No. 09-50296 

 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT 

 

UNITED STATES OF AMERICA, 

 Plaintiff-Appellant, 

v. 

PIERCE O’DONNELL, 

 Defendant-Appellee. 

 

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE CENTRAL DISTRICT OF CALIFORNIA 

No. 08-CV-00872 · The Honorable S. James Otero 

 

BRIEF AMICI CURIAE FOR THE 

CAMPAIGN LEGAL CENTER AND DEMOCRACY 21 

SUPPORTING PLAINTIFF-APPELLANT AND 

URGING REVERSAL 

 

J. GERALD HEBERT

PAUL S. RYAN

TARA MALLOY

THE CAMPAIGN LEGAL CENTER

215 E STREET, NE 

WASHINGTON, DC 20002 

Counsel for Amicus Curiae 

Campaign Legal Center

DONALD J. SIMON

SONOSKY, CHAMBERS, SACHSE, 

 ENDRESON & PERRY, LLP 

1425 K STREET, NW, SUITE 600 

WASHINGTON, DC 20005 

FRED WERTHEIMER

DEMOCRACY 21 

1875 I STREET, NW, SUITE 500 

WASHINGTON, DC 20005 

Counsel for Amicus Curiae 

Democracy 21 

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CORPORATE DISCLOSURE STATEMENT 

The Campaign Legal Center (CLC) is a non-profit organization organized 

under Section 501(c)(3) of the Internal Revenue Code. The CLC neither has a 

parent corporation nor issues stock. There are no publicly held corporations that 

own ten percent or more of the stock of the CLC. 

Democracy 21 is a non-profit organization organized under Section 

501(c)(3) of the Internal Revenue Code. Democracy 21 neither has a parent 

corporation nor issues stock. There are no publicly held corporations that own ten 

percent or more of the stock of Democracy 21. 

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TABLE OF CONTENTS 

Page

CORPORATE DISCLOSURE STATEMENT............................................... ii 

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

STATEMENT OF INTEREST .........................................................................1 

SUMMARY OF ARGUMENT..........................................................................2 

ARGUMENT.......................................................................................................6 

I. Sections 441a and 441f Exist in Harmony, Not in “Tension” ...................6 

A. Section 441a requires that, when a contributor uses a conduit to 

deliver his contribution, the conduit report the original source 

as the contributor so as to prevent evasion of the contribution 

limits and disclosure requirements........................................................9 

B. Section 441f does not prohibit a person from making a 

contribution through a conduit, but, instead, prohibits a person 

from making a contribution in the name of a conduit.........................13 

II. Federal Courts and the FEC Have For Decades Understood That 

Section 441f Prohibits the Use of Conduits to Evade Contribution 

Limits and Disclosure Requirements and Have Enforced the Law 

Accordingly ..............................................................................................15 

A. The Supreme Court and Circuit Courts have recognized that 

Section 441f prohibits the use of conduits to evade contribution 

limits and disclosure requirements......................................................15 

B. The FEC has for decades enforced Section 441f as a prohibition 

on the use of conduits to evade contribution limits and 

disclosure requirements.......................................................................18 

CONCLUSION.......................................................................................................20 

CERTIFICATE OF COMPLIANCE ..................................................................22 

CERTIFICATE OF SERVICE ............................................................................23 

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TABLE OF AUTHORITIES

Cases: 

Buckley v. Valeo, 424 U.S. 1 (1976)........................................................3, 16, 17, 18

FEC v. Wisconsin Right to Life, 127 S. Ct. 2652 (2007)...........................................1

Goland v. U.S., 903 F.3d 1247 (9th Cir. 1990)..................................................17, 18

Mariani v. U.S., 212 F.3d 761 (3rd Cir. 2000) ..................................................16, 17

McConnell v. FEC, 540 U.S. 93 (2003).....................................................1, 2, 15, 16 

U.S. v. Fuller, 531 F.3d 1020 (9th Cir. 2008), cert. denied, 129 S. Ct. 1603 

(2009)...............................................................................................................6 

Statutes, Legislation, Regulations:

2 U.S.C. § 441a ................................................................................................ passim 

2 U.S.C. § 441a(a)(1)-(3)...................................................................................2, 5, 6 

2 U.S.C. § 441a(a)(7)(B)(i)......................................................................................17 

2 U.S.C. § 441a(a)(7)(B)(ii).....................................................................................17 

2 U.S.C. § 441a(a)(8)....................................................................................... passim 

2 U.S.C. § 441f................................................................................................. passim 

18 U.S.C. § 1001........................................................................................................4 

