UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

REPUBLICAN PARTY OF ) 

LOUISIANA, et al., ) 

 ) 

 Plaintiffs, ) Civ. No. 15-1241 (CRC-SS-TSC) 

 ) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) REPLY 

 ) 

 Defendant. ) 

 ) 

FEDERAL ELECTION COMMISSION’S REPLY MEMORANDUM 

IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT 

Daniel A. Petalas (D.C. Bar No. 467908) 

Acting General Counsel 

dpetalas@fec.gov 

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

Deputy General Counsel — Law 

lstevenson@fec.gov 

Kevin Deeley 

Acting Associate General Counsel 

kdeeley@fec.gov 

Harry J. Summers

Assistant General Counsel 

hsummers@fec.gov 

June 1, 2016 

Seth Nesin 

Attorney 

snesin@fec.gov 

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

Attorney 

gmueller@fec.gov 

Charles Kitcher (D.C. Bar No. 986226) 

Attorney 

ckitcher@fec.gov 

 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, DC 20463 

(202) 694-1650 

Case 1:15-cv-01241-CRC-SS-TSC Document 59 Filed 06/01/16 Page 1 of 31
i

TABLE OF CONTENTS 

 Page 

ARGUMENT .............................................................................................................................2 

I. THE COURT MUST APPLY “CLOSELY DRAWN” INTERMEDIATE 

SCRUTINY IN EVALUATING SECTION 30125’S CONTRIBUTION 

LIMITS ..............................................................................................................2 

II. SECTIONS 30125(B) AND (C) ARE CONSTITUTIONAL ...........................4 

A. Plaintiffs’ Claims Fail Under McConnell and RNC ...............................4 

1. McConnell and RNC Control Here ............................................4 

2. Plaintiffs’ Arguments About Cognizable Corruption and 

Independence Are Meritless ......................................................6 

B. Section 30125(b) Easily Satisfies Closely Drawn Scrutiny .................12 

1. The Record Establishes That the Invalidation of Section 

 30125(b) Directly Invites the Risk and Appearance 

 of Corruption ............................................................................12 

2. Plaintiffs’ Objections to the Evidence Are Meritless ..............15 

3. Plaintiffs’ Policy-Based Arguments Are Irrelevant and 

 Unfounded................................................................................20 

4. Plaintiffs’ Challenge Itself Demonstrates That Section 

 30125(b) Is Very Closely Drawn .............................................21 

III. SECTION 30104(e)(2) IS ALSO CONSTITUTIONAL .................................24 

CONCLUSION ........................................................................................................................25 

Case 1:15-cv-01241-CRC-SS-TSC Document 59 Filed 06/01/16 Page 2 of 31
ii 

TABLE OF AUTHORITIES 

Cases 

Atkins v. Virginia, 536 U.S. 304 (2002) .........................................................................................19

*Buckley v. Valeo, 424 U.S. 1 (1976) ................................................................................3, 7, 8, 24 

Buckley v. Valeo, 519 F.2d 817 (D.C. Cir. 1975) .........................................................................16

*Citizens United v. FEC, 558 U.S. 310 (2010) .................................................... 1, 5, 13-14, 24, 25

Colo. Republican Federal Campaign Comm. v. FEC, 518 U.S. 604 (1996) .................................12 

EMILY’s List v. FEC, 581 F.3d 1 (D.C. Cir. 2009) .......................................................................10

FEC v. Colo. Republican Federal Campaign Comm., 533 U.S. 431 (2001) .............................7, 17 

FEC v. Wisc. Right to Life, Inc., 551 U.S. 449 (2007) ...................................................................17 

Holmes v. FEC, 99 F. Supp. 3d 123 (D.D.C. 2015) ......................................................................16

Libertarian Nat. Comm., Inc. v. FEC, 930 F. Supp. 2d 154 (D.D.C. 2013) ..................................16

*McConnell v. FEC, 540 U.S. 93 (2003) .............................. 1, 4-5, 5, 10, 11-12, 12, 13, 14, 17, 24

*McCutcheon v. FEC, 134 S. Ct. 1434 (2014) ............................................ 1, 3, 4, 5, 7, 8-9, 21, 24

McCutcheon v. FEC, 893 F. Supp. 2d 133 (D.D.C. 2012) ..............................................................6 

McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995) ...........................................................25

*Republican Nat’l Comm. v. FEC, 561 U.S. 1040 (2010).......................................................... 1, 5 

*Republican Nat’l Comm. v. FEC, 698 F. Supp. 2d 150 (D.D.C. 2010) .......................1, 3, 5, 6, 10

*Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477 (1989) ...................................6

*Rufer v. FEC, 64 F. Supp. 3d 195 (D.D.C. 2014) ............................................................... 5, 6, 16

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010) ...............................................................11

Van Hollen v. FEC, 811 F.3d 486 (D.C. Cir. 2016) ......................................................................25 

Wagner v. FEC, 793 F.3d 1 (D.C. Cir. 2015) ....................................................................11, 15, 17 

Case 1:15-cv-01241-CRC-SS-TSC Document 59 Filed 06/01/16 Page 3 of 31
iii 

Westfall v. Norfolk S. Ry. Co., No. 3:13-926, 2014 WL 4979273 (N.D. Ind. Oct. 6, 2014) .........18

Statutes and Regulations 

Federal Election Campaign Act, 52 U.S.C. §§ 30101-30146: 

52 U.S.C. § 30104(e)(2) .....................................................................................................24

52 U.S.C. § 30104(f) ..........................................................................................................25 

52 U.S.C. § 30116(a)(1)(B)-(D), (2)(B)-(C). .......................................................................8 

52 U.S.C. § 30116(a)(1)(D). ................................................................................................8 

52 U.S.C. § 30118 ..............................................................................................................23 

52 U.S.C. § 30125(b) ...........................................................................................................1 

52 U.S.C. § 30125(b)(2) ....................................................................................................23 

52 U.S.C. § 30125(c) .........................................................................................................23 

11 C.F.R. § 100.94(a)-(c) ...............................................................................................................22 

11 C.F.R. § 100.155(a)-(c) .............................................................................................................22 

Miscellaneous 

Fed. R. Evid. 611 advisory committee note (c) (1972) .................................................................18 

Fed. R. Evid. 803(16) .....................................................................................................................16 

Fed. R. Evid. 804(b)(3) ..................................................................................................................16 

LCvR 7(h)(1) .................................................................................................................................15 

Trevor Potter, Follow The Money, 

http://www.campaignlegalcenter.org/sites/default/files/Trevor%20Potter%20-

%20Goldstone%20Forum%20Lecture_0.pdf (Apr. 21, 2016) ..........................................11 

Case 1:15-cv-01241-CRC-SS-TSC Document 59 Filed 06/01/16 Page 4 of 31
In its opening brief, the Federal Election Commission (“FEC” or “Commission”) 

demonstrated that the Court must reject this renewed soft money challenge. Congress’s 

regulation of political parties’ “Federal election activity” (“FEA”) as defined in the Bipartisan 

Campaign Reform Act of 2002 (“BCRA”) was a landmark reform ending an era of unlimited 

soft money donations to political parties. Those donations led to well-documented abuses and 

played a key role in the “meltdown of the campaign finance system” that spurred BCRA’s 

passage. McConnell v. FEC, 540 U.S. 93, 129 (2003) (internal quotation marks omitted). In 

McConnell, the Supreme Court upheld Congress’s soft money reforms, including the principal 

provision that plaintiffs are again targeting in this lawsuit, 52 U.S.C. § 30125(b). Section 

30125(b) was upheld again in Republican Nat’l Comm. v. FEC, 698 F. Supp. 2d 150 (D.D.C. 

2010) (“RNC”), aff’d, 561 U.S. 1040 (2010), and the Supreme Court’s later decisions in Citizens 

United v. FEC, 558 U.S. 310 (2010), and McCutcheon v. FEC, 134 S. Ct. 1434 (2014), made 

clear that McConnell’s soft money holdings remain valid. Thus, as the FEC and the amici have 

shown, McConnell and RNC are controlling and require the Court to reject plaintiffs’ claims. 

