this speech is its ability to raise funds to make such 

Case 1:11-cv-00259-RMC Document 2 Filed 01/31/11 Page 10 of 45
3

independent expenditures, including the cost of production and distribution through radio, 

television, the Internet, and print media. Thus, National Defense PAC sought, as 

recognized in EMILY’s List and elsewhere, to be free of contribution limits for donations 

given for its independent expenditure campaigns. VC at ¶ 13. At the same time, Kelly S. 

Eustis desired to associate and speak with National Defense PAC by giving more than 

$5,000 per calendar year to fund such independent expenditure campaigns. National 

Defense PAC sought to maintain a separate bank account from which to solicit and 

accept contributions for candidates subject to source and amount limits. 

While the SpeechNow, EMILY’s List, and Citizens United courts could not have 

been clearer in protecting these rights, the FEC caused and continues to cause injury to 

the speakers before this court. 

I. The Advisory Opinion Request 

On August 11, 2010, National Defense PAC submitted an advisory opinion 

request (“AOR”), attached as EXHIBIT A, to the FEC pursuant to 2 U.S.C. § 437f. This 

request asked whether its actions would be lawful if it: 

a. Accepted unlimited contributions from individuals, other political 

committees, corporations, and unions for the express purpose of making 

independent expenditures, including paying any or all of its own 

administrative and operating expenses, and 

b. Accepted contributions from individuals and other political committees 

only, subject to the limits at 2 U.S.C. §§ 441a(a)(l)(C) and (2)(C), to 

expend as campaign contributions to candidates, pursuant to 2 U.S.C. § 

441a(a)(2), and

c. Recorded and segregated all such contributions by type and maintained 

separate bank accounts for each type, applying for the purpose of 

campaign contributions only those contributions expressly made for that 

purpose as indicated by the contributor at the time of the contribution and 

subject to the limits at 2 U.S.C. §§ 441a(a)(l)(C) and (2)(C). 

Case 1:11-cv-00259-RMC Document 2 Filed 01/31/11 Page 11 of 45
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See VC at ¶ 15. 

Pursuant to 11 C.F.R. § 112.1, the FEC accepted the AOR for review, assigned it 

AOR number 2010-20, and posted it on the FEC’s website for public commentary on 

August 11, 2010. VC at ¶ 16. 

On September 17, 2010, the FEC’s general counsel issued a draft advisory 

opinion in response to National Defense PAC’s AOR. The draft advisory opinion, Draft 

A, concluded that contributions to National Defense PAC made to finance its 

independent expenditures would be subject to the contribution limits of 2 U.S.C. § 

441a(a)(1)(C) and related FEC regulations. VC at ¶ 17. This “Draft A” advisory opinion 

is attached to the Verified Complaint as EXHIBIT B. 

An alternate draft, Draft B, was issued on September 21 and concluded that 

contributions to National Defense PAC made and used exclusively to finance its 

independent expenditures would not be subject to the contribution limits of 2 U.S.C. § 

441a(a)(1)(C) and related FEC regulations. VC at ¶ 18. The alternative “Draft B” 

advisory opinion is attached to the Verified Complaint as EXHIBIT C. 

On September 23, 2010, at an open meeting of the FEC, the Commission failed 

by a vote of 2-3 to approve Draft A. The Commission also failed by a vote of 3-2 to 

approve Draft B. VC at ¶ 19. 

Pursuant to 11 C.F.R. § 112.4(a), the FEC certified on September 28, 2010 that it 

was unable to approve National Defense PAC’s AOR because it lacked the necessary 

four votes to approve the AOR. VC at ¶ 20. This certification is attached to the Verified 

Complaint as EXHIBIT D. The FEC’s failure to affirmatively provide a four-vote, 

binding advisory opinion in response to National Defense PAC’s request carries the 

Case 1:11-cv-00259-RMC Document 2 Filed 01/31/11 Page 12 of 45
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equivalent legal effect that its proposed actions would be invalid under the FECA and 

subject the organization to civil or criminal penalties under 2 U.S.C. § 437g for speaking 

out about candidates and otherwise engaging in political association. 

The Commission's inability to issue an advisory opinion deprives plaintiffs that 

requested it of a legal reliance defense that they could otherwise receive under 2 U.S.C. § 

437f(c). The advisory opinion process in this matter is complete and deprived plaintiffs 

of a legal right – to engage freely in constitutionally protected speech and association. 

See Unity 08 v. Federal Election Commission, 596 F.3d 861 (D.C. Cir. 2010) (“parties 

are commonly not required to violate an agency's legal position and risk an enforcement 

proceeding before they may seek judicial review”); see also Democratic Senatorial 

Campaign Committee v. Federal Election Commission, 918 F. Supp. 1 (D.D.C. 1994). 

II. Ensuing Harm to Plaintiffs 

At the time of filing the advisory opinion request, several primary elections were 

less than 60 days away. VC at ¶ 22. National Defense PAC filed its request as promptly 

as possible to ensure that its planned speech and association would be deemed lawful 

under the FECA and related regulations. Because the elections were so close upon it, 

National Defense PAC asked for an expedited advisory opinion request pursuant to 11 

C.F.R. § 112.4(b) and 72 Fed. Reg. 32,160 (July 7, 2009). More than 40 days later, the 

Commission decided not to issue an advisory opinion. VC at ¶ 22. Given that the FEC 

could not issue a definitive statement concerning the legality of National Defense PAC’s 

planned actions, it was forced to mute itself and curtail its activities during the 2010 

election cycle. Id.

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During the 2010 electoral cycle, National Defense PAC planned to deploy 

independent expenditure communications in support of endorsed candidates nationwide, 

and in opposition to their opponents. While National Defense PAC was free to endorse 

its preferred candidates, it was not legally permitted to solicit more than $5,000 per 

person per calendar year to fund independent expenditure campaigns for them. These 

proposed campaigns included focusing on candidates in the Eighth Congressional District 

of Michigan, the First Congressional District of Rhode Island, the Eighth Congressional 

District of Massachusetts, the Ninth Congressional District of New York, and the First 

Congressional District of Hawaii. See VC at ¶ 23. A copy of National Defense PAC’s 

endorsements in these campaigns is attached to the Verified Complaint as EXHIBIT E. 

Because the FEC did not permit it to accept unlimited contributions to fund its 

independent expenditures, National Defense PAC was unable to gather the resources 

necessary to run independent expenditure campaigns and to be heard during the 2010 

electoral cycle. Id.

III. Ongoing Harm to Plaintiffs 

As soon as possible, and certainly before the 2012 primary and general elections, 

National Defense PAC would like to make independent expenditures from its general 

fund, in various amounts, expressly advocating for or against clearly identified candidates 

of its choice. VC at ¶ 24. A specific example of this is included as EXHIBIT F, which 

includes a proposed advertisement for Newsmax – a popular Internet destination – 

expressly advocating against the retention of Anthony Weiner in New York’s Ninth 

Congressional District. This advertisement, with a guaranteed 50,000 views per week, 

would cost $6,300.00 to run in the months leading up to the November 2012 elections. 