Pub. L. No. 92-225, Title III, 86 Stat. 3-20 (1972)....................................................2 

Pub. L. No. 92-225, § 310, 86 Stat. 3-20 (1972), codified at 2 U.S.C. § 440 

(1972)...............................................................................................................2 

Pub. L. No. 93-443, Title I, 88 Stat. 1263-1304 (1974) ............................................2 

Pub. L. No. 93-443, § 101(a), 88 Stat. 1263-1304 (1974), codified at 18 

U.S.C. § 608(b)(6) (1974) ...............................................................................3 

11 C.F.R. § 102.8(a).................................................................................................11 

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11 C.F.R. § 110.4(b)(2)............................................................................................14 

11 C.F.R. § 110.6(a).................................................................................................10 

11 C.F.R. § 110.6(b)(1)............................................................................................11 

11 C.F.R. § 110.6(b)(2)......................................................................................11, 12 

11 C.F.R. § 110.6(c)(1)(iv) ......................................................................................11 

11 C.F.R. § 110.6(d) ................................................................................................10 

Miscellaneous Sources: 

FEC MUR 5504, John Karoly, Jr. Conciliation Agreement (June 29, 2009)....18, 19 

FEC MUR 5871, Joseph Restivo Conciliation Agreement (Sept. 15, 2008) ..........19 

FEC MUR 5871, Donna Owens Conciliation Agreement (Sept. 15, 2008)............19 

FEC MUR 5871, Betty Shultz Conciliation Agreement (Sept. 15, 2008) ..............20 

FEC MUR 5871, Sam Thurber Conciliation Agreement (Sept. 15, 2008) .............20 

FEC MUR 5927, Joseph A. Solomon Conciliation Agreement (April 13, 

2009) ..............................................................................................................19 

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STATEMENT OF INTEREST1

Amici curiae Campaign Legal Center and Democracy 21 are nonpartisan, 

nonprofit organizations that work to strengthen the laws governing campaign 

finance, ethics and governmental integrity. Amici have participated as amici or 

counsel in many campaign finance cases in federal and state courts from the trial 

court level to the U.S. Supreme Court. Amici, for example, represented intervenors 

Senators John McCain and Russell Feingold in McConnell v. Federal Election 

Commission (FEC), 540 U.S. 93 (2003), and, more recently, represented Senator 

John McCain, Representative Tammy Baldwin, and former Representatives 

Christopher Shays and Martin Meehan as amici curiae in FEC v. Wisconsin Right 

to Life, 127 S. Ct. 2652 (2007). 

The present case concerns a prosecution brought under 2 U.S.C. § 441f, a 

provision of federal campaign finance law that is vital to the enforceability of 

federal campaign contribution limits and disclosure requirements. Enforcement of 

federal campaign contribution limits and disclosure requirements are key issues in 

campaign finance law and directly impact the interests and activities of the amici 

curiae. 

 

1

 All parties, through counsel, have consented to the participation of the 

Campaign Legal Center and Democracy 21 as amici curiae and to the filing of this 

brief. 

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SUMMARY OF ARGUMENT 

In 1972, Congress enacted the Federal Election Campaign Act (FECA), 

which requires disclosure of political contributions. See Pub. L. No. 92-225, Title 

III, 86 Stat. 3-20 (1972); see also McConnell, 540 U.S. at 117-18. In order to 

prevent easy circumvention of the disclosure provisions, Congress included a 

provision that prohibits contributions in the name of another person. Pub. L. No. 

92-225, § 310, 86 Stat. 3-20 (1972), codified at 2 U.S.C. § 440 (1972) (now 

codified, as amended, at 2 U.S.C. § 441f) (hereinafter “Section 441f”). 

“As the 1972 presidential elections made clear, however, FECA’s passage 

did not deter unseemly fundraising and campaign practices. Evidence of those 

practices persuaded Congress to enact the [FECA] Amendments of 1974[,]” which 

included limits on the size of contributions to federal candidates. McConnell, 540 

U.S. at 118; Pub. L. No. 93-443, Title I, 88 Stat. 1263-1304 (1974), codified at 18 

U.S.C. § 608(b)(1)-(3) (1974) (now codified, as amended, at 2 U.S.C. § 

441a(a)(1)-(3)) (hereinafter “Section 441a(a)(1)-(3)”). As part of the contribution 

limits section of the 1974 FECA Amendments, Congress included a subsection 

requiring any “intermediary or conduit”2

 who forwards an “earmarked” 

contribution to a candidate to disclose to the recipient candidate and to the FEC the 

 

2

 The words “conduit” and “intermediary” have the same meaning under 

federal campaign finance law and are used interchangeably. See 11 C.F.R. § 

110.6(b)(2). For the sake of simplicity, amici use only the word “conduit” 

throughout this brief. 

