UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

JAMES J. CAREY, et al., 

 Plaintiffs, 

 v. 

FEDERAL ELECTION COMMISSION, 

 Defendant. 

Civ. No. 11- 259-RMC 

 ANSWER 

DEFENDANT FEDERAL ELECTION COMMISSION’S ANSWER 

 Defendant Federal Election Commission (“FEC” or “Commission”) submits this answer 

to the Verified Complaint for Declaratory and Injunctive Relief, filed January 31, 2011. Any 

allegation not specifically responded to below is DENIED. 

 1. DENY that the plaintiffs’ rights or donors’ rights are infringed or abridged. 

Neither this paragraph’s description of certain statutes nor its legal conclusions require a 

response. 

 2. The first sentence is a legal conclusion for which no response is required. 

ADMIT that National Defense PAC (“NDPAC”) is a nonconnected political committee. The 

Commission is without knowledge or information sufficient to admit or deny the other assertions 

in the second and third sentences of this paragraph. 

3. This paragraph contains plaintiffs’ characterization of judicial decisions, to which 

no response is required. 

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 4. Plaintiffs’ characterization of judicial decisions requires no response. DENY that 

the Commission “has failed to implement the ruling[s] of the D.C. Circuit Court of Appeals and 

United States Supreme Court.” ADMIT that during the advisory opinion process in AO Request 

2010-20 that two commissioners supported issuance of Draft A, three supported issuance of 

Draft B, and one did not vote. (Ver. Compl. Exh. D.) Because the affirmative vote of four 

members of the Commission is required for the Commission to render an advisory opinion,

2 U.S.C. §§ 437c(c), 437d(a)(7); 11 C.F.R. § 112.4(a), the Commission was unable to render an 

opinion in this matter. DENY sentences three and four. 

5. This paragraph contains plaintiffs’ legal conclusions and characterization of a 

judicial decision which require no response. DENY that the Commission failed to comply with 

the EMILY’s List opinion or infringed constitutionally protected rights. 

6. ADMIT that the cited statutes provide statutory jurisdiction. 

7. ADMIT that venue is proper in this Court. 

 8. ADMIT that James J. Carey is the founder and treasurer of NDPAC, and has 

served as treasurer since 2000. The Commission is without knowledge or information sufficient 

to admit or deny the remainder of the paragraph. 

 9. The Commission is without knowledge or information sufficient to admit or deny 

the factual allegations in this paragraph. 

 10. ADMIT that NDPAC is a “nonconnected political action committee registered 

with the Commission.” The Commission is without knowledge or information sufficient to 

admit or deny the remainder of the factual allegations in this paragraph. 

 11. ADMIT that the FEC is the federal agency charged with civil enforcement of the 

Federal Election Campaign Act and is located in Washington, D.C. 

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 12. ADMIT that NDPAC raises and expends fund in support of candidates for federal 

office using funds raised subject to the federal amount and source limits. ADMIT that NDPAC 

makes contributions to federal candidates within the applicable limits. DENY that it makes 

independent expenditures. The Commission is without knowledge or information sufficient to 

admit or deny the other factual allegations in this paragraph. 

 13. Plaintiffs’ characterization of judicial decisions and other legal conclusions 

require no response. The Commission is without knowledge or information sufficient to admit 

or deny the factual allegations in this paragraph. 

 14. In this single-sentence paragraph, the first clause contains plaintiffs’ 

characterization of a judicial decision, which requires no response. DENY the second clause. 

 15-19. ADMIT. 

 20. ADMIT the first two sentences. DENY the third sentence. 

 21. DENY that the Commission “refus[ed] to issue an advisory option,” but ADMIT 

that during the advisory opinion process in AO Request 2010-20 two commissioners supported 

issuance of Draft A, three supported issuance of Draft B, and one did not vote. (Ver. Compl. 

Exh. D.) Because the affirmative vote of four members of the Commission is required for the 

Commission to render an advisory opinion, 2 U.S.C. §§ 437c(c), 437d(a)(7); 11 C.F.R. 

§ 112.4(a), the Commission was unable to render an opinion in this matter and plaintiffs have no 

advisory opinion upon which they can rely under 2 U.S.C. § 437f(c). ADMIT that the advisory 

opinion process in AOR 2010-20 is complete. DENY that plaintiffs were “deprived of a legal 

right – to engage freely in constitutionally protected speech and association.” This paragraph 

also contains plaintiffs’ characterizations of judicial decisions, which require no response. 

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 22. ADMIT the first sentence. The Commission is without knowledge or information 

sufficient to admit or deny the factual allegations in the second sentence. ADMIT that NDPAC 

sought an expedited advisory opinion request and that the Commission issued its response 43 

days later. ADMIT that on September 28, 2010, the Commission issued a certification of its 

vote, but lacked the four votes necessary to be able to issue an advisory opinion. DENY that 

plaintiff was “required to mute itself and curtail activities during the 2010 cycle.” 