Case 1:11-cv-00259-RMC Document 2 Filed 01/31/11 Page 14 of 45
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The advertisements in question would include a picture of Anthony Weiner along with 

the call to “defeat Anthony Weiner” – asking users to click on the advertisement to learn 

more. See VC ¶ 24, EXHIBIT F.

National Defense PAC would like to make additional independent expenditures in 

the months leading up to the 2012 primary and general elections based on issues and 

candidates that present themselves. VC at ¶ 25. Without the ability to solicit unlimited 

contributions to fund such communications, it will not be able to speak during the 2012 

electoral season. Without an immediate ruling from this court, National Defense PAC 

will not have the necessary time to fundraise and generate support for its message from 

likeminded individuals. 

Before the 2012 primary and general elections, National Defense PAC would like 

to solicit donations for its independent expenditures in amounts greater than $5,000.00 

per calendar year. VC at ¶ 26. National Defense PAC has contacted donors willing to 

give more than $5,000.00 in single donations to fund independent expenditures, but has 

not solicited or accepted such amounts due to the effect of 2 U.S.C. §§ 441a(a)(1)(C) and 

441a(a)(3). VC at ¶ 26. A specific example of this is included as EXHIBIT G, a letter of 

intent from Kelly S. Eustis, who wishes to donate $6,300.00 to help fund independent 

expenditure communication campaigns against Anthony Weiner but cannot due to the 

current operation and interpretation of the law by the FEC. Id.

As soon as possible, Kelly S. Eustis would like to make a $6,300.00 contribution 

to National Defense PAC to help fund independent expenditure communications against 

Anthony Weiner in the Ninth Congressional District of New York. VC at ¶ 27. But for 

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the operation and FEC interpretation of 2 U.S.C. §§ 441a(a)(1)(C) and 441a(a)(3), Mr. 

Eustis would make such a contribution. VC at ¶ 28. 

As soon as possible, and certainly before the 2012 primary and general elections, 

National Defense PAC would like to make contributions to candidates for federal office 

subject to source and amount limits found at 2 U.S.C. §§ 441a(a)(1)(C) and (2)(C). 

Because it plans to make unlimited independent expenditures while receiving unlimited 

donations for them, current interpretation of the law by the FEC prohibits National 

Defense PAC from making source and amount limited contributions out of a separate 

bank account. VC at ¶ 28. 

National Defense PAC would like to receive contributions to fund candidate 

contributions, subject to source and amount limits found at 2 U.S.C. §§ 441a(a)(1)(C). 

Because it plans to make unlimited independent expenditures while receiving unlimited 

donations for them, current operation and interpretation of the law by the FEC prohibits it 

from concurrently soliciting and receiving limited contributions to make contributions to 

candidates. Were it permissible, National Defense PAC would actively fundraise and 

accept contributions for making candidate contributions. VC at ¶ 29. 

IV. National Defense PAC’s Structure and Operations 

National Defense PAC is an unincorporated association registered as a nonconnected political action committee with the FEC. VC at ¶ 30. The PAC operates 

independently of political candidates, committees, and political parties. Id. National 

Defense PAC does not coordinate any of its activities with candidates or national, state, 

district or local political party committees or their agents as defined in 2 U.S.C. §§ 

Case 1:11-cv-00259-RMC Document 2 Filed 01/31/11 Page 16 of 45
9

441a(a)(7)(B) and (C) and 11 C.F.R. § 109. VC at ¶ 30. In addition, National Defense 

PAC does not and will not coordinate its activities with other political committees. Id.

National Defense PAC’s expenditures for advertisements will be “independent 

expenditures” under 2 U.S.C. § 431(17) because they will be expenditures by a person 

“expressly advocating the election or defeat of a clearly identified candidate” that are 

“not made in concert or cooperation with or at the request or suggestion of such 

candidate, the candidate’s authorized [campaign] committee, or their agents, or a political 

party committee or its agents.” VC at ¶ 31. An example of a proposed future 

independent expenditure is attached to the Verified Complaint as EXHIBIT F. 

National Defense PAC has not yet solicited or accepted any contributions in 

excess of the $5000 limit imposed by 2 U.S.C. § 441a(a)(1)(C), because doing so would 

subject it to civil and criminal penalties. VC at ¶ 32. 

The contribution limits contained in 2 U.S.C. § 441a(a)(1)(C) and 441a(a)(3) 

prevent National Defense PAC from accepting the contributions from Kelly S. Eustis, 

VC at ¶ 33, and prevent National Defense PAC from soliciting additional contributions 

above those limits. VC at ¶ 34. Even if National Defense PAC could somehow raise 

enough money in increments of $5000 or less per donor per calendar year to pay for its 

advertisements, the contribution limits contained in 2 U.S.C. §§ 441a(a)(1)(C) and 

441a(a)(3) would, by making it harder to gather funds, limit the type and number of times 

it could run advertisements. VC at ¶ 35. The limits would also diminish National 

Defense PAC’s ability to run additional advertisements concerning other federal 

candidates in other races. This is precisely the muting effect the law had on National 

Case 1:11-cv-00259-RMC Document 2 Filed 01/31/11 Page 17 of 45
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Defense PAC’s operations during the 2010 electoral cycle as described above. This 

constitutes a direct impediment on National Defense PAC’s association and speech. 

National Defense PAC will face a credible threat of prosecution if it solicits or 

accepts contributions in excess of the limits contained in 2 U.S.C. §§441a(a)(1)(C) and 

441a(a)(3) to fund its advertisements as described herein. VC at ¶ 36. 

V. Rear Admiral Carey and Kelly S. Eustis’s Activities 

The contribution limits contained in 2 U.S.C. §§ 441a(a)(1)(C) and 441a(a)(3) 

prevent plaintiff Kelly S. Eustis from making the contributions he wants to make as 

described above, and thus prevents him from associating with National Defense PAC and 

with other like minded individuals, as well as speaking, for the purpose of producing and 

distributing the advertisements described herein. VC at ¶ 37. 

Similarly, the contribution limits found in 2 U.S.C. §§ 441a(a)(1)(C) and 

441a(a)(3) prevent Rear Admiral Carey, as an agent of National Defense PAC, from 

soliciting or accepting contributions as described above. VC at ¶ 38. 

Plaintiff Kelly S. Eustis will face a credible threat of prosecution if he makes 

donations to National Defense PAC in excess of the limits contained in 2 U.S.C. §§ 

441a(a)(1)(C) and 441a(a)(3) to fund National Defense PAC’s advertisements as 

described herein. VC at ¶ 39. Mr. Eustis should not have his contributions to National 

Defense PAC count against the amount of money he may contribute to federal candidates 

under 2 U.S.C. § 441a(a)(3). 