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“original source” of the contribution. See Pub. L. No. 93-443, § 101(a), 88 Stat. 

1263-1304 (1974), codified at 18 U.S.C. § 608(b)(6) (1974) (now codified at 2 

U.S.C. § 441a(a)(8)) (hereinafter “Section 441a”). 

The Supreme Court in Buckley v. Valeo, 424 U.S. 1 (1976), upheld the 

federal contribution limits and disclosure requirements against constitutional 

challenge, concluding that the contribution limits serve the governmental interest 

in limiting the “actuality and appearance of corruption resulting from large 

individual financial contributions,” id. at 26, and that the disclosure requirements 

serve the governmental interests of providing information to aid voters in 

evaluating those who seek federal office, deterring corruption, and gathering data 

necessary to detecting violations of the contribution limits. Id. at 66-68. 

Since 1974, Sections 441a and 441f have worked in harmony to prevent the 

wholesale circumvention of FECA’s disclosure requirements and contribution 

limits that would undoubtedly occur if contributors were permitted to funnel their 

contributions through conduits. Congress understood that contribution limits and 

disclosure requirements would be meaningless if a contributor could evade them 

through the simple expedient of laundering a contribution through a middle man 

who could claim the contribution as his own. 

These FECA provisions establish in unambiguous language that (1) a 

contributor must use his own name—not the name of another—when making a 

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campaign contribution; and (2) when a contributor uses a conduit to make a 

contribution to a candidate, the original contributor’s identity must be disclosed to 

the recipient candidate and the FEC, so that the original contributor is credited with 

having made the contribution for the purposes of the disclosure requirements and 

contribution limits. FEC regulations and enforcement actions have for more than 

three decades reinforced the plain meaning of these FECA provisions. 

The United States Government (“Government”) alleged in the District Court 

that Defendant-Appellee Pierce O’Donnell secretly contributed $26,000 to a 

presidential candidate in the names of 13 other people. Based on this allegation, 

the Government indicted O’Donnell for (1) conspiring to make illegal campaign 

contributions in violation of 2 U.S.C. § 441f (“Count 1”); (2) making and causing 

to be made illegal campaign contributions in violation of 2 U.S.C. § 441f (“Count 

2”); and (3) knowingly and willfully causing ESP’s treasurer to make materially 

false statements in violation of 18 U.S.C. § 1001 (“Count 3”). GER3 1-2. 

The District Court dismissed Counts 1 and 2, erroneously concluding that 

“441f prohibits only the act of making a contribution and providing a false name, 

not asking others to make contributions in their names and reimbursing them for 

it.” GER 3. The District Court based its decision largely on an apparent 

 

3

 “GER” refers to the government’s excerpts of record and is followed by the 

page number. 

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misunderstanding of how Sections 441a and 441f work in conjunction with one 

another, stating: 

[I]f § 441f covered indirect contributions made through a conduit, that 

would mean such contributions were never allowed. However, § 441a 

allows for indirect and conduit contributions, as long as they do not 

exceed designated limits. See § 441a. Thus, reading § 441f to 

prohibit such contributions is irreconcilable with 441a’s express 

authorization of them. 

GER 4. 

Contrary to the District Court’s conclusion, under the unambiguous wording 

of Sections 441a and 441f, the legality of a contribution depends not on whether a 

conduit is used, but, rather, how a conduit is used. If the conduit discloses to the 

recipient and the FEC the original source of the contribution, the contribution has 

been made in the name of the original source in compliance with Section 441f 

(subject to the contribution limits of Section 441a(a)(1)-(3) applicable to the 

original source). However, if the conduit does not disclose the original source of 

the contribution and, instead, falsely claims the contribution as her own, a 

contribution has been made by the original source in the name of the conduit in 

violation of Sections 441f, 441a(a)(8) and, depending on the amounts, potentially 

in violation of Section 441a(a)(1)-(3) as well. 

More simply, when a person makes a contribution in the name of a conduit, 

that person has made a contribution in the name of another (i.e., the conduit) in 

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violation of Section 441f. If that person’s contribution exceeds the applicable 

limit, then the person has violated Section 441a(a)(1)-(3) as well. 

O’Donnell made 13 contributions using the names of other persons in 

violation of Section 441f. For this reason, amici respectfully urge this Court to 

reject the District Court’s erroneous interpretation of Section 441f and reverse the 

District Court’s dismissal of Counts 1 and 2 of the indictment. 

