UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

____________________________________ 

 ) 

SPEECHNOW.ORG, ) 

DAVID KEATING, )

FRED M. YOUNG, JR., ) 

EDWARD H. CRANE, III, ) 

BRAD RUSSO, and ) 

SCOTT BURKHARDT ) 

 ) 

 Plaintiffs, ) 

 ) 

 v. ) Civil Case No. 1:08-cv-00248 (JR)

 ) 

FEDERAL ELECTION COMMISSION ) 

 ) 

 Defendant. ) 

____________________________________) 

_______________________________________________________

PLAINTIFFS’ MOTION FOR LEAVE TO FILE REPLY MEMORANDUM 

IN SUPPORT OF THEIR FIRST AND SECOND MOTIONS IN LIMINE 

OR, IN THE ALTERNATIVE, TO FILE SURREPLY MEMORANDUM 

IN OPPOSITION TO DEFENDANT’S PROPOSED FINDINGS OF FACT 

_______________________________________________________

Plaintiffs respectfully request leave to file the attached reply memorandum in support of 

their First and Second Motions in Limine, filed in this court on November 24, 2008. In the 

alternative, because this Court’s order of December 9 consolidated the FEC’s response to those 

motions with the FEC’s reply in support of its proposed findings of fact, Plaintiffs respectfully 

request that this Court allow Plaintiffs to file the attached memorandum as a surreply in 

opposition to the FEC’s proposed findings of fact. A proposed order is attached to this motion. 

In support of this motion, Plaintiffs state the following: 

1. The attached reply memorandum, supporting Plaintiffs’ motions in limine, focuses on 

a single issue: the FEC’s sweeping reliance on the concept of “legislative facts” as a means of 

avoiding the requirements of the Federal Rules of Evidence and the Federal Rules of Civil 

Case 1:08-cv-00248-JR Document 64 Filed 12/22/2008 Page 1 of 19
2

Procedure. Plaintiffs have not had an opportunity to contest the FEC’s arguments on the issue 

of legislative fact-finding, and the admissibility of literally hundreds of the FEC’s proposed facts 

turns on a proper understanding of the concept of legislative facts. Accordingly, Plaintiffs 

believe that the attached reply memorandum—which demonstrates that the case law cited by the 

FEC does not support its all-inclusive and all-purpose use of so-called “legislative facts”—will 

assist the Court in entering findings of fact consistent with its duties under 2 U.S.C. § 437h. 

2. Plaintiffs have explained why they styled their motions in limine as such, and 

incorporate that discussion by reference here. Pls.’ Reply Mem. in Supp. Proposed Findings of 

Fact at 3-4 n.1. Because the FEC briefed the issues raised in Plaintiffs’ motions separately from 

other issues, Plaintiffs believe it makes the most sense to treat those documents as responses to 

the original motions, and the attached memorandum as a reply memorandum under Local 

Rule 7(d). However, if the Court holds that its treatment of the motions as arguments in its 

order of December 9th precludes Plaintiffs’ ability to file a reply memorandum, Plaintiffs ask that 

the Court treat the attached memorandum as a surreply in opposition to the FEC’s proposed 

findings of fact and allow its filing. “The standard for granting a leave to file a surreply is 

whether the party making the motion would be unable to contest matters presented to the court 

for the first time in the opposing party’s reply.” Lewis v. Rumsfeld, 154 F. Supp. 2d 56, 61 

(D.D.C. 2001). The FEC first raised its arguments as to why the concept of legislative facts 

allows it to overcome the evidentiary limitations imposed by the Federal Rules of Evidence and 

the Federal Rules of Civil Procedure in its “reply” briefing on Plaintiffs’ motions in limine, 

which the FEC presented as part of its reply briefing in support of its proposed findings of fact. 

Further, Plaintiffs, who have limited their memorandum to addressing those arguments, will not 

have another forum in which to address them if they cannot file the attached memorandum. 

Case 1:08-cv-00248-JR Document 64 Filed 12/22/2008 Page 2 of 19
3

3. Pursuant to Local Rule 7(m), counsel for Plaintiffs has conferred with counsel for the 

FEC concerning this motion. The FEC opposes the motion; its position is as follows: The 

Commission opposes Plaintiffs’ motion for leave to file another brief because it believes the brief 

is foreclosed by the Court’s order of December 9, 2008. 

