UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

__________________________________________ 

) 

REPUBLICAN NATIONAL COMMITTEE et al. ) 

) 

Plaintiffs, ) 

) 

v. ) 

) Civ. No. 08–1953 (BMK, RJL, RMC) 

FEDERAL ELECTION COMMISSION, ) 

) THREE-JUDGE COURT 

Defendant ) 

and ) 

) 

REPRESENTATIVE CHRISTOPHER VAN ) 

HOLLEN, JR. ) 

) 

Defendant-Intervenor. ) 

__________________________________________) 

MEMORANDUM OF POINTS AND AUTHORITIES OF SENATORS JOHN S. 

MCCAIN AND RUSSELL D. FEINGOLD AND FORMER REPRESENTATIVES 

CHRISTOPHER H. SHAYS AND MARTIN T. MEEHAN AS AMICI CURIAE IN 

OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

J. GERALD HEBERT 

(D.C. Bar No. 447676) 

TREVOR POTTER 

(D.C. Bar No. 413778) 

PAUL S. RYAN 

(D.C. Bar No. 502514) 

THE CAMPAIGN LEGAL CENTER 

1640 Rhode Island Ave. NW, Suite 650 

Washington, DC 20036 

Tel: (202) 736-2200 

Fax: (202) 736-2222 

Counsel for Amici Curiae

Senators John S. McCain and Russell D. 

Feingold and Former Representatives 

Christopher H. Shays and Martin T. 

Meehan 

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TABLE OF CONTENTS 

Page

TABLE OF AUTHORITIES .......................................................................................................... ii 

INTRODUCTION AND SUMMARY OF ARGUMENT ..............................................................1 

ARGUMENT...................................................................................................................................3 

I. The Phrase “Unambiguously Campaign Related” Is Not a Constitutional Standard Used 

by the Supreme Court and It Has No Relevance to the Regulation of Political Committee 

Activities..............................................................................................................................3 

A. Plaintiffs’ Attempt to Create an “Unambiguously Campaign Related” 

Constitutional Standard Lacks Any Legal Basis and Should Be Rejected....................4 

B. Neither Buckley’s “Unambiguously Campaign Related” Language, Nor the 

“Express Advocacy” Test From Which It Was Derived, Have Any Application To 

the Plaintiff Political Committees..................................................................................8 

II. The Record and Supreme Court Decision in McConnell Make Clear that BCRA’s 

Soft Money Restrictions Are Constitutional Both Facially and As Applied to 

Plaintiffs’ Proposed Activities ...........................................................................................12 

A. BCRA Provision Prohibiting RNC From Raising and Spending Soft Money For 

Any Purpose Is Constitutional .....................................................................................14 

1. BCRA Provision Prohibiting RNC’s Use of Soft Money for So-Called 

“Grassroots Lobbying” Is Constitutional...............................................................21 

2. BCRA Provision Prohibiting RNC’s Use of Soft Money for Redistricting Is 

Constitutional.........................................................................................................23 

B. BCRA Provisions Prohibiting California Republican Party and Republican Party 

of San Diego From Raising and Spending Soft Money for Federal Election 

Activity Are Constitutional..........................................................................................24 

CONCLUSION..............................................................................................................................29 

CERTIFICATE OF SERVICE ......................................................................................................31 

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TABLE OF AUTHORITIES 

Cases: 

*Buckley v. Valeo, 424 U.S. 1 (1976).................................................................................... passim

Fed. Election Comm’n v. Beaumont, 539 U.S. 146, 162 (2003) .....................................................7

Fed. Election Comm’n v. Colorado Republican Fed. Campaign Comm., 533 U.S. 431 

(2001).............................................................................................................................................15

Fed. Election Comm’n v. Massachusetts Citizens for Life, 479 U.S. 238 (1986)..............5, 9, 7, 12

Fed. Election Comm’n v. Wisconsin Right to Life, 127 S. Ct. 2652 (2007) ..............................7, 12

*McConnell v. Fed. Election Comm’n, 540 U.S. 93 (2003).................................................. passim 

*McConnell v. Fed. Election Comm’n, 251 F. Supp. 2d 176 (D.D.C. 2003) ........................ passim 

Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377 (2000) ..........................................................26 

Shays v. Fed. Election Comm’n, 511 F. Supp. 2d 19 (D.D.C. 2007).............................................11

Turner Broadcasting System, Inc. v. Fed. Communications Comm’n, 512 U.S. 622 (1994)........26

Statutes, Legislation and Legislative History: 

2 U.S.C. § 431(20) .....................................................................................................................1, 26 

2 U.S.C. § 441i(a) ......................................................................................................................1, 26 

2 U.S.C. § 441i(b)......................................................................................................................1, 26 

Bipartisan Campaign Reform Act of 2002 (BCRA), Pub. L. No. 107–155, 116 Stat. 81 

(2002)............................................................................................................................... passim 

Federal Election Campaign Act (FECA), codified at 2 U.S.C. §§ 431 et seq. ...................... passim 

Miscellaneous Sources: 

Daniel Murray Aff. in Mariani v. United States, 3-CV-1701 (M.D. Pa.)......................................18 

Rep. Meehan Decl. in Republican National Comm. v. Fed. Election Comm’n, 98-CV1207 (D.D.C) .................................................................................................................................16 

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INTRODUCTION AND SUMMARY OF ARGUMENT

Seven years ago Congress enacted and the President signed into law the Bipartisan 

Campaign Reform Act of 2002 (BCRA), Pub. L. No. 107–155, 116 Stat. 81 (2002), which was 

principally sponsored by amici Senators McCain and Feingold and former Representatives Shays 

and Meehan. Title I of BCRA prohibits national political party committees from raising and 

spending “soft money”1 for any purpose. See 2 U.S.C. § 441i(a). Title I of BCRA also prohibits 

state and local political party committees from spending soft money to pay for federal election 

activity. See 2 U.S.C. §§ 431(20) and 441i(b). 

Plaintiffs Republican National Committee, California Republican Party and Robert M. 

Duncan, brought and lost constitutional challenges to these soft money restrictions of BCRA in 

McConnell v. Fed. Election Comm’n, 540 U.S. 93 (2003)—constitutional challenges that

encompass those asserted here.2 The Supreme Court in McConnell upheld the soft money 

provisions of Title I of BCRA in their entirety. The Court recognized that “Title I is Congress’ 

effort to plug the soft-money loophole. The cornerstone of Title I is new FECA § 323(a), which 

prohibits national party committees and their agents from soliciting, receiving, directing, or 

spending any soft money. In short, § 323(a) takes national parties out of the soft-money 

business.”3 Id. at 133 (internal citation omitted) (footnote omitted). The McConnell Court 

continued: “The remaining provisions of new FECA § 323 largely reinforce the restrictions in § 

323(a). New FECA § 323(b) prevents the wholesale shift of soft-money influence from national 

to state party committees by prohibiting state and local party committees from using such funds 

 

1

 The term “soft money” is used throughout this brief to refer to funds not raised in conformity with 

federal law contribution amount limitations and source prohibitions. 

2

 Plaintiff Republican Party of San Diego County was not a party to McConnell, but premises its claims 

here on legal grounds rejected by the Supreme Court in McConnell. 

3

 Federal Election Campaign Act (FECA), codified at 2 U.S.C. §§ 431 et seq. 

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for activities that affect federal elections.” Id. at 133-34. In rejecting Plaintiffs’ challenges in

2003, the McConnell Court reasoned: 

Like the contribution limits we upheld in Buckley, § 323’s restrictions have only a 

marginal impact on the ability of contributors, candidates, officeholders, and 

parties to engage in effective political speech. Complex as its provisions may be, 

§ 323, in the main, does little more than regulate the ability of wealthy 

individuals, corporations, and unions to contribute large sums of money to 

influence federal elections, federal candidates, and federal officeholders. 