ARGUMENT 

I. Sections 441a and 441f Exist in Harmony, Not in “Tension.” 

This Court reviews statutory interpretations de novo. U.S. v. Fuller, 531 

F.3d 1020, 1024 (9th Cir. 2008), cert. denied, 129 S. Ct. 1603 (2009). Amici

endeavors to assist the Court in understanding the relationship between Sections 

441a and 441f, generally, and the regulation of “conduits” under federal campaign 

finance law, specifically, so as to clear up the errors made by the District Court in 

its statutory interpretation. The District Court’s misunderstanding of the role of 

conduits under federal campaign finance law led the Court to wrongly conclude 

that there is “tension” between Sections 441a and 441f, which, in turn, led to the 

District Court’s erroneous conclusion that O’Donnell’s reimbursement of 

contributions was not prohibited by Section 441f. See GER 4-5. Instead, Sections 

441a and 441f exist in harmony, as two sides of one coin. 

Two specific FECA provisions were at issue in the District Court’s error. 

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Section 441a(a)(8) provides that “all contributions made by a person, either 

directly or indirectly, . . . including contributions which are in any way earmarked 

or otherwise directed through an intermediary or conduit to such candidate, shall 

be treated as contributions from such person to such candidate.” 2 U.S.C. § 

441a(a)(8). Section 441a(a)(8) requires the conduit to “report the original source” 

of such contribution to the FEC and to the recipient candidate. Id.

Section 441f provides that “[n]o person shall make a contribution in the 

name of another person or knowingly permit his name to be used to effect such a 

contribution, and no person shall knowingly accept a contribution made by one 

person in the name of another person.” 2 U.S.C. § 441f. 

The District Court found “tension” between Sections 441a and 441f and 

explained this “tension” as follows: 

[I]f § 441f covered indirect contributions made through a conduit, that 

would mean such contributions were never allowed. However, § 441a 

allows for indirect and conduit contributions, as long as they do not 

exceed designated limits. See § 441a. Thus, reading § 441f to 

prohibit such contributions is irreconcilable with 441a’s express 

authorization of them. 

Indeed, the Government acknowledged the tension between § 441a 

and § 441f at oral argument, stating: ‘I do see the ambiguity that the 

Court’s pointing to is that in one sense [FECA is] saying you have to 

report [an indirect contribution]. If you have to report it, then why is 

it something that 441(f) prohibits?’ 

GER 4 (quoting June 2, 2009 Tr. 22:1-4) (alteration in original). 

The District Court thus concluded: 

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Because a statute must be construed as a whole, the Court must read § 

441a and § 441f in a way that makes them consistent with one 

another, and with the rest of FECA. . . . [T]he Government’s 

proposed interpretation does not do this. Accordingly, analyzing the 

plain language of § 441f in the context of FECA as a whole, § 441f is 

unambiguous and does not prohibit soliciting and reimbursing 

contributions. 

GER 4-5. 

The District Court erred in this conclusion in two respects. First, the court 

erroneously believed that “if § 441f covered indirect contributions made through a 

conduit, that would mean such contributions were never allowed.” GER 4. The 

simple fact that Section 441f “covers” contributions made through a conduit does 

not mean that such contributions are never allowed. Instead, contributions made 

through a conduit are permissible so long as the conduit discloses the original 

source as the contributor (as required by Section 441a(a)(8)), but are impermissible 

if the conduit fails to disclose the original source. In the latter case, the original 

source causes the conduit to fraudulently report that the conduit is the contributor 

and, in doing so, violates Section 441f. 

Second, the District Court erroneously believed that “§ 441a allows for 

indirect and conduit contributions, as long as they do not exceed designated 

limits.” GER 4. But the contribution amount limits are not the only restriction on 

conduit contributions contained in Section 441a. Section 441a(a)(8) also requires a 

conduit to report the original source of the contribution to the FEC and the 

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recipient candidate. A failure by a contributor and his conduit to abide by this 

disclosure requirement of Section 441a results in a violation of Section 441f. 

Thus, the alleged “tension” between Sections 441a and 441f that led the 

District Court to dismiss Counts 1 and 2 of the indictment was a product of 

misreading the statutory scheme. Properly understood, Sections 441a and 441f are 

entirely consistent and operate together in service of the Government’s compelling 

interest in preventing circumvention of FECA’s contribution limits and disclosure 

requirements. 