Even if they did not, the evidence in the record of the ongoing risks of actual and 

apparent corruption inherent in plaintiffs’ proposed activities, notwithstanding their claimed 

“independence,” is overwhelming. The record demonstrates that political parties are not like the 

nonconnected entities, such as independent-expenditure-only-committees (“super PACs”), 

addressed in the cases on which plaintiffs rely. Rather than being independent of candidates, 

parties are inextricably intertwined with them, as evidence about the role plaintiff Republican 

Party of Louisiana (“LAGOP”) played in the 2014 Senate campaign of Bill Cassidy shows. 

Parties’ special role in American politics and their inherently close relationships with candidates 

are the very features that make them susceptible to exploitation and that, in turn, led to the 

Case 1:15-cv-01241-CRC-SS-TSC Document 59 Filed 06/01/16 Page 5 of 31
2 

reforms plaintiffs challenge. Accordingly, section 30125(b) regulates not just how parties’ 

money is spent but how it is raised. Section 30125(b) is constitutional because it is very closely 

drawn to the government’s important interests in curbing the real risks of quid pro quo 

corruption and its appearance. (See Def. FEC’s Mem. in Supp. of Its Mot. for Summ. J. and in 

Opp’n to Pls.’ Mot. for Summ. J. (Docket No. 41) (“Mem.”); FEC’s Statement of Material Facts 

Not in Genuine Dispute in Supp. of its Mot. for Summ. J. (Docket No. 42) (sealed) (“SOMF”).) 

In response, plaintiffs offer no basis for the Court to rule in their favor. Their claim that 

strict scrutiny applies to the contribution limits at issue is foreclosed by decades of precedent. 

Their notion that the Court is free to ignore McConnell and RNC in favor of other “currents” of 

case law squarely contravenes the principle that this Court must follow precedents that have 

direct application. And their primary answer to the extensive evidence of quid pro quo 

corruption here is to wave it away using the supposed “matter-of-law fact” that what they want to 

do poses no risk of corruption. However, that purported “matter-of-law fact” is untrue: it is a 

distortion of the law in the service of a losing argument with the facts — facts showing that past 

will surely be prologue if the soft money loophole is reopened. Plaintiffs’ voluminous objections 

to the FEC’s adjudicative and legislative facts are similarly meritless. Accordingly, if the Court 

concludes it has jurisdiction, it should grant summary judgment to the Commission. 

ARGUMENT 

I. THE COURT MUST APPLY “CLOSELY DRAWN” INTERMEDIATE 

SCRUTINY IN EVALUATING SECTION 30125’S CONTRIBUTION LIMITS 

As explained in the FEC’s opening brief, the applicable standard of scrutiny for 

plaintiffs’ challenges to section 30125’s contribution limits is “closely drawn” intermediate 

scrutiny. (Mem. at 20-24.) In McConnell, the Supreme Court explicitly considered the question 

and held that challenges to section 30125 should be analyzed under that standard. Id. at 21-22; 

Case 1:15-cv-01241-CRC-SS-TSC Document 59 Filed 06/01/16 Page 6 of 31
3 

see also RNC, 698 F. Supp. 2d at 156 (same). The Court’s conclusion reflects forty years of 

consistent Supreme Court jurisprudence — from Buckley to McCutcheon — holding that closely 

drawn scrutiny is the proper standard for contribution limit challenges like this one. (Mem. at 

20-24.) Under this form of intermediate scrutiny, the government must demonstrate “a 

sufficiently important interest” and employ means “closely drawn to avoid unnecessary 

abridgement of associational freedoms.” Buckley v. Valeo, 424 U.S. 1, 25 (1976) (per curiam). 

Disputing none of this controlling authority, plaintiffs LAGOP, Jefferson Parish 

Republican Parish Executive Committee (“JPGOP”), and Orleans Parish Republican Executive 

Committee (“OPGOP”) protest that there are nevertheless “sound arguments for applying strict 

scrutiny,” arguing that the “pooling” of individual donors’ funds in a political party’s 

“[independent-contributions-only-account]” permits the “ICA” to “speak[] for its donors.” (Pls.’ 

Reply Supporting Their Summ. J. Mot. and Opp’n to FEC’s Summ. J. Mot. at 9 (Docket No. 58) 

(“Reply”).) Plaintiffs’ example readily demonstrates that, in their own words, the resulting 

“speech . . . will be done by the ICA,” not by the individual donors, yet plaintiffs claim that such 

“expressive association differs from Buckley’s description of a contribution enabling someone 

else to speak.” (Id.) This argument refutes itself. Consequently, this Court must join the others 

that have rejected challengers’ attempts to contort base contribution limits until they resemble 

expenditure restrictions that can be reviewed under strict scrutiny. Mem. at 22; RNC, 698 F. 

Supp. 2d at 156 (explaining that the plaintiffs’ similar argument in that case “fl[ew] in the face of 

McConnell, which squarely held that the level of scrutiny for regulations of contributions to 

candidates and parties does not turn on how the candidate or party chooses to spend the money 

or to structure its finances”); accord McCutcheon, 134 S. Ct. at 1445 (declining to revisit 

Buckley’s application of “‘closely drawn’” scrutiny to contribution limits). 

Case 1:15-cv-01241-CRC-SS-TSC Document 59 Filed 06/01/16 Page 7 of 31
4 

Plaintiffs’ related notion that McCutcheon transformed “closely drawn” scrutiny into 

“narrowly tailored” and functionally strict scrutiny (Reply at 9-10) is similarly meritless. In the 

passage plaintiffs quote (id. at 10), the McCutcheon plurality concluded that “the aggregate 

limits violate the First Amendment because they are not ‘closely drawn to avoid unnecessary 

abridgment of associational freedoms.’” 134 S. Ct. at 1456 (quoting Buckley, 424 U.S. at 25) 

(emphasis added). Contrary to plaintiffs’ argument, that lesser standard of scrutiny does not call 

for a “‘Versace’” level of “‘narrow tailoring.’” Compare Reply at 11 (quoting Hill v. Colorado, 

530 U.S. 703, 749 (2000) (Scalia, J., dissenting) (applying strict scrutiny)), with McCutcheon, 

134 S. Ct. at 1444-45 (applying closely drawn scrutiny and explaining that “[e]ven a significant 

interference with protected rights of political association may be sustained if the [government] 

demonstrates a sufficiently important interest and employs means closely drawn to avoid 

unnecessary abridgment of associational freedoms” (internal quotation marks omitted)). 

II. SECTIONS 30125(B) AND (C) ARE CONSTITUTIONAL 

Direct and controlling authority requires the Court to reject plaintiffs’ claims in full. 

Moreover, the evidence thoroughly establishes that section 30125(b) is closely drawn to serve 

the government’s important interests in preventing quid pro quo corruption and its appearance. 

A. Plaintiffs’ Claims Fail Under McConnell and RNC 

1. McConnell and RNC Control Here 

The FEC’s opening brief showed that plaintiffs’ challenge to section 30125(b) must fail 

under McConnell and RNC. (Mem. at 25-28; see also Brief of Amici Curiae Public Citizen, Inc., 

Democracy 21, and Campaign Legal Center in Opp’n to Pls.’ Mot. for Summ. J. and in Supp. of 

Def.’s Cross-Mot. for Summ. J. at 5-10 (Docket No. 49-2).) In McConnell, the Supreme Court 

upheld section 30125’s contribution limits “regardless of how th[e] funds are ultimately used,” 

Case 1:15-cv-01241-CRC-SS-TSC Document 59 Filed 06/01/16 Page 8 of 31
5 

540 U.S. at 155, because “[p]reventing corrupting activity from shifting wholesale to state 

committees and thereby eviscerating [the Federal Election Campaign Act (“FECA” or “Act”)] 

clearly qualifies as an important governmental interest” satisfying closely drawn scrutiny. Id. at 

165-66; accord Mem. Op. at 7 (Docket No. 24) (plaintiffs here seek to “effectively eviscerate” 

FECA’s base contribution limits). Section 30125(b) is thus “a closely drawn means of 

countering both corruption and the appearance of corruption.” McConnell, 540 U.S. at 167, 173. 