Dated: December 22, 2008. 

Respectfully submitted, 

/s/ Steven M. Simpson

Steven M. Simpson (DC Bar No. 462553) 

William H. Mellor (DC Bar No. 462072) 

Robert Gall (DC Bar No. 482476) 

Paul M. Sherman (DC Bar No. 978663) 

Robert Frommer (DC Bar No. 497308)* 

INSTITUTE FOR JUSTICE

901 N. Glebe Road, Suite 900 

Arlington, VA 22203 

Tel: (703) 682-9320 

Fax: (703) 682-9321 

Email: ssimpson@ij.org 

Stephen M. Hoersting† 

Bradley A. Smith† 

CENTER FOR COMPETITIVE POLITICS

124 W. Street South, Suite 201 

Alexandria, VA 22314 

Tel: (703) 894-6800 

Email: shoersting@campaignfreedom.org, 

BSmith@law.capital.edu 

Attorneys for Plaintiffs

*Admission pending 

† Admitted Pro Hac Vice 

Case 1:08-cv-00248-JR Document 64 Filed 12/22/2008 Page 3 of 19
4

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 22nd Day of December 2008, a true and correct copy of 

Plaintiffs’ MOTION FOR LEAVE TO FILE REPLY MEMORANDUM IN SUPPORT OF 

THEIR FIRST AND SECOND MOTIONS IN LIMINE OR, IN THE ALTERNATIVE, TO 

FILE SURREPLY MEMORANDUM IN OPPOSITION TO DEFENDANT’S PROPOSED 

FINDINGS OF FACT FOR CERTIFICATION with accompanying REPLY MEMORANDUM 

IN SUPPORT OF THEIR FIRST AND SECOND MOTIONS IN LIMINE was filed 

electronically using the court’s ECF system and sent via the ECF electronic notification system 

to the following counsel of record: 

Robert W. Bonham, III 

David B. Kolker 

Steve N. Hajjar 

Kevin Deeley 

FEDERAL ELECTION COMMISSION

999 E. Street, N.W. 

Washington, DC 20463 

 /s/ Steven M. Simpson

Case 1:08-cv-00248-JR Document 64 Filed 12/22/2008 Page 4 of 19
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

____________________________________ 

 ) 

SPEECHNOW.ORG, ) 

DAVID KEATING, )

FRED M. YOUNG, JR., ) 

EDWARD H. CRANE, III, ) 

BRAD RUSSO, and ) 

SCOTT BURKHARDT ) 

 ) 

 Plaintiffs, ) 

 ) 

 v. ) Civil Case No. 1:08-cv-00248 (JR)

 ) 

FEDERAL ELECTION COMMISSION ) 

 ) 

 Defendant. ) 

____________________________________) 

_______________________________________________________

PLAINTIFFS’ REPLY MEMORANDUM IN SUPPORT OF 

THEIR FIRST AND SECOND MOTIONS IN LIMINE 

_______________________________________________________

Plaintiffs by and through their attorneys hereby reply in support of their motions in limine 

on the limited issue of the FEC’s arguments concerning the use of legislative facts. 

INTRODUCTION

The FEC is playing a massive game of “heads I win, tails you lose.” Thus, the FEC relies 

on hundreds of proposed findings allegedly demonstrating the illicit motives of donors to other 

groups, but if Plaintiffs rely on a few simple points about their own motives in creating and 

associating with SpeechNow.org, the FEC claims that that information is irrelevant. Similarly, 

the FEC contends that Fred Young is not harmed, because he has a lot of money and can finance 

ads on his own. At the same time, the FEC argues that Brad Russo and Scott Burkhardt are not

harmed because they do not have a lot of money and cannot afford to spend more than the 

Case 1:08-cv-00248-JR Document 64 Filed 12/22/2008 Page 5 of 19
2

contribution limits allow anyway. The FEC claims that large contributions allow donors to use 

groups as conduits to funnel money to candidates, but at the same time argues that the fact that 

donations to SpeechNow.org will be spent in its sole discretion means that only David Keating is 

speaking, and not any of its donors. The FEC claims it can rely on evidence that candidates feel 

gratitude toward those who make independent expenditures, but argues that Plaintiffs cannot rely 

on evidence that candidates feel gratitude toward those who endorse candidates, who vote for 

them, and the like. Indeed, according to the FEC, it can attempt to show that independent 

expenditures cause corruption, but Plaintiffs cannot respond by pointing out that that argument is 

an attack on the very notion of independence. Heads, the FEC wins; tails, everyone else loses. 