Plaintiff Rear Admiral Carey will face a credible threat of prosecution if he 

solicits or accepts donations to National Defense PAC in his role as treasurer in excess of 

Case 1:11-cv-00259-RMC Document 2 Filed 01/31/11 Page 18 of 45
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the limits contained in 2 U.S.C. §§ 441a(a)(1)(C) and 441a(a)(3) to fund National 

Defense PAC’s advertisements as described herein. VC at ¶ 40.

ARGUMENT 

 Just fifteen months ago, the United States Court of Appeals for the District of 

Columbia Circuit held that non-connected political action committees that receive dollarlimited and source-restricted contributions to in turn make contributions to candidates 

also have the First Amendment right to receive unlimited funds for independent 

expenditures. EMILY’s List v. Federal Election Commission, 581 F.3d 1, 12 (D.C. Cir. 

2009). A non-connected committee that “makes independent expenditures to support 

federal candidates does not suddenly forfeit its First Amendment rights when it decides 

also to make direct contributions to parties or candidates.” Id. National Defense PAC is 

a similarly-situated non-connected political action committee whose identical rights 

under the First Amendment have not been recognized by the Federal Election 

Commission. 

Despite EMILY’s List’s holding, the Federal Election Commission failed four 

months ago to find four votes to guide the National Defense PAC in its advisory opinion 

request. See Certification of FEC Recording Secretary Shawn Woodhead Werth, AO 

2010-20 (September 28, 2010) (hereinafter “Certification”) VC, EXHIBIT D. Three of 

the Commission’s six members rightly understood that they were bound by the reasoning 

of EMILY’s List. See FEC Agenda Document No. 10-60-B (adopting reasoning of 

opinion), VC at EXHIBIT C. Two commissioners voted otherwise, and the sixth left the 

proceedings prior to the vote. See Certification, VC EXHIBIT D. The Commission’s 

failure to follow EMILY’s List, and the Supreme Court precedents that comprise it, leaves 

Case 1:11-cv-00259-RMC Document 2 Filed 01/31/11 Page 19 of 45
12

plaintiffs with the unmistakable conclusion that they will be liable if they accept funds for 

independent expenditures in excess of the $5000 contribution limit of 2 U.S.C. § 

441a(a)(1)(C). See 2 U.S.C. § 437f. Plaintiffs seek to preliminarily enjoin contribution 

limits that, if applied exclusively to National Defense PAC’s independent expenditure 

activities, will prevent plaintiffs from exercising their rights to speech and association 

during the time those rights are most effective—the election season. 

 To warrant preliminary injunctive relief, the moving party must show (1) a 

substantial likelihood of success on the merits, (2) that it would suffer irreparable injury 

if the injunction were not granted, (3) that an injunction would not substantially injure 

other interested parties, and (4) that the public interest would be furthered by the 

injunction. Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. 

Cir. 2006). As demonstrated below, each of these factors weighs in plaintiffs’ favor. 

I. Plaintiffs Are Substantially Likely Succeed on the Merits 

 The burden of proof at the preliminary injunction stage tracks the burden of proof 

at trial. Therefore, where First Amendment rights are at stake, the FEC must demonstrate 

the likelihood that the law will be upheld. See Gonzales v. O Centro Espirita Beneficente 

Unaio do Vegetal, 546 U.S. 418, 429 (2006); Ashcroft v. ACLU, 542 U.S. 656, 666 

(2004). In this context, the FEC must demonstrate that the contribution limits further 

either a compelling or substantial governmental interest as applied to plaintiffs. Whether 

the standard of review for limits on contributions to National Defense PAC’s independent 

expenditures is tested under the strict scrutiny applicable to restrictions on expenditures, 

see FEC v. Nat’l Conservative Political Action Committee, 470 U.S. 480 (1985)

(“NCPAC”), the exacting scrutiny discussed in Citizens Against Rent Control v. 

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13

Berkeley, 454 U.S. 290 (1981), or the “less rigorous review” applicable to limits on 

contributions to candidates, see Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 

(2000), the FEC cannot meet its burden. 

A. The Very Structure of the Federal Election Campaign Act Illustrates 

That Contribution Limits Applied Against Non-Connected 

Committees’ Independent Expenditures Cannot Be Upheld 

 The FEC cannot meet its burden here for the primary reason that independent 

expenditures made from a separate account do not present any threat of corruption or its 

appearance that would justify limiting the contributions National Defense PAC solicits 

and accepts for independent expenditures. EMILY’s List, 581 F.3d at 7 (Supreme Court 

“has consistently dismissed the notion that expenditures implicate the anti-corruption 

interest.”). National Defense PAC has stated it will establish a separate account to make 

its independent expenditures and will ensure that the costs of administering the funds 

from which it makes candidate contributions are paid from that candidate contribution 

account. VC at ¶¶ 1, 13, 15, 49. 

 National Defense PAC is a non-connected committee. Id. at ¶¶ 2, 10. It claims a 

major purpose of campaign activity. Id. Yet, its major purpose cannot be the basis for 

prohibiting it from establishing a separate account to make independent expenditures 

from unlimited funds. In SpeechNow.org v. FEC, the organization claimed a major 

purpose of campaign activity and the SpeechNow.org opinion permits it to make 

independent expenditures from unlimited funds. SpeechNow.org v. FEC, 599 F.3d 686 

(D.C. Cir. 2010). The FEC’s reasoning then—to the extent a split decision admits of 

reasoning—must be based upon a need to combat some potential corruption. That 

potential for corruption would have to be based upon National Defense PAC’s connection 

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14

to candidates in some way. See Buckley v. Valeo, 424 U.S. 1 (1976). The lack of any 

corruption here is illustrated by reviewing the rights of other political organizations. 

Organizations that are comprised of or controlled by candidates can pose a threat 

of corruption, as in the case of national party committees. See McConnell v. FEC, 540 

U.S. 93 (2003). It is worth noting that, despite the unique form of corruption posed by 

the party committee, the McConnell Court did not uphold a provision of the Bipartisan 

Campaign Reform Act of 2002, Pub. Law., 107-155 (March 27, 2002), that required 

parties to choose between making independent expenditures on behalf of candidates and 

making in-kind contributions to candidates. See McConnell v. FEC, 540 U.S. 93, 213-18 

(2003).

But National Defense PAC is not a party committee, and the EMILY’s List

opinion makes plain that non-profits do not pose the threat of corruption posed by party 

committees. See EMILY’s List v. FEC, 581 F.3d 1, 13 (2009) (“[M]cConnell does not 

support such regulation of non-profits”). In that sense, because National Defense PAC is 

not a party committee, any bootstrapping of McConnell’s reasoning here would be 

invalid.