In RNC, the three-judge district court confirmed that this portion of McConnell “was 

untouched by . . . Citizens United.” Rufer v. FEC, 64 F. Supp. 3d 195, 203 (D.D.C. 2014) (citing 

RNC, 698 F. Supp. 2d at 158-60). Citizens United specifically distinguished McConnell because 

that case (like this one) was about “soft money,” not independent expenditures. Citizens United, 

558 U.S. at 361. And in McCutcheon, the plurality again confirmed that “[o]ur holding about the 

constitutionality of the aggregate limits clearly does not overrule McConnell’s holding about 

‘soft money.’” 134 S. Ct. at 1451 n.6. In conformance with McConnell and Citizens United, the 

RNC court reaffirmed that “‘the close relationship between federal officeholders and . . . 

parties’” means that soft money donations to parties like plaintiffs “have much the same 

tendency as contributions to federal candidates to result in quid pro quo corruption or at least the 

appearance of quid pro quo corruption.” 698 F. Supp. 2d at 158-60 (quoting McConnell, 540 

U.S. at 144). The court thus “reject[ed] plaintiffs’ as-applied challenges to § [30125](b) as a 

matter of law,” id. at 162, and the Supreme Court affirmed, 561 U.S. 1040 (2010). 

Consistent with the principle that lower courts must leave to the Supreme Court “‘the 

prerogative of overruling its own decisions’” when confronted with potentially inconsistent 

subsequent decisions (Mem. at 27-28 (quoting Rodriguez de Quijas v. Shearson/Am. Express,

Inc., 490 U.S. 477, 484 (1989)), the single-judge Court in this case has already recognized that 

Case 1:15-cv-01241-CRC-SS-TSC Document 59 Filed 06/01/16 Page 9 of 31
6 

“McConnell and [RNC] appear to control any district court’s resolution of this case.” Mem. Op. 

at 15-16; accord Rufer, 64 F. Supp. 3d at 206 (rejecting request for preliminary injunction and 

explaining that the Court “does not ‘possess authority to clarify or refine [these cases] in the 

fashion advocated by the [Plaintiffs], or to otherwise get ahead of the Supreme Court’” (quoting 

RNC, 698 F. Supp. 2d at 160)); McCutcheon v. FEC, 893 F. Supp. 2d 133, 138 (D.D.C. 2012) 

(“[W]e decline Plaintiffs’ invitation to anticipate the Supreme Court’s agenda.” (citing Rodriguez 

de Quijas, 490 U.S. at 484)). Plaintiffs nevertheless request that the Court contravene the 

bedrock principle that it must apply those precedents having “direct application in a case,” 

Rodriguez de Quijas, 490 U.S. at 484, arguing that “[d]eciding which [of three case lines and 

analyses] control(s) is the real issue” confronting the Court. (Reply at 11.) Plaintiffs are wrong. 

McConnell and RNC rejected materially similar challenges to the same provision at issue. 

(Mem. Op. at 15 (observing that the RNC plaintiffs “sought to conduct activity very similar to 

that . . . here”).) Plaintiffs’ claim that “McConnell and RNC[] do not control” here (Reply at 18) 

is akin to arguing that Earth’s orbit is controlled not by our sun but by distant Sirius. 

2. Plaintiffs’ Arguments About Cognizable Corruption and 

Independence Are Meritless 

Plaintiffs’ attempts to situate this case in the wake of “a confluence[]” of other, 

supposedly more favorable precedential “currents” (Reply at 11-22) remain unsound. They 

continue to argue that McConnell’s holding was undermined by subsequent judicial refinements 

of the government’s anticorruption interest, but, as the Commission has shown, this argument 

was considered and rejected in an opinion that the Supreme Court affirmed. Mem. at 32-33; 

RNC, 698 F. Supp. 2d at 158-60. It is the “inextricably intertwined” nature of the political 

parties and their candidates (Mem. at 29 (internal quotation marks omitted)) that makes them 

Case 1:15-cv-01241-CRC-SS-TSC Document 59 Filed 06/01/16 Page 10 of 31
7 

“exploita[ble],” FEC v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431, 455 (2001) 

(“Colorado II”), by candidates and contributors seeking to engage in corrupt exchanges. 

In addition, the plurality in McCutcheon expressly distinguished the FECA aggregate 

limit at issue there from the “base limits” at issue here. 134 S. Ct. at 1451 & n.6. Far from 

casting doubt on whether the base limits continue to serve the government’s concededly 

important interests, the plurality observed that “[t]hose base limits remain the primary means of 

regulating campaign contributions.” Id. at 1451. The answer to how McCutcheon’s discussion 

of corruption “squares with . . . McConnell” (Mem. Op. at 17) lies in that critical distinction. 

FECA’s aggregate limit “prevent[ed] evasion of the [base limits] by a person who might 

otherwise contribute massive amounts of money to a particular candidate through the use of 

unearmarked contributions to political committees likely to contribute to that candidate.” 

Buckley, 424 U.S. at 38. Base limits, by contrast, directly prevent actual and apparent 

corruption. Id. at 26-27 (“To the extent that large contributions are given to secure a political 

quid pro quo from current and potential office holders, the integrity of our system of 

representative democracy is undermined.”). The McCutcheon plurality’s holding that the 

aggregate limit was an unnecessary backstop for the base limits resulted from its determination 

that the aggregate limit did not serve to prevent circumvention of the base limits “in any 

meaningful way.” 134 S. Ct. at 1452. But that judgment about the effectiveness of the aggregate 

limit expressly had no bearing on whether the base limits continue to limit corruption. They do. 

That is why, as the plurality noted, its “holding about the constitutionality of the aggregate limits 

clearly does not overrule McConnell’s holding about ‘soft money.’” Id. at 1451 n.6. 

Plaintiffs’ other assertions about what qualifies as “‘cognizable corruption’” (Reply at 5) 

reflect a profound misunderstanding of Supreme Court decisions and contribution limits. 

Case 1:15-cv-01241-CRC-SS-TSC Document 59 Filed 06/01/16 Page 11 of 31
8 

Neither McCutcheon nor any other case makes “clear” that the government’s anticorruption 

interest requires showing that “contributions actually reach[] a candidate/officeholder” (Reply at 

23), or that the interest is restricted to situations “involv[ing] a contribution to a candidate” (id.

at 28), as plaintiffs claim. The Court in Buckley recognized the danger that quid pro quos with 

“current and potential officeholders” could be secured by the “giv[ing]” of “large campaign 

contributions,” as well as the “equal[ly] concern[ing] appearance of corruption stemming from 

public awareness of the opportunities for abuse inherent” in such a system. 424 U.S. at 26-27. 

The government’s anticorruption interest is not limited to situations where candidates and 

officeholders are the recipients. 52 U.S.C. § 30116(a)(1)(B)-(D), (2)(B)-(C); Mem. at 39 & n.15. 

Plaintiffs’ absolutist assertions — for example, that “everyone should know” that this or 

that activity “poses no risk of corruption or its appearance as a matter of law” (Reply at 8 

(emphasis added)) — similarly ignore that Congress uses its judgment to establish contribution 

limits that reduce, but do not necessarily eradicate, actual and apparent corruption. That is why 

“[e]ven a sub-base-limit contribution could theoretically be given as the result of an illicit quidpro-quo corruption agreement.” (Reply at 27-28.) The FEC has provided just such an example. 

(SOMF ¶ 133 (discussing apparent quid pro quo involving base-limit-compliant contributions).) 

The $10,000 limit of 52 U.S.C. § 30116(a)(1)(D) is not a judgment that a $10,000 contribution is 

necessarily not corrupting, or that a $1 million one necessarily is. It is a constitutional and 

reasonable judgment that the risk of corruption and its appearance is intolerably higher in the 

latter situation. (Contra Pls.’ Statement of Genuine Issues at 49 (Docket No. 58) (“Statement”) 

(contending that no “cognizable” quid pro quo arrangement could have occurred in connection 

with “contributions . . . at or below the base contribution level”).) That is why the Supreme 

Court has consistently explained that “[t]he primary purpose of FECA [i]s to limit quid pro quo

Case 1:15-cv-01241-CRC-SS-TSC Document 59 Filed 06/01/16 Page 12 of 31
9 

corruption and its appearance.” McCutcheon, 134 S. Ct. at 1444 (citing Buckley, 424 U.S. at 26-

27) (emphasis added). 

Plaintiffs’ mantra that “independence eliminates [the] quid-pro-quo risk” presented by the 

supposedly anodyne activities they wish to pursue (e.g., Reply at 3) is equally faulty. Initially, 

this portrayal of plaintiffs’ case is misleading because their facial claim against section 30125 

(on which they rarely focus) does not rely on any independence rationale. Thus, under that 

claim, LAGOP’s extensive coordination on exempt party activities with federal candidates such 

as Senator Cassidy (see Mem. at 12, 37), permitted by law, could continue. The $10,000 checks 

that the Cassidy campaign raised for LAGOP without the party’s awareness, which were spent 

on FEA supporting Cassidy at the campaign’s direction, could become $100,000 checks. (Id.; 

SOMF ¶¶ 74-78.) For allowing its account to be exploited as a “pass through” in this way, 

LAGOP could continue to take a 10% “overhead” cut. (Mem. at 37 (internal quotation marks 

omitted); SOMF ¶ 77.) None of this would have to be “independent” if plaintiffs prevail. 