The FEC has now informed this Court that the trick up its sleeve that allows it to play this 

game is the magic wand of “legislative facts.” According to the FEC, “legislative facts” allows it 

to ignore the rules of evidence and rely on hundreds of exhibits that are inadmissible on hearsay 

and other grounds. “Legislative facts” allows the FEC to ignore the rules of relevance and focus 

on the actions and motives of virtually everyone other than the Plaintiffs, thus treating an asapplied challenge as though it were facial. “Legislative facts” allows the FEC to ignore its own 

rules concerning coordination and the statute that defines independent expenditures and to argue 

that those concepts are meaningless, because independent expenditures are corrupting regardless 

of whether the Supreme Court, Congress, or even the FEC has concluded as much. And 

“legislative facts” even allows the FEC to ignore the parties’ schedule in the case and rely on 

witnesses and documents that were not produced or disclosed on time. It is not clear why the 

FEC has chosen to follow some of the rules of evidence but not others, some parts of the parties’ 

schedule but not others, and some of the rules of civil procedure but not others, but apparently 

Case 1:08-cv-00248-JR Document 64 Filed 12/22/2008 Page 6 of 19
3

the broad concept of “legislative facts” even allows the FEC itself to decide when it will follow 

the rules and when it will pronounce itself exempt. 

The FEC’s view of the concept of legislative facts vastly exceeds any rational application 

of that concept. While there is much to which the Plaintiffs take issue in the FEC’s responses to 

Plaintiffs’ motions in limine, because the Court has interpreted those motions as arguments 

rather than separate motions to which Plaintiffs would typically have a right of reply, Plaintiffs 

will limit this brief only to the FEC’s extremely broad—indeed, unlimited—view of legislative 

facts. 

ARGUMENT

The FEC ignores the proper context in which legislative facts have been used in other 

cases and interprets the concept as an open invitation to suspend the rules of evidence and civil 

procedure in any constitutional challenge. As the term implies, “legislative facts” are typically 

relied on to inform legislative or agency judgments made in the course of taking actions such as 

passing laws or issuing rules. See, e.g., Metzl v. Leininger, 57 F.3d 618, 622 (7th Cir. 1995). 

Thus, courts often turn to legislative facts to determine what a legislature was thinking when it 

passed a law, what problems it was seeking to solve, and what its interests were in legislating in 

a particular area. See, e.g., United States v. Shannon, 110 F.3d 382, 387-88 (7th Cir. 1997) 

(relying on legislative facts to establish original purpose of statutory rape laws). Similarly, 

courts look to legislative facts to form judgments about societal views on certain topics like the 

death penalty, race-based admission policies, and abortion or about the views of those within a 

particular area—industry and educational institutions’ views of affirmative action, for example, 

or views within the medical profession about the point at which a fetus becomes viable. See, 

Case 1:08-cv-00248-JR Document 64 Filed 12/22/2008 Page 7 of 19
4

e.g., Grutter v. Bollinger, 539 U.S. 306, 330-33 (2003); Roe v. Wade, 410 U.S. 113, 160 (1973). 

Used in this way, legislative facts are typically not at odds with the rules of evidence, because 

they are not being used to prove the truth of particular facts, but are being introduced to show 

that a legislative body or some other group thought something to be true. 

The FEC’s approach to legislative facts goes well beyond these limited circumstances. 

The FEC is not, for example, attempting to introduce evidence about Congress’s intent in passing 

FECA or the FEC’s own intent in issuing a particular rule. Nor is the FEC simply limiting itself 

to trying to show what candidates or consultants in general think about independent expenditures 

or how groups that create independent ads typically fund and produce them. The FEC wants to 

introduce thousands of pages of inadmissible evidence to prove the truth of a number of specific 

claims along with the motives and the behavior of all individuals who engage in particular 

activities. For example, the FEC is not seeking to show that groups that run independent 

expenditures think they are effective, but that the vast majority of independent expenditures are, 

in fact, “effective” in influencing the outcome of elections. See FEC’s Proposed Findings of 

Fact, Section IV.A. Likewise, the FEC is not claiming that many candidates are grateful for 

independent expenditures made on their behalf, but that candidates are always grateful, and that a 

large independent expenditure is always more valuable to a candidate than a direct contribution. 