Id. at 138 (internal citation omitted). 

Now these McConnell Plaintiffs are back with the same claims repackaged and an alleged 

constitutional standard in the form of the phrase “unambiguously campaign related,” which they 

pluck out of context, elevate to the status of newly minted “first principle” of constitutional law 

and wrongly claim controls the constitutional analysis in this case. Plaintiffs’ argument for the 

application of an “unambiguously campaign related” standard is without merit for two reasons. 

First, far from being a “first principle” of constitutional law, this humble phrase was used in an 

entirely different context by the Supreme Court in Buckley v. Valeo, 424 U.S. 1 (1976), merely to 

describe the Court’s narrowing construction of a federal law disclosure requirement. Second, 

even to the limited extent the Buckley Court did employ the phrase “unambiguously campaign 

related,” it did so only with respect to individuals and groups that do not have a major purpose of 

influencing elections—not with respect to political committees, which are in the business of 

influencing elections, much less to the national, state and local political party committees, such 

as Plaintiffs here. 

The McConnell Court made clear that BCRA’s soft money restrictions are a type of 

contribution limit and it evaluated the restrictions on that basis. This Court should do the same 

and reject Plaintiffs’ made-up “unambiguously campaign related” standard and, instead, “apply 

the less rigorous scrutiny applicable to contribution limits to evaluate the constitutionality of new 

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FECA § 323,” as the Supreme Court did when it upheld these challenged provisions in 

McConnell. Id. at 141-42. 

With regard to the claims made by the California and San Diego Republican Party 

committees, the McConnell Court held that the BCRA soft money restrictions applicable to state 

and local party committees are a constitutionally permissible means of “[p]reventing corrupting 

activity from shifting wholesale to state committees and thereby eviscerating FECA.” 

McConnell, 540 U.S. at 165-66. So too should this Court. 

The Supreme Court’s reasoning in McConnell, as well as the district court record that 

supported the Supreme Court’s decision, lead to one conclusion. Plaintiffs’ proposed activities 

pose precisely the threat of real and apparent corruption that BCRA’s soft money restrictions 

guard against. The challenged soft money restrictions are “closely drawn to match [the] 

sufficiently important interest” in preventing actual and apparent corruption as well as preventing 

corrupting activity from shifting wholesale to state committees. For all the reasons the Supreme 

Court in McConnell concluded that these laws are constitutional, they remain constitutional as 

applied to Plaintiffs’ activities here. See id. at 136, 165-66. On this basis, amici respectfully 

urge this Court to deny Plaintiffs’ motion for summary judgment. 

ARGUMENT

I. The Phrase “Unambiguously Campaign Related” Is Not a Constitutional 

Standard Used by the Supreme Court and It Has No Relevance to the 

Regulation of Political Committee Activities. 

Plaintiffs assert that the threshold requirement for the regulation of any campaign finance 

activity is whether the activity is “‘unambiguously related to the campaign of a particular federal 

candidate,’ . . . in short, ‘unambiguously campaign related[.]’” See Memorandum in Support of 

Plaintiffs’ Motion for Summary Judgment (“Pl. S.J. Memo.”) at 9 (emphasis in original) (quoting 

Buckley, 424 U.S. at 80-81). According to Plaintiffs, the challenged soft money provisions of 

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BCRA fail this “unambiguously campaign related” test and therefore violate the First 

Amendment. See, e.g., Pl. S.J. Memo at 30 (“Plaintiffs’ planned activities are not 

‘unambiguously related to the campaign of a particular federal candidate’ . . . [a]nd so there is no 

sufficient interest relating to Congress’s authority to regulate federal elections . . . to apply the 

Federal Funds Restriction to these activities and the Restriction is in no way tailored to that 

authority.” (internal citations omitted)). 

The problem with Plaintiffs’ argument is that it is based on a fiction. The Supreme Court 

has never employed the phrase “unambiguously campaign related” as a constitutional standard, 

much less the overarching standard that Plaintiffs here claim it to be. To the extent the Court did 

twice use the phrase in Buckley, it did so only with reference to the regulation of the campaign 

finance activities of individuals and groups that do not have a major purpose of influencing 

elections—not in the entirely different context here of laws regulating political committees such 

as the RNC and its state and local committees, which are in the full-time business of influencing 

election campaigns.

A. Plaintiffs’ Attempt to Create an “Unambiguously Campaign Related” 

Constitutional Standard Lacks Any Legal Basis and Should Be Rejected. 

Plaintiffs’ claim that the Buckley Court applied an “unambiguously campaign related” 

standard to evaluate the constitutionality of four different provisions of federal campaign finance 

law. See Pl. S.J. Memo at 9-10. However, the “unambiguously campaign related” language 

actually appeared in only one section of the Buckley decision and the Court’s reference was 

incidental to the Court’s scrutiny of a disclosure provision applicable to expenditures by 

individuals and groups that do not have a major purpose of influencing elections (i.e., groups that 

are not political committees). Buckley, 424 U.S. at 79-80. The Buckley Court wrote: 

[W]hen the maker of the expenditure . . . is an individual other than a candidate or 

a group other than a “political committee” . . . we construe “expenditure” . . . to 

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reach only funds used for communications that expressly advocate the election or 

defeat of a clearly identified candidate. This reading is directed precisely to that 

spending that is unambiguously related to the campaign of a particular federal 

candidate. 

Id. at 79-80. 

The plain language of this passage from Buckley—which gave birth to Plaintiffs’ 

“unambiguously campaign related” legal theory—makes clear that the Court used the 

“unambiguously related” phrase only to explain its decision to narrowly construe the statutory 

term “expenditure” to include only “express advocacy.” And the Court made clear that this 

construction applied only “when the maker of the expenditure . . . is an individual other than a 

candidate or a group other than a ‘political committee.’” Id. at 79. The Court used the same 

language only once more in Buckley, two paragraphs later, when it described the challenged 

expenditure disclosure requirements as provisions that “shed the light of publicity on spending 

that is unambiguously campaign related.” Id. at 81. The only constitutional “test” created by the 

Buckley Court in these passages was the “express advocacy” test. The “unambiguously 

campaign related” language was simply a description of the “express advocacy” standard, not a 

stand-alone constitutional command. The phrase certainly was not adopted as an independent 

constitutional test and has never been applied as such in any subsequent Supreme Court case. 

Furthermore, the Supreme Court did not “again recognize[] the unambiguouslycampaign-related requirement” in Fed. Election Comm’n v. Massachusetts Citizens for Life, 479 

U.S. 238 (1986) (“MCFL”). See Pl. S.J. Memo at 10-11. Indeed, the phrase “unambiguously 

campaign related” does not appear a single time in the Supreme Court’s MCFL opinion. And, 

importantly for the purposes of this case, MCFL has no bearing on the regulation of campaign 

finance activities of political committees such as Plaintiffs. MCFL entailed the regulation of an 

organization that was not a political committee—and the types of campaign finance regulations 

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that may constitutionally be applied to political committees differ significantly from those that 

may be applied to other organizations. See infra Section I(B). 

