1 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

THE TEA PARTY LEADERSHIP ) 

FUND, et al., ) 

 ) Civ. No. 12-1707 (RWR) 

 Plaintiffs, ) 

 ) 

 v. ) 

 ) RESPONSE TO ORDER TO 

FEDERAL ELECTION COMMISSION, ) SHOW CAUSE 

 ) 

 Defendant. ) 

 ) 

DEFENDANT FEDERAL ELECTION COMMISSION’S RESPONSE TO 

COURT’S ORDER TO SHOW CAUSE 

Defendant Federal Election Commission respectfully submits the following response to 

the Court’s Order to Show Cause of October 22, 2012 (Docket No. 4). For the reasons stated in 

that Order — i.e., “conserv[ing] judicial resources and avoid[ing] duplicative proceedings” — 

consolidating plaintiffs’ motion for a preliminary injunction with a hearing on the merits would 

be appropriate to resolve this case in its entirety. Fed. R. Civ. P. 65(a)(2). 

 Plaintiffs oppose such consolidation because they wish to receive injunctive relief prior to 

the November 6, 2012, general election. But plaintiffs waited more than five months to seek 

judicial relief, which they could have sought as early as May 2012.1

 They filed this suit only 

nineteen days before the November election — two fewer than the twenty-one days the Local 

Rules provide for the Court to conduct, if necessary, an “expedit[ed]” hearing on a motion for 

                                                           

1

 The Tea Party Leadership Fund registered with the Commission as a political committee 

on May 9, 2012. (Compl. ¶ 2.) Under 2 U.S.C. § 441a(a)(4), an organization cannot become a 

“multicandidate political committee” until it has met several criteria, one of which is having 

been registered with the Commission as a political committee for at least six months. 

Multicandidate committees may contribute $5,000 to a federal candidate rather than $2,500. 

2 U.S.C. § 441a(a)(2)(A). The Supreme Court upheld this waiting period in Buckley v. Valeo, 

424 U.S. 1, 35-36 (1976). 

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preliminary injunction. LCvR 65.1(d). Indeed, instead of immediately filing suit in May to 

remedy their alleged emergency, plaintiffs waited until September and then submitted an 

unnecessary and futile advisory-opinion request that asked the Commission to declare the 

relevant statute unconstitutional, which of course the agency has no power to do. Meredith 

Corp. v. FCC, 809 F.2d 863, 872 (D.C. Cir. 1987) (noting the “well known principle that 

regulatory agencies are not free to declare an act of Congress unconstitutional”). Given 

plaintiffs’ unjustified delay in filing suit, it is highly unlikely that plaintiffs would receive 

meaningful preliminary relief within their desired timeframe. 

 In any event, plaintiffs’ delay warrants denying the type of “emergency” injunction they 

seek. See Tenacre Found. v. INS, 78 F.3d 693, 695 n.2 (D.C. Cir. 1996) (finding that severalmonth delay before filing suit “undermines any assertions that [plaintiff] will suffer irreparable 

harm if the Court does not grant preliminary injunctive relief”); see also Respect Maine PAC v. 

McKee, 622 F.3d 13, 16 (1st Cir. 2010) (affirming district court’s denial of preliminary 

injunction where “appellants, well aware of the requirements of the election laws, chose not to 

bring this suit until August 5, 2010, shortly before the November 2 elections”); Hispanic 

Leadership Fund v. Walsh, No. 1:12-cv-1337, slip op. at 27 (N.D.N.Y. Oct. 23, 2012) 

(“[A]lthough denying an injunction now may deprive Plaintiffs a remedy for the upcoming 

November 6, 2012 election, Plaintiffs’ decision to wait until just two months before the election 

to challenge provisions of the Election Law that have been in place for decades undermines the 

alleged seriousness of the harm that they purportedly stand to suffer.”). Because emergency 

action is unwarranted and this case can properly be resolved on cross-motions for summary 

judgment, consolidation would further the interests of judicial economy by eliminating the need 

for duplicative briefing, hearings, and rulings on plaintiffs’ claim. See Pharm. Research & Mfrs. 

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of Am. v. District of Columbia, 406 F. Supp. 2d 56, 59 (D.D.C. 2005) (noting that consolidation 

serves “the interests of judicial efficiency”); Fisons Corp. v. Shalala, 860 F. Supp. 859, 860 

(D.D.C. 1994) (consolidation “advance[s] the ends of justice and further[s] judicial economy”); 

NOW v. Operation Rescue, 747 F. Supp. 760, 768 (D.D.C. 1990), aff’d in part, vacated in part, 

37 F.3d 646 (D.C. Cir. 1994). 

 Regarding the schedule for consolidated briefing (Order to Show Cause at 2), the 

Commission respectfully requests adequate time to fully assemble and present its defense of the 

provision at issue, 2 U.S.C. § 441a(a)(4). The Supreme Court has cautioned that a consolidated 

hearing should not be held until “a time which will still afford the parties a full opportunity to 

present their respective cases.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981) (internal 

quotations marks and citation omitted). Consolidation should not, therefore, prevent a party 

from developing and presenting all its evidence on the merits. See CFTC v. Bd. of Trade of City 

of Chicago, 657 F.2d 124, 127 (7th Cir. 1981). Specifically, the Commission requires a brief 

window in which to determine the extent and substance of the factual record it will provide to 

assist the Court in assessing the purpose and effect of the six-month waiting period. The 

Commission also requires sufficient time to develop that record, which the Commission 

anticipates will amply confirm that the statutory requirement — upheld by the Supreme Court in 

Buckley v. Valeo, 424 U.S. 1, 35-36 (1976) — remains constitutional. 

 Accordingly, as directed by the Court’s Order, the Commission proposes the following 

briefing schedule for sequential summary judgment motions: 

 Plaintiffs shall file their motion for summary judgment on or before January 11, 2013. 

 Defendant shall file its combined motion for summary judgment and opposition to 

plaintiffs’ motion for summary judgment on or before February 15, 2013. 

Case 1:12-cv-01707-RWR Document 7 Filed 10/25/12 Page 3 of 4
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 Plaintiffs shall file their combined opposition to defendant’s motion for summary 

judgment and reply in support of their motion for summary judgment on or before 

March 8, 2013. 

 Defendant shall file its reply in support of its motion for summary judgment on or 

before March 29, 2013. 

CONCLUSION 

 For the foregoing reasons, the Court should consolidate its consideration of plaintiffs’ 

motion for a preliminary injunction with a hearing on the merits of this case and enter the above 

schedule for summary judgment briefing. 

Respectfully submitted, 

Anthony Herman (D.C. Bar No. 424643) 

General Counsel 

Lisa J. Stevenson (D.C. Bar No. 457628) 

Deputy General Counsel – Law 

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

Associate General Counsel 

/s/ Adav Noti 

Adav Noti (D.C. Bar No. 490714) 

Acting Assistant General Counsel 

 

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

echlopak@fec.gov 

Kevin P. Hancock 

khancock@fec.gov 

Attorneys 

 COUNSEL FOR DEFENDANT 

 FEDERAL ELECTION COMMISSION 

 999 E Street NW 

 Washington, DC 20463 

October 25, 2012 (202) 694-1650 

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