See id. at ¶ 222. The FEC is not claiming that some donors are so-called “investors” who have 

business interests at heart, but that the vast majority of donors who fund groups who make 

independent expenditures seek access to and influence over candidates. See id. at ¶¶ 137-38. 

The FEC attempts to support its extraordinarily liberal use of “legislative facts” by 

arguing that the Supreme Court has sanctioned their use in constitutional cases such as this one. 

But a closer examination of the cases on which the FEC relies—in particular, the campaign 

Case 1:08-cv-00248-JR Document 64 Filed 12/22/2008 Page 8 of 19
5

finance cases—indicates that the opposite is true. While the Supreme Court often relies on 

legislative facts in campaign finance cases, it does not do so—at least to the extent attempted by 

the FEC here—in as-applied cases. The reason is simple: As-applied challenges, as Plaintiffs 

pointed out in their response briefs, are limited to the facts of the case in which the law is being 

applied, not the facts concerning any party to whom the law could be applied. The other cases 

on which the FEC relies are either not to the contrary, or are clearly distinguishable for a variety 

of reasons, as Plaintiffs demonstrate below. 

Indeed, if the FEC’s approach to legislative facts were correct, there would be no limit to 

the admissibility of “legislative facts” in constitutional cases, and they would be the exception 

that would swallow the rules of evidence and the rules of civil procedure. While it is true that 

the Supreme Court has on occasion relied heavily on so-called legislative facts—in cases such as 

Muller v. Oregon and Roe v. Wade, for example—these cases were not an open invitation to the 

lower courts to suspend the rules of evidence and allow entire cases to be litigated outside the 

rules. Thus, while Plaintiffs do not believe that any of the FEC’s arguments concerning 

legislative facts are valid, if the Court decides to admit into the record some or all of the FEC’s 

evidence to which Plaintiffs object, it should simply make that information available to the Court 

of Appeals so the Court of Appeals can decide on what “legislative facts” to rely or not rely as it 

decides the merits of this case. The FEC’s argument is primarily that appellate courts, and, in 

particular, the Supreme Court, have on occasion relied on legislative facts despite the rules of 

evidence and civil procedure. If that is so, then the most this Court should do is offer a 

documentary record to the Court of Appeals from which it can draw legislative facts as 

appropriate. But if would be inappropriate for this Court to decided hotly contested questions of 

Case 1:08-cv-00248-JR Document 64 Filed 12/22/2008 Page 9 of 19
6

fact in the FEC’s favor and enter as factual findings the FEC’s broad claims on the grounds that 

they are based on “legislative facts.” 

I. The Supreme Court Has Not Relied Extensively On Legislative Facts In As-Applied 

Challenges To Campaign Finance Laws Such As This Case. 

The starting point for the Court in determining the proper scope of its findings of fact is 

not the general concept “legislative facts” as the FEC sees it, but the case from this circuit that 

set the standard for certification under 2 U.S.C. § 437h: Buckley v. Valeo. In Buckley, the D.C. 

Circuit stated that beyond the evidence submitted by the parties, district courts can rely on 

“submissions that may suitably be handled through judicial notice, as of legislative facts, 

supported by legislative history or works reasonably available, to the extent not controverted in 

material and substantial degree.” 519 F.2d 817, 818 (D.C. Cir. 1975). The court’s statement is 

entirely consistent with Federal Rule of Evidence 201, under which judicial notice may be taken 

only of facts that are “not subject to reasonable dispute.” Facts concerning legislative history 

and the intent of Congress in passing a law are consistent with this approach in that such facts are 

typically used to show the reasons that a law was passed, the problems sought to be addressed, 

and the legislature’s interest in legislating in a given area. See, e.g., Ass’n of Nat’l Advertisers, 

Inc. v. FTC, 627 F.2d 1151, 1161-62 (D.C. Cir. 1979) (describing legislative facts as facts that 

help courts “determine the content of law and of policy” and allow them to exercise the 

“judgment or discretion in determining what course of action to take”); Fed. R. Evid. 201 

advisory committee’s note (stating that legislative facts are facts that “have relevance to legal 

reasoning and the lawmaking process, whether in the formulation of a legal principle or ruling by 

a judge or court or in the enactment of a legislative body”). 