Similarly, the Supreme Court in McConnell did not “expressly recognize[]” the 

“unambiguously-campaign-related requirement” as a “first principle of constitutional law.” See

Pl. S.J. Memo at 11. The majority opinion in McConnell makes not a single mention of the 

phrase. In fact, only one Justice in McConnell mentions the phrase. Justice Thomas, writing 

only for himself,4 makes plain why the Plaintiffs here are trying to elevate the phrase 

“unambiguously campaign related” to a first principal of constitutional law as the Supreme Court 

never has done. Justice Thomas wrote: “[T]he presence of the ‘magic words’ does differentiate 

in a meaningful way between categories of speech. Speech containing the ‘magic words’ is 

‘unambiguously campaign related,’ while speech without these words is not.” McConnell, 540 

U.S. at 281 (Thomas, J., dissenting in part, concurring in part) (emphasis in original). Justice 

Thomas’ McConnell opinion makes clear that the phrase “unambiguously campaign related” is a 

synonym for “express advocacy.” This being the case, it is no wonder that Plaintiffs would have 

this Court adopt it as the gatekeeper standard for all campaign finance regulation. But the 

McConnell Court majority concluded that “the unmistakable lesson from the record in this 

litigation, as all three judges on the District Court agreed, is that Buckley’s [“express advocacy”] 

magic-words requirement is functionally meaningless[,]” and “has not aided the legislative effort 

to combat real or apparent corruption.” Id. at 193-94 (emphasis added). Thus, Plaintiffs’ 

attempt to employ a standard that is synonymous with “express advocacy” is directly contrary to 

McConnell. Of course, from Plaintiffs’ perspective, it would be difficult to imagine a better 

standard to regulate their activities than a “functionally meaningless” one. 

 

4

 Justice Scalia joined Parts I, II-A and II-B of Justice Thomas’ McConnell opinion, but not Part II-C, the 

portion cited here. 

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Finally, the Supreme Court in Fed. Election Comm’n v. Wisconsin Right to Life, 127 S. 

Ct. 2652 (2007) (“WRTL II”), did not so much as mention, let alone apply as a constitutional 

standard, Plaintiffs’ made-up “unambiguously campaign related” test. See Pl. S.J. Memo at 12-

13. And as was the case in MCFL, WRTL II entailed the regulation of an organization that was 

not a political committee and that, accordingly, is subject to a much narrower set of campaign 

finance regulations that can be applied to political committees such as Plaintiffs. See infra 

Section I(B). 

The “unambiguously campaign related” test is simply Plaintiffs’ attempt to replace the 

Supreme Court’s actual jurisprudence for reviewing speech-related regulation with a test more to 

its liking. But the Supreme Court applies varying standards of scrutiny to review campaign 

finance regulations, depending on the nature of the regulation and the weight of the First 

Amendment burdens imposed by such regulation. For instance, expenditure limits, as the most 

burdensome campaign finance regulations, are subject to strict scrutiny and reviewed for whether 

they are “narrowly tailored” to “further[] a compelling interest.” WRTL II, 127 S. Ct. at 2664; 

see also Buckley, 424 U.S. at 44-45. Contribution restrictions such as those challenged in this 

case, by contrast, are deemed less burdensome of speech, and are constitutionally “valid” if they 

“satisfy the lesser demand of being closely drawn to match a sufficiently important interest.” 

McConnell, 540 U.S. at 136, quoting Fed. Election Comm’n v. Beaumont, 539 U.S. 146, 162 

(2003) (internal quotations omitted). Disclosure requirements, the “least restrictive” 

requirements, Buckley, 424 U.S at 68, are subject to only an intermediate standard of review, 

namely that there exist a “‘relevant correlation’ or ‘substantial relation’ between the 

governmental interest and the information required to be disclosed.” Id. at 64 (internal footnotes 

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omitted). In no instance is the test simply whether the activity is “unambiguously campaign 

related.” 

The Supreme Court’s analysis of laws regulating speech generally, and of laws regulating 

political contributions such as those challenged in this case, specifically, thus bears little 

resemblance to Plaintiffs’ “unambiguously campaign related” standard. This Court should reject 

the Plaintiffs’ invented test and adhere to the test established by the Supreme Court for judicial 

review of BCRA’s soft money restrictions. As the Court made clear in McConnell, the soft 

money restrictions, since they operate as limits on contributions to political parties, are 

constitutionally “valid” because they “satisfy the lesser demand of being closely drawn to match 

[the] sufficiently important interest” in preventing actual or apparent corruption as well as 

“[p]reventing corrupting activity from shifting wholesale to state committees.” McConnell, 540 

U.S. at 136, 165-66 (internal quotations omitted). 

B. Neither Buckley’s “Unambiguously Campaign Related” Language, Nor 

the “Express Advocacy” Test From Which It Was Derived, Have Any 

Application To the Plaintiff Political Committees. 

Plaintiffs’ elevation of the phrase “unambiguously campaign related” to the status of 

“first principle” of constitutional law is not the only fatal flaw in the legal theory underlying 

Plaintiffs’ case. To be certain, the Buckley Court did not employ the phrase “unambiguously 

campaign related” as a constitutional standard as Plaintiffs contend. But equally flawed is 

Plaintiffs’ argument that Buckley’s “express advocacy” test—and the phrase “unambiguously 

campaign related” used by the Court to describe it—should be applied to Plaintiffs’ activities at 

all, given that Buckley made clear that the “express advocacy” test was to be used only with 

respect to regulation of campaign finance activities by individuals other than candidates and 

groups other than political committees. Neither the “unambiguously campaign related” language 

nor the “express advocacy” test are relevant to the regulation of the RNC and its state and local 

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party committees in the present case because these Plaintiffs are political committees and agents 

thereof. 

In Buckley, the Court considered separate constitutional challenges to disclosure 

requirements for expenditures by “political committees” and disclosure requirements for 

expenditures by individuals and groups other than “political committees.” 

The Court first considered the disclosure requirements for “political committees.” In 

order to cure potential vagueness problems with the statutory term “political committee,” the 

Court construed the term to “only encompass organizations that are under the control of a 

candidate or the major purpose of which is the nomination or election of a candidate.” Buckley, 

424 U.S. at 79 (emphasis added).5 Thus, under FECA as interpreted by the Buckley Court, two 

types of organizations can be regulated as “political committees”—candidate-controlled 

organizations and so-called “major purpose” groups (i.e., groups that have a “major purpose” of 

influencing the nomination or election of a candidate). 

Plaintiffs in this case are three self-identified “political committees” and an agent thereof. 

See Plaintiffs’ Complaint for Declaratory and Injunctive Relief (“Complaint”) at ¶¶ 11-14. 

The Buckley Court proceeded from its analysis of the constitutionality of the FECA 

definition of “political committee” to consider the constitutionality of the FECA requirement that 

political committees disclose their “expenditures.” In doing so, the Buckley Court made a 

distinction that critically undermines Plaintiffs entire theory in this case—i.e., that Buckley’s 

 

5

 In MCFL, 479 U.S. 238 (1986), the Court again invoked the “major purpose” test and noted that if a 

group’s independent spending activities “become so extensive that the organization’s major purpose may

be regarded as campaign activity, the corporation would be classified as a political committee.” MCFL,

479 U.S. at 262 (emphasis added). In that instance, the Court said the group would become subject to the 

“obligations and restrictions applicable to those groups whose primary objective is to influence political 

campaigns.” Id. (emphasis added). The Court in McConnell restated the “major purpose” test for 

political committee status as iterated in Buckley. McConnell, 540 U.S. at 170 n.64. 

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“unambiguously campaign related” language, which is derived from and equivalent to the 

“express advocacy” test, renders the challenged BCRA provisions unconstitutional. 

With respect to candidates and political committees (i.e., “major purpose” groups) such 

as the Plaintiffs in the present case, the Buckley Court held that the definition of “expenditure” in

federal campaign finance laws—i.e., spending “for the purpose of influencing” a federal 

election—raises no constitutional vagueness concerns and is in no need of a narrowing “express 

advocacy” construction because money spent by candidates and political committees is, “by 

definition, campaign related.” Buckley, 424 U.S. at 79. 