A. Section 441a requires that, when a contributor uses a 

conduit to deliver his contribution, the conduit report the 

original source as the contributor so as to prevent evasion of 

the contribution limits and disclosure requirements. 

Congress understood that FECA’s contribution limits and disclosure 

requirements would be meaningless if a contributor could evade them by simply 

passing contributions through conduits who could claim the contributions as their 

own. On the other hand, an outright prohibition on the ability of a candidate’s 

supporters to collect and deliver voluntary contributions from other supporters to a 

candidate would likely raise serious First Amendment issues. Perhaps for this 

reason, Congress did not go so far as to ban conduits from handling contributions 

made by others but, instead, provided in FECA that:

[A]ll contributions made by a person, either directly or indirectly, . . . 

including contributions which are in any way earmarked or otherwise 

directed through an intermediary or conduit to such candidate, shall be 

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treated as contributions from such person to such candidate. The 

intermediary or conduit shall report the original source and the 

intended recipient of such contribution to the Commission and to the 

intended recipient. 

2 U.S.C. § 441a(a)(8) (emphasis added). 

Section 441a(a)(8) contains the only references in FECA to the terms 

“intermediary” and “conduit.” According to the unambiguous wording of the 

statute, a conduit is a person who delivers a contribution from a contributor to a 

candidate. A conduit must report to the FEC and to the recipient candidate the 

identity of the original source contributor and the fact that the conduit has served 

as a conduit. 

The FEC’s regulations faithfully interpret the FECA “conduit” provision. 

FEC regulations state that all contributions by a person made to a candidate, 

“including contributions which are in any way earmarked or otherwise directed to 

the candidate through an intermediary or conduit, are contributions from the person 

to the candidate.” 11 C.F.R. § 110.6(a). The regulation further provides that, in 

the case where a conduit exercises direction or control over the choice of the 

ultimate recipient, the contribution will be treated as a contribution from both the 

original contributor and the conduit. 11 C.F.R. § 110.6(d). Section 441a(a)(8) has 

long been interpreted by the FEC to require not only attribution of the contribution 

to the original source but also, under some circumstances, to the conduit as well. 

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FEC regulations define a “conduit or intermediary” to mean “any person 

who receives and forwards an earmarked contribution to a candidate.” 11 C.F.R. § 

110.6(b)(2). “Earmarked” means “a designation, instruction, or encumbrance, 

whether direct or indirect, express or implied, oral or written, which results in all or 

any part of a contribution or expenditure being made to, or expended on behalf of, 

a clearly identified candidate . . . .” 11 C.F.R. § 110.6(b)(1). 

These regulatory definitions make clear that the role of a conduit is simply to 

forward a contribution from its original source to the candidate for whom the 

contribution is earmarked and to fully disclose all aspects of the transaction. FEC 

regulations require a conduit to forward an earmarked contribution within 10 days 

of receiving it. 11 C.F.R. § 102.8(a). And far from allowing concealment of the 

actual contributor’s identity, the FEC’s regulations require a conduit to report 

detailed information, including: 

• the name and mailing address of each contributor; 

• the amount of each earmarked contribution, the date received by the 

conduit, and the intended recipient as designated by the contributor; and 

• the date each earmarked contribution was forwarded to the recipient 

candidate and whether the earmarked contribution was forwarded in cash 

or by the contributor’s check or by the conduit’s check. 

11 C.F.R. § 110.6(c)(1)(iv). 

Section 441a(a)(8), together with the FEC regulations interpreting it, 

facilitate transparency in circumstances where contributors lawfully give their 

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contributions to conduits for the sole purpose of delivering those contributions to 

candidates. The notion that Section 441a(a)(8) may serve as a shield to conceal a 

contributor’s identity—the practical effect of the District Court’s decision—is 

wholly inconsistent with the unambiguous wording of the statute and its obvious 

purpose. 

The Government thus was incorrect in arguing to the District Court that “[i]f 

a person makes a conduit contribution he has violated § 441f, regardless of the 

amount of the conduit contribution.” GER 4. The Government has corrected this 

error in its opening brief filed with this Court, where it argues: “Defendant did not 

violate Section 441f because he contributed indirectly or through a conduit, but 

rather because he contributed in the names of conduits/straw donors.” Gov’t Br. at 

43. In other words, contributions through a conduit are not per se illegal; but 

contributions “in the name of” a conduit are. 