Case 1:08-cv-00248-JR Document 64 Filed 12/22/2008 Page 10 of 19
7

Contrary to the FEC’s claim, the Supreme Court has not thrown the door open to any 

evidence offered in the form of “legislative facts” in campaign finance cases. Two examples of 

past cases illustrate this point. First, McConnell v. FEC, on which the FEC relies, shows the 

typical use of legislative facts. McConnell is a classic example of a facial challenge in which 

Congress’s reasons for passing the law and the problems it sought to address were at issue and 

thus necessitated the Court’s reliance on facts that informed broad policy issues and the 

legislative judgment. Indeed, Congress had just relied on many of the precise facts at issue in 

McConnell a scant few years earlier in considering BCRA, 540 U.S. at 129-32, and the parties 

agreed on the basic approach to discovery in the case and the types of information on which the 

lower courts should rely. See McConnell v. FEC, 251 F. Supp. 2d 176, 206 n.32 (D.D.C. 2003). 

Thus, the Court’s reliance on legislative facts was appropriate. 

In contrast, in FEC. v. Wisconsin Right to Life, Inc., an as-applied challenge to the 

electioneering communications ban upheld in McConnell, the Court did not rely on legislative 

facts, and instead almost exclusively focused on evidence concerning WRTL’s ads. See FEC v. 

Wisconsin Right to Life, Inc. (WRTL II), 127 S.Ct. 2652 (2007); see also Pls.’ Reply in Supp. 

Proposed Findings of Fact at 7-8. The fact that Chief Justice Roberts relied on a survey to rebut 

a point made by Justice Souter does not mean that extensive use of legislative facts is appropriate 

in as-applied challenges. Justice Roberts devoted much of his opinion in the case to the point 

that the as-applied challenge was narrow and limited to the facts concerning WRTL’s ads. See 

id. at 2666-73. The notion that he was reversing course because of a statement in a footnote is 

absurd. Moreover, Chief Justice Roberts’s point in footnote 6 was in response to an unsupported 

claim made by Justice Souter—that Wisconsin voters knew of Senator Feingold’s position on 

judicial filibusters. See id. at 2698 (Souter J., dissenting). Justice Souter cited the Congressional 

Case 1:08-cv-00248-JR Document 64 Filed 12/22/2008 Page 11 of 19
8

Record to show that Senator Feingold had stated his views on the record and a newspaper article 

stating that Republicans had criticized the Senator, and then drew the inference that Wisconsin 

voters knew the Senator’s views. Id. at 2698 & nn.14-15 (Souter J., dissenting). Chief Justice 

Roberts responded in kind, relying on a survey to argue that many Wisconsin voters most likely 

did not know the Senator’s views. Id. at 2667 n.6 (citing Inter-university Consortium for 

Political and Social Research, American National Election Study, 2000: Pre- and Post-Election 

Survey 243 (N. Burns et al. eds. 2002)). Turnabout is perhaps fair play in Supreme Court 

opinions, but it does not establish broad new rules of evidence. 

Second, in FEC v. Colorado Republican Federal Campaign Committee (Colorado II), 

533 U.S. 431 (2001), the Court again relied on legislative facts in its decision on a facial 

challenge brought by the Colorado Republican Party to a provision in FECA that limited the 

amount of expenditures a political party could coordinate with a candidate. Id at 451-52. 

However, in the Colorado Republican Party’s earlier as-applied challenge, other than one 

reference to a source showing that political parties represent differing interests, the Court’s 

analysis was limited to facts concerning the parties themselves. See Colo. Republican Fed. 

Campaign Comm. v. FEC (Colorado I), 518 U.S. 604, 622-23 (1996). 

These cases demonstrate the contrasting use of legislative facts in facial challenges versus 

as-applied challenges. Facial challenges target both Congress’s interests and intentions in 

passing a law, and thus make inquiry into legislative facts appropriate and necessary. As-applied 

challenges involve the laws as they apply to the rights of the parties at hand; the proper focus is 

thus on the parties themselves, and use of legislative facts is appropriately limited to legislative 

history and facts on which the legislature or an agency actually relied. 

Case 1:08-cv-00248-JR Document 64 Filed 12/22/2008 Page 12 of 19
9

The other campaign finance cases on which the FEC relies are all facial challenges and 

thus are entirely consistent with this approach. Thus, in Landell v. Sorrell, 382 F.3d 91 (2d Cir. 