By contrast, the Court developed and applied the “express advocacy” test, and employed 

the “unambiguously campaign related” language to describe the test, only as to spenders other 

than candidates and political committees, reasoning: 

But when the maker of the expenditure is not within these categories—when it is 

an individual other than a candidate or a group other than a “political 

committee”—the relation of the information sought to the purposes of the Act 

may be too remote. To insure that the reach of [the disclosure provision] is not 

impermissibly broad, we construe “expenditure” for purposes of that section in 

the same way we construed the terms of [the spending limit]—to reach only funds 

used for communications that expressly advocate the election or defeat of a 

clearly identified candidate. This reading is directed precisely to that spending 

that is unambiguously related to the campaign of a particular federal candidate. 

Id. at 79–80 (emphasis added). 

Thus, the Court in Buckley made a crucial distinction: when the spender is a candidate or 

political committee (i.e., a “major purpose” organization), the statutory definition of 

“expenditure” as spending “for the purpose of influencing” a federal election is sufficiently clear 

to be facially constitutional, because such organizations “are, by definition, campaign related” 

and their spending “can be assumed” to fall within the area properly regulated by Congress. 

Therefore, there is no need for an “express advocacy” limitation on the definition of 

“expenditure” in order to save the term from vagueness. By contrast, when the spender is any 

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other kind of organization—any organization which does not have a “major purpose” of 

influencing elections—then a narrowing construction of “expenditure” (to encompass only 

“express advocacy”) is required in order to avoid constitutional problems of vagueness. 

The “express advocacy” standard is thus irrelevant to the regulation of activities by any 

group “the major purpose of which is the nomination or election of a candidate,” Buckley, 424 

U.S. at 79, such as political party committees. Since the BCRA provisions challenged here are 

regulations of party committees, the “express advocacy” standard (and the “unambiguously 

campaign related” description) are irrelevant to the determination of whether the challenged 

BCRA soft money restrictions are constitutional. 

The Supreme Court affirmed this analysis in McConnell, where it cited and quoted the 

same language from Buckley in rejecting a vagueness challenge to the BCRA provision 

restricting state party committees from spending soft money on public communications that 

“promote, support, attack or oppose” federal candidates. McConnell, 540 U.S. at 170 n.64. 

Instead of narrowly construing these BCRA provisions to apply only to “express advocacy”—

and with absolutely no mention of Plaintiffs’ made-up “unambiguously campaign related” 

standard—the Court upheld BCRA’s “promote, support, attack or oppose” test “since actions 

taken by political parties are presumed to be in connection with election campaigns.” Id. at 170 

n.64 (citing Buckley, 424 U.S. at 79); see also Shays v. Fed. Election Comm’n, 511 F. Supp. 2d 

19, 27 (D.D.C. 2007) (the “narrowing gloss of express advocacy” applies only to groups other 

than “major purpose” groups). 

The Supreme Court’s Buckley and McConnell decisions, together with this Court’s 

decision in Shays, make clear that neither Buckley’s “unambiguously campaign related” 

language, nor the “express advocacy” test from which it was derived, have any application to 

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political committees or their agents, such as Plaintiffs in this case. Plaintiffs’ citations to MCFL

and WRTL II are inapposite—neither case involved a political committee. This Court should 

reject Plaintiffs’ attempt to replace the actual test used by the Supreme Court’s to review the soft 

money provisions at issue here—the “less rigorous scrutiny applicable to contribution limits,” 

McConnell, 540 U.S. at 141—with an invented “unambiguously campaign related” test more to 

their liking. 

II. The Record and Supreme Court Decision in McConnell Make Clear that 

BCRA’s Soft Money Restrictions Are Constitutional Both Facially and As 

Applied to Plaintiffs’ Proposed Activities. 

Plaintiffs argue that the challenged soft money restrictions are unconstitutional because 

they regulate activities that are not unambiguously campaign related. See, e.g., Pl. S.J. Memo at 

18. Yet Plaintiffs fail to rebut a central tenet of the Buckley and McConnell decisions on which 

they claim to rely. The Buckley Court held that all expenditures by an organization with the 

major purpose of nominating and electing candidates can constitutionally be regulated because 

“[t]hey are, by definition, campaign related.” Buckley, 424 U.S. at 79 (emphasis added). The 

Supreme Court affirmed this analysis in McConnell, where it cited and quoted the same language 

from Buckley in upholding the very soft money restrictions challenged here. McConnell, 540 

U.S. at 170 n.64. Whereas the Plaintiff political committees claim that “Plaintiffs’ activities are 

not unambiguously campaign related,” see Pl. S.J. Memo at 22, the Supreme Court in both 

Buckley and McConnell held to the contrary that expenditures by political committees—and, 

certainly, political party committees—are, “by definition, campaign related.” Buckley, 424 U.S. 

at 79. 

Despite the fact that the Supreme Court in McConnell upheld BCRA’s soft money 

provisions that “take[] national parties out of the soft-money business,” 540 U.S. at 133, the 

RNC and its former chairman seek permission to get back into the soft money business and once 

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again raise and spend soft money. See Pl. S.J. Memo. at 30-40 (Counts 1-7). Similarly, despite 

the fact that the Supreme Court in McConnell upheld as constitutional BCRA’s soft money 

restrictions that “prevent[] the wholesale shift of soft-money influence from national to state 

party committees by prohibiting state and local party committees from using such funds for 

activities that affect federal elections,” 540 U.S. at 133-34, Plaintiffs California Republican Party 

and Republican Party of San Diego seek permission to raise and spend soft money for “federal 

election activities.” See Pl. S.J. Memo. at 40-45 (Counts 8-9). 

Plaintiffs’ desire to raise and spend soft money is nothing new; Plaintiffs proposed 

activities are nothing new. The record in McConnell is replete with evidence that soft money 

contributions to national party committees were corruptive, regardless of how the party 

committees spent such contributions, and that absent BCRA’s restrictions on state party 

committee soft money fundraising and spending for federal election activity, this corrupting 

activity would shift wholesale to those state committees. The Supreme Court’s reasoning in 

McConnell, as well as the district court record that informed the Supreme Court’s decision, are 

barely six years old and remain fully relevant today. Section II(A) of this Memorandum details 

the McConnell Court’s determination that soft money contributions to national party committees 

are corrupting regardless of how the soft money is used, with subsections II(A)(1) and (2) further 

detailing the Court’s consideration of two specific types of national party committee activity that 

the RNC argues in this case should be exempt from BCRA’s soft money restrictions—(1) 

candidate-specific advertising and (2) redistricting activities. Finally, Section II(B) details the 

McConnell Court’s consideration of claims, advanced here by the California and San Diego 

Republican Party committees, challenging BCRA’s restrictions of state party soft money 

spending on federal election activity. 

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Plaintiffs’ proposed activities pose precisely the threat of real and apparent corruption 

that BCRA’s soft money restrictions guard against. As the Supreme Court concluded, the 

challenged soft money restrictions are constitutionally “valid” because they are “closely drawn to 

match [the] sufficiently important interest” in preventing actual or apparent corruption as well as 

preventing corrupting activity from shifting wholesale to state committees. See McConnell, 540 

U.S. at 136, 165-66. 

A. BCRA Provision Prohibiting RNC From Raising and Spending Soft 

Money For Any Purpose Is Constitutional. 