Even after the landmark opinion in Citizens United v. Federal Election 

Commission, 130 S. Ct. 876 (2010), it remains a crime for corporations and labor unions 

to make contributions to candidates from treasury funds. See 2 U.S.C. 441b. At the same 

time, corporations and labor unions are permitted by statute to use treasury funds (soft 

money) to pay the expenses of administering a separate segregated fund (“SSF”) used to 

make contributions to candidates from hard money. 2 U.S.C. § 441b. It is the 

prophylactic effect of separate accounts that allows the SSF to make contributions to 

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15

candidates with hard money while paying the SSF’s administrative expenses with soft 

money. Similarly, the prophylactic required of non-connected political committees like 

National Defense PAC should be tied to the anti-corruption interest without curtailing 

independent speech. This is achieved with separate accounts: funds contributed to 

National Defense PAC for independent expenditures should not fund contributions to 

candidates.

Corporations and labor unions may make unlimited independent expenditures 

from treasury funds while using SSFs to make contributions to candidates. Citizens 

United, 130 S. Ct. 876 (2010). Indeed, the Citizens United organization operated an SSF 

for a decade and made candidate contributions. This did not prevent the Court from 

overruling Austin v. Michigan Chamber of Commerce on its behalf and recognizing its 

right to make unrestricted independent expenditures. Citizens United, 130 S. Ct. at 913. 

Justice Stevens noted the fact of Citizens United’s PAC in his dissenting opinion. 

In the case at hand, all Citizens United needed to do to broadcast Hillary

right before the primary was to abjure business contributions or use the 

funds in its PAC, which by its own account is "one of the most active 

conservative PACs in America," Citizens United Political Victory Fund, 

http://www.cupvf.org/. 40

***

40. Citizens United has administered this PAC for over a decade. [citation 

omitted]. Citizens United also operates multiple "527" organizations that 

engage in partisan political activity. See Defendant FEC's Statement of 

Material Facts as to Which There Is No Genuine Dispute in No. 07-2240 

(DC), PP 22-24. 

Citizens United, 130 S. Ct . 876, 944 n.40 (2010), (Stevens, J., dissenting). 

The Supreme Court recognized Citizens United’s right to make independent 

expenditures with unrestricted funds while fully aware that the organization maintained a 

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separate segregated fund for making contributions to candidates. Id. A non-connected 

political committee also must be permitted to make independent expenditures with 

unlimited funds. Maintaining separate accounts cures any potential corruption of 

candidates.

The FEC may rely upon two more arguments to deny National Defense PAC and 

all other non-connected committees save EMILY’s List, see EMILY’s List, 581 F.3d at 

12, their right to make independent expenditures with unlimited funds. It may argue that 

the Citizens United opinion is not instructive because the Citizens United organization 

and the Citizens United Voter Fund are separate legal entities. It may also attempt to rely 

on the California Medical Association opinion to conclude that non-connected 

committees cannot make independent expenditures with unlimited funds because doing 

so will corrupt candidates. Both arguments fail. 

1. CalMed Does Not Support The Conclusion That A NonConnected Committee’s Independent Expenditures Corrupt 

Candidates

While the Supreme Court has never directly addressed whether the government 

has a compelling interest in limiting contributions to a non-connected committee making 

independent expenditures, its decision in California Medical Association v. FEC, 453 

U.S. 182 (1981) [hereinafter CalMed], provides guidance on the proper analysis of the 

issue in this case. CalMed involved a challenge by a multi-candidate committee—

defined as a political committee that makes contributions to five or more federal 

candidates—to the $5000 annual contribution limit under 2 U.S.C. § 441a(a)(1)(C). Id. at 

194. Concluding that contributions to the multi-candidate committee amounted merely to 

“speech by proxy” of the PAC’s contributors—which was entitled to lesser protections 

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under the First Amendment—a plurality of the Court upheld the limit on the ground that 

it served the government’s interest in preventing circumvention of the limits on 

contributions made directly to candidates. Id. at 196-98. The multi-candidate committee 

made contributions directly to candidates. Thus, according to the plurality, contributors 

seeking to avoid the (at the time) $1000 annual candidate contribution limits could make 

larger contributions to multi-candidate committees, which could then be funneled to 

candidates. Id. at 197-98. 

 Justice Blackmun separately concurred and concluded that the plurality’s anticircumvention rationale applied only because the committee at issue was a multicandidate committee that made direct contributions to candidates. Id. at 203. Justice 

Blackmun rejected the plurality’s conclusion that contributions to the multi-candidate 

committee were not entitled to full First Amendment protection, id. at 201-02, and 

concurred in the plurality’s judgment, however, because he recognized that, as applied to 

multi-candidate committees, the annual contribution limit was a narrow means of 

preventing circumvention of the limits that applied to direct contributions to candidates. 

Id. at 203. 

 Justice Blackmun made clear that the same analysis would not apply to limits on 

contributions to committees “established for the purpose of making independent 

expenditures.” Id. In sharp contrast to multi-candidate committees—which are “conduits 

for contributions to candidates” and thus raise concerns about corruption—“contributions 

to a committee that makes only independent expenditures pose no such threat.” Id. As 

Justice Blackmun explained, 

[t]he Court repeatedly has recognized that effective advocacy of both 

public and private points of view, particularly controversial ones, is 

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18

undeniably enhanced by group association.... By pooling their resources, 

adherents of an association amplify their voices...; the association is but 

the medium through which its individual members seek to make more 

effective the expression of their own views. 

Id. (internal quotation marks and citations omitted). Because Justice Blackmun’s 

decision is the narrower one, his is the controlling decision in the case. See Marks v. 

United States, 430 U.S. 188, 193 (1977) (stating that when the Court issues a fragmented 

decision, the position of the narrowest concurrence controls). 

Two principles emerge from CalMed. First and foremost, under Justice 

Blackmun’s controlling opinion, the government may limit contributions to groups only 

where they implicate the interest in preventing corruption or its appearance. 453 U.S. at 

203. While contributions to multi-candidate committees that in turn fund contributions to 

candidates can raise such concerns, contributions for independent expenditures cannot. 

Id. at 203-04; see also Citizens United v. FEC, 130 S. Ct 876, 909 (2010) (independent 

expenditures do not create the appearance of, or actual, quid pro quo corruption). 

Second, even the plurality’s conclusions apply only to multi-candidate 

committees that make contributions directly to candidates. See EMILY’s List, 581 F.3d 1, 

9 n.8 (discussing CalMed); 12 n.10 (“The CalMed Court never stated that non-profits 

could be required to use hard money for advertisements.”). This point is not only implicit 

in the plurality’s analysis; it is also stated expressly in the opinion. In a footnote, the 

plurality noted that the ACLU in an amicus brief claimed that the contribution limit at 

issue “would violate the First Amendment if construed to limit the amount individuals 

could jointly expend to express their political views.” Id. at 197 n.17. This concern was 

not at issue in the case, however, because it involved only a multi-candidate committee 

that made contributions directly to candidates. Id. As the plurality explained, 

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“[c]ontributions to such committees are therefore distinguishable from expenditures made 

jointly by groups of individuals in order to express common political views.” Id. See

also Cal. Med. Ass’n. v. FEC, 641 F.2d 619, 625 (9th Cir. 1980) (Kennedy, J.) (multicandidate committee is “natural conduit for candidate contributions... and the essential 

purpose of the provision here in question is to limit those contributions, not to limit 

expenditures for any other type of political advocacy) (emphasis added). In short, the 

National Defense PAC’s case is distinguishable from the fact pattern in CalMed—

National Defense PAC asks to make independent expenditures, the California Medical 

Association did not—and falls squarely within the reason of Justice Blackmun’s 

controlling concurrence. 