 23. The Commission is without knowledge or information sufficient to admit or deny 

the factual allegations in this paragraph. ADMIT that NDPAC is subject to the contribution 

limits in 2 U.S.C. §§ 441a(a)(1)(C) and 441a(a)(3). DENY the last sentence of this paragraph. 

 24. The Commission is without knowledge or information sufficient to admit or deny 

the factual allegations in this paragraph. ADMIT that plaintiffs attached Exhibit F to their 

complaint, which purports to be a proposed advertisement advocating for the defeat of Anthony 

Weiner. 

 25. The Commission is without knowledge or information sufficient to admit or deny 

the factual allegations in the first sentence. DENY the factual allegations in the second and third 

sentence. 

 26. The Commission is without knowledge or information sufficient to admit or deny 

the factual allegations in this paragraph. ADMIT that plaintiffs submitted with their complaint 

Exhibit G, which purports to be a letter from Kelly S. Eustis stating his wishes to donate 

“$6,300.00 to help fund independent expenditure communications against Anthony Weiner . . . .” 

The final clause of this paragraph contains a legal conclusion for which no response is required. 

 27. The Commission is without knowledge or information sufficient to admit or deny 

the factual allegations in this paragraph. 

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 28. The Commission is without knowledge or information sufficient to admit or deny 

the factual allegations in the first sentence of this paragraph. Regarding the second sentence, 

ADMIT that there were not four affirmative votes on the Commission approving NDPAC’s 

separate bank account request. 

 29. The Commission is without knowledge or information sufficient to admit or deny 

the factual allegations in the first and third sentence of this paragraph. Regarding the second 

sentence, ADMIT that there were not four affirmative votes on the Commission approving 

NDPAC’s separate bank account request. 

 30. DENY that NDPAC is an unincorporated association; it is incorporated in 

Virginia. (Ver. Compl. Exh. A, at ECF p. 7 (email from Dan Backer, NDPAC, to William 

Powers, FEC, Aug. 16, 2010) (confirming NDPAC is incorporated in Virginia). ADMIT that 

NDPAC is now registered as “a nonconnected political action committee with the FEC.” 

ADMIT that plaintiffs have attached Exhibit H to their complaint which purports to be bylaws of 

NDPAC and purports to require that any independent expenditures not be coordinated as defined 

by the Commission. The Commission is without knowledge or information sufficient to admit or 

deny the other factual allegations in the paragraph. 

 31. The paragraph contains plaintiffs’ conclusions of law to which no response is 

required. ADMIT that plaintiffs attached Exhibit F to their complaint, which purports to be a 

proposed advertisement advocating for the defeat of Anthony Weiner. The Commission is 

without knowledge or information sufficient to admit or deny the remaining factual allegations in 

this paragraph. 

 32. The Commission is without knowledge or information sufficient to admit or deny 

the factual allegations in this paragraph. 

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 33. This paragraph contains conclusions of law to which no response is required. 

ADMIT that contributions from Kelly Eustis to NDPAC are subject to the contribution limits in 

2 U.S.C. §§ 441a(a)(1)(C) and 441a(a)(3). 

 34. This paragraph contains conclusions of law to which no response is required. 

ADMIT that NDPAC is subject to the contribution limits in 2 U.S.C. §§ 441a(a)(1)(C) and 

441a(a)(3). 

 35. DENY that the contribution limits in 2 U.S.C. §§ 441a(a)(1)(C) and 441a(a)(3) 

“limit the type and number of times [NDPAC] could run advertisements.” The Commission is 

without knowledge or information sufficient to admit or deny the factual allegations in sentences 

two and three. DENY the fourth sentence. 

 36. This paragraph contains conclusions of law to which no response is required. 

ADMIT that the Federal Election Campaign Act (“Act” ), 2 U.S.C. §§ 431-57, prohibits any 

individual from making contributions that exceed $5,000 per year to a political committee (that 

is not a national party committee). 2 U.S.C. § 441a(a)(1)(C). The Act also prohibits any 

individual from making contributions to political committees (that are not national party 

committees) that in the aggregate exceed $46,200 for the 2011-2012 biennial period. 2 U.S.C. 

§ 441a(a)(3)(B). The Act prohibits political committees from knowingly accepting contributions 

in excess of these limitations. 2 U.S.C. § 441a(f). ADMIT that there are civil and criminal 

penalties for violating the Act. 2 U.S.C. §§ 431-57. 

 37. This paragraph contains conclusions of law to which no response is required. 

ADMIT that the Act prohibits any individual from making contributions that exceed $5,000 per 

year to a political committee (that is not a national party committee). 2 U.S.C. § 441a(a)(1)(C). 