A “conduit” is simply a “person who receives and forwards an earmarked 

contribution to a candidate.” 11 C.F.R. § 110.6(b)(2). For decades, conduits have 

played a lawful role in federal politics, but a role characterized by full transparency 

and disclosure. Under no circumstance is a conduit permitted to hide the identity 

of the person whose contribution the conduit is forwarding to a candidate. Where a 

conduit does hide the identity of the original source contributor, the original source 

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has made a contribution in the name of the conduit, and it is that conduct which 

constitutes a violation of Section 441f. 

B. Section 441f does not prohibit a person from making a 

contribution through a conduit, but, instead, prohibits a 

person from making a contribution in the name of a 

conduit. 

Section 441f reads: “No person shall make a contribution in the name of 

another person or knowingly permit his name to be used to effect such a 

contribution and no person shall knowingly accept a contribution made by one 

person in the name of another.” 2 U.S.C. § 441f. 

The District Court erroneously believed that Section 441f does not “cover[] 

indirect contributions made through a conduit” because “that would mean such 

contributions were never allowed”—a possibility that the District Court rejected 

because Section 441a requires conduit contribution disclosure. GER 4. The 

District Court, however, missed the crucial distinction between making 

contributions “through” a conduit and making contributions “in the name of” a 

conduit. 

As explained above, Section 441a permits the act of making a contribution 

through a conduit—so long as the contribution is disclosed and subject to the 

contribution limits applicable to the source. And consistent with this, Section 441f 

does not prohibit per se the making of a contribution through a conduit. What 

Section 441f does prohibit is the making of a contribution “in the name of” a

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conduit—i.e., a contributor’s use of a conduit to hide that contributor’s identity by 

having the conduit claim the contribution as her own. Section 441f thus “covers” 

contributions made through a conduit if and only if the contributor has the conduit 

claim the contribution as her own, hiding the identity of the original source 

contributor, resulting in the making of a contribution in the name of another (i.e., 

in the name of the conduit). 

More than three decades ago, the FEC promulgated a regulation to interpret 

and enforce Section 441f. The regulation mirrors the statutory prohibition and then 

provides examples of “contributions in the name of another,” including “[g]iving 

money or anything of value, all or part of which was provided to the contributor by 

another person (the true contributor) without disclosing the source of money or the 

thing of value to the recipient candidate or committee at the time the contribution 

is made,” and “[m]aking a contribution of money or anything of value and 

attributing as the source of the money or thing of value another person when in fact 

the contributor is the source.” 11 C.F.R. § 110.4(b)(2) (emphasis added). 

Section 441f and regulation 110.4(b) could not be clearer: when the original 

source of a contribution causes someone else to be reported as having made that 

contribution, Section 441f has been violated. O’Donnell made contributions 

through 13 individuals and, thus, “ma[d]e a contribution in the name of another 

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person,” 2 U.S.C. § 441f, and caused those individuals to be reported as having 

made the contributions, which they did not. O’Donnell violated Section 441f. 

II. Federal Courts and the FEC Have For Decades Understood That 

Section 441f Prohibits the Use of Conduits to Evade Contribution 

Limits and Disclosure Requirements and Have Enforced the Law 

Accordingly. 

The unambiguous language of Section 441f has, since its enactment, been 

consistently interpreted by courts and the FEC as prohibiting the evasion of 

contribution limits and disclosure requirements by a contributor’s use of a conduit 

who claims the original source’s contribution as her own. 

A. The Supreme Court and Circuit Courts have recognized 

that Section 441f prohibits the use of conduits to evade 

contribution limits and disclosure requirements. 

The Supreme Court in McConnell, for example, pointed to the effectiveness 

of Section 441f as a reason for invalidating a federal law ban on contributions by 

minors. The Court rejected the Government’s argument that the ban “protects 

against corruption by conduit; that is, donations by parents through their minor 

children to circumvent contribution limits applicable to the parents.” 540 U.S. at 

231-32. The Court reasoned that the Government had offered scant evidence of 

this form of evasion and suggested that “[p]erhaps the Government’s slim evidence 

results from sufficient deterrence of such activities by [Section 441f], which 

prohibits any person from ‘mak[ing] a contribution in the name of another person’ 

or ‘knowingly accept[ing] a contribution made by one person in the name of 

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another.” Id. at 232. It is hard to fathom that the Supreme Court would point to 

Section 441f as a sufficient safeguard to prevent parents from evading contribution 

limits by making contributions through their children as conduits if, as the District 

Court believes, Section 441f does not prohibit the use of conduits to evade 

contribution limits and disclosure requirements. 