2. A Connected Organization And Its SSF May Be Separate 

Legal Entities, But That Does Not Mean Separate Accounts Do 

Not Stem Corruption In Non-connected Committees. 

The FEC may attempt to distinguish the rights of non-connected committees from 

the rights of connected committees. It may point out that a corporation or labor union 

(the “connected organization”) and its separate segregated fund are legally separate 

entities. See CalMed, 453 U.S. at _; Citizens United, 130 S. Ct. at _. It is this separation, 

the FEC might argue, that permits a non-profit like California Medical Association to 

accept unlimited contributions for independent expenditures but prevents a nonconnected committee that makes candidate contributions, like CALPAC, from doing the 

same. The FEC may argue that the Citizens United opinion really means the Citizens 

United organization is permitted to use unrestricted funds for its independent 

expenditures, but the Citizens United Political Voter Fund, a separate legal entity, may 

not. Any argument of this kind would have to be based on the belief that separating the 

accounts for soft-money independent expenditures and hard-money candidate 

Case 1:11-cv-00259-RMC Document 2 Filed 01/31/11 Page 27 of 45
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contributions is an insufficient prophylactic against any potential corruption to 

candidates.

But this argument is undermined and invalidated by the FEC’s longstanding 

policy of recognizing the right of non-connected committees to maintain one hard-money 

account to make contributions to federal candidates while maintaining a soft money 

account to make non-federal disbursements and donations. See 11 CFR 102.5. For years, 

the FEC’s regulations have required each organization “that finances political activity in 

connection with both Federal and non-Federal elections and that qualifies as a political 

committee under 11 CFR 100.5,” which includes non-connected committees, to either 

pay for all non-federal activity with federal dollars or establish two accounts: one federal, 

the other non-federal (or soft money). 11 CFR 102.5 

 The federal account “shall be treated as a separate Federal political committee 

that must comply with the requirements of the Act including the registration and 

reporting requirements of 11 CFR parts 102 and 104. Only funds subject to the 

prohibitions and limitations of the Act [a.k.a. “hard money” or “Federal funds”] shall be 

deposited in such separate Federal account.” Id. What safeguard ensures that federal 

candidates are not corrupted by non-federal funds housed inside the non-connected 

committee? The same requirement that the National Defense PAC would follow in 

financing its proposed independent expenditures with unrestricted funds: the restrictions 

of 11 CFR 102.5. “No transfers may be made to such Federal account from any other 

account(s) maintained by such organization for the purpose of financing activity in 

connection with non-Federal elections.” Id.

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If separate accounts are the trusted method of ensuring that a non-connected 

committee’s non-federal funds for non-federal activity do not corrupt federal candidates, 

then separate accounts must serve the same anti-corruption interests here. That is, 

separate accounts and a prohibition on transfers between accounts—transfers from the 

non-federal account to the federal account—will ensure that non-federal funds for 

independent expenditures will not corrupt federal candidates. And separate accounts 

have the virtue of being a narrowly drawn remedy to further any interest in protecting 

against quid pro quo corruption while recognizing Plaintiffs’ rights to speak effectively. 

After all, that is exactly what the EMILY’s List court decided as a matter of binding 

precedent nearly fifteen months ago. 

B. As a Matter of Stare Decisis, National Defense PAC’s Rights Have 

Already Been Upheld

Finally, this question has already been squarely decided by the D.C. Circuit Court 

of Appeals in EMILY’s List v. FEC, 581 F.3d 1 (2009). 

What about a non-profit entity that falls into both categories -- in other 

words, a non-profit that makes expenditures and makes contributions to 

candidates or parties? EMILY's List is a good example of such a hybrid 

non-profit: It makes expenditures for advertisements, get-out-the-vote 

efforts, and voter registration drives; it also makes direct contributions to 

candidates and parties. 

***

The constitutional principles that govern such a hybrid non-profit entity 

follow ineluctably from the well-established principles governing the other 

two categories of non-profits. To prevent circumvention of contribution 

limits by individual donors, non-profit entities may be required to make 

their own contributions to federal candidates and parties out of a hardmoney account -- that is, an account subject to source and amount 

limitations ($ 5000 annually per contributor). Similarly, non-profits also 

may be compelled to use their hard-money accounts to pay an 

appropriately tailored share of administrative expenses associated with 

their contributions. See Cal. Med, 453 U.S. at 198-99 n.19 (opinion of 

Marshall, J.). But non-profit entities are entitled to make their 

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expenditures -- such as advertisements, get-out-the-vote efforts, and voter 

registration drives -- out of a soft-money or general treasury account that 

is not subject to source and amount limits. Stated another way: A nonprofit that makes expenditures to support federal candidates does not 

suddenly forfeit its First Amendment rights when it decides also to make 

direct contributions to parties or candidates. Rather, it simply must ensure, 

to avoid circumvention of individual contribution limits by its donors, that 

its contributions to parties or candidates come from a hard-money account. 

EMILY’s List, 581 F.3d at 12. 

 The EMILY’s List opinion is no outlier. It is firmly grounded in the Supreme 

Court’s campaign finance jurisprudence. The Supreme Court has held that independent 

expenditures, whether by individuals, committees, corporations or labor unions, cannot 

constitutionally be limited, because they are, by definition, unconnected to candidates and 

thus cannot raise any concerns about corruption. See Citizens United v. FEC, 130 S. Ct. 

876 (2010); FEC v. Nat’l Conservative Political Action Committee, 470 U.S. 480, 496-97 

(1985) [hereinafter NCPAC]; Buckley v. Valeo, 424 U.S. 1 (1976). The Court has also 

held that limits on contributions to groups that make independent expenditures are 

necessarily restrictions on their expenditures. See Citizens Against Rent Control v. City 

of Berkeley, 454 U.S. 290, 299-300 (1981); EMILY’s List v. FEC, 581 F.3d 1 (D.C. Cir. 

2009). Combined, these principles make clear that the contribution limits that apply to 

the funding of candidate contributions cannot constitutionally be applied to the 

independent expenditures of National Defense PAC. 

C. The FEC Cannot Demonstrate a Compelling, Substantial or 

Legitimate Interest in Limiting Contributions to National Defense 

PAC.