Moreover, plaintiffs’ reliance on independence is unavailing even as to their as-applied 

claims. In arguing in favor of the “[i]ndependent-[c]ommunication [c]ase [l]ine” (Reply at 19-

22), plaintiffs’ cite the “‘[t]he second jurisprudential current’” (id. at 20 (quoting Mem. Op. at 

9)) the single-judge Court identified in determining that their claim was not so “frivolous” as to 

preclude jurisdiction in this Court (Mem. Op. at 18-19). But plaintiffs’ conclusion that political 

parties’ “independent communications and donations used for them” do not “pose a risk of 

cognizable corruption . . . as a matter of law” (Reply at 22) elides the key point that, as the 

single-judge Court put it, this “second jurisprudential current establishes” only “that the risk of 

corruption arising from contributions to candidates and parties dissipates when the recipient of 

Case 1:15-cv-01241-CRC-SS-TSC Document 59 Filed 06/01/16 Page 13 of 31
10 

the donation is distinct from a candidate or party.” (Mem. Op. at 9 (emphasis added).) 

Plaintiffs are not distinct from a party; they are the party. 

Indeed, plaintiffs’ challenge fails because party committees differ materially from other 

political committees and super PACs. (Mem. at 28-32.) Congress’s FEA restrictions are 

particularly targeted to parties (id. at 28-29), parties have special and distinct roles and regulatory 

rules (id. at 29-32), and parties can already partially fund some “independent” FEA with 

nonfederal funds under the Levin amendment (id. at 32).1

 Most critically, the limits on 

contributions to nonconnected committees have been found unconstitutional precisely because 

such groups are not candidates or party organizations like plaintiffs. Id. at 31-32 & n.10 

(collecting cases); see also RNC, 698 F. Supp. 2d at 160 (explaining the continuing validity of 

McConnell’s corruption analysis and citing the distinction the D.C. Circuit recognized in 

EMILY’s List v. FEC, 581 F.3d 1, 14 (D.C. Cir. 2009), that “‘non-profit groups do not have the 

same inherent relationship with federal candidates and officeholders that political parties do’”). 

Rather than being the ganders to the super PAC geese (Mem. Op. at 9), parties are entirely 

different animals. 

Plaintiffs’ conclusory claim that the differences between parties and nonconnected 

committees are “superficial” (Reply at 24) fails to rebut this key point. And plaintiffs’ attempt to 

show that having a “close relation to candidates” is not troubling (id. at 2-3) fails. Plaintiffs rely 

on examples of purported coordination between super PACs and candidates cited by counsel for 

 

1

 Plaintiffs insist that it is not the political parties themselves that determine who will serve 

on legislative committees, elect congressional leadership, or organize legislative caucuses, but 

rather the parties’ “members.” (Reply at 24.) This proposed distinction is contrary to what the 

Supreme Court said in McConnell. 540 U.S. at 188 (ascribing such responsibilities to “political 

parties” themselves). Further, that organizations may lack the agency to act without individuals 

does not advance plaintiffs’ arguments because the “members” who are taking such actions here 

(which nonconnected committees cannot take) are the candidates and officeholders themselves, 

confirming the unity of interests between candidates and their parties. 

Case 1:15-cv-01241-CRC-SS-TSC Document 59 Filed 06/01/16 Page 14 of 31
11 

amici in a published speech (id. at 2 (internal quotation marks omitted)), but that speech took the 

position that unregulated coordination by super PACs poses a corruption risk when it is not, “in 

fact, . . . independent” precisely because of that absence of independence. Trevor Potter, Follow 

The Money at 10, http://www.campaignlegalcenter.org/sites/default/files/Trevor%20Potter%20-

%20Goldstone%20Forum%20Lecture_0.pdf (Apr. 21, 2016) (last visited June 1, 2016). 

Plaintiffs’ complaints about the state of affairs described in the speech are in support of their 

contention that the regulation is “underinclusive for not sweeping in single-candidate superPACS.” (Reply at 15-16.) But, critically, plaintiffs have failed to demonstrate that Congress 

was not “in fact pursuing the interest it invoke[d]” here. Wagner v. FEC, 793 F.3d 1, 27 (D.C. 

Cir. 2015) (en banc), petition for cert. denied sub nom. Miller v. FEC, 136 S. Ct. 895 (2016); id.

at 27-32 (rejecting underinclusiveness-based challenge to FECA provision). 

In any event, the soft money contribution limits are indeed premised on the empiricallyestablished tight nexus between political parties and their candidates. (Mem. at 29.) Parties have 

distinct and unique relationships with candidates that are unlike those of super PACs, which can 

raise contributions in excess of FECA’s base contribution limit only due to the “absence of 

prearrangement and coordination of . . . [independent] expenditure[s] with the candidate,” 

SpeechNow.org v. FEC, 599 F.3d 686, 693 (D.C. Cir. 2010) (en banc) (internal quotation marks 

omitted). Plaintiffs’ claim that “the close-relationship argument has no cognizable weight in 

constitutional analysis” (Reply at 18) is totally unsupported in the campaign finance context. 

More to the point, RNC expressly relied on that rationale in reaffirming section 30125(b). And 

contrary to plaintiffs’ inapt claim of “speaker-identity discrimination” (Reply at 3, 25), in section 

30125(b) Congress closed a loophole that had permitted state parties to serve as “corrupting 

Case 1:15-cv-01241-CRC-SS-TSC Document 59 Filed 06/01/16 Page 15 of 31
12 

forces” when receiving unlimited soft money contributions for FEA that directly affected federal 

elections, McConnell, 540 U.S. at 164.2

In sum, plaintiffs’ argument that they prevail “as a matter of law” (Reply at 22) fails 

because the funhouse-mirror version of the law they have presented is distorted and inaccurate. 

The law established by the “language” of controlling decisions (e.g., id. at 14) requires the Court 

to reject their claims. 

B. Section 30125(b) Easily Satisfies Closely Drawn Scrutiny 

 

The FEC has also shown that section 30125’s soft money restrictions are closely drawn to 

curb substantial risks of corruption and its appearance. (Mem. at 34-49.) The record 

overwhelmingly demonstrates that granting plaintiffs’ desired relief would increase the incidence 

and appearance of corruption. Not only are plaintiffs’ lengthy objections to the evidence and 

policy arguments groundless, but their own case shows that section 30125 is very closely drawn. 

1. The Record Establishes That the Invalidation of Section 30125(b) 

Directly Invites the Risk and Appearance of Corruption 

The records in McConnell and its progeny, and in this case, demonstrate that permitting 

plaintiffs to eviscerate FECA’s base limits in the fashion they propose will again turn them into 

conduits for apparently and actually corrupt exchanges. (Mem. at 35-39.) Decades of evidence 

and “hard lesson[s],” McConnell, 540 U.S. at 165, place the parties in the midst of corrupt 

exchanges of official action for financial campaign support, from the Democratic campaign book 

 

2

 Although the Supreme Court has held that parties are capable of making independent 

expenditures, so such spending should not be presumed to be coordinated, it has also recognized 

that contributions for such expenditures present a quid-pro-quo corruption risk. Colo. 

Republican Fed. Campaign Comm. v. FEC, 518 U.S. 604, 617 (1996). In light of that risk, the 

Court has observed that Congress “might decide to change the statute’s limitations on 

contributions to political parties.” Id. While it has not been possible in decades for political 

parties to raise unlimited funds for federal independent expenditures, Congress’s subsequent 

confirmation that FECA’s base limits apply to soft money contributions is exactly such a 

“change” with respect to the categories of activity now qualifying as FEA. 