The Supreme Court in McConnell explicitly rejected the claim made here that the BCRA 

provision prohibiting national party committees from raising or spending any soft money is 

unconstitutional “because it subjects all funds raised and spent by national parties to FECA’s 

hard-money source and amount limits, including, for example, funds spent on purely state and 

local elections in which no federal office is at stake.” McConnell, 540 U.S. at 154 (emphasis in 

original). The Court explained: “The question for present purposes is whether large soft-money 

contributions to national party committees have a corrupting influence or give rise to the 

appearance of corruption. Both common sense and the ample record in these cases confirm 

Congress’ belief that they do.” Id. at 145 (emphasis in original). The Court reasoned that BCRA 

“Section 323(a), like the remainder of § 323, regulates contributions, not activities.” Id. The 

Court continued: “As the record demonstrates, it is the close relationship between federal 

officeholders and the national parties, as well as the means by which parties have traded on that 

relationship, that have made all large soft-money contributions to national parties suspect.” Id. at 

154-55. 

The district court record in McConnell, cited extensively by the Supreme Court, 

established that “[u]nlike other entities, political parties have uniquely close relationships with 

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candidates they nominate and support, and who, in turn, lead the party.” McConnell v. Fed. 

Election Comm’n, 251 F. Supp. 2d 176, 468 (D.D.C. 2003) (Kollar-Kotelly, J., concurring in 

part, dissenting in part) (citing D. Green Expert Report at 7-9; McCain Decl. ¶¶ 22-23). Judge 

Kollar-Kotelly quoted the brief of the Colorado Republican Party filed in Federal Election 

Comm’n v. Colorado Republican Fed. Campaign Comm., 533 U.S. 431, 457 (2001), for the 

party’s description of this uniquely close relationship. 

A party and its candidate are uniquely and strongly bound to one another because: 

[a] party recruits and nominates its candidate and is his or her first and natural 

source of support and guidance[;][a] candidate is identified by party affiliation 

throughout the election, on the ballot, while in office, and in the history 

books[;][a] successful candidate becomes a party leader, and the party continues 

to rely on the candidate during subsequent campaigns[;][a] party’s public image 

largely is defined by what its candidates say and do[;][a] party’s candidate is held 

accountable by voters for what his or her party says and does[;][a] party succeeds 

or fails depending on whether its candidates succeed or fail. No other political 

actor shares comparable ties with a candidate. 

McConnell, 251 F. Supp. 2d at 468. Federal elected officials run the RNC and other national 

committees of the two major parties. Id. An expert in McConnell described the relationship as 

follows: 

The national party committees are dominated by elected public officials—the 

president or presidential candidate in the case of the Republican and Democratic 

National Committees, the top House and Senate party leaders for the 

congressional campaign committees . . . . There is no meaningful separation 

between the national party committees and the public officials who control them. 

Id. at 468-69 (quoting Mann Expert Report at 29). Other experts explained: “Party committees 

are headed by or enjoy close relationships with their leading officials, individuals who by virtue 

of their positions, reputations, and control of the legislative machinery have special influence on 

their colleagues.” Id. at 469 (quoting Krasno & Sorauf Expert Report at 12-13). 

Amicus former Representative Meehan explained in the McConnell record: 

The ultimate goal of a political party such as the Democratic Party is to get as 

many Party members as possible into elective office, and in doing so to increase 

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voting and Party activity by average Party members. The Party does this by 

developing principles on public policy matters the Party stands for, and then by 

finding candidates to run for the various political offices who represent those 

principles for the Party. When the Party finds its candidates, it tries to raise 

money to help get like-minded people to participate in the elections, and to try to 

get the Party’s candidates the resources they need to get their message out to 

voters. In my experience, political parties do not have economic interests apart 

from their ultimate goal of electing their candidates to office. 

Id. at 469-70 (quoting Meehan Decl. in Republican National Comm. v. Fed. Election Comm’n, 

98-CV-1207 (D.D.C) ¶¶ 3-4) (emphasis added). Amicus Senator McCain similarly explained: 

“[t]he entire function and history of political parties in our system is to get their candidates 

elected, and that is particularly true after the primary campaign has ended and the party’s 

candidate has been selected.” Id. at 470 (quoting McCain Decl. ¶ 23). 

Federal officeholders and donors alike testified in McConnell that in the pre-BCRA era, 

soft money was often given to national party committees with the intent that it would be used to 

assist the campaigns of particular candidates. Senator Simpson testified, for example, that 

“[d]onors do not really differentiate between hard and soft money; they often contribute to assist 

or gain favor with an individual politician. When donors give soft money to the parties, there is 

sometimes at least an implicit understanding that the money will be used to benefit a certain 

candidate.” Id. at 476 (quoting Simpson Decl. ¶ 6). Senator Simpson further explained: 

“Although soft money cannot be given directly to federal candidates, everyone knows that it is 

fairly easy to push the money through our tortured system to benefit specific candidates.” Id.

(quoting Simpson Decl. ¶ 7). 

The fact that soft money donors received special access to legislators was welldocumented in the McConnell record. See id. at 481-511. For example, Senator Simpson stated: 

Large donors of both hard and soft money receive special treatment. No matter 

how busy a politician may be during the day, he or she will always make time to 

see donors who gave large amounts of money. Staffers who work for Members 

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know who the big donors are, and those people always get their phone calls 

returned first and are allowed to see the Member when others are not. 

Id. at 481-82 (quoting Simpson Decl. ¶ 9). Another described in detail an incident where a large 

soft money donor sought favors from Senators. 

It is not unusual for large contributors to seek legislative favors in exchange for 

their contributions. A good example of that which stands out in my mind because 

it was so stark and recent occurred on the next to last day of the 1995-96 

legislative session. Federal Express wanted to amend a bill being considered by a 

Conference Committee, to shift coverage of their truck drivers from the National 

Labor Relations Act to the Railway Act, which includes airlines, pilots and 

railroads. This was clearly of benefit to Federal Express, which according to 

published reports had contributed $1.4 million in the last 2-year cycle to 

incumbent Members of Congress and almost $1 million in soft money to the 

political parties. I opposed this in the Democratic Caucus, arguing that even if it 

was good legislation, it should not be approved without holding a hearing, we 

should not cave in to special interests. One of my senior colleagues got up and 

said, ‘I’m tired of Paul always talking about special interests; we’ve got to pay 

attention to who is buttering our bread.’ I will never forget that. This was a clear 

example of donors getting their way, not on the merits of the legislation, but just 

because they had been big contributors. I do not think there is any question that 

this is the reason it passed. 

Id. at 482 (quoting Simon Decl. ¶¶ 13-14). Another Senator testified: 

Donations, including soft money donations to political parties, do affect how 

Congress operates. It’s only natural, and happens all too often, that a busy 

Senator with 10 minutes to spare will spend those minutes returning the call of a 

large soft money donor rather than the call of any other constituent . . . . 

Id. (quoting Senator Boren Decl. ¶¶ 7-8). 

The McConnell record contains evidence that “Members of Congress are made aware of 

who makes large donations to their party.” Id. at 488. “[S]ometimes large donors make their 

identities know to Members of Congress.” Id. “In fact the record suggests that for a Member not 

to know the identities of these donors, he or she must actively avoid such knowledge as it is 

provided by the national political parties and the donors themselves.” Id.

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Further, the McConnell record contains a “substantial amount of evidence showing that 

large donations to the political parties, particularly nonfederal contributions, provide donors with 

special access to federal lawmakers.” Id. at 488-89. 

This access is valued by contributors because access to lawmakers is a necessary 

ingredient for influencing the legislative process. Contributors find that 

nonfederal funds are most effective at obtaining special access, and to ensure that 

they maintain this access donors contribute to both political parties. The political 

parties take advantage of contributors’ desire for access by structuring their donor 

programs so that as donations increase, so do the number and intimacy of special 

opportunities to meet with Members of Congress. 

Id. at 489. Judge Kollar-Kotelly described the McConnell record as a: 

treasure trove of testimony from Members of Congress, individual and corporate 

donors, and lobbyists, as well as documentary evidence, establishing that 

contributions, especially large nonfederal donations, are given with the 

expectation they will provide the donor with access to influence federal officials, 

that this expectation is fostered by the national parties, and that this expectation is 

often realized. 