2004), a facial challenge to a new campaign finance law in Vermont, the courts relied on, among 

other items, newspaper articles that the Vermont legislature had considered in passing the law. 

Id. at 123. Similarly, Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000), was a 

facial challenge to a Missouri law limiting contributions to state electoral candidates. In 

determining whether the law was constitutional, the primary question for the Supreme Court was 

whether the limits were similar to those upheld in Buckley. Thus, the Court examined 

contemporaneous newspaper articles and similar evidence showing that the legislature and the 

public were concerned about the same issues of corruption that prompted the passage of FECA. 

Id. at 393-94. Finally, in Daggett v. Commission on Governmental Ethics and Election 

Practices, 205 F.3d 445 (1st Cir. 2000), the court considered a facial challenge to a Maine 

referendum that limited contributions and created a system of public financing for state 

legislative and gubernatorial candidates. In upholding the law, the First Circuit considered 

contemporaneous newspaper reports and other information showing public perceptions of 

corruption. Id. at 457. 

None of these cases support the FEC’s broad interpretation of legislative facts as a 

blanket exemption to the rules of evidence. Legislative facts are appropriate to inform what 

legislatures have actually done and their reasons for doing so, and they are appropriate to make 

broad and typically unconstestable points, but they are not admissible to prove the actions and 

motives of specific individuals. The FEC has not cited any campaign finance cases in which 

legislative facts were used as the FEC proposes in as-applied challenges. 

Case 1:08-cv-00248-JR Document 64 Filed 12/22/2008 Page 13 of 19
10

Indeed, the FEC’s argument relies on a false syllogism. As the FEC has reminded the 

Court repeatedly, Congress passed FECA over thirty years ago, and the Supreme Court upheld 

the contribution limits in Buckley v. Valeo. Plaintiffs are challenging only the application of 

those contribution limits and certain administrative and reporting requirements to the Plaintiffs. 

The Court in Buckley did not address an association even remotely like SpeechNow.org, and the 

Supreme Court has never upheld the application of contribution limits to a group like 

SpeechNow.org, a point recognized by courts and commentators alike. See Pls.’ Resp. to FEC’s 

Proposed Findings of Fact at 17-18. As a result, there is no relevant legislative judgment that the 

FEC could be offering its legislative facts to support, and, indeed almost none of the FEC’s 

proposed findings has anything to do with Congress’s reasons for passing FECA or the Supreme 

Court’s reasons for upholding the contribution limits in any event. 

Instead, the FEC is relying on legislative facts to illuminate a legislative judgment that 

has not been made—that is, that independent expenditures are corrupting, that they amount to 

“indirect contributions” to candidates, and that donors use them to gain access to and influence 

over candidates. The false syllogism at the heart of the FEC’s argument is that because Plaintiffs 

are challenging a law that was passed by Congress as part of FECA, and because a significant 

part of Plaintiffs’ argument is that independent expenditures are core political speech and do not 

cause corruption, it is entirely logical for the FEC to introduce so-called legislative facts 

allegedly demonstrating that independent expenditures do cause concerns about corruption. The 

problem with this argument, as Plaintiffs argued in their response to the FEC’s proposed findings 

of fact, is that neither the Supreme Court, nor Congress, nor even the FEC has decided that 

independent expenditures cause corruption or that independence versus coordination turns on 

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11

whether the expenditures are made to gain “access” or “influence” or cause candidates to feel 

“gratitude.” See Pls.’ Resp. to FEC’s Proposed Findings of Fact at 24-27. 

The FEC cannot avoid this flaw in its argument by claiming that it is focusing only on 

contributions to groups that make independent expenditures, but not the independent 

expenditures themselves. See FEC Reply Memorandum at 14-15. That is both factually false 

and illogical. In fact, the FEC devotes most of its proposed findings of fact to the propositions 

that independent expenditures are highly effective, that candidates are happy when independent 

expenditures are made on their behalf, that independent expenditures amount to indirect 

contributions to candidates, and that coordination is hard to police. Logically, the FEC must 

make these points in order for its argument against unlimited contributions to groups that make 

independent expenditures to make sense. Without focusing on the independent expenditures that 

contributions finance, there is no point to the FEC’s argument. It is only because the groups at 

issue make independent expenditures—rather than, say, devoting that money to policy 

analysis—that contributions to them are allegedly valuable to candidates. Attacking independent 

expenditures is thus the linchpin to the FEC’s entire argument. That is the reason the FEC 

wishes to include a litany of so-called “legislative facts.” The FEC should not be permitted to do 

so. 