In Mariani v. U.S., 212 F.3d 761 (3rd Cir. 2000), the application and

constitutionality of Section 441f were squarely at issue. A criminal indictment 

pending at the time charged Mariani with violating Section 441f “by making 

campaign contributions to a number of candidates for federal office through 

enlisting company employees and others to forward contributions to the candidates 

that were thereafter reimbursed by one of the [defendant’s] companies.” Id. at 764. 

Mariani challenged the constitutionality of Section 441f, but the Third Circuit 

“conclude[d] that the challenge to § 441f [was] patently without merit.” Id. at 766. 

Mariani argued, among other things, that Section 441f “violates the First 

Amendment because it fails to advance any compelling state interest.” Id. at 775. 

The Third Circuit explained that the Supreme Court in Buckley “accorded broad 

acceptance to the FECA’s reporting and disclosure requirements.” Id. The Third 

Circuit concluded: “Proscription of conduit contributions (with the concomitant 

requirement that the true source of contributions be disclosed) would seem to be at 

the very core of the [Buckley] Court’s analysis. In light of Buckley, we reject 

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Mariani’s argument that § 441f fails to advance a compelling state interest.” Id. 

Again, the premise of the Court’s reasoning was that Section 441f prohibits 

contributions through a conduit if the identity of the “true source of contributions” 

remains concealed. 

Similarly, this Court recognized in Goland v. U.S., 903 F.3d 1247 (9th Cir. 

1990), while discussing FECA’s contribution limits and disclosure requirements in 

relationship to Section 441f, that the “Act prohibits the use of ‘conduits’ to 

circumvent these restrictions.” Id. at 1251 (emphasis added). In that case, Goland 

made arrangements to and then did in fact reimburse 56 individuals for 

contributions ranging from $1,000 to $4,500 to a federal candidate of Goland’s 

choice.4 A federal grand jury charged Goland with “making a contribution in the 

name of another in violation of 2 U.S.C. § 441f.” Id. at 1252. Goland then filed a 

civil complaint challenging the constitutionality of FECA’s disclosure 

requirements and contribution limits, but not challenging Section 441f. This Court 

rejected Goland’s challenges to the disclosure requirements and contribution limits 

 

4

 Goland’s conduit contributions took the form of payments to a media 

company that produced ads with and for the candidate (i.e., in-kind contributions to 

the candidate). Goland, 903 F.3d at 1251. FECA makes clear that, when a person 

pays for a candidate’s distribution of a television ad, that person has made a 

contribution to such candidate. Specifically, FECA provides that “the financing by 

any person of the dissemination . . . of any broadcast . . . prepared by the candidate 

. . . shall be considered an expenditure . . . .” 2 U.S.C. § 441a(a)(7)(B)(ii). FECA 

further provides that “expenditures made by any person in cooperation, 

consultation, or concert with . . . a candidate . . . shall be considered a contribution 

to such candidate. 2 U.S.C. § 441a(a)(7)(B)(i). 

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on the ground that the “issues Goland raise[d] were resolved by the [Supreme] 

Court in Buckley.” Id. at 1258. 

Thus, both the Supreme Court and this Court, as well as others, have 

understood the unambiguous language of Section 441f to prohibit the use of 

conduits to circumvent FECA’s contribution limits and disclosure requirements. 

The District Court’s conclusion that “reading § 441f to prohibit such [conduit] 

contributions is irreconcilable with 441a’s express authorization of them,” GER 4, 

is wrong, and is itself irreconcilable with the wording of Section 441f and with the 

judicial precedent interpreting and applying the provision. Accordingly, this Court 

should reverse the District Court’s judgment. 

B. The FEC has for decades enforced Section 441f as a 

prohibition on the use of conduits to evade contribution 

limits and disclosure requirements. 

The FEC has for decades enforced Section 441f consistently with its 

unambiguous meaning—as prohibition on the use of conduits to evade contribution 

limits and disclosure requirements. Earlier this year, for example, the FEC entered 

a conciliation agreement (i.e., settlement agreement) with John Karoly, Jr., who 

agreed to pay a $155,000 fine for violating Section 441f by arranging for several of 

his employees to make contributions to a federal candidate and then reimbursing 

the employees for those contributions. See FEC MUR 5504, John Karoly, Jr. 