Id. at 492. 

One lobbyist testified: 

I know of organizations who believe that to be treated seriously in Washington, 

and by that I mean to be a player and to have access, you need to give soft money. 

. . . There is no question that money creates the relationships. . . . The large 

contributions enable them to establish relationships, and that increases the 

chances they’ll be successful with their public policy agenda. Compared to the 

amounts that companies spend as a whole, large political contributions are 

worthwhile because of the potential benefit to the company’s bottom line. 

Id. at 492-93 (quoting Rozen Decl. ¶ 10). According to another lobbyist: 

[C]ontribut[ing] soft money . . . has proven to provide excellent access to federal 

officials and to candidates for federal elective office. Since the amount of soft 

money that an individual, corporation or other entity may contribute has no limit, 

soft money has become the favored method of supplying political support . . . . 

[S]oft money begets both access to law-makers and membership in groups which 

provide ever greater access and opportunity to influence. 

Id. at 493 (quoting Murray Aff. in Mariani v. United States, 3-CV-1701 (M.D. Pa.) ¶ 14). 

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The mere fact that Plaintiffs intend not to include federal officeholders in their soft 

money fundraising—and instead intend to rely on the efforts of party leaders—does not 

eliminate the threat of real and apparent corruption posed by soft money. Regardless of whether 

federal officeholders are doing the fundraising, the McConnell record demonstrates that “[p]arty 

leaders facilitate direct communications on matters of policy between nonfederal money donors 

and officeholders.” Id. at 500. The McConnell record contains, for example, a handwritten note 

dated February 21, 1995 from RNC Chairman Haley Barbour to [a major donor] that stated, in 

part: “Dear [_____]: Thank you for your very thoughtful memo on the estate and gift tax law. 

I’ve read it and will pass it along to appropriate Senators, Representatives and staff folks when 

I’m on the Hill tomorrow.” Id. 

Indeed, the McConnell record is replete with evidence that national party committee staff 

do the bidding of soft money donors—providing such donors with access to officeholders 

irrespective of the involvement of officeholders in soft money fundraising. Id. at 500-07. 

Judge Kollar-Kotelly summarized the McConnell record as follows: 

The immense quantity of testimonial and documentary evidence in the record 

demonstrates that large nonfederal contributions provide donors special access to 

influence federal lawmakers. . . . Testimony from lobbyists, major donors, 

federal lawmakers and political party officials, as well as internal political party 

and corporate documents, shows that donors expect to receive this access, that this 

expectation is fostered by the political parties and federal lawmakers, and that 

special access is in fact provided to major donors. Corroborating this evidence is 

the fact that nonfederal money donors often give to both political parties, which 

demonstrates that in many cases, large nonfederal donations have less to do with 

political philosophy than with obtaining access to power. The record also makes 

clear that the best method of obtaining special access to federal lawmakers is 

through large nonfederal donations, rather than smaller donations under the 

federal campaign finance regime. 

The political parties have taken advantage of the desire of donors for special 

access by structuring their entire fundraising programs to entice larger donations 

with the promise of increased and more intimate access to federal officials. The 

political parties have also pressured donors to give donations, playing off donors’ 

fears of denial of access or political retribution. From this record it is clear that 

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large donations, particularly unlimited nonfederal contributions, have corrupted 

the political system. This fact has not been lost on the general public . . . . 

Id. at 511-12. 

The robust district court record of real and apparent corruption in McConnell led the 

Supreme Court to conclude: “Given this close connection and alignment of interests, large softmoney contributions to national parties are likely to create actual or apparent indebtedness on the 

part of federal officeholders, regardless of how those funds are ultimately used.” McConnell, 

540 U.S. at 155. The Supreme Court continued: 

This close affiliation has also placed national parties in a position to sell access to 

federal officeholders in exchange for soft-money contributions that the party can 

then use for its own purposes. Access to federal officeholders is the most 

valuable favor the national party committees are able to give in exchange for large 

donations. 

Id. The Court concluded that “large soft-money donations to national party committees are 

likely to buy donors preferential access to federal officeholders no matter the ends to which their 

contributions are eventually put.” Id. at 156. For this reason, the Court held: “Congress had 

sufficient grounds to regulate the appearance of undue influence associated with this practice. 

The Government’s strong interests in preventing corruption, and in particular the appearance of 

corruption, are thus sufficient to justify subjecting all donations to national parties to the source, 

amount, and disclosure limitations of FECA.” Id. (emphasis added). 

The Supreme Court’s decision in McConnell upholding the application of contribution 

limits to all funds raised by national party committees makes clear that Plaintiffs’ claims here are 

without merit. In Counts 1 through 7 of Plaintiffs’ Complaint, the RNC argues that various uses 

of funds can not constitutionally be regulated by BCRA. The McConnell Court’s holding that all 

contributions to national party committees can be limited, “regardless of how those funds are 

ultimately used,” disposes of Plaintiffs’ claims in Counts 1 through 7. See McConnell, 540 U.S. 

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at 155. In addition to this general holding that disposes of Plaintiffs’ claims, the district court 

record and Supreme Court decision in McConnell specifically address and dispose of claims 

asserted by Plaintiffs regarding so-called “grassroots lobbying” (i.e., “issue ads”) and 

redistricting. 

1. BCRA Provision Prohibiting RNC’s Use of Soft Money for SoCalled “Grassroots Lobbying” Is Constitutional. 

The Supreme Court in McConnell specifically rejected the claim that party expenditures 

for so-called “issue advocacy” were not sufficiently related to federal elections to be regulated by 

Title I. From the 1992 election cycle to the 2002 election cycle—the last election cycle in which 

political party committees were permitted to raise and spend soft money in connection with 

federal elections—soft money fundraising by the Democratic and Republican parties together 

increased from $86.1 million to $495.8 million. See McConnell, 251 F. Supp. 2d at 440. In 

2000, soft money spending by the national parties had reached $498 million, which amounted to 

42% of their total spending. Id. The top 50 soft money donors “each contributed between 

$955,695 and $5,949,000.” Id. It was this eruption of soft money fundraising and spending that 

prompted Congress to enact BCRA. 

The record in McConnell demonstrates that, “although nonfederal receipts and spending 

began to grow in the 1980s, this trend accelerated beginning in 1996” when both major parties 

began airing so-called “issue ads” in connection with the 1996 presidential election. See id. at 

441. 

By the end of the 2000 election cycle, it was clear that although “[s]cholars might 

differ about how best to change the campaign finance system, . . . they could not 

avoid the conclusion that party soft money and electioneering in the guise of issue 

advocacy had rendered the FECA regime largely ineffectual.” 

Id. at 443 (quoting Mann Expert Report at 26). 

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At the time soft money fundraising and spending was exploding, the Republican and 

Democratic parties were openly flouting the laws on the books. One expert in McConnell

testified that “the political parties ‘exploit[ed] federal campaign finance laws by using soft 

money for candidate support even though federal laws require them to use it for generic party 

building.’” Id. at 443 (quoting La Raja Cross Exam. Ex. 3 at 74-75). Former Senator and 

Chairman of the RNC, William Brock, attested in McConnell: 

[N]onfederal money by and large [was] not used for “party building.” To the 

contrary, the parties by and large use the money to help elect federal candidates—

in the Presidential campaigns and in close Senate and House elections. Far from 

reinvigorating the parties, soft money has simply strengthened certain candidates 

and a few large donors, while distracting parties from traditional and important 

grassroots work. 

Id. (quoting Brock Decl. ¶ 6). Similarly, then-political operations director of the RNC, Terry 

Nelson, testified in McConnell that the RNC engaged in “issue advocacy in order to achieve one 

of our primary objectives, which is to get more Republicans elected.” Id. at 450 (quoting Nelson 

Dep. at 191). 

