24216-0001/LEGAL17653375.1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Republican National Committee, et al.,

Plaintiffs,

v.

Federal Election Commission, et al.,

Defendants.

Civ. No. 08-1953 (BMK, RJL, RMC)

THREE-JUDGE COURT

INTERVENOR-DEFENDANT DEMOCRATIC NATIONAL COMMITTEE’S

SUPPLEMENTAL BRIEF REGARDING CITIZENS UNITED V. FEC

In accordance with the Court's January 26, 2010 order, Intervenor-Defendant the 

Democratic National Committee ("DNC") files this supplemental memorandum on the 

impact of Citizens United v. Federal Election Commission, 558 U.S. __ (2010), on this case.1 

I. The Disposition of this Case Is Controlled by McConnell, the Relevant Parts of 

Which Are Unaffected by Citizens United.

Citizens United dealt solely with independent spending by corporations. It struck 

down a federal law banning corporations from making independent expenditures in 

connection with federal elections. It also invalidated a provision that prohibited corporations 

from sponsoring "electioneering communications" – issue communications that refer to 

candidates during the period 30 days before a primary election and 60 days before a general 

election, 2 U.S.C. § 434(f)(3) – that are conducted without candidate or party involvement. 

Slip op. at 50. 

 

1

 The DNC incorporates by reference its Memorandum of Law in Opposition to Plaintiffs' Motion for 

Summary Judgment (Dkt. 42).

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In reaching its ruling, the Supreme Court overruled Austin v. Michigan Chamber of 

Commerce, 494 U.S. 652 (1990). Slip op. at 50. Austin had upheld a state ban on corporate 

independent expenditures on the ground that there was a compelling governmental interest in 

preventing "the corrosive and distorting effects of immense aggregations of wealth that are 

accumulated with the help of the corporate form and that have little or no correlation to the 

public's support for the corporation's political ideas." 494 U.S. at 660. Citizens United also 

overruled the Court's prior decision in McConnell v. FEC, 540 U.S. 93 (2003), but only to the 

extent that McConnell, relying on Austin's antidistortion rationale, upheld the ban on 

corporate electioneering communications. Slip op. at 50.

Plaintiffs' challenge in this case involves an entirely different issue from the one 

addressed in Citizens United – the constitutionality of BCRA's provisions that limit soft 

money contributions to political parties. See Citizens United, slip op. at 45 ("This case . . . is 

about independent expenditures, not soft money."). This was squarely addressed in 

McConnell, where the Court upheld BCRA's soft money provisions against a facial 

challenge.

2

 Nothing in Citizens United disturbs McConnell's holding to this effect. And, 

even if the reasoning of Citizens United has any bearing on this case – a proposition that the 

DNC rejects – this Court is still bound to follow McConnell unless McConnell is overruled 

by the Supreme Court. See State Oil Co. v. Khan, 522 U.S. 3, 20 (1997) ("[I]t is this Court's 

prerogative alone to overrule one of its precedents."); Rodriguez de Quijas v. Shearson/Am.

Express, Inc., 490 U.S. 477, 484 (1989) ("If a precedent of this Court has direct application 

 

2

 Plaintiffs argue that Citizens United transformed their suit, which was originally styled as an "asapplied" challenge, into a facial challenge. See Pls.' Supp. Memo. at 9-11. This requested relief further 

demonstrates that Plaintiffs' challenge is not a bona fide as-applied challenge but, rather, an attempt to re-litigate 

issues foreclosed by McConnell. See DNC's Opp'n to Pls.' Mot. Summ. J. (Dkt. 42) at 9-17.

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in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of 

Appeals should follow the case which directly controls, leaving to this Court the prerogative 

of overruling its own decisions.").

Conclusion

For the reasons stated herein, the Court should deny Plaintiffs' motion for summary

judgment.

Dated: Feb. 9, 2010. Respectfully submitted,

PERKINS COIE LLP

By: /s/ Marc Erik Elias

Marc Erik Elias (D.C. Bar No. 442007)

MElias@perkinscoie.com

Andrew H. Werbrock (D.C. Bar No. 987693)

607 Fourteenth Street, N.W.

Washington, D.C. 20005-2003

Telephone: 202.628.6600

Facsimile: 202.434.1690

Attorneys for Intervenor-Defendant 

Democratic National Committee

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