II. The Remaining Cases On Which The FEC Relies Do Not Support Its Broad 

Interpretation of “Legislative Facts.” 

The remaining cases on which the FEC relies are either facial challenges in which 

legislative facts were used to illustrate legislative judgments or were otherwise appropriate uses 

of legislative facts to demonstrate broad views of particular issues like the death penalty, or they 

are decisions in which the courts simply recited the general rule regarding what legislative facts 

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12

are. None of these cases support the FEC’s broad interpretation of legislative facts or their 

applicability to as-applied challenges such as this one. 

First, the FEC’s reliance on Roe v. Wade, Grutter v. Bollinger, Atkins v. Virginia and 

Muller v. Oregon is entirely misplaced. The cases practically define the term sui generis, and in 

none of them did the Supreme Court establish a rule concerning the admissibility of legislative 

facts. The Court simply exercised its discretion to rely on the evidence on which it saw fit to 

rely. In Roe, the Court performed its own independent research to address general societal views 

on abortion and, more specifically, to attempt to determine the views within the medical 

profession of when a fetus becomes viable. 410 U.S. 113, 160 (1973). In Grutter, the Court 

relied on amicus briefs in making the point that many business and educational institutions rely 

on affirmative action and believe that it is beneficial—precisely the sort of point that legislative 

facts are appropriate to illustrate.1

 539 U.S. 306, 330-33 (2003). Similarly, in Atkins, the Court 

relied on amicus briefs to assess whether there was a national consensus opposing the execution 

of the mentally retarded. 536 U.S. 304, 316 n.21 (2002). These cases show that the Supreme 

Court exercises its own discretion to rely on legislative facts on occasion. The cases do not stand 

for the proposition that any court or party may rely almost exclusively on legislative facts in any 

constitutional case. In Muller v. Oregon, Louis Brandeis wrote what came to define the 

“Brandeis Brief” to make the now anachronistic claim—which was then widely viewed as a 

mere truism—that woman are weak and need the protection of men and legislatures to get by in 

life. 208 U.S. 412, 421 (1908). The case is hardly the poster child for the admissibility of 

“legislative facts.” 

 

1

United States v. Shannon, 110 F.3d 382 (7th Cir. 1997), is similar in that the court considered academic 

publications to determine the historical purpose of statutory-rape laws, id. at 387, and to make the point that teen 

pregnancy can be considered “high risk.” Id. at 388.

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13

Second, the FEC relies on two facial challenges in which courts relied on the legislative 

facts on which the legislatures or rule-making bodies themselves actually relied. Thus, in 

Florida Bar v. Went for It, Inc., 515 U.S. 618 (1995), the Supreme Court heard a First 

Amendment challenge to a rule the Bar promulgated forbidding attorneys from directly 

contacting accident victims. In its defense of the rule, the Bar submitted into evidence the actual 

record that it had developed in its two-year study of the issue, and the Court relied on this 

evidence in concluding that the Bar had acted within its constitutional discretion in passing the 

rule. Id. at 626-28. Similarly, in Blount v. SEC, the court rejected a challenge to an SEC 

regulation by relying on portions of the record that the SEC itself considered in passing the 

regulation. See 61 F.3d 938, 944-45 (D.C. Cir. 1995). 

Dunagin v. City of Oxford, Mississippi, 718 F.2d 738 (5th Cir. 1983), another facial 

challenge, is similar in that the question at issue primarily turned on whether a state agency 

properly exercised its constitutional discretion to restrict alcohol advertisements. In a decision 

that has been superseded by the Supreme Court’s later alcohol advertising cases,2

 the court 

simply concluded that there was a connection between alcohol advertising and consumption. Id. 

at 747-51. This “common sense” conclusion was both shared by the legislature, see id. at 748 

n.8, and supported by the Supreme Court itself. Id. at 749. 

Third, the FEC relies on Indiana Democratic Party v. Rokita, a facial challenge in which 

the court applied rational basis scrutiny. Under rational basis, the government need not offer any 

reason for its laws at all; any reason on which the legislature might have relied that is not 

irrational will suffice. 458 F. Supp. 2d 775, 843-45 (S.D. Ind. 2006). Under rational basis, the 

 

2 See 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 505 (1996); Rubin v. Coors Brewing Co., 514 U.S. 476, 

490 (1995).