 As the Supreme Court has repeatedly stated, a fundamental purpose of the First 

Amendment was to protect the discussion of governmental affairs, and, in particular, of 

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candidates, in order to “ensure the unfettered interchange of ideas for the bringing about 

of political and social changes desired by the people.” Buckley, 424 U.S. at 14. Thus, the 

First Amendment protects vigorous advocacy intended to influence the outcome of 

elections no less than the discussion of ideas. See First Nat’l Bank of Boston v. Bellotti,

435 U.S. 765, 790 (1978). It also protects the right of individuals to associate with one 

another because “effective advocacy of both public and private points of view, 

particularly controversial ones, is undeniably enhanced by group association.” NAACP v. 

Alabama, 357 U.S. 449, 460 (1958). By associating with others, “individuals can make 

their views known, when, individually, their voices would be faint or lost.” Citizens 

Against Rent Control, 454 U.S. at 294. See also Buckley, 424 U.S. at 22 (stating that the 

purpose of the right of association is to allow individuals to amplify their voices by 

associating with others). All this rests at the very heart of what National Defense PAC 

hopes to accomplish. 

The Supreme Court has held that “[i]ndependent expenditures constitute 

expression ‘at the core of our electoral process and of the First Amendment freedoms.’” 

MCFL, 479 U.S. at 254 (quoting Buckley, 424 U.S. at 39). See also, NCPAC, 470 U.S. at 

493 (stating that independent expenditures “produce speech at the core of the First 

Amendment”). As a result, limits on what committees can spend independently of 

candidates and party committees are subject to the highest constitutional protection. 

As the Court stated in NCPAC, “[a] restriction on the amount of money a person or group 

can spend on political communications during a campaign necessarily reduces the 

quantity of expression by restricting the number of issues discussed, the depth of their 

exploration, and the size of the audience reached. This is because virtually every means 

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of communicating ideas in today’s mass society requires the expenditure of money.” Id.

at 493-94 (quoting Buckley, 424 U.S. at 19). 

 While the limit at issue in NCPAC operated directly on expenditures by the group, 

rather than contributions to it, limits on contributions for independent expenditures 

automatically operate to limit the group’s expenditures. See also EMILY’s List, 581 F.3d 

at 14, n.13 (“Limits on donations to non-profit entities are analytically akin to limits on 

expenditures by the donors.”). The conclusion necessarily follows from the Supreme 

Court’s decision in Citizens Against Rent Control. That case involved a $250 limit on 

contributions to support or oppose a ballot measure. 454 U.S. at 292. Concluding that 

the limit prevented individuals from pooling their funds in order to finance their 

collective advocacy, the Court applied exacting scrutiny and struck it down. See id. at 

294-95, 300. In arriving at that conclusion, the Court recognized that the limit on 

contributions necessarily limited the funds that the group could spend on its own speech. 

See id. at 299. As the Court explained, while an individual may make unlimited 

expenditures under the law, she may not “contribute beyond the $250 limit when joining 

with others to advocate common views. The contribution limit thus automatically affects 

expenditures, and limits on expenditures operate as a direct restraint on freedom of 

expression....” Id. See also id. (“Placing limits on contributions which in turn limit 

expenditures plainly impairs freedom of expression.”). 

 The same is true here. To produce and distribute just the initial ads for which 

National Defense PAC now has scripts will cost upwards of $6300.00. See VC at ¶ 24, 

EXHIBIT F. Without the contributions from Plaintiff Kelly Eustis, the National Defense 

PAC would be unable to produce and distribute these ads. VC at ¶¶ 25-26, EXHIBIT G. 

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Even assuming that National Defense PAC could raise sufficient funds in increments of 

less than $5000 to pay for these ads, the contribution limits would still significantly limit 

the number of times it could run those ads, and would limit its ability to run additional 

ads concerning other federal candidates in other races. Id. at ¶ 35. In short, it is 

undeniable that the contribution limits contained in 2 U.S.C. §§ 441a(a)(1)(C) and 

441a(a)(3) directly restrain National Defense PAC’s expenditures and reduce the quantity 

of its expression by restricting the number of political candidates it can discuss, the 

number of times it can distribute its ads, and the size of the audience it can reach. 

 Thus, as in NCPAC, Citizens Against Rent Control, and EMILY’s List, the 

contribution limits that apply to National Defense PAC restrict plaintiffs’ rights to pool 

their funds in order to amplify their voices beyond what any of them would be able to 

achieve on their own. See NCPAC, 470 U.S. at 495; Citizens Against Rent Control, 454 

U.S. at 296; EMILY’s List, 581 F.3d at 12. The contribution limits thus restrict the rights 

to free speech and association of both National Defense PAC and its supporters. See

Citizens Against Rent Control, 454 U.S. at 299-300 (stating that the rights of speech and 

association “blend and overlap” and are both implicated by contribution limits imposed 

on groups that support or oppose ballot issues). In other words, the contribution limits 

restrict not only National Defense PAC’s right to free speech by limiting the funds it has 

available to spend on its advertisements. The limits also directly restrict its supporters’ 

rights to free speech by preventing them from pooling their funds and speaking 

collectively through National Defense PAC. See NCPAC, 470 U.S. at 495. 

 As applied to National Defense PAC’s independent expenditures, the contribution 

limits contained in 2 U.S.C. §§ 441a(a)(1)(C) and 441a(a)(3) operate very differently 

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from the contribution limits in the circumstances in which the Supreme Court upheld 

them in Buckley. There, the Court addressed limits that applied to contributions made 

directly to candidates or their committees. 424 U.S. at 23-38. Finding that contributions 

to candidates served as only a “general expression of support for the candidate and his 

views but does not communicate the underlying basis for the support” and that the 

contributors’ expression “rests solely on the undifferentiated symbolic act of giving,” the 

Court concluded that the speech element in contributions to candidates was minimal. See

id. at 21. By contrast, National Defense PAC will use plaintiffs’ contribution to make 

independent expenditures—direct funding of speech, not contributions to candidates. 

Support for National Defense PAC’s independent expenditures thus conveys much 

more than the “undifferentiated, symbolic act of giving.” Buckley, 424 U.S. at 21. It 

conveys agreement with National Defense PAC’s message. As the Court stated in 

rejecting the “speech by proxy” argument in NCPAC, “the contributors obviously like the 

message they are hearing from these organizations and want to add their voices to that 

message; otherwise, they would not part with their money.” 470 U.S. at 95. 

 The Supreme Court, barely one year ago in Citizens United, again identified the 

sole interest sufficiently compelling to limit contributions to political organizations: that 

of preventing the actual or apparent quid pro quo corruption of candidates. 130 S. Ct. at 

908-909. As the Court has stated, “preventing corruption or the appearance of corruption 

are the only legitimate and compelling government interests thus far identified for 

restricting campaign finances.” NCPAC, 470 U.S. at 496-97. See also Randall v. Sorrell,

548 U.S. 230, 246-248 (2006) (recognizing corruption as the only interest that can 

support contribution limits and striking down limits as broader than necessary to achieve 

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that interest); Citizens Against Rent Control, 434 U.S. at 437-38 (“Buckley identified only 

a single narrow exception to the rule that limits on political activity were contrary to the 

First Amendment. The exception relates to the perception of undue influence of large 

contributors to a candidate.”) (emphasis in original). 