Case 1:15-cv-01241-CRC-SS-TSC Document 59 Filed 06/01/16 Page 16 of 31
13 

scandal to the Watergate era to the explosion of soft money that caused the more recent abuses of 

the campaign finance system. (Mem. at 2-8, 41-43; SOMF ¶¶ 11, 16-19, 106-07, 109-15, 118-

20.) Even with reforms designed to curb such behavior in place, including section 30125(b), and 

with the difficulty of providing evidence from a counterfactual world in which regulations do not 

exist (Mem. at 40), the record includes dismaying recent instances of actual or apparent quidpro-quo corruption resulting from the very type of activity plaintiffs propose (id. at 43-45; 

SOMF ¶¶ 123-28, 130-34). As Congress, the public, and the FEC’s expert have all concluded, 

reopening the soft money loophole will very likely result in additional opportunities for such 

corruption. (Mem. at 44-45.) 

Plaintiffs’ principal response is to urge the Court to ignore reality. Their argument 

appears to be that such well-documented corruption should be waved away because the Supreme 

Court has supposedly held that it cannot exist “as a matter of law.” (E.g., Reply at 7 (contending 

that the “FEC has no evidence of cognizable corruption (including its appearance) . . .”); id. at 23 

(arguing that the Commission “cannot prove a governmental interest in preventing corruption 

(including its appearance) because of the fact that independent communications and 

contributions therefor are involved, and they are non-corrupting”); id. (“Just as a billionaire’s 

huge contribution to a single-candidate super-PAC or NCA is non-corrupting, so a much more 

modest donation to an ICA is noncorrupting — all as a matter of law.”).) 

Like their distortions of the law, plaintiffs’ quarrel with the facts is doomed. As the FEC 

has shown, plaintiffs’ claim that the “McConnell record had” no “cognizable corruption” (Reply 

at 7-8) is incorrect. (Mem. at 40-41.) That record was “to the contrary.” McConnell, 540 U.S. 

at 149-50. And the Supreme Court’s later observation that the McConnell record “does not have 

any direct examples of votes being exchanged for . . . expenditures,” Citizens United, 558 U.S. at 

Case 1:15-cv-01241-CRC-SS-TSC Document 59 Filed 06/01/16 Page 17 of 31
14 

360 (internal quotation marks omitted) (emphasis added), does not alter the McConnell Court’s 

holding that the record thoroughly demonstrated corruption resulting from massive soft money 

contributions to parties. McConnell, 540 U.S. at 150 (observing that “‘[d]onations from the 

tobacco industry to Republicans scuttled tobacco legislation, just as contributions from the trial 

lawyers to Democrats stopped tort reform’” (emphases added)). These were quid pro quos; the 

“money affect[ed] outcomes.” (SOMF ¶ 111 (internal quotation marks omitted).) 

Plaintiffs’ myopic focus on the manner in which a $50,000 contribution, say, might be 

spent attempts to obscure that the principal concern here is the risk or appearance that the 

$50,000 is the quid in a quid pro quo, regardless of the precise “‘voter contact’” or “‘get out the 

vote activities,’” for example, on which it might later be spent. (SOMF ¶ 133 (Senator Robert 

Menendez’s staffer explaining that such state party FEA is “‘vital to the Senator’s effort’”).) 

Plaintiffs’ notion that the Commission is claiming corruption whenever a party expenditure 

benefits a candidate (Reply at 24 (contending that “‘benefit’ is not cognizable corruption after 

Citizens United and McCutcheon”)) is a straw man. Congress identified the categories of state 

and local party spending “capable of putting a federal candidate in the debt of the contributor,” 

McConnell, 540 U.S. at 167, and closely drawn scrutiny does not require a communication-bycommunication corruption analysis. What is at issue is the mutual benefit inherent in quid pro 

quo exchanges, and section 30125(b), like other anticorruption laws, encompasses the intuitive 

reality that contributions to a political party surrogate can be traded for improper quos as easily 

as a freezer’s worth of cash. (Mem. at 36-39.) Plaintiffs do not dispute that a payment to a party 

committee can be part of a quid pro quo but contend that the combination of “the whole 

independent-communication case line” and their cramped view of “corruption” means that 

section 30125 improperly “takes cognizance of something that cannot, as a matter of law, 

Case 1:15-cv-01241-CRC-SS-TSC Document 59 Filed 06/01/16 Page 18 of 31
15 

constitute cognizable corruption.” (Reply at 29.) Plaintiffs are wrong. Quid pro quos involving 

a contribution to a political party are still quid pro quos — both as a matter of fact and law. 

2. Plaintiffs’ Objections to the Evidence Are Meritless 

Plaintiffs use the same approach in responding to the overwhelming record evidence. 

Their Statement of Genuine Issues improperly takes voluminous additional “[s]pace” (Reply at 

29) to present repetitious legal argument. See LCvR 7(h)(1) (calling for a “concise statement of 

genuine issues setting forth all material facts as to which it is contended there exists a genuine 

issue necessary to be litigated” (emphases added)). Plaintiffs thus repeat their omnipresent 

“materiality objection” (Statement at 1 n.1 (defining objection)) in opposition to any evidence 

they deem inconsistent with the supposed “matter-of-law fact” that their proposed activities “do 

not give rise to corruption or the appearance of corruption” — which is to say, all of it. (E.g., id.

at 99.) But plaintiffs’ “matter-of-law fact” objection is simply a stand-in for their head-in-thesand approach to avoiding the inconvenience of the real-world effects of their proposals.3

 The 

record examples of corruption are plainly relevant and plaintiffs’ materiality objections should be 

rejected. See Wagner, 793 F.3d at 10-18 (discussing the history of the challenged contribution 

limit, including historical and present examples).4

 

3

 Plaintiffs’ extensive reliance in their summary judgment papers on what is supposedly 

established as a matter of law confirms that the scores of pages of written discovery responses 

and hundreds of pages of documents they obtained from the FEC were indeed, as plaintiffs had 

originally suggested, “unnecessary” for their case. (Pls.’ Mot. to Expedite at 3 (Docket No. 9);

accord Opinion and Order at 3 (Docket No. 53) (expressing the Court’s “hesitat[ion] to credit 

Plaintiffs’ brand-new representation that a 30(b)(6) deposition is ‘pivotally important’”).) 

4

 Plaintiffs do not object or respond to additional examples in an amicus brief. (See Brief 

of Amicus Curiae The Brennan Center for Justice at N.Y.U. School of Law in Supp. of Def. at 

13-20 (Docket No. 50-1) (“Brennan Center Brief”).) These examples — the Teapot Dome, the 

ITT affair, the Keating Five, the Hudson River Casino, Loral Space & Communications, the 

pardon of Marc Rich, and state level examples — add to the FEC’s “illustrative, not exhaustive” 

presentation. Mem. at 44 & n.16; accord Wagner, 793 F.3d at 17 (“We could go on.”). 

Case 1:15-cv-01241-CRC-SS-TSC Document 59 Filed 06/01/16 Page 19 of 31
16 

Equally meritless are plaintiffs’ repetitious hearsay objections. (Statement at 76-77 n.17 

(defining this objection).) To start, their claim that “[b]ooks, periodicals, newspapers, and the 

like are not within the hearsay exceptions” (id.) is incorrect. Compare, e.g., SOMF ¶ 109 

(relying on New York Times article from 1989), with Fed. R. Evid. 803(16) (statements in ancient 

documents are excepted from the hearsay rule). And their claim that the Court may not rely on 

statements by “criminals” (including in-court guilty pleas made under oath) admitting to the 

performance of unlawful acts because such claims are supposedly “highly suspect” (Statement at 

76 n.17) is inconsistent with the evidentiary rules’ recognition of the general validity of 

statements against interest made by an unavailable witness. Fed. R. Evid. 804(b)(3). There is 

nothing suspect about the indictments of or guilty pleas by Herbert Kalmbach, Bob Ney, Jack 

Abramoff, or Charles Chvala, or any of the other cited examples. 

Far more importantly, much of the FEC’s evidence of corruption consists of “legislative 

facts” to which admissibility objections like hearsay do not apply, as courts have repeatedly 

recognized. E.g., Rufer, 64 F. Supp. 3d at 205 (explaining that, in the previous incarnation of 

this case, the FEC could “cite public documents discussing corruption — e.g., legislative history, 

legal treatises, or media reports — in its [merits] briefing” (internal quotation marks omitted)); 

Libertarian Nat. Comm., Inc. v. FEC, 930 F. Supp. 2d 154, 157 (D.D.C. 2013) (overruling 

hearsay objections and finding that legislative facts need not be developed through evidentiary 

hearings), aff’d, No. 13-5094, 2014 WL 590973 (D.C. Cir. Feb. 7, 2014); Holmes v. FEC, 99 F. 