Case 1:08-cv-00248-JR Document 64 Filed 12/22/2008 Page 17 of 19
14

admissibility of legislative facts is essentially built into the constitutional standard. See id. The 

same is simply not true in First Amendment cases. 

Finally, the FEC relies on several administrative law cases that simply recite the general 

definition of legislative facts. These cases generally stand for the unexceptional proposition that 

a hearing is required when an agency is finding adjudicative facts, while no hearing is necessary 

when the agency is engaged in legislative fact-finding or a broad rulemaking. See FEC Reply 

Memorandum at 3-4 (citing Alaska Airlines Inc. v. CAB, 545 F.2d 194, 200 n.11 (D.C. Cir. 

1976); Friends of the Earth v. Reilly, 966 F.2d 690, 694 (D.C. Cir. 1992); Langevin v. Chenango 

Court, Inc., 447 F.2d 296 (2d Cir. 1971); Ass’n of Nat’l Advertisers, Inc. v. FTC, 627 F.2d 1151, 

1162 (D.C. Cir. 1979)). The courts did not make use of legislative facts themselves, but merely 

described what legislative facts are and the procedural requirements for agencies engaged in 

legislative fact-finding.3

CONCLUSION 

For the foregoing reasons, Plaintiffs respectfully request that this Court exclude the 

evidence listed in their motions in limine. 

Dated: December 22, 2008. 

Respectfully submitted, 

/s/ Steven M. Simpson

Steven M. Simpson (DC Bar No. 462553) 

William H. Mellor (DC Bar No. 462072) 

Robert Gall (DC Bar No. 482476) 

Paul M. Sherman (DC Bar No. 978663) 

Robert Frommer (DC Bar No. 497308)* 

 

3 The FEC’s reliance on Metzl v. Leininger, 57 F.3d 618 (7thCir. 1995), is similar in that the court in that facial 

challenge simply discussed in dicta the general rule of legislative facts, but did not actually rely on any. Id. at 622.

Case 1:08-cv-00248-JR Document 64 Filed 12/22/2008 Page 18 of 19
15

INSTITUTE FOR JUSTICE

901 N. Glebe Road, Suite 900 

Arlington, VA 22203 

Tel: (703) 682-9320 

Fax: (703) 682-9321 

Email: ssimpson@ij.org 

Stephen M. Hoersting† 

Bradley A. Smith† 

CENTER FOR COMPETITIVE POLITICS

124 W. Street South, Suite 201 

Alexandria, VA 22314 

Tel: (703) 894-6800 

Email: shoersting@campaignfreedom.org, 

BSmith@law.capital.edu 

Attorneys for Plaintiffs

*Admission pending 

† Admitted Pro Hac Vice 

Case 1:08-cv-00248-JR Document 64 Filed 12/22/2008 Page 19 of 19
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

____________________________________ 

 ) 

SPEECHNOW.ORG, ) 

DAVID KEATING, )

FRED M. YOUNG, JR., ) 

EDWARD H. CRANE, III, ) 

BRAD RUSSO, and ) 

SCOTT BURKHARDT ) 

 ) 

 Plaintiffs, ) 

 ) 

 v. ) Civil Case No. 1:08-cv-00248 (JR) 

 ) 

FEDERAL ELECTION COMMISSION ) 

 ) 

 Defendant. ) 

____________________________________) 

_______________________________________________________

ORDER REGARDING PLAINTIFFS’ MOTION FOR LEAVE TO FILE REPLY 

MEMORANDUM IN SUPPORT OF THEIR FIRST AND SECOND MOTIONS IN 

LIMINE OR, IN THE ALTERNATIVE, TO FILE SURREPLY MEMORANDUM 

IN OPPOSITION TO DEFENDANT’S PROPOSED FINDINGS OF FACT 

_______________________________________________________

 For good cause shown, Plaintiffs’ motion is GRANTED. The Clerk is 

directed to file the lodged reply/surreply. 

SO ORDERED this ____ day of ________________, 2008. 

 _____________________________________ 

 James Robertson, United States District Judge 

Case 1:08-cv-00248-JR Document 64-2 Filed 12/22/2008 Page 1 of 1