D. As Applied to National Defense PAC and its Supporters, the 

Contribution Limits Are Not Narrowly Tailored 

 “Where at all possible, government must curtail speech only to the degree 

necessary to meet the particular problem at hand, and must avoid infringing on speech 

that does not pose the danger that has prompted regulation.” FEC v. Massachusetts 

Citizens for Life, Inc., 479 U.S. 238, 265 (1986) (“MCFL”). The “problem” for which 

Congress passed FECA’s contribution limits was the appearance of or actual corruption 

of candidates. See Buckley, 424 U.S. at 23-38. Thus, regulating “only to the degree 

necessary” to address that problem would mean applying contribution limits only to those 

groups that raise concerns about corruption. Here, the FEC wields far too blunt an 

instrument to cure any form of recognized quid pro quo corruption. As demonstrated 

above, National Defense PAC’s independent expenditure account cannot raise such 

concerns and cannot be used to circumvent the limits on contributions to candidates. As 

a result, applying contribution limits to National Defense PAC and its supporters is not 

narrowly tailored. See, e.g., NCPAC, 470 U.S. at 498; CalMed, 453 U.S. at 203-04 

(Blackmun, J. concurring). 

 It is no answer to say that National Defense PAC could speak adequately with less 

money. As the Supreme Court made clear in WRTL, cheaper alternatives are not 

reasonable alternatives in terms of “impact and effectiveness.” 551 U.S. 449, 477 n.9.

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 Even under “less rigorous review,” limits are permissible only if the are “closely 

drawn” to serve a “sufficiently important governmental interest.” Randall, 548 U.S. at 

247 (quoting Buckley, 424 U.S. at 25). This is not a cursory review, and, to date, the 

Supreme Court has identified only the interest in combating corruption of candidates as 

important enough to justify contribution limits. See, e.g., NCPAC, 470 U.S. at 496-97; 

Buckley, 424 U.S. at 25, 28. As discussed above, National Defense PAC’s independent 

expenditure account cannot raise any concerns about corruption or its appearance and 

cannot be used to circumvent the limits on contributions to candidates. Thus, even if this 

court concludes that strict scrutiny does not apply here, Plaintiffs have still demonstrated 

a substantial likelihood of success on the merits to justify a preliminary injunction. See,

e.g., N.C. Right to Life, Inc. v. Leake, 482 F. Supp. 2d 686, 698-99 (W.D. N.C. 2007) 

(holding contribution limit unconstitutional as applied to independent expenditure 

committee even under the lesser scrutiny that applies to limits on contributions to 

candidates).

National Defense PAC’s independent expenditures pose no threat of corruption. 

Its willingness to maintain a separate account for its candidate contributions and 

willingness to administer that account with hard money ensures that it will pose no threat 

of corruption to candidates. The government’s interest is furthered by the narrowly 

tailored requirement that National Defense PAC not make transfers between accounts. 

The FEC’s failure to respond to National Defense PAC’s request, to recognize the 

relation between the government’s interest and the remedy of separate accounts, and its 

failure to provide Plaintiffs with a defense to prosecution, place Plaintiffs in harm that 

can only be cured with an injunction. 

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II. Plaintiffs Will Suffer Irreparable Harm Without an Injunction 

 “The loss of First Amendment freedoms, for even minimal periods of time, 

unquestionably constitutes irreparable harm.” Elrod v. Burns, 427 U.S. 347, 373 (1976). 

Under the contribution limits of 2 U.S.C. § 441a(a)(1)(C), National Defense PAC cannot 

distribute the ads for which it currently has scripts. Plaintiff Eustis is ready, willing, and 

able to contribute the necessary funds, and National Defense PAC will distribute those 

ads if it is legally permitted to accept those funds. VC at ¶¶ 24-25. The only thing 

standing between National Defense PAC and its ability to speak through its ads are the 

contribution limits contained in 2 U.S.C. §§ 441a(a)(1)(C) and 441a(a)(3). Thus, 

Plaintiffs’ rights are in fact being impaired right now; there is nothing speculative about 

their claims. See Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 301 

(D.C. Cir. 2006) (stating that “[w]here a plaintiff alleges injury from a rule or regulation 

that directly limits speech, the irreparable nature of the harm may be presumed”). 

 While Plaintiffs are irreparably harmed right now, that harm is ongoing and 

increases as time passes. Any money that National Defense PAC cannot collect now 

deletes the amount of speech it can plan on making in the 2012 primary elections. VC, ¶¶ 

24-29.

III. An Injunction Will Not Substantially Injure Others 

 In a recent campaign finance decision, the Supreme Court made clear that in any 

conflict between First Amendment rights and regulation, courts “must give the benefit of 

any doubt to protecting rather stifling speech,” and that “the tie goes to the speaker, not 

the censor.” WRTL, 551 U.S. at 469, 474. Thus, while the FEC can be said to have an 

interest in enforcing the campaign finance laws, under the Supreme Court’s approach to 

Case 1:11-cv-00259-RMC Document 2 Filed 01/31/11 Page 37 of 45
30

First Amendment rights in WRTL, the FEC’s interest simply cannot trump the First 

Amendment rights of Plaintiffs. An injunction will not harm the FEC. 

IV. An Injunction Will Further the Public Interest 

The Supreme Court “has long viewed the First Amendment as protecting a 

marketplace for the clash of different views and conflicting ideas. That concept has been 

stated and restated almost since the Constitution was drafted.” Citizens Against Rent 

Control, 454 U.S. at 295. Plaintiffs wish to participate in the marketplace of ideas by 

attempting to convince citizens to support candidates who have demonstrated a 

commitment to the Nation through their military service and who support the principle of 

limited, constitutional government. 

 “[T]here is practically universal agreement that a major purpose of [the First] 

Amendment was to protect the free discussion of governmental affairs ... includ[ing] 

discussion of candidates.” Mills v. Alabama, 384 U.S. 214, 218 (1966). Thus “speech 

concerning public affairs is more than self-expression; it is the essence of selfgovernment.” Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964). Plaintiffs wish to 

participate in the process of self-government by urging voters to support candidates who 

are veterans and who support limited constitutional government and oppose those who do 

not.

 The First Amendment reflects our “profound national commitment to the 

principle that debate on public issues should be uninhibited, robust, and wide-open.” 