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Conciliation Agreement (June 29, 2009).5 Also, earlier this year, the FEC entered 

a conciliation agreement with Joseph A. Solomon, who paid a $6,400 fine for 

violating Section 441f by arranging for several of his employees to make 

contributions to a federal candidate and then reimbursing them for those 

contributions. See FEC MUR 5927, Joseph A. Solomon Conciliation Agreement 

(April 13, 2009).6

Similarly, in 2008, the FEC collected more than $65,000 in fines from 

individuals perpetrating a single-event conduit reimbursement scheme. Thomas 

W. Noe pled guilty to federal charges of making illegal conduit contributions in 

connection with an October 30, 2003, fundraiser for a federal candidate. The 

indictment stated that Mr. Noe used $45,400 of his funds to make contributions 

over the legal limits, and concealed the true source of the contributions by making 

them in the names of conduits. The FEC entered conciliation agreements with 

several of these conduits for knowing and willful violations of Section 441f. See

FEC MUR 5871, Joseph Restivo Conciliation Agreement (Sept. 15, 2008);7 FEC 

MUR 5871, Donna Owens Conciliation Agreement (Sept. 15, 2008);8 FEC MUR 

 

5

 Available at http://eqs.sdrdc.com/eqsdocs/29044244534.pdf. 

6

 Available at http://eqs.sdrdc.com/eqsdocs/29044234876.pdf. 

7

 Available at http://eqs.sdrdc.com/eqsdocs/28044211096.pdf. 

8

 Available at http://eqs.sdrdc.com/eqsdocs/28044211134.pdf. 

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5871, Betty Shultz Conciliation Agreement (Sept. 15, 2008);9 FEC MUR 5871, 

Sam Thurber Conciliation Agreement (Sept. 15, 2008).

10

A search of the FEC’s Enforcement Query System11 for conciliation 

agreements to resolve violations of Section 441f produces 55 enforcement actions 

since 1999, many of which had multiple respondents. The sheer volume of 

violations of Section 441f suggests that contributors are highly motivated to evade 

federal campaign contribution limits and disclosure requirements and willing to 

run the risk of being caught. If the District Court’s misinterpretation of Section 

441f stands, FECA’s contribution limits and disclosure requirements will be 

severely undermined, as will Congress’ effort through passage of FECA to inform 

the electorate of the sources of campaign funds and to limit corruption in our 

political system. 

CONCLUSION

For the reasons set forth above, the District Court’s judgment dismissing 

Counts 1 and 2 of the indictment should be REVERSED. 

 

9

 Available at http://eqs.sdrdc.com/eqsdocs/28044211121.pdf. 

10

 Available at http://eqs.sdrdc.com/eqsdocs/28044211115.pdf. 

11 The Enforcement Query System can be accessed at: 

http://eqs.sdrdc.com/eqs/searcheqs. 

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RESPECTFULLY SUBMITTED this 23rd day of September, 2009. 

J. GERALD HEBERT

/s/ Paul S. Ryan

PAUL S. RYAN, CA Bar No. 218212 

TARA MALLOY

THE CAMPAIGN LEGAL CENTER

215 E STREET NE 

WASHINGTON, DC 20002 

TEL: (202) 736-2200 

Counsel for Amicus Curiae 

Campaign Legal Center

DONALD J. SIMON 

SONOSKY, CHAMBERS, SACHSE, 

 ENDRESON & PERRY, LLP 

1425 K STREET, NW, SUITE 600 

WASHINGTON, DC 20005 

TEL: (202) 682-0240 

FRED WERTHEIMER

DEMOCRACY 21 

1875 I STREET, NW, SUITE 500 

WASHINGTON, DC 20005 

TEL: (202) 429-2008 

Counsel for Amicus Curiae 

Democracy 21

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CERTIFICATE OF COMPLIANCE

I certify that pursuant to Fed. R. App. P. 29(d), Fed. R. App. P. 32(a)(7)(B) 

and Ninth Circuit Rule 32-1, the attached Brief Amici Curiae is proportionally 

spaced, has a typeface of 14 points and contains 4,660 words. 

DATED this 23rd Day of September, 2009. 

Respectfully submitted, 

/s/ Paul S. Ryan

PAUL S. RYAN

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CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing Brief Amici Curiae

for the Campaign Legal Center and Democracy 21 with the Clerk of the Court for 

the United States Court of Appeals for the Ninth Circuit by using the appellate 

CM/ECF system on September 23, 2009. 

Participants in the case who are registered CM/ECF users will be served by 

the appellate CM/ECF system. 

I further certify that one of the participants in the case is not a registered 

CM/ECF user. I have mailed the foregoing Brief Amici Curiae for the Campaign 

Legal Center and Democracy 21 by First-Class Mail, postage prepaid, to the 

following non-CM/ECF participant: 

Brian O’Neill 

JONES DAY 

555 West Flower Street, 50th Floor 

Los Angeles, CA 90071 

/s/ Paul S. Ryan

PAUL S. RYAN

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