Plaintiffs now want to reopen the floodgates of national party committee soft money 

“issue ads” by requesting that this Court exempt soft money raised for “grassroots lobbying” 

communications from the Title I restrictions. See Pl. S.J. Memo at 34-37 (Count 4, so-called 

“grassroots lobbying”). Just as the parties’ ads in the pre-BCRA era were allegedly for the 

purpose of “party building” but were obviously for the purposes of supporting and opposing 

candidates, so too will the so-called “grassroots lobbying” communications proposed by 

Plaintiffs here likely be used to support and oppose candidates. The Supreme Court in 

McConnell upheld BCRA’s regulation of party funds used to disseminate such communications. 

McConnell, 540 U.S. at 156 (emphasis added). This Court should do the same. 

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2. BCRA Provision Prohibiting RNC’s Use of Soft Money for 

Redistricting Is Constitutional. 

Judge Kollar-Kotelly found in McConnell that, in the pre-BCRA era, “[t]he national 

parties use[d] nonfederal funds, as well as federal funds, toward their redistricting efforts, and 

these efforts [were] of value to Members of Congress because the changes in the composition of 

a Member’s district can mean the difference between reelection and defeat.” McConnell, 251 F. 

Supp. 2d at 462. An expert in McConnell confirmed: 

The most important legislative activity in the electoral lives of U.S. House 

members takes place during redistricting, a process that is placed in the hands of 

state legislatures. The chances that a House incumbent will be ousted by 

unfavorable district boundaries are often greater than the chances of defeat at the 

hands of the typical challenger. Thus, federal legislators who belong to the state 

majority party have a tremendous incentive to be attuned to the state legislature 

and the state party leadership. 

Id. at 462 (quoting Green Expert Report at 11-12) (emphasis added). The Colorado Republican 

Party’s Mr. Alan Philp testified in McConnell that his party and the Colorado Democratic Party 

played a significant role in the state’s legislative redistricting process. Philp stated that the 

results of the redistricting process “[c]an have a significant impact” on candidates for federal 

office and that the Colorado Congressional delegation discussed redistricting with the Colorado 

Republican Party. Id. (quoting Philp Dep. at 65-66). 

Despite the fact that redistricting is the “most important legislative activity in the 

electoral lives of U.S. House members” because “the changes in the composition of a Member’s 

district can mean the difference between reelection and defeat,” McConnell, 251 F. Supp. 2d at 

462, Plaintiffs argue that “any effect [of redistricting] on federal candidates or officeholders is 

far too attenuated to be deemed unambiguously-campaign-related.” Pl. S.J. Memo. at 33 

(emphasis in original). For this reason, Plaintiffs argue in Count 3 (“Redistricting Account”), 

this Court should disregard the judgment of the Supreme Court, which held that the 

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“Government’s strong interests in preventing corruption, and in particular the appearance of 

corruption, are thus sufficient to justify subjecting all donations to national party committees to 

the source, amount, and disclosure limitations of FECA.” McConnell, 540 U.S. at 156 (emphasis 

added). Amici respectfully urge this Court not to do so and, instead, to reaffirm that BCRA’s 

application of contribution limits to all funds raised by Plaintiff RNC, including those used for 

redistricting, is constitutional. 

Amici note these specific examples of “issue ad” and redistricting expenditures not 

because the nature of the expenditure matters but, instead, to make clear that these same claims 

were made and rejected in McConnell. This Court should reject Plaintiffs’ motion for summary 

judgment on Counts 1 through 7 on the basis of the Supreme Court’s clear holding in McConnell

that all contributions to national party committees can be limited, “regardless of how those funds 

are ultimately used.” Id. at 155. 

B. BCRA Provisions Prohibiting California Republican Party and 

Republican Party of San Diego From Raising and Spending Soft Money 

for Federal Election Activity Are Constitutional. 

Plaintiffs California Republican Party and Republican Party of San Diego challenge the 

BCRA provision prohibiting state party committees from raising and spending soft money for 

“federal election activities.” See Complaint at ¶¶ 49-54 (Counts 8-9); see also Pl. S.J. Memo. at 

40-45. Judge Kollar-Kotelly observed in McConnell that: 

It is clear that state political party electoral activities affect federal elections, 

especially when state and federal elections are held on the same date. The record 

establishes that federal officeholders value these services and that they solicit 

nonfederal donations for the state political parties in order to assist their own 

campaigns. National political parties also solicit nonfederal donations for their 

state counterparts and transfer nonfederal funds as part of their efforts to affect 

federal elections. The workings of this campaign finance system demand that if 

one wants to address the impact of nonfederal money, one cannot ignore the state 

role in the system. 

McConnell, 251 F. Supp. 2d at 466-67. Former Members of Congress concur with Judge KollarCase 1:08-cv-01953-RJL-RMC Document 47 Filed 03/16/2009 Page 27 of 33
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Kotelly’s view. Former Senator Rudman stated on the McConnell record: 

To curtail soft-money fundraising and giving, it is necessary to have a 

comprehensive approach that addresses the use of soft money at the state and 

local party levels as well as at the national party level. The fact is that much of 

what state and local parties do helps to elect federal candidates. The national 

parties know it; the candidates know it; the state and local parties know it. If state 

and local parties can use soft money for activities that affect federal elections, 

then the problem will not be solved at all. The same enormous incentives to raise 

the money will exist; the same large contributions by corporations, unions, and 

wealthy individuals will be made; the federal candidates who benefit from state 

party use of these funds will know exactly whom their benefactors are; the same 

degree of beholdenness and obligation will arise; the same distortions on the 

legislative process will occur; and the same public cynicism will erode the 

foundations of our democracy—except it will all be worse in the public’s mind 

because a perceived reform was undercut once again by a loophole that allows big 

money into the system. 

Id. at 467 (quoting Rudman Decl. ¶ 19). Similarly, former Senator Brock commented: 

It does no good to close the soft money loophole at the national level, but then 

allow state and local parties to use money from corporations, unions, and wealthy 

individuals in ways that affect federal elections. State and local parties use soft 

money to help elect federal candidates both by organizing voter registration and 

get-out-the-vote drives that help candidates at all levels of the ticket, and by using 

soft and hard money to run ‘issue ads’ that affect federal elections. Therefore, for 

soft money reforms to be truly effective, it is vitally important to require the use 

of hard money at the state level to pay for activities that affect federal elections. 

Id. (quoting Brock Decl. ¶ 8). 

The Supreme Court in McConnell began its analysis of the constitutionality of BCRA’s 

soft money restrictions on state political party committees by echoing these sentiments. The 

Court’s reasoning is worth quoting at length: 

We begin by noting that, in addressing the problem of soft-money contributions to 

state committees, Congress both drew a conclusion and made a prediction. Its 

conclusion, based on the evidence before it, was that the corrupting influence of 

soft money does not insinuate itself into the political process solely through 

national party committees. Rather, state committees function as an alternate 

avenue for precisely the same corrupting forces. Indeed, both candidates and 

parties already ask donors who have reached the limit on their direct contributions 

to donate to state committees. There is at least as much evidence as there was in 

Buckley that such donations have been made with the intent—and in at least some 

cases the effect—of gaining influence over federal officeholders. Section 323(b) 

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thus promotes an important governmental interest by confronting the corrupting 

influence that soft-money donations to political parties already have. 