The Act also prohibits any individual from making contributions to political committees (that are 

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not national party committees) that in the aggregate exceed $46,200 for the 2011-2012 biennial 

period. 2 U.S.C. § 441a(a)(3)(B). DENY that these limits prevent Eustis “from associating with 

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

producing and distributing the advertisements described [in the complaint].” 

 38. This paragraph contains conclusions of law to which no response is required. 

ADMIT that the Act prohibits any individual from making contributions that exceed $5,000 per 

year to a nonconnected political committee. 2 U.S.C. § 441a(a)(1)(C). The Act also prohibits 

any individual from making contributions to a nonconnected committee that in the aggregate 

exceed $46,200 for the 2011-2012 biennial period. 2 U.S.C. § 441a(a)(3)(B). ADMIT that the 

Act prohibits political committees from knowingly accepting contributions in excess of these 

limitations. 2 U.S.C. § 441a(f). 

 39. This paragraph contains conclusions of law to which no response is required. 

 40. This paragraph contains conclusions of law to which no response is required. 

41. This paragraph incorporates all previous paragraphs. The Commission likewise 

incorporates its previous responses. 

 42. DENY. 

 43. DENY the first sentence. The second sentence contains plaintiffs’ description of 

a judicial decision, to which no response is required. The third sentence contains legal 

conclusions and argument for which no response is required. 

 44-46. The Commission is without knowledge or information sufficient to admit or deny 

the allegations in this paragraph. 

 47. This paragraph contains plaintiffs’ characterizations of judicial decisions and 

statutory provisions to which no response is necessary. 

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 48. DENY. 

 49. DENY the first sentence. The Commission is without knowledge or information 

sufficient to admit or deny the second and third sentences. 

 50. DENY. 

 51. This paragraph contains plaintiffs’ description of a judicial decision, to which no 

response is required. 

 52. This paragraph contains plaintiffs’ description of a judicial decision, to which no 

response is required. DENY any factual allegations. 

 53. This paragraph incorporates all previous paragraphs. The Commission likewise 

incorporates its previous responses. 

 54. ADMIT that plaintiffs submitted, with their complaint, Exhibit G, which purports 

to be a letter from Kelly S. Eustis stating that he wishes to donate $6,300 to ND PAC. The 

Commission is otherwise without knowledge or information sufficient to admit or deny the 

factual allegations in this paragraph. 

 55. The Commission is without knowledge or information sufficient to admit or deny 

the allegations in this paragraph. 

 56. This paragraph contains plaintiffs’ characterizations of judicial decisions and 

statutory provisions to which no response is necessary. ADMIT that Kelly S. Eustis is prohibited 

from making contributions in excess of the statutory limit to NDPAC. 

 57. DENY the first sentence. The second sentence contains plaintiffs’ description of 

a judicial decision to which no response is necessary. 

 58. DENY the first sentence. The second sentence contains plaintiffs’ description of 

a judicial decision to which no response is necessary. 

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 59. DENY the first sentence. The Commission is without knowledge or information 

sufficient to admit or deny the second and third sentences. 

 60. DENY. 

PRAYER FOR RELIEF 

No response is required, but the relief requested by plaintiff should be denied. 

AFFIRMATIVE DEFENSES

The Complaint fails to state a claim upon which relief may be granted. 

 Respectfully submitted, 

Christopher Hughey 

Acting General Counsel 

chughey@fec.gov 

David Kolker (D.C. Bar No. 394558) 

Associate General Counsel 

dkolker@fec.gov 

Kevin Deeley 

Assistant General Counsel 

kdeeley@fec.gov 

/s/ Greg J. Mueller 

Greg Mueller (D.C. Bar No. 462840) 

Attorney 

gmueller@fec.gov 

Erin Chlopak (D.C. Bar No. 496370) 

Attorney 

echlopak@fec.gov 

Federal Election Commission 

999 E Street, N.W. 

Washington, DC 20463 

(202) 694-1650 

April 1, 2011 

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Certificate of Service 

 I hereby certify that on this 1st day April, 2011, I caused to be served by e-mail pursuant 

to Fed. R. Civ. P. 5(b)(2)(E) and Local Rule 5.4(d), with written consent, copies of the Federal 

Election Commission’s Answer on the counsel listed below: 

Dan Backer, 

PO Box 75021 

Washington, DC 20013 

dbacker@dbcapitolstrategies.com 

Stephen M. Hoersting 

700 E Schantz Avenue 

Dayton, OH 45429 

hoersting@gmail.com 

Benjamin T. Barr 

10737 Hunting Lane 

Rockville, MD 20850 

Benjamin.barr@gmail.com 

/s/ Greg J. Mueller 

Greg Mueller (D.C. Bar No. 462840) 

Attorney 

gmueller@fec.gov 

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