Supp. 3d 123, 126 (D.D.C. 2015) (overruling “most of Plaintiffs’ admissibility objections” for 

the same reason), rev’d on other grounds, ___ F.3d. ___, 2016 WL 1639680 (D.C. Cir. Apr. 26, 

2016); Buckley v. Valeo, 519 F.2d 817, 818 (D.C. Cir. 1975) (en banc) (instructing district court 

to gather all “necessary” evidence for determination, including “legislative facts”). Indeed, the 

Case 1:15-cv-01241-CRC-SS-TSC Document 59 Filed 06/01/16 Page 20 of 31
17 

Supreme Court frequently relies on such evidence. E.g., McConnell, 540 U.S. at 129-32, 145-52 

(relying extensively on legislative facts detailing how national party committees solicited soft 

money donations in evaluating section 30125’s constitutionality); Colorado II, 533 U.S. at 451-

52 & nn.12-13 (2001) (relying upon a political scientist’s statement, a former Senator’s anecdote, 

and a political science book); FEC v. Wisc. Right to Life, Inc., 551 U.S. 449, 470 n.6 (2007) 

(“WRTL”) (relying on a national survey for the legislative fact that most citizens could not name 

their congressional candidates); accord Wagner, 793 F.3d at 10-18.5

 

In addition, plaintiffs’ objections to the FEC’s adjudicative facts, including what 

plaintiffs perceive as the FEC’s “implication[s]” from those facts, are insubstantial. (E.g., 

Statement at 10 (expressing legal theory that there is “nothing wrong” with circumventing an 

unconstitutional law (internal quotation marks omitted)); id. at 46 (objecting to the “physical 

impossib[ility]” of LAGOP being in “constant contact” with federal candidates); id. at 49 

(clarifying that Senator Cassidy’s campaign “received checks made out to LAGOP, which [it 

then] delivered to LAGOP,” not that the campaign itself re-contributed donor contributions to 

LAGOP); id. at 50 (contending that the “mail account” was also known as the “victory account” 

(see also FEC Exh. 7 at 80:5-10 (explaining that the “mail account” was the “victory nonallocable mailing account”))); Statement at 56 (arguing that OPGOP has the “potential at any 

 

5

 Plaintiffs also complain that the FEC did not provide copies of the books it cited in its 

statement of material facts. (Statement at 76-77 n.17.) These nine books and two congressional 

reports are recognized works in the fields of government and politics, but for the convenience of 

the Court and plaintiffs, the FEC attaches the portions of the books and reports cited in its brief, 

with contextual material. (See FEC Exhs. 56-66 (attached hereto); infra p. A-1, Supplemental 

Index of Exhibits (listing exhibits).) These exhibits support the following paragraphs from the 

FEC’s factual submission: SOMF ¶ 5 (Exhs. 56, 57, 58); SOMF ¶¶ 12-13 (Exhs. 59-62); SOMF 

¶¶ 17-18 (Exhs. 63-64); SOMF ¶ 19 (Exh. 63); SOMF ¶¶ 117-19, 121-22 (Exh. 65); SOMF 

¶¶ 113-14 (Exh. 66). The FEC notes that the books are also readily available from many public 

sources, including by interlibrary loan at almost any library (such as the Indiana State University 

Library or Vigo County Public Library, both in Terre Haute, Indiana). FEC Exhibits 1-55 and 

FEC Sealed Exhibits 1-20 were submitted with the FEC’s opening brief. 

Case 1:15-cv-01241-CRC-SS-TSC Document 59 Filed 06/01/16 Page 21 of 31
18 

time to have contributions” even though the record shows that it has raised virtually no 

contributions for years); id. at 57 (relying on testimony elicited by plaintiffs’ counsel’s leading 

questions attempting to rehabilitate the OPGOP representative’s candid testimony that OPGOP 

lacks injury (see FEC Exh. 12 at 46:19-48:17)6

).) These quibbles cast no doubt on the evidence 

showing the close relationship among LAGOP, Republican national committees, and federal 

candidates and donors, as well as corresponding opportunities for corruption. On the contrary, 

the evidence shows that when a candidate (e.g., Senator Menendez) is raising five-figure checks 

from donors with particular needs (e.g., Dr. Melgen) for a state party (e.g., the New Jersey 

Democratic State Committee) which the candidate knows will go to advance his campaign, even 

if independently, there is a higher risk of actual or apparent corruption. (SOMF ¶¶ 132-34.) 

The FEC’s poll showing that the public believes plaintiffs’ proposed activities would 

likely lead to corruption was conducted as expeditiously as possible in light of the compressed 

schedule for this case, and plaintiffs’ many pages of responsive commentary (Statement at 94-

103) primarily take issue with the fact that these views contradict plaintiffs’ supposed “matterof-law” facts. (See id. at 96-97 (categories “(i)”-“(iii)”).) Plaintiffs’ objection to the wording of 

the poll questions does not raise any real methodological concerns but merely argues that, 

instead of the fair and straightforward questions actually used, the public should have been asked 

plaintiffs’ admittedly “long and convoluted” (and leading) questions. (Id. at 99-100.) Plaintiffs 

offer no reason that the Court should not rely on such polling information, as other courts have 

 

6

 This testimony, not relied upon until now by plaintiffs, should be stricken. See Fed. R. 

Evid. 611 advisory committee note (c) (1972) (explaining that “[t]he purpose of the qualification 

‘ordinarily’ [in Rule 611(c)] is to furnish a basis for denying the use of leading questions when 

the cross-examination is cross-examination in form only and not in fact, as for example the 

‘cross-examination’ of a party by his own counsel after being called by the opponent”); Westfall 

v. Norfolk S. Ry. Co., No. 3:13-926, 2014 WL 4979273, at *2-3 (N.D. Ind. Oct. 6, 2014) (striking 

deposition testimony that “was the result of improper leading questions” by party’s counsel that 

“contradict[ed]” the “direct testimony”). 

Case 1:15-cv-01241-CRC-SS-TSC Document 59 Filed 06/01/16 Page 22 of 31
19 

done. See, e.g., Atkins v. Virginia, 536 U.S. 304, 316 n.21 (2002) (using polling data to show 

Americans’ “widespread consensus” that executing the “mentally retarded is wrong”). 

Lastly, plaintiffs’ discussions of Professor Jonathan Krasno’s expert testimony (see

Statement at 37-42, 103-110) fail to rebut his conclusion that “[s]hould the plaintiffs prevail here, 

their victory will bring the national party organizations back into the business of raising soft 

money by acting through compliant state and local party organizations. This is exactly what 

happened before and exactly what will happen again, except on a much larger scale.” (SOMF 

¶¶ 55, 136.) That conclusion is amply supported by Professor Krasno’s report and testimony, as 

well as the extensive evidence demonstrating the close relationship between the national parties 

and their state and local affiliates (SOMF ¶¶ 45-86); the undisputed financial interrelation and 

overlap in personnel among plaintiffs and the Republican national committees (id. ¶¶ 58-60, 64-

68, 74-75, 81, 84, 92); the parties’ undisputed use of state and local entities during the soft 

money era (id. ¶¶ 103, 105); and the examples of corrupt or apparently corrupt exchanges the 

FEC and amici have cited, id. ¶¶ 11, 16-19, 106-07, 109-15, 118-20, 123-34; supra p. 15 n.4. 

Contrary to plaintiffs’ objection that Professor Krasno’s report relies on a 

“constitutionally flawed” definition of corruption, the report makes clear that his conclusion 

takes into account what the Supreme Court has recently said about corruption. (FEC Exh. 6 at 2-

9, 12-13 (his conclusion that “overturning the ban on state and local parties’ use of nonfederal 

funds” intolerably risks corruption “still hold[s]” more than a decade after McConnell and in 

light of the Supreme Court’s subsequent rulings in WRTL, Citizens United, and McCutcheon).) 