Congress also made a prediction. Having been taught the hard lesson of 

circumvention by the entire history of campaign finance regulation, Congress 

knew that soft-money donors would react to § 323(a) by scrambling to find 

another way to purchase influence. It was “neither novel nor implausible,” for 

Congress to conclude that political parties would react to § 323(a) by directing 

soft-money contributors to the state committees, and that federal candidates 

would be just as indebted to these contributors as they had been to those who had 

formerly contributed to the national parties. We “must accord substantial 

deference to the predictive judgments of Congress,” particularly when, as here, 

those predictions are so firmly rooted in relevant history and common sense. 

Preventing corrupting activity from shifting wholesale to state committees and 

thereby eviscerating FECA clearly qualifies as an important governmental 

interest.

McConnell, 540 U.S. at 164-66 (footnotes omitted) (internal citations omitted) (emphasis added) 

(citing Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 391 (2000) and Turner Broadcasting 

System, Inc. v. Fed. Communications Comm’n, 512 U.S. 622, 665 (1994) (plurality opinion)). 

In light of this political reality, BCRA not only prohibits national party committees from 

raising and spending soft money, see 2 U.S.C. § 441i(a), but also prohibits state party 

committees from raising and spending soft money for “federal election activity,” defined to 

include voter registration activity within 120 days of a federal election, voter identification and 

get-out-the-vote (GOTV) activity in connection with an election in which a federal candidate is 

on the ballot, and public communications that promote, support, attack or oppose a federal 

candidate. See 2 U.S.C. §§ 431(20) and 441i(b). 

Despite the McConnell Court’s reasoned judgment, the California and San Diego 

Republican Party committees urge this Court to strike down BCRA’s soft money restrictions 

applicable to its proposed federal election activities. See Pl. S.J. Memo at 40-44 (Count 8, public 

communications that promote, support, attack or oppose a federal candidate) and 45 (Count 9, 

federal election activity). 

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Political party committees in the pre-BCRA era also used soft money for get-out-the-vote 

(GOTV), voter registration and other federal election activities. Judge Kollar-Kotelly observed 

in McConnell: 

It is undisputed that GOTV efforts, paid for with nonfederal funds by national 

party committees and targeted at federal elections, directly assist federal 

candidates, as well as state and local candidates of the same party whose elections 

are held on the same day. Declarations from representatives of the four major 

congressional campaign committees attest to the fact that these committees 

“transfer[] federal and nonfederal funds to state and/or local party committees for 

. . . get-out-the-vote efforts. These efforts have a significant effect on the election 

of federal candidates.” 

McConnell, 251 F. Supp. 2d at 458-59 (internal citations omitted). The McConnell record 

contains specific evidence establishing that state party GOTV efforts intentionally and 

admittedly benefit federal candidates. Judge Kollar-Kotelly cited a letter from the California 

Democratic Party to a donor “noting that CDP’s ‘get-out-the-vote efforts’ would help ‘increase 

the number of Californian Democrats in the United States Congress, continue Democratic 

leadership in the State Senate, take back the State Assembly—and deliver California’s 54 

electoral votes for President Bill Clinton’s and Vice President Al Gore’s re-election.’” Id. at 

459. 

An expert in McConnell elaborated: 

[T]he evidence from California, as well as from numerous opinion surveys and 

exit polls that demonstrate the powerful correlation between voting at the state 

and federal levels, shows quite clearly that a campaign that mobilizes residents of 

a highly Republican precinct will produce a harvest of votes for Republican 

candidates for both state and federal offices. A campaign need not mention 

federal candidates to have a direct effect on voting for such a candidate. That 

parties recognize this fact is apparent, for example, from the emphasis that the 

Democrats place on mobilizing and preventing ballot roll-off among AfricanAmericans, whose solidly Democratic voting proclivities make them reliable 

supporters for office-holders at all levels. As a practical matter, generic campaign 

activity has a direct effect on federal elections. 

Id. at 459 (quoting Green Expert Report at 14) (emphasis added). 

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Representatives of the four major congressional campaign committees confirmed to the 

district court in McConnell that the four committees “transfer[] federal and nonfederal funds to 

state and/or local party committees for . . . voter registration . . . efforts. These efforts have a 

significant effect on the election of federal candidates.” Id. at 461 (quoting Jordan Decl. ¶ 69; 

Wolfson Decl. ¶ 64; Vogel Decl. ¶ 64; McGahn Decl. ¶ 56). 

The Supreme Court in McConnell cited and relied upon Judge Kollar-Kotelly’s findings 

of fact regarding GOTV, voter registration and other forms of “federal election activity” 

regulated by BCRA, stating: “Common sense dictates, and it was ‘undisputed’ below, that a 

party’s efforts to register voters sympathetic to that party directly assist the party’s candidates for 

federal office.” McConnell, 540 U.S. at 167 (citing 251 F. Supp. 2d at 460). The Court 

continued: “It is equally clear that federal candidates reap substantial rewards from any efforts 

that increase the number of like-minded registered voters who actually go to the polls. 

McConnell, 540 U.S. at 167-68 (citing 251 F. Supp. 2d at 459). The Supreme Court further 

found that the district court record made “quite clear that federal officeholders are grateful for 

contributions to state and local parties that can be converted into GOTV-type efforts.” 

McConnell, 540 U.S. at 167-68 (citing 251 F. Supp. 2d at 459). 

The Supreme Court in McConnell found that “[b]ecause voter registration, voter 

identification, GOTV, and generic campaign activity all confer substantial benefits on federal 

candidates, the funding of such activities creates a significant risk of actual and apparent 

corruption.” McConnell, 540 U.S. at 168. Consequently, the Court upheld BCRA’s limit on 

contributions to state party committees for federal election activities as “closely drawn to meet 

the sufficiently important governmental interests of avoiding corruption and its appearance.” Id.

at 169. 

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The McConnell Court further found that “‘[p]ublic communications’ that promote or 

attack a candidate for federal office . . . undoubtedly have a dramatic effect on federal elections. 

Such ads were a prime motivating force behind BCRA’s passage.” Id. at 169. Consequently, the 

McConnell Court held that, “[g]iven the overwhelming tendency of public communications, as 

carefully defined in [BCRA], to benefit directly federal candidates,” BCRA’s application of 

contribution limits to state political party committee funds used for such communications is 

“closely drawn to the anticorruption interest” and constitutional. Id. at 170. 

Nevertheless, Plaintiffs’ again invoke their made-up “unambiguously campaign related” 

standard to argue that they should not be subject to BCRA’s soft money restrictions on state 

party federal election activity. See Complaint at ¶¶ 50 and 53; see also Pl. S.J. Memo at 40-45. 

Neither the McConnell record nor the Supreme Court’s interpretation of this issue could be more 

clear—the activities encompassed within BCRA’s definition of “federal election activity” 

“confer substantial benefits on federal candidates” and “undoubtedly have a dramatic effect on 

federal elections. McConnell, 540 U.S. at 168-69. BCRA’s limitations on Plaintiffs’ fundraising 

and spending for such activities are closely drawn to the government interest of preventing actual 

and apparent corruption and are constitutional. 

CONCLUSION

The Court should deny Plaintiffs’ motion for summary judgment. 

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Respectfully submitted, 

/s/ J. Gerald Hebert

J. GERALD HEBERT 

(D.C. Bar No. 447676) 

TREVOR POTTER 

(D.C. Bar No. 413778) 

PAUL S. RYAN 

(D.C. Bar No. 502514) 

THE CAMPAIGN LEGAL CENTER 

1640 Rhode Island Ave. NW, Suite 650 

Washington, DC 20036 

Tel: (202) 736-2200 

Fax: (202) 736-2222 

Counsel for Amici Curiae

Senators John S. McCain and Russell D. 

Feingold and Former Representatives 

Christopher H. Shays and Martin T. 

Meehan 

Dated: March 9, 2009 

Case 1:08-cv-01953-RJL-RMC Document 47 Filed 03/16/2009 Page 33 of 33