N.Y. Times v. Sullivan, 376 U.S. 254, 270 (1964). In short, Plaintiffs’ activities are at the 

core of the First Amendment. National Defense PAC, and all other non-connected 

committees, must be permitted to make independent expenditures out of unlimited 

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31

corporate, union or individual funds, even though it maintains a separate bank account 

that contributes to candidates from amount and source restricted funds. Citizens United 

v. FEC, 130 S. Ct. 876, 909 (2010) (“[W]e now conclude that independent expenditures, 

including those made by corporations, do not give rise to corruption or the appearance of 

corruption.”). Unlike unions and corporations, however, who enjoy a statutory 

dispensation, the FEC can require the National Defense PAC to pay a portion of 

administrative expenses from a hard money account. This will accord the Court’s 

decision in CalMed. 453 U.S. at 198-99 n.19 (opinion of Marshall, J.). And such 

recognition by this court will remedy the injury to plaintiffs’ First Amendment interests. 

V. Plaintiffs Have Standing to Seek the Injunction 

To establish standing, plaintiffs must demonstrate three elements: an injury in 

fact, a causal connection between the injury and the defendant's conduct, and a likelihood 

that the injury will be redressed by a decision favorable to the plaintiff. See Lujan v. 

Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). An injury in fact is satisfied when 

plaintiffs make a showing of an “an invasion of a legally protected interest which is (a) 

concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” 

Id. at 560. (internal quotation marks and citations omitted). Plaintiffs have established 

an injury in fact capable of relief issued by this court. Moreover, there exists a causal 

connection between the FEC’s failure to issue an affirmative advisory opinion and the 

Plaintiffs’ injuries, and a decision issued by this court will redress those injuries. 

Within the context of the First Amendment, the Supreme Court has announced 

relaxed standing requirements for pre-enforcement challenges. See, e.g., Dombrowski v. 

Pfister, 380 U.S. 479 (1965) (detailing expanded standing principles for pre-enforcement 

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32

First Amendment challenges); Virginia v. American Booksellers Ass’n, Inc., 484 U.S. 

383, 393 (1988) (self-censorship is a harm that can be alleged without actual 

prosecution); Chamber of Commerce v. FEC, 69 F.3d 600, 603-04 (“A party has standing 

to challenge, pre-enforcement, even the constitutionality of a statute if First Amendment 

rights are arguably chilled, so long as there is a credible threat of prosecution”). Wouldbe speakers bringing pre-enforcement challenges must allege “an intention to engage in a 

course of conduct arguably affected with a constitutional interest,” and illustrate that 

there exists a “credible threat of prosecution” under the law in question. Babbitt v. United 

Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979). In this special arena, where a 

statute on its face “restricts a party from engaging in expressive activity, there is a 

presumption of a credible threat of prosecution.” Virginia Soc’y for Human Life, Inc. v. 

FEC, 263 F.3d 379, 388 (4th Cir. 2001). 

Here, National Defense PAC has alleged an “intention to engage in a course of 

conduct arguably affected with a constitutional interest, but proscribed” by law. Babbitt,

442 U.S. at 298. Specifically, National Defense PAC prepared independent expenditure 

advertisements for the upcoming 2012 electoral cycle, but cannot accept contributions to 

fund them due to the reach of 2 U.S.C. §§ 441a(a)(1)(C) and 441a(a)(3). See VC, ¶¶ 24-

26 & Exhibits F & G. National Defense PAC would like to fundraise and accept 

contributions for additional independent expenditure campaigns in the 2012 electoral 

cycle, but its actions are prohibited just the same. See VC, ¶¶ 25-26. Kelly S. Eustis 

would like to make a donation of $6,300.00 to National Defense PAC, but cannot due to 

the operation of the law. See VC, ¶¶ 26-27.

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National Defense PAC suffers injuries against its First Amendment protected 

interests that are imminent as well – the organization must be able to plan for its 

communications and operations, as well as fundraise to support them. See VC, ¶ 26. By 

operation of the law, National Defense PAC must hinder its speech and association until 

a definitive ruling is issued by this court protecting National Defense PAC’s 

constitutional rights and that of its donors. Because federal elections occur every two 

years, its injuries are ongoing. See Virginia Soc’y, 263 F.3d at 389 (First Amendment 

injury is ongoing where it relates to proscribed speech concerning federal elections). 

National Defense PAC has established concrete plans to engage in constitutionally 

protected conduct that is subject to the reach of the challenged laws. Its speech and 

association are chilled due to fear of prosecution by the Federal Election Commission. 

Most recently, the Commission failed to provide an advisory opinion in response to 

Plaintiffs’ request that their planned activities would be permissible under the FECA. 

The FEC’s refusal to issue an advisory opinion deprives National Defense PAC of a legal 

reliance defense which it could otherwise receive under 2 U.S.C. § 437f(c). See FEC v. 

Nat'l Rifle Ass'n of Am., 254 F.3d 173, 185 (D.C. Cir. 2001) (noting that “advisory 

opinions have binding legal effect on the Commission”). Because of this, and as 

recognized by the D.C. Circuit Court of Appeals in Unity ’08 v. FEC, this failure to issue 

an advisory opinion “denies a right with consequences sufficient to warrant review.” 596 

F.3d 861, 865 (D.C. Cir. 2010) (internal quotations omitted). National Defense PAC’s 

only other course of action is to risk enforcement penalties—a jeopardy never permitted 

by the First Amendment.

VI. The Court Should Waive the Bond Requirement Under F.R.C.P. 65(c). 

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 Dan Backer (D.C. Bar No. 996641) 

 P.O. Box 75021 

 Washington, DC 20013 

 202.210.5431 

 dbacker@dbcapitolstrategies.com 

Stephen M. Hoersting* 

 700 E Schantz Ave 

 Dayton, OH 45419 

 937.623.6102 

 hoersting@gmail.com 

Benjamin T. Barr* 

10737 Hunting Lane 

Rockville, MD 20850 

240.863.8280

 benjamin.barr@gmail.com 

 *Motions for Pro Hac Vice to be filed. 

Case 1:11-cv-00259-RMC Document 2 Filed 01/31/11 Page 43 of 45
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

____________________________________

 ) 

 ) 

Rear Adm. James J Carey [Ret] ) 

6022 Knights Ridge Way ) 

Alexandria, VA 22310 ) 

 ) 

Kelly S. Eustis ) 

1431 Q Street ) 

Apt. 130 ) 

Sacramento, California 95811 ) 

 ) 

National Defense Political ) 

Action Committee ) 

6022 Knights Ridge Way ) 

Alexandria, VA 22310 ) 

 ) 

 Plaintiffs, ) 

 ) 

v. ) Civil Case No. ________________ 

)

FEDERAL ELECTION COMMISSION ) 

999 E Street, NW ) 

Washington, DC 20463, ) 

 ) 

 Defendant. ) 

____________________________________)

____________________________________________

NOTICE OF CONSULTATION ON MOTIONS WITH OPPOSING COUNSEL 

____________________________________________

In accord with Local Rule of Civil Procedure 7(m), Plaintiffs have conferred by 

telephone with legal counsel for the Federal Election Commission regarding the 

following non-dispositive motions. This notice provides and consolidates opposing 

counsel’s positions on all motions filed contemporaneously with the Verified Complaint. 

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