While quid pro quo corruption may indeed be epitomized by the “explicit exchange[s]” engaged 

in by former Representative Duke Cunningham (see Pls.’ Exh. 1 at 16:3-13 (Docket No. 58-1)), 

plaintiffs’ claim that such explicitness is required is wrong. The government is not required to 

Case 1:15-cv-01241-CRC-SS-TSC Document 59 Filed 06/01/16 Page 23 of 31
20 

produce a firsthand witness or document memorializing an explicit exchange (e.g., Statement at 

41), though there is an ample amount of such evidence in the record. (E.g., SOMF ¶¶ 119-20, 

123-24, 129; contra Reply at 11 (baselessly contending that the FEC “frequently slips back into 

McConnell’s now-rejected broad ‘corruption’”).) Such a standard would be inconsistent with the 

distinct appearance of corruption concern, in any event. Plaintiffs fault Professor Krasno for not 

relying on recent polling to show the appearance of corruption. (Reply at 39-40.) However, 

recent survey evidence only further confirms that an appearance of corruption is perceived by the 

public when plaintiffs’ proposed activity is described. (SOMF ¶ 135.) This lends further support 

to Professor Krasno’s position, which relied in part upon an older survey for the conclusion that 

the legal landscape regarding campaign finance “contribute[s] to Americans’ level of faith in the 

political system.” (FEC Exh. 6 at 9.) 

3. Plaintiffs’ Policy-Based Arguments Are Irrelevant and Unfounded 

In arguing in favor of the “repeal or change of many FEA laws and regulations” (Reply at 

5), plaintiffs improperly ask the Court to “‘question Congress’s policy choice to limit 

contributions to political parties’” (Mem. at 49 n.18 (quoting RNC, 698 F. Supp. 2d at 160 n.5)). 

Plaintiffs’ policy-based arguments relying on the FEC’s forum and other observer commentary 

have no bearing in this case. As amicus curiae The Brennan Center aptly points out in response 

to plaintiffs’ citation of its research, the “rich debate” about legislative reform should be left to 

Congress and not “short-circuit[ed]” by the Court’s substitution of “its own judgment for that of 

the country’s elected representatives.” (Brennan Center Brief at 9.)7

 In any event, plaintiffs do 

 

7

 In the same vein, plaintiffs’ reliance on the comments by a party official at the FEC’s 

forum (Statement at 21) is undermined by that official’s express caveat that “the recent lawsuit 

by Jim Bopp to strike down individual limits to parties [referring to the 2014 iteration of the soft 

money challenge in RNC v. FEC that was dismissed] is not the direction our party would 

advocate.” (Answer ¶ 71 (Docket No. 19) (internal quotation marks omitted).) 

Case 1:15-cv-01241-CRC-SS-TSC Document 59 Filed 06/01/16 Page 24 of 31
21 

not dispute that the national, state, and local parties have raised and spent hundreds of millions of 

dollars in the election cycles since BCRA was enacted. (SOMF ¶¶ 87-97.) Nor do they dispute 

that many state and local committees have availed themselves of the provisions of the Levin 

amendment. (SOMF ¶ 33.) And they do not even dispute that parties can amass the resources 

needed for effective advocacy. (Mem. at 48-49.) Accordingly, even if the Court’s role here 

were legislative and not judicial, plaintiffs’ policy claims are flawed. 

4. Plaintiffs’ Challenge Itself Demonstrates That Section 30125(b) Is 

Very Closely Drawn 

From the foregoing, it is clear that the evidence conclusively establishes that section 

30125(b) closely fits the important interest in combating actual and apparent quid pro quo 

corruption, and there is no “substantial mismatch between the Government’s stated objective and 

the means selected to achieve it.” McCutcheon, 134 S. Ct. at 1446, 1456-57; Mem. at 45-49. 

Additionally, plaintiffs’ hollow claims of burden establish that section 30125(b) is so 

closely drawn that the limit imposes nothing more than hypothetical restrictions on plaintiffs’ 

desired behavior. (Mem. at 46.) The evidence also shows that Congress’s tailoring was so fine 

that, as the FEC has argued elsewhere, plaintiffs have been unable to establish an actual injury 

sufficient to present any bona fide controversy in this Court. (See generally FEC’s Mem. in 

Supp. of Mot. to Dissolve Three-Judge Ct. With Instrs. to Dismiss Or, Alternatively, to Dismiss 

Action (Docket No. 40); FEC’s Reply in Supp. of Its Mot. to Dissolve Three-Judge Ct. With 

Instrs. to Dismiss Or, Alternatively, to Dismiss Action (Docket No. 56) (“Dismissal Reply”).) 

No plaintiff has any individual contribution it cannot use on any FEA it wishes. For that reason, 

LAGOP’s alternative request to set up an “independent-communications-only account” that is 

Case 1:15-cv-01241-CRC-SS-TSC Document 59 Filed 06/01/16 Page 25 of 31
22 

featured so prominently in its last brief does not present an injury for the Court to remedy 

because that “ICA” would not be materially different from LAGOP’s federal account.8

 

Further, the local committees that have been enlisted for this iteration of the soft money 

challenge do not even wish to spend any money on FEA. The “paean” emails JPGOP and 

OPGOP say their volunteers wish to send (Statement at 55), like the inadvertent FEA JPGOP has 

removed from its website on the advice of counsel in an apparent attempt to establish injury, are 

neither contributions nor expenditures. See 11 C.F.R. § 100.94(a)-(c), 100.155(a)-(c); compare

Reply at 4 n.8 (urging the Court not to dismiss the local plaintiffs on the flimsy basis that “one 

plaintiff [i.e., LAGOP] has standing”). For that reason, this attempt to make out a federal case 

— despite the local plaintiffs’ conduct being unhindered — does not present the Court with the 

“FEC’s most difficult as-applied challenge to defend in this case.” (Pls.’ Mem. Opposing FEC’s 

Mot. to Dissolve Three-Judge Ct. or Dismiss at 29-30 (Docket No. 54).) Nor does any of this, 

including the potential for LAGOP’s “ICA” to be filled with FECA-compliant contributions or 

the proposed FEA that it has chosen not to use its federal funds on, constitute a “just-dosomething-else argument.” (Reply at 5.) Spending funds raised within federal limits labeled as 

federal funds is the same thing as spending such funds when they are labeled as nonfederal. 

Separately, plaintiffs’ repeated concessions that their proposed FEA “are . . . ‘federal’ 

enough for federal regulation” confirm that the FEA they wish to do will affect federal elections. 

(Reply at 13; id. at 17 (distinguishing RNC on the basis that “this case” does not argue that “the 

 

8

 Tellingly, LAGOP’s representative revealed that whether a contribution is made in an 

individual or corporate capacity does not necessarily reflect a difference in who is ultimately 

exercising First Amendment rights. (FEC Exh. 7 at 124:13-24 (distinguishing between the 

contributions of “individuals or people that give through their LLC” (emphases added)); id. at 

128:21-129:8 (discussing “individuals that would give corporate money” (emphasis added)). To 

the extent this testimony indicates that certain corporate donations could be given just as easily 

as hard money individual contributions, it underscores LAGOP’s absence of injury. 

Case 1:15-cv-01241-CRC-SS-TSC Document 59 Filed 06/01/16 Page 26 of 31
23 

as-applied activity [i]s ‘insufficiently federal’”).) This acknowledgement, in combination with 

plaintiffs’ belated clarification that LAGOP would like to use corporate funds, establishes that 

plaintiffs are seeking to have the Court invalidate or at least interpret 52 U.S.C. § 30118(a). 

(Dismissal Reply at 19-23.) But because section 30118(a) is a FECA provision that predates 

BCRA, that key element of plaintiffs’ desired relief exceeds the jurisdiction of this BCRA Court. 

Finally, plaintiffs fail to refute the FEC’s showing that the Levin provision makes section 

30125(b) even more closely drawn. The nonfederal funds “[b]an” plaintiffs’ claim exists in 

section 30125(b) (e.g., Reply at 8) is actually not a ban but plaintiffs’ own choice not to use the 

Levin amendment’s exception permitting use of some nonfederal funds. See 52 U.S.C. 

§ 30125(b)(2). The Court does not need to evaluate section 30125 based on plaintiffs’ choice to 

treat the law as more restrictive than it is; the Court should evaluate the law as it is. Thus, while 

using nonfederal funds through the Levin provision may not allow plaintiffs to do everything 

they want, it would permit them to do some of it using an allocated portion of nonfederal funds 

(Mem. Op. at 12-13), including all the activity described in Count I and much of that described 

in Count II. Indeed, BCRA’s fine-tuning of how nonfederal funds may be used on FEA was “[a] 

refinement on the pre-BCRA regime that permitted parties to pay for certain activities with a mix 

of federal and nonfederal funds.” McConnell, 540 U.S. at 162. Given Louisiana state law and 

plaintiffs’ limited fundraising prospects, the Levin provision would allow plaintiffs to raise and 

spend nearly the same amount of nonfederal funds over the course of a four-year period as they 

would under their own proposal. (Mem. at 47-48.) Accordingly, Congress’s calibration of how 

nonfederal funds may be used on FEA in section 30125(b) is closely drawn.9

 

9

 Although this is the final merits brief to be submitted in this case, plaintiffs have never 

articulated their challenge to 52 U.S.C. § 30125(c). (Mem. at 34 n.11 (noting that “plaintiffs . . . 

have failed to identify anything they wish to do that section 30125(c) restricts”).) Plaintiffs now 

Case 1:15-cv-01241-CRC-SS-TSC Document 59 Filed 06/01/16 Page 27 of 31
24 

III. SECTION 30104(e)(2) IS ALSO CONSTITUTIONAL 

Plaintiffs do not dispute that 52 U.S.C. § 30104(e)(2) — requiring state and local 

committees to report their FEA above a $5,000 annual threshold — is a disclosure requirement 

that is reviewed under “‘exacting scrutiny,’” which “requires a ‘substantial relation’” between 

the disclosure requirement and a “‘sufficiently important’ governmental interest.” Citizens 

United, 558 U.S. at 366-67 (quoting Buckley, 424 U.S. at 64, 66)); Mem. at 24-25. Instead, 

plaintiffs appear to question whether the government actually has a “disclosure interest” that can 

“support” section 30104(e)(2). (Reply at 10 n.14.) 

This argument is meritless. Section 30104(e)(2), which plaintiffs themselves call “the 

Reporting Requirement” (Reply at 10 n.14), plainly serves to provide disclosure of state and 

local parties’ non-de-minimis FEA. The Supreme Court has repeatedly confirmed that such 

information is “constitutionally regulable” (id.) by upholding the Act’s reporting requirements as 

“directly serv[ing] substantial governmental interests.” Buckley, 424 U.S. at 68. In McConnell, 

the Court dispositively concluded that such interests — “providing the electorate with 

information, deterring actual corruption and avoiding any appearance thereof, and gathering the 

data necessary to enforce more substantive electioneering restrictions — apply in full to BCRA.” 

540 U.S. at 196; see also McCutcheon, 134 S. Ct. at 1460 (lauding the “effective[ness]” of the 

“[r]eports and databases . . . available on the FEC’s Web site”); Citizens United, 558 U.S. at 367. 

 

assert that they have funds that were not “raised consistent” with section 30125(c). (Reply at 4 

n.8.) The Court should not credit this claim. As to the local parties, it is demonstrably false 

because those committees’ funds come not from any of their (failed) fundraising efforts but from 

a sole source that is unrelated to fundraising: qualifying fees. (SOMF ¶¶ 82, 85.) And even 

assuming LAGOP did fundraise in a manner inconsistent with section 30125(c), plaintiffs have 

not made any argument about why the provision is unconstitutional. Without any reason 

presented for invalidating the provision, the Court should reject the challenge. 

Case 1:15-cv-01241-CRC-SS-TSC Document 59 Filed 06/01/16 Page 28 of 31
25 

Plaintiffs’ attempt to merge their challenge to section 30104(e)(2) with their arguments 

against section 30125 (Reply at 10 n.14) is equally baseless. They claim that the “FEC has 

already acknowledged that the challenged provisions rise or fall together” (id.), but that is not so. 

(Def. FEC’s Opp’n to Pls.’ Appl. for a Three-Judge Ct. at 41 n.12 (Docket No. 15) (discussing 

the relationship between plaintiffs’ challenges to subsections 30125(b) and (c), but not 

mentioning section 30104(e)(2)); compare id. at 44-45 (separately discussing section 

30104(e)(2)); accord Mem. at 34 n.11 (discussing subsections 30125(b) and (c) only)).) In any 

event, plaintiffs’ notion that the constitutionality of section 30104(e)(4) is derivative of section 

30125’s constitutionality is patently incorrect. Even if one were to accept plaintiffs’ baseless 

claim that section 30125 “suppress[es]” speech (Reply at 1), the disclosure provision in section 

30104(e)(2), like other such requirements, “impose[s] no ceiling on campaign-related activities, 

and do[es] not prevent anyone from speaking.” Citizens United, 558 U.S. at 366 (internal 

quotation marks omitted) (emphasis added). Plaintiffs rail against “[d]isclosure for its own sake” 

(Reply at 10 n.14) and the supposed demerits of section 30125(b) as a matter of policy, see supra

pp. 20-21, but they utterly fail to explain why section 30104(e)(2) lacks a substantial relation to 

the government’s undisputed and important interests.10 The Court must reject their challenges. 

CONCLUSION 

For the foregoing reasons and those in the Commission’s opening memorandum, if the 

Court reaches the merits it should grant summary judgment to the FEC. 

 

10 Plaintiffs’ citations of McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995) and Van 

Hollen v. FEC, 811 F.3d 486 (D.C. Cir. 2016), pet. for reh’g en banc filed, No. 15-5016 (D.C. 

Cir.) are unavailing. The Court in McIntyre specifically distinguished Ohio’s improper 

requirement of “compelled self-identification on all election-related writings” as “a far cry” from 

the Court’s decision in Buckley to uphold FECA’s requirement that independent expenditures 

(express advocacy) be disclosed. 514 U.S. at 355. Van Hollen does not concern the 

constitutionality of a FECA disclosure provision but the FEC’s regulatory implementation of a 

provision, 52 U.S.C. § 30104(f), whose constitutionality is not at issue. 811 F.3d at 488-89, 492. 

Case 1:15-cv-01241-CRC-SS-TSC Document 59 Filed 06/01/16 Page 29 of 31
26 

Respectfully submitted, 

Daniel A. Petalas (D.C. Bar No. 467908) 

Acting General Counsel 

dpetalas@fec.gov 

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

Deputy General Counsel — Law 

lstevenson@fec.gov 

Kevin Deeley 

Acting Associate General Counsel 

kdeeley@fec.gov 

Harry J. Summers

Assistant General Counsel 

hsummers@fec.gov 

June 1, 2016 

Seth Nesin 

Attorney 

snesin@fec.gov 

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

Attorney 

gmueller@fec.gov 

/s/ Charles Kitcher 

Charles Kitcher (D.C. Bar No. 986226) 

Attorney 

ckitcher@fec.gov 

 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, DC 20463 

(202) 694-1650 

Case 1:15-cv-01241-CRC-SS-TSC Document 59 Filed 06/01/16 Page 30 of 31
A-1 

SUPPLEMENTAL INDEX OF EXHIBITS 

FEC 

Exhibit 

No. 

Exhibit Description 

56. Richard Hofstadter, The Idea of a Party System (1970) (excerpt) 

57. E.E. Schattschneider, Party Government (1942) (excerpt) 

58. G. Washington, Farewell Address, reprinted in S. Doc. No. 106-21, 106th Cong., 

2d Sess. (2000) (excerpt) (provided in lieu of the reprinting of the address in 

Documents of American History (H. Commager ed. 1946)) 

59. Robert E. Mutch, Campaigns, Congress, and Courts: The Making of Federal 

Campaign Finance Law (Praeger 1988) (excerpt) 

60. Louise Overacker, Presidential Campaign Funds (Boston University Press 1946) 

(excerpts) 

61. Herbert E. Alexander, Financing Politics: Money, Elections and Political Reform

(Congressional Quarterly Press 1976) (excerpt) 

62. David W. Adamany & George E. Agree, Political Money: A Strategy for 

Campaign Financing in America (Johns Hopkins University Press 1975) (excerpt) 

63. Final Report of the Select Committee on Presidential Campaign Activities, S. Rep. 

No. 93-981, 93d Cong., 2d Sess. (1974) (“Final Report”) (excerpts) 

64. Richard Reeves, President Nixon: Alone in the White House (Simon & Schuster 

2001) (excerpts) 

65. Jack Abramoff, Capitol Punishment: The Hard Truth About Washington 

Corruption From America’s Most Notorious Lobbyist (WND Books 2011) 

(excerpts) 

66. Thompson Comm. Rep., S. Rep. No. 105-167 (1998) (“Thompson Comm. Rep.”) 

(excerpts) 

Case 1:15-cv-01241-CRC-SS-TSC Document 59 Filed 06/01/16 Page 31 of 31